Zhao v He - [2020] NZHC 550

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1790

[2020] NZHC 550

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of Judge S J Maude dated 8 August 2019

BETWEEN

CHONGMING ZHAO

Appellant

AND

MU HE

Respondent

Hearing:
17 February 2020

Further submissions for the Respondent dated 28 February 2020

Appearances:

A Ashmore for the Appellant R Reed for the Respondent

Judgment:

18 March 2020

JUDGMENT OF HINTON J

This judgment was delivered by me on 18 March 2020 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:
Alex Ashmore, Barrister, Ponsonby Prestige Lawyers Limited, Auckland

ZHAO v HE [2020] NZHC 550 [18 March 2020]

[1] This is an appeal against a lengthy reserved judgment of Judge S J Maude in the Family Court at Auckland dated 8 August 2019.1

[2] The case is under the Property (Relationships) Act 1976. It is factually dense, as illustrated by the thirteen bundles of the case on appeal, and the length of the Family Court judgment, which extends to 260 paragraphs.

[3] The parties began living together in China in 2006 or 2007 and subsequently married there. They came to New Zealand in June 2012 and shortly afterwards bought a house in Milford. They separated in February 2014.

Family Court Decision

[4]Judge Maude relevantly found:

(a)the relationship property comprised the mortgage-free Milford house, a debt owed to Mr Zhao by his sister Ms Zhao (and her husband Mr Ren) of $1,200,000,2 and a sum of $400,000 “received by Mr Zhao”;3 and

(b)Mr Zhao should get no credit for a post-relationship contribution in discharging a Westpac mortgage over the Milford house.4

Grounds of Appeal

[5] The three grounds of appeal are based on alleged factual errors or errors as to whether matters were at issue namely:

(a)the finding that there was a $1,200,000 debt owed to Mr Zhao is said to be inconsistent with the evidence and to not take into account alternative explanations as to the source of the funds;

1      Zhao v He [2019] NZFC 5849.
2      All amounts are in New Zealand dollars unless otherwise stated.
3 At [252].
4      At [237] and [252].

(b)the finding that there was a cash asset of $400,000 is said to be inconsistent with the evidence and not even at issue in the case; and

(c)the Judge’s refusal to give credit for discharge of the Westpac mortgage is said to have disregarded the agreed position of the parties prior to the hearing and as a result the issue was not properly put to relevant witnesses.

Test on Appeal

[6] This appeal is brought under s 39 of the Act. The High Court Rules 2016 and ss 126-130 of the District Court Act 2016 apply as if it is an appeal brought under the general right of appeal to this Court from District Court decisions.5

[7] The appeal therefore proceeds by way…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zhao v He

Details

AGLC: Zhao v He [2020] NZHC 550
Case: [2020] NZHC 550
Decision Date: 18 March 2020

CaseChat Overview and Summary

This appeal concerns a property settlement between Chongming Zhao and Mu He under the Property (Relationships) Act 1976. The appeal is against a decision of Judge S J Maude in the Family Court dated 8 August 2019. The appellant, Mr Zhao, appeals three findings made by the Judge: (1) that a $1,200,000 debt was owed to him by his sister Ms Zhao, (2) that there was a cash asset of $400,000 received by Mr Zhao, and (3) that he should not receive credit for a post-relationship contribution in discharging a Westpac mortgage over the Milford house.

The Judge found that the $1,200,000 sum was a debt owed to Mr Zhao by his sister, rejecting the alternative explanation that the funds were derived from business and share trading in China. The Judge also found that the sum of $400,000 existed as an asset of Mr Zhao, though it was unclear from the evidence presented. Lastly, the Judge ruled that Mr Zhao should get no credit for repaying the Westpac mortgage, as the funds used were his and therefore should be treated as relationship property.

The High Court found that the Judge was entitled to conclude that the $1,200,000 sum belonged to Mr Zhao, based on his findings on credibility and other relevant factors. However, the finding of a $400,000 cash asset received by Mr Zhao was in error, as it was not an issue in the case and there was no evidence to support it. The Judge also correctly found that the funds used to repay the mortgage were Mr Zhao's and should not be credited to him.

The appeal is allowed in respect of the finding that there was a relationship property asset of "$400,000 received by Mr Zhao" but is otherwise dismissed. The appellant is entitled to costs on a 2B basis.

Orders