Zhou v Lassnig - [2023] NZHC 714

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000738

[2023] NZHC 714

BETWEEN
QIAN ZHOU

Applicant

AND

BARTHOLOMAEUS ROLAND LASSNIG

First Respondent

QIAN ZHOU and BARTHOLOMAEUS

ROLAND LASSNIG as trustees of the Lassnig Family Trust

Second Respondent

Hearing: 28 March 2023 (by telephone)

Appearances:

S Wilson for Applicant P Chan for Respondent

Judgment:

3 April 2023

JUDGMENT OF VENNING J

Re Stay

This judgment was delivered by me on 3 April 2023 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Ayres Legal, Auckland
Affordable Law Ltd, Auckland

Counsel:V Crawshaw KC/L La Mantia/S Wilson, Auckland P Chan, Auckland

ZHOU v LASSNIG [2023] NZHC 714 [3 April 2023]

[1] In a judgment delivered on 30 September 20221 the Court allowed Qian Zhou’s appeal against the decision of Judge Maude in the Family Court.2 The Family Court had directed that the Lassnig Family Trust net assets were to be resettled on a 50/50 division between the parties. This Court replaced that decision determining instead that division was to occur on a 60/40 basis in favour of Ms Zhou.

[2] Ms Zhou sought leave to appeal to the Court of Appeal. Rather than the 60/40 division of the Trust assets ordered by the Court she seeks a 90/10 division in her favour. In the event Ms Zhou’s application for leave was granted, Mr Lassnig sought leave to cross-appeal.

[3]The Court of Appeal recently granted leave on both applications.

[4] Pending determination of the substantive appeal Ms Zhou seeks a stay of execution of this Court’s decision. The Court had allocated 9.00 am, 28 March 2023 to hear her application for stay. On 27 March 2023 counsel for Ms Zhou sought an adjournment of that hearing to enable her to take further instructions from Ms Zhou. Ms Wilson repeated that application at the outset of the teleconference hearing. Mr Chan opposed it. I declined the application for adjournment. The Court had allocated the hearing on the basis the Court of Appeal decision on the leave application would be available, which it was. It is Ms Zhou’s application and she should have been in a position to advance it. The Court could not accommodate another hearing until the end of April. Mr Lassnig is entitled to some certainty on the application. For those reasons I declined the application for stay but delayed delivery of this judgment to give Ms Zhou and her advisers time to try and resolve a consent position with Mr Lassnig’s advisers as Ms Wilson suggested.

[5] The application for stay is made under r 12 of the Court of Appeal (Civil) Rules 2005. Pending determination of the application for leave to appeal or appeal this Court (or the Court of Appeal) may order a stay of the proceeding or otherwise grant any interim relief. In New Zealand Insulators Ltd v ABB Ltd the Court of Appeal approved

1 Zhou v Lassnig [2022] NZHC…

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 Zhou v Lassnig

Details

AGLC: Zhou v Lassnig [2023] NZHC 714
Case: [2023] NZHC 714
Decision Date: 3 April 2023

CaseChat Overview and Summary

In the case of Zhou v Lassnig, the High Court was called upon to decide whether to grant a stay of execution of its earlier decision regarding the division of assets between the parties. Qian Zhou sought a stay pending her appeal to the Court of Appeal against the 60/40 division of the Lassnig Family Trust net assets, which the High Court had determined in her favour. Bartholomaeus Roland Lassnig, the first respondent, opposed the application for a stay and sought to be allowed to sell one of the Trust properties to satisfy his entitlement. The legal issues before the court included whether the appeal may be rendered nugatory, the bona fides of the applicant, the effect on the successful party, and the overall balance of convenience.

The Court of Appeal had already granted leave on both Ms Zhou's appeal and Mr Lassnig's cross-appeal. In considering the application for a stay, the Court noted that if the judgment was executed immediately, both Trust properties would need to be sold. However, Ms Zhou was unable to provide evidence that she could not raise further bank finance to meet the shortfall, and there was no evidence Mr Lassnig could provide adequate surety to repay any distribution if paid 40 per cent of the net equity of the Trust before the leave application and appeal were determined and the applicant was ultimately successful. The Court found that the overall balance of convenience favoured Mr Lassnig receiving at least part of the Trust assets.

The Court granted the application for a stay on terms, allowing Mr Lassnig to pursue orders for the sale of the Jack Barry Road property in the Family Court. From the net proceeds of sale of the Jack Barry Road property, Mr Lassnig was to be paid the sum of $406,000 together with his capital contribution of $290,000. Any balance of the net proceeds of sale after the payments was to be held in a solicitor's account pending further order of the Court. Costs were to lie where they fell on the application.

Orders