Zhou v Yue - [2019] NZHC 2167

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2808

[2019] NZHC 2167

BETWEEN
WEN ZHOU

Plaintiff

AND

WEIHANG YUE

Defendant

Hearing: 9 August 2019

Appearances:

A Brown for the Plaintiff

D Zhang and E Tie for the Defendant

Judgment:

2 October 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 2 October 2019 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
K3 Legal Ltd, Auckland Amicus Law, Auckland

ZHOU v YUE [2019] NZHC 2167 [2 October 2019]

[1] In this proceeding, the defendant (Tony) applies for an order dismissing or staying the claims made against him by the plaintiff (Mr Zhou). Tony says that the issues in the proceeding are already the subject of a proceeding (the Family Court proceeding) in the Family Court at Auckland under the Property (Relationships) Act 1976 (the PRA), and it was an abuse of process for Mr Zhou to commence this proceeding.

[2] The proceeding in this Court relates to a property in Blockhouse Bay Road, Auckland (the Blockhouse property), which was subdivided into three lots. One of the lots (Lot C) is held in the joint names of the parties. Mr Zhou contends that Tony holds his one half share of Lot C on trust for Mr Zhou, or that the terms of an oral contract require Tony to transfer his one half share to Mr Zhou. Tony disagrees. He says that he is the beneficial owner of the one half share in Lot C that is registered in his name, subject only to relationship property claims between him and his estranged wife Bonnie, that are still to be resolved in the Family Court proceeding.

[3] Bonnie is Mr Zhou's daughter. She and Tony were married, but their relationship, which began around September 2011, ended in or about January 2017. Bonnie commenced the Family Court proceeding in May 2017, seeking a division of the relationship property. The Family Court proceeding remains pending in the Family Court at Auckland.

[4] Mr Zhou filed the present proceeding in December 2018. In it, he seeks an order vesting Tony's share in Lot C in him. Tony filed a statement of defence in this proceeding on 1 March 2019.

[5] On 26 July 2019 Tony filed the application for orders dismissing or staying the proceeding. That application is opposed by Mr Zhou.

[6]I now give judgment on Tony's dismissal/stay application.

Background

[7] Tony and Bonnie initially lived in an apartment in Hobson Street, Auckland (the Hobson Street apartment). When that property became too small for their needs,

Tony, Bonnie, and Mr Zhou purchased the Blockhouse property. They subdivided the Blockhouse property, and built a new home on Lot C. Lots A and B were sold. When the new dwelling on Lot C was largely completed in mid-2015, Tony, Bonnie, Mr Zhou and his wife all began living in it.

[8] When Tony and Bonnie…

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 Yue

Details

AGLC: Zhou v Yue [2019] NZHC 2167
Case: [2019] NZHC 2167
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the High Court proceeding between Wen Zhou and Weihang Yue, Zhou seeks to have Yue's half share of a property in Blockhouse Bay Road, Auckland, vested in him. Yue argues that the Family Court has exclusive jurisdiction over the matter and that Zhou's proceeding constitutes an abuse of process. Zhou contends that the Family Court lacks jurisdiction to make the orders he seeks, and that he is entitled to pursue his own proceeding. The court found that the Family Court has jurisdiction to determine the ownership of the property and that Zhou's proceeding was an abuse of process. The proceeding is stayed pending the determination of the Family Court proceeding. Yue is awarded costs on a 2B basis.

The court considered the jurisdiction of the Family Court under the Property (Relationships) Act 1976 (PRA) to make orders relating to third party property, and found that the Family Court has jurisdiction to determine whether Zhou holds an interest in the property in question. The court held that the Family Court has the authority to make orders against third parties under s 33(3)(e) and (j) of the PRA, and that the ancillary powers of the court extend to the partition or vesting of property jointly owned by a party and a third party.

The court found that Zhou's proceeding was an abuse of process because the same issue of ownership of the property had already been raised in the Family Court proceeding. The court noted that the Family Court has exclusive jurisdiction to adjudicate matters under the PRA, and that the issues raised by Zhou in this Court are already in issue in the Family Court proceeding. The court held that adjudicating the same matter in two different courts would be a waste of the resources of the court system and could lead to the undesirable outcome of inconsistent findings.

The court considered the appropriate remedy for the abuse of process and found that a stay of the proceeding was more appropriate than a strike-out. The court held that a stay order is more appropriate because one conceivable outcome of the Family Court proceeding (insofar as it affects ownership of the property) is that the Family Court might decide that Zhou did not acquire an interest in the property, but leave open the possibility that he may have lent the money to Yue and Bonnie. In those circumstances, Zhou would have a claim against Yue and Bonnie that the Family Court could not determine, and there might be some future utility in Zhou's breach of contract claim in this proceeding (albeit that amendment would be required). The court held that the proceeding should be stayed pending the determination of questions of ownership of the property in the Family Court at Auckland, in proceeding FAM-2017-004-249.

Orders