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…
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- Zhou v Yue [2019] NZHC 2167
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- [2019] NZHC 2167
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CaseChat Overview and Summary
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.
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Background
Background to the litigation
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Evidence Before The Court
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Decision
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