MANDEL ZHANG V FEI FEI FANG COA CA199/2011

MANDEL ZHANG V FEI FEI FANG COA CA199/2011 21 June 2011NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B TO 11D OF THE FAMILY COURTS ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDCA199/2011[2011] NZCA 277BETWEEN MANDEL ZHANGApplicantAND FEI FEI FANGRespondentHearing: 14 June 2011Court: Chambers, Ellen France and Stevens JJCounsel: No appearance on behalf of ApplicantG P Curry and J J Greenleaf for RespondentJudgment: 21 June 2011 at 10:00 AMJUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] This is an application for leave to appeal against two judgments of the High Court. The first is a judgment of Cooper J (the interlocutory judgment),1 in which he dismissed an application for specific discovery and leave to file new evidence . The second is a judgment of Rodney Hansen J (the substantive judgment) in which he dismissed the substantive appeal2 from the Family Court, in which the Judge had held that the parties lived in a de facto relationship from 1 June 2004 until 17 October 2007.3 The applicant subsequently sought leave from the High Court to appeal to this Court against both High Court decisions. The application was dismissed by Rodney Hansen J (the leave judgment).4[2] In the leave judgment, the Judge applied the established test for the grant of leave to appeal.5 The Judge held:6[8] I accept Mr Curry's submission that there are insurmountablehurdles to the grant of leave. First, Mr Z has failed to satisfy me that there is any question of law or fact capable of bona fide and serious argument. There were concurrent findings of fact in the Family Court and this Court. In both courts the required statutory factors were weighed and applied in accordance with the approach sanctioned in numerous authorities. Notwithstanding the careful arguments of Mr Z, I am not persuaded that there has been any error of fact or law shown to have been made. Furthermore, such errors as are argued to have been made do not involve an interest of a public or private nature of sufficient importance to outweigh the cost and delay of a further appeal. It is high time that the parties proceeded to have the remaining substantive issues raised by the proceeding heard and determined in the Family Court.[3] Having been refused leave by the High Court, the applicant has now sought leave from this Court to appeal against both of the High Court judgments.7 We will deal first with the substantive judgment and then with the interlocutory judgment.1 Zhang v Fang HC Auckland CIV-2010-404-1424, 2 November 2010.2 Zhang v Fang HC Auckland CIV-2010-404-1424, 10 December 2010.3 Fang v Zhang FC North Shore FAM-2007-044-2379, 2 February 2010.4 Z v F HC Auckland CIV-2010-404-1424, 9 March 2011.5 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.6 At [8].7 Pursuant to s 67(2) of the Judicature Act 1908.[4] Mr Zhang was not available to appear at the hearing. He did not seek an adjournment and was content for the case to proceed on the basis of his detailed written submissions.Grounds of appealSubstantive judgment[5] With respect to the substantive judgment, the applicant submits that the High Court was wrong in fact and law to rule that the parties lived in a de facto relationship during the relevant time. This is because the Judge failed to take into account certain documentary evidence with the result that he erred in his factual findings. The applicant also submits that the Judge was wrong to uphold the findings of the Family Court Judge in relation to witness credibility. Further, the applicant submits that certain highly relevant precedents were inadequately distinguished and ought to have been taken into account.[6] For the respondent, counsel submits that, following a four day hearing in the Family Court and a two day hearing in the High Court, the parties were found to be living as a couple from 1 June 2004 until 17 October 2007. The assessment of whether the parties were in a de facto relationship was made following a careful evaluation of the evidence in the light of the applicable statutory factors in s 2D(2) of the Property (Relationships) Act 1976. Both the Family Court and the High Court judges assessed the evidence against the relevant factors and made concurrent findings of fact. In particular, the High Court Judge applied the law correctly to the facts. The application for leave identifies no issues of general or public importance.Interlocutory judgment[7] With respect to the interlocutory judgment, the applicant submits that the hearing before Cooper J on 2 November 2010 (an appeals callover) was indicated in the correspondence to be for the purpose of confirming a hearing. Thus the applicant did not bring an interpreter to Court that day. But the Judge nevertheless decided that the interlocutory applications should be heard immediately because any delaywould put the fixture for the appeal (set for two days starting on 30 November 2010) in jeopardy. The applicant submits he made it clear that he did not wish to proceed with the hearing of the two interlocutory applications at that time. He claims that he was insufficiently proficient in English to proceed without the services of an interpreter. Having been forced to argue the two applications himself, without the assistance of an interpreter, meant that the applicant was prejudiced. Moreover, the two applications ought to have been granted by the Judge in any event.[8] The respondent submits that the Judge was correct to decide the two applications on 2 November 2010. Had the applications not been heard at that time, it was likely that the substantive hearing would have had to be vacated. Cooper J was correct to conclude that any further delay would not have been in the interests of justice. The respondent supports the conclusion of Cooper J that "Mr Zhang was sufficiently proficient in the English language for him to be able to argue theapplications".8 The respondent also relies on the conclusion of Judge Neal in the Family Court,9 when he stated that "although Mr Zhang has applied for anadjournment of this, he has been very able to explain in English his opposition to an order for substituted service and indicate that his sister should be served personally".[9] Counsel for the respondent further observes that, although the applicant had access to an interpreter at the substantive hearing, he did not use the interpreter at all times.Applicable legal principles[10] In the case involving a second appeal under s 67 of the Judicature Act 1908, the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal. The requirements for a second appeal were established by this Court in Waller v Hider as follows:108 The interlocutory judgment at [3].9 Fang v Zhang FC North Shore FAM-2007-044-2379, 7 August 2008.10 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.Notwithstanding frequent reminders of the test, applications continue to be made which have little or no prospect of success. Counsel are of course to be commended for making all reasonable efforts to advance the cause of their clients but after a first appeal they must draw back and appraise the state of the case dispassionately, asking whether in truth the disputed matter contains the requisite element of sufficient importance. The scarce time and resources of the High Court and of this Court are not to be wasted, nor additional expense for an unsuccessful client incurred without realistic hope of benefit.Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance.Discussion[11] With respect to the substantive judgment, we agree with the conclusions of Rodney Hansen J summarised in the passage quoted at [2] above. We are satisfied that there is no question of law or fact capable of bona fide and serious argument on appeal. As to findings of fact in the Family Court and the High Court, there are concurrent findings made against the applicant. Both the Family and High Courts applied the correct statutory factors to the facts as found. We agree with counsel for the respondent that the assessment of whether the parties were in a de facto relationship was made following a careful evaluation of the evidence applying the correct legal test. Even if we had identified an error of fact and law, we are satisfied that any such error would not have qualified as meeting the test of being of general or public importance.[12] With respect to the interlocutory judgment, we note that the first issue considered by Cooper J concerned an application for specific discovery. It related totwo documents, both of which the respondent's counsel explains were later admittedby consent in the High Court. The evidence of the respondent in the Family Court was consistent with the contents of the documents concerned. The point therefore falls away.[13] With respect to the application for leave to file new evidence, in the leave judgment Rodney Hansen J observed that the matters dealt with "were ancillary and not open to appeal".11 We agree with that assessment. This Court has held that such ancillary matters are not the subject of separate appeal.12 An interlocutory matter that does not affect the substantive rights and liabilities of the parties requires exceptional circumstances before such an interlocutory matter might be amenable to appeal.13[14] The applicant has placed reliance on a quotation from a minute issued by this Court.14 We are satisfied that the minute did not intend to convey that there was a right to appeal the interlocutory judgment. Whether this Court would entertain an appeal in respect of interlocutory or ancillary matters would require compliance with the principles referred to above. In other words, it would still be necessary for the grounds, including exceptional circumstances, to be made out.Result[15] The application for leave to appeal fails in respect of both the substantive judgment and the interlocutory judgment. The application must therefore be dismissed.[16] As to costs, the applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.Solicitors:Russell McVeagh, Auckland for Respondent11 At [11].12 Murphy v Murphy [1989] 1 NZLR 204 (CA) at 206.13 See Allen v Allen [2007] NZCA 555 at [7].14 Minute of Arnold J dated 25 November 2010 dealing with an attempt by the applicant to file anappeal against the interlocutory applications. The minute stated: "This should not be acceptedfor filing. If the substantive appeal to the High Court fails, the appellant can raise these issueson any appeal to this Court."