WU v LI [2021] NZCA 490

WU v LI [2021] NZCA 490 [27 September 2021]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,11C AND 11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA266/2021[2021] NZCA 490BETWEEN YI HENG WUApplicantAND ZHAOHUA LIRespondentCourt: Brown and Collins JJCounsel: Applicant in personA M Corry for RespondentJudgment:(On the papers)27 September 2021 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time is declined.B The applicant must pay the respondent costs for a standard application ona band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 27 September 2019, the High Court delivered a judgment concerning arelationship property dispute between Ms Li, Mr Wu and Mr Wu's mother, Ms Fan.1[2] On 1 December 2020, Ms Fan and Mr Wu filed in this Court applications underr 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an order extendingtime to appeal the High Court judgment and a related High Court order respectively.Both applications were dismissed.2 An application for leave to appeal this Court'sjudgment was dismissed by the Supreme Court.3[3] On 10 May 2021, Mr Wu filed a further application for orders extending timeto file an appeal from the High Court judgment.Basis of application[4] Mr Wu, who is no longer represented by a lawyer, advances four grounds forthe current application:(a) The copy of the High Court judgment he received on 27 September2019 was not sealed or signed. A sealed judgment was not served onMr Wu until 17 November 2020. Mr Wu filed a notice of appeal at thattime only to be informed that time for appealing began to run from27 September 2019.(b) The High Court judgment wrongly decided the home he and Ms Lilived in was relationship property. He argues the home was owned byMs Fan before Mr Wu and Ms Li married and was therefore nevercapable of being relationship property.1 Li v Wu [2019] NZHC 2461 (the High Court judgment).2 Wu v Li [2021] NZCA 137 (the Court of Appeal judgment).3 Fan v Wu [2021] NZSC 67 (the Supreme Court judgment).(c) The High Court judgment failed to have regard to Ms Li spending aboutone-third of her income during the course of her marriage to Mr Wu.(d) The overall interests of justice require this Court to hear Mr Wu'sappeal because of the amount of money he and Ms Fan have allegedlyspent on the litigation.Governing principles[5] In Almond v Read,4 the Supreme Court explained the factors that are likely tobe engaged when considering an application under r 29A of the Rules. Those factorsinclude:5(a) the length of the delay;(b) the reasons for the delay;(c) the conduct of the parties, particularly the applicant;(d) any prejudice or hardship to the respondent or to others with alegitimate interest in the outcome;(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally; and(f) in some limited cases the merits of the proposed appeal.Analysis[6] The current application was filed almost 19 months after the High Courtjudgment was delivered. That is a long delay which weighs against the granting of theapplication.4 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.5 At [38]–[39].[7] Mr Wu says his delay is due to his lack of appreciation of the time limits in theRules. That explanation is, however, difficult to reconcile with the followingparagraphs in Mr Wu's submissions in related proceedings before this Court:2. I have in fact sought [legal] aid many times, but unfortunatelynever found them to be helpful.3. After the unsealed judgment was received, I expressed to my lawyerI do not agree with the judgment. However, my lawyer told me donot appeal, and was unwilling to tell me how to appeal.Therefore, Mr Wu's explanation for his delay is not persuasive.[8] Mr Wu's conduct is also not a factor that assists him. He is engaged inunreasonable delays and appears to have rejected legal advice concerning the meritsof his arguments.[9] Ms Li is entitled to have this litigation brought to an end. Her marriage toMr Wu concluded in 2013. The relationship property dispute was accurately describedin the High Court judgment as being "acrimonious", and by any assessment, the partieshave spent significant time and sums of money in advancing their respective positions.Prolonging this litigation further will cause unnecessary hardship and prejudice toMs Li.[10] Nothing of significance is raised by the proposed appeal. Indeed, the argumentthat the house lived in by Mr Wu and Ms Li was not relationship property ignoress 8(1) of the Property (Relationships) Act 1976, which provides that the family homeis relationship property "whenever acquired".[11] None of the grounds put forward by Mr Wu in support of the application arepersuasive.Result[12] The application for an extension of time in which to appeal is declined.[13] The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.Solicitors:Lincoln Law, Lincoln for Respondent