WANG v MA [2020] NZCA 21

WANG v MA [2020] NZCA 21 [21 February 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA441/2019[2020] NZCA 21BETWEEN ZENGYUN WANGApplicantAND GUOLIANG MARespondentCourt: Collins and Goddard JJCounsel: Applicant in personJ A Wickes for RespondentJudgment:(On the papers)21 February 2020 at 12.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The respondent is entitled to costs for a standard application on a band Abasis plus disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Ms Wang seeks leave to appeal a decision of the High Court, in whichWoolford J dismissed an appeal by Ms Wang from a decision of the Family Court atAuckland.1 In the Family Court judgment, Judge Parsons dismissed Ms Wang's1 Wang v Ma [2019] NZHC 1821 [High Court appeal judgment].application for leave to bring proceedings out of time underthe Property (Relationships) Act 1976 (the Act).2 Woolford J later declinedMs Wang's application for leave to appeal to this Court.3Background[2] Ms Wang, who represents herself, married Mr Ma in China in March 1988.They separated in 2005. By this time the parties had property interests in New Zealandand China. The parties' marriage was dissolved in China on 26 March 2007, afterwhich Mr Ma remarried. Ms Wang has also since remarried. Agreements as tothe division of relationship property were reached in 2005 and 2007.[3] On 23 March 2017 Ms Wang applied to the Family Court at Auckland for leaveto pursue orders concerning the allocation of relationship property. Ms Wang'sapplication was made under s 24 of the Act. It alleged that she had been coerced intosigning the property agreements.[4] Section 24(1)(a) states that applications under the Act must be brought no laterthan one year after a dissolution of marriage is granted. The Family Court can extendtime for commencing an application under s 24 of the Act after considering:4(a) the lapse of time between the expiration of the time limit set out inthe Act, and the bringing of the application;(b) the reasons for the delay;(c) the merits of the case; and(d) any prejudice to the respondent.[5] Judge Parsons was satisfied Ms Wang had not adequately explained herextensive delay in bringing her application and that there was no merit in her case.2 Wang v Ma [2018] NZFC 7198 [Family Court judgment].3 Wang v Ma [2019] NZHC 1699 [High Court leave judgment].4 Beuker v Beuker (1977) 1 MPC 20 (SC) at 21.In dismissing Ms Wang's application, the Family Court Judge also said that Mr Mawould be unreasonably prejudiced by allowing Ms Wang to contest the division ofthe property after this lengthy delay.5[6] When dismissing Ms Wang's appeal from the Family Court judgment,Woolford J applied the leave criteria set out in Beuker v Beuker.6 He also concludedthat the decision Ms Wang wished to appeal involved the exercise of judicialdiscretion. Applying the criteria for determining whether a discretionary decision canbe impugned, Woolford J concluded that the Family Court judgment was based oncorrect principles, took into account relevant considerations and was not based uponirrelevant factors.7 Nor was the Family Court decision plainly wrong.[7] In his leave judgment, Woolford J observed that Ms Wang had filed herapplication for leave to appeal out of time but that, more importantly, she had failed tosatisfy the criteria for leave to bring a second appeal.8[8] Ms Wang's appeal is governed by the Senior Courts Act 2016.9 Section 60(1)of that Act provides that a decision of the High Court determining an appeal fromthe Family Court will be final, unless a party obtains leave for a second appeal. Beforeleave can be granted, the applicant must demonstrate the proposed appeal raisesa question of law or fact that engages serious argument and involves sufficientimportant public or private interests to outweigh the cost and delay of a furtherappeal.10[9] Ms Wang's application for leave to appeal to this Court was filed one day outof time.11 An extension of time was, however, granted by a Deputy Registrar pursuantto r 5A(1)(c)(ii) of the Court of Appeal (Civil) Rules 2005.5 Family Court judgment, above n 2, at [57]–[58].6 Beuker v Beuker, above n 4.7 High Court appeal judgment, above n 1, at [42]–[43].8 High Court leave judgment, above n 3, at [6].9 Pursuant to the Property (Relationships) Act 1976, s 39B.10 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.11 Court of Appeal (Civil) Rules 2005, r 14(2)(b).Grounds of application[10] Ms Wang identifies the following factors which she says justifies us grantingher application for leave to appeal to this Court:(a) the High Court Judge wrongly declined to admit "fresh" evidence,which Ms Wang says addresses factual errors in the Family Courtjudgment;(b) there are factual errors in the judgments of the Court below, whichshould be corrected;(c) the Court below focused too much on bringing finality to the disputerather than addressing the justice of the case. There were explanationsfor her delays, which were not adequately considered; and(d) as a consequence, the division of relationship property betweenMs Wang and Mr Ma was unfair and resulted in Mr Ma obtaininga greater share of the property than he was entitled to receive.Analysis[11] Ms Wang has not established that her case involves a seriously arguablequestion of fact or law that justifies this Court granting leave to enable her to pursueher proposed appeal. In particular:(a) The Court below correctly applied the criteria in Beuker v Beuker, whenconcluding that Ms Wang should not be granted leave under s 24 ofthe Act to pursue her application to set aside the agreements governingthe allocation of the parties' relationship property.(b) We are not satisfied that there is any basis to interfere with the waythe Family Court exercised its discretion under s 24 of the Act.[12] We appreciate that Ms Wang's concerns are important to her, but that is notthe test for leave being granted by this Court under s 60 of the Senior Courts Act.Ms Wang's proposed appeal does not involve any issue of public or private importancethat justifies the cost and delay that would be associated with a further appeal.[13] The judgments of the Court below involved the orthodox application ofwell-established principles and do not warrant leave being granted to Ms Wang topursue her proposed second appeal.Result[14] The application for leave to appeal is declined.[15] Mr Ma, who is represented, is entitled to costs for a standard application ona band A basis plus disbursements.Solicitors:Loo & Koo, Auckland for Respondent