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Lee v Lee [2020] NZHC 2089 (18 August 2020)

Last Updated: 25 August 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 August 2020 at 5.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

.............................. Registrar/Deputy Registrar

Counsel:

T W Kwon, Barrister, Auckland Surrey Chambers, Auckland

LEE v LEE [2020] NZHC 2089 [18 August 2020]

• [1] Yang Wone Lee (“Mr Lee”) appeals against the 7 May 2020 decision of Judge B R Pidwell in the Family Court at Waitakere,¹ setting aside his protest to that Court’s jurisdiction to determine Jung Hee Lee’s (“Ms Lee”) 14 May 2019 application for orders dividing relationship property under the Property (Relationships) Act 1976.

• [2] Mr Lee accepted the Family Court has such jurisdiction under s 7 of the 1976 Act,² but asserted a Korean court was the more convenient forum for determination of the parties’ division of relationship property, which includes immovable property in New Zealand. The Judge found Mr Lee had not discharged his onus of proof for stay on grounds of forum non conveniens, and therefore set aside his protest.³

Approach on appeal

• [3] Appeals to this Court from the Family Court are general appeals conducted by way of rehearing,⁴ in which the appellant bears the onus of satisfying me I should differ from the Family Court’s decision. I only am justified in interfering with that decision if I consider the decision is wrong – in other words, the Judge erred.⁵

• [4] I then am to come to my own assessment of the merits of the case afresh, without deference to the Family Court.⁶ I may rely on the Judge’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.⁷

• [5] To the extent the decision involved exercise of the Judge’s discretion, I only may interfere with it if the appellant establishes the Judge acted on wrong principle, did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.⁸

¹ Lee v Lee [2020] NZHC 2984.

² At [21]–[22].

³ At [34].

4. Property (Relationships) Act 1996, s 39; District Court Act 2016, ss 124 and 127. There is long- standing co-ordinate dispute if leave is required to appeal against interlocutory orders made by the Family Court. Mr Lee did not seek leave; Ms Lee did not oppose the appeal on that basis. I therefore do not need to take a position on the dispute.

⁵ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

⁶ At [13].

⁷ Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

8. May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [24].

• [6] After hearing the appeal I may make any decision I think should have been made, or direct the Family Court to rehear the proceeding or consider and determine any particular matter.⁹

Relevant law

• [7] Ms Lee’s counsel, Amy Malone, argued Mr Lee’s acceptance of the Court’s jurisdiction means I could dismiss the appeal outright. That is not correct: an objection to jurisdiction encompasses claims to forum non conveniens.¹⁰

• [8] A claimant to forum non conveniens bears the burden of proof to obtain exercise of the court’s discretion to grant a stay on grounds New Zealand is not, but another country is, the most appropriate forum for trial of the proceeding:¹¹ “an appellate court will not interfere unless a material error of principle has been made”.¹²

Discussion

• [9] For Mr Lee, Tae Kwon preferred to rely on his written submissions, and materially spoke only in reply. Those written submissions do not identify any qualifying error on the part of the Judge. In reply, Mr Kwon emphasised the Judge’s failure to require Mr Lee to file any evidence, for which he now sought leave to adduce Mr Lee’s affidavit sworn 24 July 2020 and a document purporting to be Mr Lee’s petition to the Jeonju District Court in Korea dated 12 August 2020 for divorce from Ms Lee.

• [10] As is clear from the Judge’s decision,¹³ Mr Lee failed to provide any evidence to substantiate his application to set aside. Nonetheless, I may receive further evidence

⁹ Property (Relationships) Act 1976, s 39; High Court Rules 2016, r 20.19(1).

¹⁰ Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94 at [25]–[27], citing Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at [66] and [67].

¹¹ Schumacher v Summergrove Estates Ltd [2014] NZCA 412 [2014] 3 NZLR 599 at [28]–[29], citing Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL) at 465, 476 and 484–486; and Exportrade Corp v Irie Blue NZ Ltd [2013] NZCA 675, (2013) 21 PRNZ 680 at [39].

¹² Schumacher v Summergrove Estates Ltd, above n 11, at [29], citing Kacem v Bashir, above n 7, at [31]–[32].

¹³ Lee v Lee, above n 1, at [11].

on appeal, if I think it required by “the interests of justice”.¹⁴ That lies to be determined “by the application of a sequential series of tests”.¹⁵ These are if the proposed evidence is credible, fresh, and cogent.¹⁶

• [11] Mr Lee’s affidavit fails on all three counts. The affidavit does not meet the High Court Rules’ requirements for evidence as admissible at trial,¹⁷ to be “in the words of the witness and not in the words of the lawyer involved in drafting the brief”.¹⁸ Rather Mr Lee explains:

My English is not good enough to write a document in English ... . This Affidavit is written by my lawyer in accordance with my instructions. The contents of this document are explained by my lawyer to me in the Korean language so that I can understand it.

But the Rules then require a non-English language affidavit to be accompanied by that of an interpreter, providing the translation.¹⁹ Thus Mr Lee’s affidavit is not credible. Neither is it fresh, but predominantly contends for the parties’ continuing relationship at least until May 2019. Nor is it cogent, as none of that has any materiality to the issue before me. To the extent the affidavit has any materiality, it is only to confirm the parties’ relevant connections with New Zealand. The contended ‘petition’ has no evidential standing at all. I will not grant leave for their admission as further evidence on this appeal.

• [12] Mr Lee’s complaint – the Judge failed to require him to file evidence – illustrates his disregard for the burden of proof resting on him. The complaint resonates throughout his notice of appeal, which appears to anticipate the Family Court was to “direct parties to produce relevant evidence”, and criticises the court for “jump[ing] over all steps and rush[ing] into hearing of submissions only to decide the jurisdiction issue”.

14. Property (Relationships) Act 1976, s 39B(3)(b); High Court Rules 2016, r 20.16; and see Hodgson v Hodgson [2015] NZCA 404, [2015] NZFLR 979 at [37].

¹⁵ Lundy v R [2013] UKPC 28 at [120].

16. Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34], endorsing R v Bain [2003] NZCA 294; [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22] and [26].

¹⁷ High Court Rules 2016, r 9.76(d)(i).

¹⁸ Rule 9.7(4)(b).

¹⁹ Rule 1.15.

• [13] That is the essential error claimed by Mr Lee against the Judge – that she erred “in the law of procedure by making decisions as to the material facts without properly produced, contested, and accepted evidence”, and “in the substantive law relating to the determination of forum non conveniens”. Mr Kwon’s written submissions, however, identify no such errors on the Judge’s part. Instead, they simply urge me to come to a different view than that taken by the Judge. They also do so on the basis of Mr Kwon’s unsubstantiated assertions as to Korean law, which I disregard.

• [14] The Judge’s decision precisely considered the substantive subject matter’s “real and significant connection” to a Korean court,²⁰ to conclude there was none.²¹ Her fundamental reason was “the predominant items of property are in New Zealand, including [that] in which [Mr Lee] lives”. She doubted any Court outside New Zealand had jurisdiction to order division or sale of that property, in which Ms Lee claims a share.²² That is exactly the test to be applied in principle,²³ in the application of which the Judge addressed only relevant matters and took into account no irrelevant matters, and cannot be said to be wrong at all. For the same reasons, I would come to the same conclusion. I therefore will dismiss the appeal.

Result

• [15] I:

(a) refuse Mr Lee leave to adduce his affidavit sworn 24 July 2020; and

(b) dismiss his appeal against the Family Court decision dated 7 May 2020.

Costs

• [16] In my preliminary view, as the successful party, Ms Lee is entitled to 2B costs and disbursements. That is because, so far as I can tell, no step on this averagely complex appeal required other than a normal amount of time. If that is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on

²⁰ Lee v Lee, above n 1, at [24]–[25].

²¹ At [30].

²² At [33].

²³ Schumacher v Summergrove Estates Ltd, above n 11, at [29(c)].

short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by Ms Lee within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.

—Jagose J