CHIEN-JEN SU v FEN LAN LIN [2001] NZCA 145 (7 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 177/00

	between	Chien-jen su
		Appellant

	and	fen lan lin
		Respondent

Hearing:	23 April 2001
Coram:	Thomas J Keith J Blanchard J
Appearances:	Appellant appears in person
	J P McCarthy for Respondent
Judgment:	7 May 2001

judgment of the court delivered by Thomas J

[1] The appellant, Mr Su, applied for an extension of time in relation to an appeal concerning a matrimonial property dispute. The respondent, Ms Lin, opposed the application.

[2] Ms Lin and Mr Su were married in Taiwan in 1980.There are two children of the marriage, now aged 19 and 15. The family came to New Zealand in July 1994. Prior to this, Ms Lin had formally accused Mr Su of adultery, a criminal offence in Taiwan. On arrival in New Zealand, the family settled in Christchurch and lived in rental accommodation.At the end of July, Ms Lin returned to Taiwan to attend to various outstanding matters, including the withdrawal of her accusation of adultery. In October, while Ms Lin was away from New Zealand, Mr Su purchased a house in Waimairi Road, Christchurch. In January 1995 when Ms Lin returned to New Zealand, Mr Su refused to allow her to enter the house.

[3] The parties separated, and a proceeding under the Matrimonial Property Act 1976 was filed in November 1995.The proceeding was heard in the High Court on 12, 13 and 14 June 2000.Panckhurst J held that the Waimairi Road property was the matrimonial home, but that an investment fund of $300,000.00 invested by Mr Su on 27 October 1992 was borrowed money rather than a matrimonial asset. Other matrimonial assets were a car and Taiwanese bank accounts totalling $121,000.00.

[4] On 24 August 2000, Mr Su filed a notice of appeal against that determination, alleging that the High Court incorrectly classified various items of property as matrimonial property.He sought leave to adduce further evidence on appeal.

[5] On 20 December 2000, Mr Suwas informed by the Court that Rule 10 of the Court of Appeal (Civil) Rules 1997 would shortly apply in relation to the appeal. Rule 10 requires that, within 6 months of the appeal being brought, either a fixture is applied for and a case on appeal is filed, or an application for an extension of time is made. On 15 February 2001, the Court received a letter from Mr Su seeking an extension of time of six weeks.

[6] In this Court, Mr Su appeared for himself.The Court arranged for an interpreter to assist him.Mr Su submitted that an extension of time was justified because he has difficulty understanding English and, his legal aid having been withdrawn, he could not afford legal representation.

[7] Mr McCarthy argued for Ms Lin that the substantive appeal had been abandoned pursuant to Rule 10.He contended that no application had been made for a fixture, no case on appeal had been filed, and no application for extension of time had been made. In the alternative, it was argued that the discretionary relief provided for in Rule 10(2) should be refused.

[8] Mr McCarthy urged that two issues raised by the appellant in the substantive appeal were relevant to the Court's exercise of its discretion in relation to the application for an extension of time. These issues were the ownership of the Taiwanese bank accounts and the equity in the house. Mr McCarthy submitted that the admission of new evidence in relation to the house property and bank accounts would require substantive re-argument of the case and that, although Mr Su had every opportunity to produce this evidence before the High Court when he was represented by counsel, he had not done so.Mr McCarthy also contended that in general a dominant feature of this case had beennon-disclosure and `stonewalling' by the appellant.

[9] It was further submitted by Mr McCarthy that Mr Su's allegation of poor financial circumstances was contradicted by the findings in the High Court and the subsequent withdrawal of his legal aid.He therefore contended that no allowance should be made for Mr Su by reason of his alleged poor financial circumstances.

[10] The law in relation to Rule 10 was set out inAirwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29.Blanchard J stated (at 30) that Rule 10 implements the philosophy that once a matter has been the subject of a determination in the High Court, any party wishing to challenge that determination by an appeal to this Court must do so expeditiously or forfeit the right to pursue the appeal. The Judge went on to say that sometimes there may be good reason to give an appellant a longer period to prepare for the hearing of the appeal. Where an application has been made within the six-month period allotted by Rule 10, the Court is satisfied that there is sound reason for allowing further time, and the appeal is not devoid of merit, the Court will, as a matter of normal practice, grant the extension.

[11] We accept that in this case an application for an extension of time was lodged within six months.We do not accept, however, that there is any good reason to allow Mr Su a longer time for the preparation of the appeal. Mr Su seeks to reargue factual matters which have already been comprehensively considered in the Court below.Panckhurst J, after a three day trial in the High Court, expressed doubts about the credibility and honesty of Mr Su as a witness and was of the opinion that he had deliberately refrained from providing evidence which would shed light on the asset position of the family in Taiwan before immigrating to New Zealand. He preferred the evidence of Ms Lin in many respects.

[12] For these reasons we consider the substantive appeal to bewithout merit and refuse the application for an extension of time.The appeal is accordingly treated as abandoned.Costs are awarded to the respondent in the sum of $2,500, together with disbursements and travelling expenses as, failing agreement, are to be fixed by the Registrar.

Solicitors

A J Newman & Associates, Christchurch for Respondent