



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Leung v. Yung,









2017 BCCA 35




Date: 20170117

Docket:
CA43278

Between:

Tsui Yu Leung

Appellant

(Claimant)

And

Kapo Yung also
known as Ka Po Yung
and Menno Leendert Vos

Respondents

(Respondents)

Corrected
Judgment: The front cover was corrected on February 14, 2017.




Before:



The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Harris

The Honourable Madam Justice Dickson




On appeal from: An order
of the Supreme Court of British Columbia, dated
October 29, 2015 (
Leung v. Yung
, 2015 BCSC 2434, Vancouver Registry
E120389).

Oral Reasons for Judgment




The Appellant appeared in person:



T.Y. Leung





Counsel for the Respondent, Menno Leendert Vos:



J.W. Bilawich





Place and Date of Hearing:



Vancouver, British
  Columbia

January 17, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 17, 2017








Summary:

Ms. Leung appealed a
decision concluding that a judgment registered against property alleged to be
family property had priority over any interest she may have had in the property
because the judgment was registered before her interest arose, but in any
event, the judgment was a family debt to be taken into account in the
apportionment of property between the spouses.  Appeal dismissed. 
The judge applied the correct principles to the facts.

[1]

HARRIS J.A.
:  Ms. Leung appeals from an order in a family
action which dismissed her claim to an interest related to two properties in
British Columbia. Her claim was made under the
Family Relations Act
, R.S.B.C.
1996, c. 128 [the
Act
]. Ms. Leung claimed the properties were
family assets in which she had an interest under that
Act
.

[2]

The first claim was to 50% of the net proceeds paid into court from the
sale of a leasehold property in Richmond which was registered in the name of Mr. Yung,
her former husband. The leasehold interest had originally been in the name of Ms. Leung,
although purchased by Mr. Yung, and was transferred back to her husband for
$1 in 2001, the day before she was declared bankrupt in Hong Kong. The second
claim was to a 50 percent interest in a condominium property in Vancouver,
which is registered in the name of Mr. Yung, but which she occupied at the
time of the application, with the two adult children of the marriage.

[3]

The trial judge summarized the proceedings as follows (paras. 2‑6):

Ms. Leungs original notice of family claim was filed in
February 2012 in which she sought relief under the
Family Relations Act
,
R.S.B.C. 1996, c. 128. Her amended family claim in February 2012 was
also under the
Family Relations Act
, as was her further amended family
claim of May 27, 2013.

Her second further amended notice of family claim filed
June 25, 2015 appears to seek relief under the
Family Law Act
,
S.B.C. 2011, c. 25.

Mr. Yung filed a response to the amended claim in which
he opposed Ms. Leung's property claims for an equal division, and
counterclaimed for an unequal division of family property and debts under the
Family
Relations Act
.

Ms. Leung did not respond to the counterclaim.

Dr. Vos was added as a
respondent to the action by court order and opposed the property claim sought
by Ms. Leung.

[4]

Complicating the application was the fact that Dr. Vos is a
judgment creditor of Mr. Yung for a large amount of money that
significantly exceeds the value of the money in court and the condominium. He
claimed to be entitled to payment out of the remaining moneys in court and to
priority over any interest of Ms. Leung in the condominium because he had
registered both a certificate of pending litigation against the condominium properties
and a BC judgment enforcing a Hong Kong judgment against Mr. Yung before
the order of divorce was made. Dr. Vos also has a judgment against Ms. Leung
in the same Hong Kong proceedings, though that judgment is irrelevant to the
appeal and to the judgment below. The judge summarized the situation (paras. 38‑40):

On June 14, 2012 this court made an order that Mr. Yung
pay Dr. Vos the equivalent of the Hong Kong judgment, namely approximately
$1.2 million, ongoing interest at the Hong Kong statutory rate, and costs
to be assessed.

On June 15, 2012 Dr. Vos registered a British
Columbia judgment against both of the BC properties and in February 2012 Ms. Leung
filed a notice of family claim in this action. The property claims are made
under the
Family Relations Act
.

As I mentioned, on June 9,
2015 a final order for the divorce of Ms. Leung to Mr. Yung was
entered and the divorce was obtained without notice to Dr. Vos.

[5]

It is not necessary to recite the complicated history of Dr. Voss
efforts to enforce his judgment and Ms. Leungs and Mr. Yungs
efforts to frustrate him. It is sufficient to note that the judgment below
rested on two grounds.

[6]

First, the judge found that any interest Ms. Leung had in the two
properties arose only on the triggering event of the divorce order under s. 56
of the
FRA
. By that time, Dr. Vos had registered his judgment
against the properties. As a result, his interest had priority over Ms. Leungs.
The judge must be taken to have found that Ms. Leung did not establish any
interest in the properties pre-existing the triggering event.

[7]

Second, the judge found that the judgment owed by Mr. Yung to Dr. Vos
was a family debt. The judge rested this conclusion on his analysis of the Hong
Kong judgment which he observed had found that Ms. Leung and Mr. Yung
were involved together in certain of the activities which were found to be
wrongs against Dr. Vos; activities for which it is clear that the two were
seeking a joint benefit. The liabilities have been found and determined against
both for their respective roles in the same general set of wrongful activities.

[8]

Based on this finding and Mr. Yungs counterclaim to reapportion
family debt, any interest Ms. Leung had in the properties, assuming they
were family assets, was subject to a reapportionment of the family debt between
husband and wife. The effect of the reapportionment was again to give Dr. Vos
a priority over Ms. Leungs interest, if any, based on Dr. Voss
judgment against Mr. Yung. This conclusion is stated a para. 49 and 50
of the reasons:

To the extent that the Vancouver property and the monies
related to the sale of the Richmond property are family assets, the fair
allocation of the debt owed to Dr. Vos by Mr. Yung is to allocate the
debt over the interests Ms. Leung holds in the monies and property. I
would say the same for the debt which Ms. Leung identifies in her claim
against Mr. Yung. I find this having taken into consideration the factors
set out in section 65 of the
Family Relations Act
. In this regard I
have considered the duration of the marriage, which was fourteen years
according to Ms. Leung, that the Richmond property was acquired and paid
for by Mr. Yung in 1989, registered in Ms. Leung's name and
transferred by Ms. Leung into Mr. Yungs name for $1. The Vancouver
property it appears was bought by Mr. Yung in 1997. I have also considered
the needs of Ms. Leung, who volunteers for many community organizations
but has not sought remunerative employment. I note she funded the purchase of
properties in Blaine and sole trustee of the trust that holds them.

I also considered the liabilities
of the spouses and the results and findings in the Hong Kong litigation and
reasons for judgment, particularly in regards to the involvement of Mr. Yung
and Ms. Leung in those activities as described in the judgment.

[9]

It should be noted that the judges conclusions were not based on any
direct liability Ms. Leung may have to Dr. Vos arising out of the
Hong Kong judgment. In other words, it is not based on the default judgment
taken against Ms. Leung in Hong Kong, contrary to the apparent assumption
she makes in this appeal.

[10]

In my opinion, the judge did not err in his analysis of either ground
supporting his order, either one of which is sufficient to support the result
he reached.

[11]

It is not necessary, in my view, at this point to set out in any further
detail the factual circumstances and procedural history leading to the current
appeal. They are set out in the judgment indexed at 2015 BCSC 2434. What is
apparent is that the appellant does not appreciate the basis on which the judge
ruled against her. She alleges 31 errors in judgment, some of which simply
attempt to reargue the facts or rest on a misapprehension of the basis of the
judgment.

[12]

In my view, the judges conclusions about the facts underlying his
judgment are supported by the evidence. There is no basis on which we are
entitled to interfere with them. He recognized and referred to the absence of
cogent evidence concerning the status of the BC properties as family assets
before separation. He properly noted the circumstances surrounding the transfer
of the Richmond property as it related to legal proceedings in Hong Kong. He
referred to and properly relied on the Hong Kong judgment which underlay the BC
judgment against Mr. Yung. The judge gave proper effect to Dr. Voss
judgment against Mr. Yung and its registration against the properties in
issue before Ms. Leung established any interest in them. He also
considered and relied on Mr. Yungs counterclaim against his wife, which
was not opposed by her.

[13]

Accordingly, and substantially for the reasons of the trial judge, I
would dismiss the appeal.

[14]

I have reached this conclusion without considering the application to
adduce fresh evidence or the application that was brought by Ms. Leung today. Dr. Vos
in his factum lays out the tangled procedural history of his efforts to enforce
his judgment against Dr. Yung, and Dr. Yung and Ms. Leungs
efforts to frustrate those efforts. That history lays a foundation for a
reasonable inference that this family action is an attempt to continue to
frustrate those efforts. The fresh evidence purports to demonstrate that this
action and appeal is an abuse of process and that the appeal should be
dismissed on that basis with special costs to Dr. Vos.

[15]

This family action is premised on the separation of the spouses and
their subsequent divorce. The divorce was granted by desk order in June 2015 in
part on Mr. Yungs affirmation that he and Ms. Yeung had lived
separate and apart since 2003 and that he was not part of a conspiracy or an
agreement to subvert the administration of justice or suppress or fabricate
evidence. The fresh evidence consists of text messages in which Mr. Yung
apparently acknowledges that in September 2015 he and Ms. Yeung were in a
spousal relationship and that this appeal was his appeal in which he sought
to recover his property. The evidence lays a foundation possibly to conclude
that there has been collusion between Ms. Yeung and Mr. Yung in
relation to these proceedings. The evidence has not been answered or explained
either by Ms. Yeung or Mr. Yung, although an application was brought
before us today which addresses some of the issues and challenges of some of
the conclusions that were in the application for fresh evidence. It may be that
there is some explanation for what the text messages suggest, but if there is,
it is not before us.

[16]

I have concluded that we are not in a position to make the findings of
fact requested by Dr. Vos. This is particularly so in relation to the
suggestion that the proceedings in the Supreme Court are an abuse of process.
In my view, the question whether there has been an abuse of process should be
referred back to the Supreme Court. I would adjourn the application for special
costs in this Court until findings of fact about whether this action is an
abuse of process have been made by the Supreme Court.

[17]

In addition to dismissing the appeal, I would order payment of the
security for costs posted by the appellant to be paid forthwith to the
solicitors for Dr. Vos in trust.

[18]

LOWRY J.A.
:  I agree.

[19]

DICKSON J.A.
:  I agree.

[20]

LOWRY J.A
.: There will be an order accordingly.

The Honourable Mr. Justice Harris


