Almarzooqi v Salih

• Jurisdiction: New Zealand
• Judge: Clifford J
• Judgment Date: 23 July 2021
• Neutral Citation: [2021] NZCA 330
• Docket Number: CA544/2020
• Court: Court of Appeal

Between

Rahla Hussein Amin Harder Almarzooqi

Appellant

and

Rafid Mohammed Salih

Respondent

[2021] NZCA 330

Court:

Clifford, Brewer and Dunningham JJ

CA544/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

International Law — appeal against a High Court decision which refused an application to require the respondent to pay her a marriage dowry by way of enforcement at common law of a judgment of the Personal Matters Court in Dubai — conflict of laws — Sharia Law — recognition of overseas orders — reciprocal recognition of jurisdiction/jurisdiction in rem — Family proceedings Act 1980

Counsel:

M Freeman and F A Manning for Appellant

M V Smith for Respondent

• A The appeal is dismissed.

• B We make no order as to costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Clifford J)

Introduction

1 The appellant, Rahla Almarzooqi, commenced proceedings in the High Court to require the respondent, Rafid Salih, to pay her a marriage dowry by way of (i) enforcement at common law of a judgment of the Personal Matters Court in Dubai (the Dubai court) and (ii) a claim for damages for breach of their Sharia law marriage contract. The common law enforcement application was dealt with first.

2 In the High Court, Associate Judge Johnston declined that application because he considered the Dubai court did not, as a matter of New Zealand law, have jurisdiction in that matter over Mr Salih. 1

3 Ms Almarzooqi now appeals.

Background

4 Ms Almarzooqi and Mr Salih met on an Islamic online dating site in 2010 when Ms Almarzooqi was living in Australia and Mr Salih was living in New Zealand. In 2013, after Ms Almarzooqi visited Mr Salih in New Zealand, they formed a relationship. They were married in Dubai in accordance with Islamic/Sharia law on 26 December 2013. Their contract of marriage (the Nikah), solemnised by an order of the Dubai court, provided amongst other things that Mr Salih would pay Ms Almarzooqi a “prompt dowry” of 30,000 dirhams (approximately $12,725) at the commencement of the marriage and a “deferred dowry” (the Mahr) of 500,000 dirhams (approximately $212,095) on the earlier of their divorce or his death.

5 In May 2014 Ms Almarzooqi and Mr Salih, who were by that time living together in New Zealand, separated. In December 2015 Ms Almarzooqi returned to Dubai to apply for a divorce. Ms Almarzooqi's divorce proceedings were properly served on Mr Salih in New Zealand. Mr Salih endeavoured to file papers in the Dubai court. Those papers were not accepted. Mr Salih was told either he had to appear personally, or through a lawyer. Mr Salih was not prepared to adopt either of those courses.

6 Ms Almarzooqi's divorce application was granted by the Dubai court on 1 November 2016 in Mr Salih's absence. At the same time as granting that application, the Dubai court ordered Mr Salih to pay the Mahr, together with

3,000 dirhams for “alimony support” and 7,500 dirhams for “housing support” (the Dubai judgment)

7 Both Ms Almarzooqi and Mr Salih currently live in New Zealand. Ms Almarzooqi is a citizen of the United Arab Emirates and has residency status in New Zealand. Mr Salih is an Iranian and New Zealand citizen.

8 A copy of the Dubai judgment was served in New Zealand on Mr Salih on 29 June 2017. Ms Almarzooqi then commenced her proceedings in the High Court.

The High Court proceedings

Overview

9 By the time Associate Judge Johnston had considered, and declined, Ms Almarzooqi's common law application, he had already issued a judgment declining Mr Salih's application for security for costs in the proceedings as a whole. 2 To understand the basis of the challenged substantive decision, and the way the parties approached this appeal, it is helpful to understand certain aspects of that earlier decision.

The security for costs decision

10 As Ms Almarzooqi was legally aided, Mr Salih's application faced considerable difficulties. 3 Notwithstanding, the Associate Judge dealt with it comprehensively. At the forefront of Mr Salih's submissions was his assertion that Ms Almarzooqi's claim faced a hurdle, that of jurisdiction, it could not overcome.

11 The relevant principles applying to that claim were not in dispute. As threshold issues the Court had to be satisfied of three things: 4

• (a) the Dubai court had jurisdiction;

• (b) the Dubai judgment was for a liquidated sum; and

• (c) the Dubai judgment was final and conclusive.

12 Mr Salih did not assert that the second and third matters were problematic. But he argued Ms Almarzooqi could not satisfy the first of those requirements, relating to jurisdiction. 5 In doing so he pointed to the following passage from the decision of this Court in Von Wyl v Engeler: 6

With various exceptions and qualifications a foreign judgment in personam 7 given by the Court of a foreign country with jurisdiction to give that judgment in accordance with the principles set out in Rules 36 to 39 (of Dicey and Morris), which is not impeachable under Rules 42 to 45, is enforceable by action in New Zealand … The foreign Court must have had jurisdiction as determined by the New Zealand rules of conflict of laws, rather than according to the foreign Courts own law … Jurisdiction in personam exists where the debtor was present in the foreign country at the time that the proceedings were instituted; or where the judgment debtor was plaintiff or counterclaimed in the foreign Court; or where, being defendant in the foreign Court, submitted to the jurisdiction of that Court by voluntarily appearing in the proceedings: or before the commencement of the proceedings agreed in respect of the subject-matter of the proceedings to submit to the jurisdiction of that Court or of the Courts of that country … and an agreement to submit may take the form of an agreement to accept service at a designated address…

13 The Associate Judge recorded there was no suggestion that jurisdiction could be established either by reference to Mr Salih's presence in Dubai or to Mr Salih having been plaintiff or counterclaimant. 8 The Associate Judge then rejected the two propositions Ms Almarzooqi had relied on to assert, in terms of the third possible way of establishing jurisdiction, that Mr Salih had submitted to the jurisdiction of the Dubai court:

• (a) First, the preamble of the marriage contract acknowledging its formation under Sharia law was not, as Ms Almarzooqi argued, a submission to jurisdiction. Rather it was a description of the

  jurisdiction of the Dubai court when solemnising the marriage, and went no further than that. 9

• (b) Secondly, Mr Salih's unsuccessful attempt to file in the Dubai court, through an agent, a memorandum recording he did not oppose Ms Almarzooqi's application for divorce, but rather disputed the grounds on which it was sought (domestic abuse by him of her) also did not constitute a submission. 10 As the Associate Judge put it:

  [39] It would be ironic if, having been prevented from submitting to the jurisdiction, Mr Salih was deemed to have done so by the very actions that were thwarted by the rejection of his documentation.

14 On those bases, the Associate Judge concluded, for the purposes of the security for costs application, that there was a real question whether Ms Almarzooqi could succeed in her common law claim for enforcement. 11 Ultimately, although it is of no relevance here, he declined Mr Salih's application, principally by reference to Ms Almarzooqi's status as being in receipt of legal aid. 12

The substantive decision

15 Against that background Ms Almarzooqi changed tack somewhat when arguing her substantive common law application, at least in terms of counsel's written submissions, to which we were specifically referred on background issues when this appeal was argued before us.

16 She again argued that as a matter of New Zealand law the Dubai court did have jurisdiction. But she did not base that assertion on the parties' choice of law in the marriage contract nor on Mr Salih's unsuccessful attempt to file his memorandum. Rather, she asserted, the marriage contract was clear that Sharia law was to apply.

17 The general principle, she said, was that a New Zealand court would recognise the jurisdiction of a foreign court over a non-resident, if that New Zealand court would itself assume jurisdiction over a non-resident of New Zealand in similar circumstances. By way of analogy, Ms Almarzooqi pointed to rr 6.27 and 6.29 of the High Court Rules 2016, which provide that a New Zealand court would assume jurisdiction over an overseas defendant where a contract sought to be enforced (or for the breach of which damages or other relief was demanded in the proceedings) was made or entered into in New Zealand, or was by its terms or by implication to be governed by New Zealand law. 13

18 Here, Ms Almarzooqi was enforcing a contract entered into by Mr Salih in Dubai which by its terms was to be governed by Dubai law. Accordingly, by analogy, New Zealand law would accept the Dubai court had jurisdiction.

19 But, and this was the more significant change in tack, in any event that in personam jurisdiction argument was a red herring because: 14

• (a) dissolution of the marriage was manifestly within the jurisdiction of the Dubai court as an action in rem, as Dicey, Morris & Collins and s 44 of the Family Proceedings Act 1980 recognise; 15 and

• (b) the obligation to pay the dowry (the Mahr) was an integral part of the marriage contract (the Nikah) so that the status of that obligation was not “separable or severable” from the marriage contract, and therefore the jurisdiction issue was governed by the principles applying to in rem proceedings.

20 As he had done in his earlier security for costs judgment, the Associate Judge first concluded the Dubai court did not have jurisdiction either because the marriage

contract was governed by Sharia law or because Mr Salih...