Chang v Wang - [2021] NZHC 1134

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000320

[2021] NZHC 1134

BETWEEN
YUFEN CHANG

Applicant

AND

ZHONGCHUN WANG

Respondent

Hearing: 12 May 2021

Appearances:

B Wong for Applicant D Delic for Respondent

Judgment:

21 May 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 21 May 2021 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date ……………………….

CHANG v WANG [2021] NZHC 1134 [21 May 2021]

Introduction

[1] The applicant, Ms Chang, seeks an order pursuant to s 143 of the Land Transfer Act 2017 (LTA) that a caveat1 over two properties in Tupelo Street, Hamilton (the Properties) not lapse.2

[2] The respondent, Mr Wang, is one of two registered proprietors (as trustees) of the Properties.

[3] The proceedings arise out of various family arrangements between the parties. Ms Chang’s former son-in-law, Kelvin Wang, is the son of Mr Wang. Kelvin was married to Ms Chang’s daughter, Kimi.

[4] At issue is whether an advance of $300,000 made by Ms Chang to Mr Wang pursuant to a deed of acknowledgement of debt gives rise to a beneficial interest in the property.

[5] In opposition, Mr Wang contends that the $300,000 advance was a mere loan, payable upon demand, and does not give rise to a beneficial interest in the properties. Mr Wang further says that the loan was forgiven pursuant to a tripartite forgiveness arrangement which involved a sum of $300,000 owed by Ms Chang to Kelvin for the building of a house for her.

Factual background

[6] In addition to being one of the two registered proprietors, as trustees, Mr Wang is also one of the two trustees of the Wang Family Trust.

[7] Mr Ling Gao, chartered accountant, is the other trustee and registered proprietor of the Properties.

[8] In support of her application, Ms Chang filed two relatively short affidavits; she did not file any evidence in reply. In their more comprehensive affidavits, Mr Wang and Kelvin contend:

1 Caveat 11778256.1.
2 Described in records of title 664629 and 664630.

(a)In July 2014, Ms Chang entered into an agreement for sale and purchase of a property at 20 Arista Way, Hamilton, with REI Design Homes Ltd, a company operated by Kelvin, her son-in-law. The agreement was for the purchase of bare land.

(b)Kelvin and REI agreed to construct a dwelling on the bare land for Ms Chang for a price of $380,000.

(c)Kelvin says that by way of progress payments, Ms Chang paid approximately $80,000 to Kelvin. As of May 2015, $300,000 was outstanding to REI Design Homes Ltd and himself. Ms Chang promised Kelvin that she would make the final payment of $300,000 once she obtained finance from her bank, which was subject to code compliance certification being issued by the Hamilton City Council.

(d)In March 2015, Mr Wang signed agreements to purchase the properties. In order to fund the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chang v Wang

Details

AGLC: Chang v Wang [2021] NZHC 1134
Case: [2021] NZHC 1134
Decision Date: 21 May 2021

CaseChat Overview and Summary

The case of Chang v Wang involved a dispute between Ms Yufen Chang and Mr Zhongchun Wang regarding a claim for a beneficial interest in two properties located in Tupelo Street, Hamilton. Ms Chang sought an order under the Land Transfer Act 2017 to prevent her caveat over the properties from lapsing. The central issue was whether the $300,000 advance made by Ms Chang to Mr Wang pursuant to a deed of acknowledgement of debt constituted a beneficial interest in the properties. Mr Wang argued that the advance was a mere loan and did not confer any beneficial interest. The court had to decide whether Ms Chang had established a reasonably arguable basis for a beneficial interest in the properties.

The court found that Ms Chang had failed to establish a reasonably arguable basis for a beneficial interest in the properties. The court held that an unsecured creditor has only personal rights against a debt and no right to lodge a caveat against the title to the debtor’s land. The court found that the May 2015 Deed did not support Ms Chang's claim for a resulting trust, and her conduct was consistent with the $300,000 advance being a loan. The court concluded that Ms Chang was simply an unsecured creditor, and her demand for repayment of the loan, made five years after the advance, did not change this status. Therefore, the application to sustain the caveat was dismissed, and the caveat was ordered to lapse.

In its judgment, the court rejected Ms Chang’s applications for an alternative remedy such as an equitable charge over the properties or an interim injunction. The court also ordered Ms Chang to pay costs to Mr Wang on a standard basis plus disbursements, but rejected Mr Wang’s application for increased or indemnity costs.

Orders