Deng v Lu - [2015] NZHC 1531

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-931 [2015] NZHC 1531

BETWEEN
QINGQI DENG

Applicant

AND

YULIANG LU AND HONGYU YANG Respondents

Hearing: 24 June 2015

Appearances:

Ms Wickes for Applicant
Mr Pang for Respondents

Judgment:

3 July 2015

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
03.07.15 at 10.00 am, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

DENG v LU & ANOR [2015] NZHC 1531 [3 July 2015]

Introduction

[1] The applicant has filed an originating application dated 1 May 2015 seeking orders that:

a) Caveat No. 10007310.1, registered against Certificate of Title
NA 103B/841, not lapse; and

b)the Respondents pay to the Applicant the costs of this application.

Background

[2] The caveat was lodged against the title to a residential property at 52B Peary

Road, Mt Eden, Auckland (“the property”). The caveat was in the following terms:

Estate or Interest claimed

Pursuant to an agreement for sale and purchase dated 3 February 2015 between Weijie Deng as purchaser and the registered proprietors as vendor and a deed of nomination in respect of the aforesaid agreement dated 19
March 2015 between Weijie Deng as nominator and the caveator as nominee.

[3] The person known as Weijie Deng is the son of the applicant. I will describe him as the son throughout this judgment. It is also necessary to make reference to a further member of the family, Miaohe Mo, who is the wife of the applicant and the mother of the son. I shall refer to her as “the wife” below.

[4] The applicant, at the outset, accepts that he has an onus to establish that he has a reasonably arguable case for the interest claimed.1 That requirement means that the applicant needs to demonstrate that factual contentions which he puts forward are reasonably arguable. He does not need to prove on the balance of probabilities that his account of the matters is true. It is further the case that it is not the function of the court hearing a caveat application to resolve disputed matters of
fact.

[5] With that introduction, I will now outline the background facts which the applicant bases the application on.

1 Sims v Lowe [1988] 1 NZLR 656 (CA) at 660.

[6] The applicant and his wife are citizens of China. The son was at material times living in New Zealand. The parents came to New Zealand on 25 January 2015 and stayed at the property which is owned by the respondents. They found out that the respondents were intending to sell the property and that they had an auction scheduled for the sale of the property. The original auction date was 18 February
2015.

[7] The applicant and his wife said they were interested in buying the property in the name of their son. They entered into an agreement with the vendors which was written in Chinese and drafted on 30 January 2015 (I will refer to as…

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 Deng v Lu

Details

AGLC: Deng v Lu [2015] NZHC 1531
Case: [2015] NZHC 1531
Decision Date: 3 July 2015

CaseChat Overview and Summary

The case of Deng v Lu was heard in the High Court of New Zealand. The applicant, Qingqi Deng, sought to prevent the lapse of a caveat against the title of a property at 52B Peary Road, Mt Eden, Auckland, and for the respondents to pay the costs of the application. The respondents, Yuliang Lu and Hongyu Yang, sought to have the caveat removed. The central issues were whether the applicant had a reasonably arguable case for the interest claimed and whether the nomination executed by the son was valid.

The court found that the applicant did not have a reasonably arguable case for the interest claimed. The nomination executed by the son was valid and effectively cancelled any nomination of the parents as the purchasers of the property. The court concluded that the applicant did not have any equitable right to enforce the contract and therefore did not have an interest in the property. As a result, the caveat against the title of the property should be removed.

The court dismissed the originating application and ordered that the parties confer on the question of costs. If they were unable to resolve the matter, they were to file memoranda not exceeding five pages in length within five working days of the date of the judgment.

Orders