Diao v Tian - [2024] NZHC 2549

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001636 CIV-2024-404-000666

CIV-2024-404-002199 [2024] NZHC 2549

BETWEEN
SHENGFENG DIAO as trustee of the Diao Family Trust

Plaintiff

AND

GLORIA YUMENG (XIN) TIAN

First Defendant

WEIMING TIAN AND WEIJIE WANG

Second Defendants

Hearing: 21 August 2024

Appearances:

Plaintiff in person

S L Abdale and K-C Leung for First Defendant No appearance for Second Defendants

Judgment:

6 September 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 6 September 2024 at 10 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
S L Abdale, Barrister, Hamilton Woodward Chrisp, Gisborne

DIAO v TIAN [2024] NZHC 2549 [6 September 2024]

[1] The plaintiff, Shengfeng Diao, is sole trustee of the Diao Family Trust (the Trust). In the main proceeding brought under ss 245 and 251 of the Property Law Act 2007 (PLA), Mr Diao seeks orders for possession of the property at 29 Hobson Drive, Panmure, record of title NA1D/317 (North Auckland Land Registration District) (the Property). The Property is legally owned by Mr Diao, as trustee of the Diao Family Trust. Mr Diao also seeks ancillary orders for rent arrears.

[2] The orders are primarily sought against the second defendants as the present occupants of the Property, Mr Weiming Tian (Mr Diao’s former father-in-law) and Ms Weijie Wang (Mr Diao’s former mother-in-law). Mr Diao separated from the daughter of the second defendants, Ms Xin Tian (also known as Gloria Tian), on 11 September 2021. Neither the former partner, nor her parents, are beneficiaries of the Trust.

[3] The parents-in-law took up residence at the Property from 8 July 2020 and had been paying to Mr Diao the weekly sum of $500 (narrated as “rent” in the bank statements), but there was no written tenancy agreement between the parties. From 18 May 2022, without permission from Mr Diao, they stopped paying rent to him, instead purporting to make the payments to their daughter. That decision was made in the context of Family Court proceedings between Mr Diao and Ms Tian (for which the Family Court has exclusive jurisdiction), but the action was taken unilaterally, without any spousal maintenance or other Family Court orders authorising the change.

[4] In 2023, Ms Tian commenced a claim in the High Court (the Tomlin order proceeding)1 against Mr Diao, seeking to sustain a notice of claim pursuant to s 42(2) of the Property (Relationships) Act 1976 (PRA). That notice of claim (no. 12411843.1) was lodged against three properties: 27A Comins Crescent, 27 Comins Crescent, and 29 Hobson Drive. On 16 November 2023, this Court made Tomlin orders by consent, including orders that Ms Tian would discharge her notice of claim registered against the Property and would ensure that her parents vacated it within seven days.2

1 CIV-2023-404-1636.
2 Tian v Diao [2023] NZHC 3246. Discharge of notices of claim registered against property at 27A Comins Crescent was also ordered.

[5]…

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 Diao v Tian

Details

AGLC: Diao v Tian [2024] NZHC 2549
Case: [2024] NZHC 2549
Decision Date: 6 September 2024

CaseChat Overview and Summary

Shengfeng Diao, as trustee of the Diao Family Trust, commenced proceedings in the High Court seeking orders for possession of the property at 29 Hobson Drive, Panmure, and ancillary orders for rent arrears against the former occupants, Weiming Tian and Weijie Wang, parents of Diao's former partner, Gloria Tian. The legal issues included determining the jurisdiction of the court to hear the matter, whether a tenancy existed, and the validity of the caveat lodged by the defendants. The court found that the exclusive jurisdiction of the Family Court applied only where a party had applied for orders under the Property (Relationships) Act 1976, and that the High Court retained jurisdiction to make orders under the Property Law Act 2007. The court held that a statutory implied tenancy existed due to the weekly payments made by the defendants, and that the caveat lodged by the defendants was not reasonably arguable as it was based on relationship issues within the exclusive jurisdiction of the Family Court. Consequently, the court ordered the removal of the caveat, termination of the implied tenancy, and that the defendants pay rent arrears and outgoings to Diao. The court also restrained the defendants from lodging further notices of claim or caveats without prior leave.

The final orders of the court were as follows: the caveat was to be removed, the implied tenancy terminated, and the defendants were to pay rent arrears, outgoings, and reimbursement of court filing fees to Diao, with interest accruing until payment. The defendants were also restrained from lodging further notices of claim or caveats without prior leave of the court. The court reserved leave for Diao to apply informally for urgent orders requiring Gloria Tian to vacate the property if necessary.

Orders