Diao v Tian
[2024] NZHC 2549
•6 September 2024
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] On 28 November 2023, after the Tomlin orders were sealed, and without notice to the Court or Mr Diao, Ms Tian and her parents lodged a caveat against two properties, including the Property at 29 Hobson Drive.3 Attestation of the caveat was witnessed by Ee Kuoh Lau (also known as Augustine Lau). The identifier of the caveat is 12889187.1 and the description of the estate or interest is as follows:
The above named caveators claims a beneficial interest in the land contained in the CTNA1D/317; and NA72B/677 pursuant to a constructive trust of which the registered owner Shengfeng Diao as trustee.
[6] In a case management conference in the present PLA proceeding on 9 May 2024 (addressed in a minute dated 10 May 2024), I scheduled an opposed hearing of Mr Diao’s application for possession and ancillary orders for 25 July 2024.4 I also set a timetable for any further affidavits to be filed (in addition to that already filed by the plaintiff). As noted at [12(c)] of my minute, for the caveat referred to in [5] above, I was told that the process under s 143 of the Land Transfer Act 2017 had been triggered, so the caveators intended to file an application to sustain the caveat.5 I said that if any new applications concerning the Property are made (such as for enforcement of the Tomlin order or to sustain the caveat), then those should be listed for case management/call along with the PLA proceeding.
[7] On 20 May 2024, Ms Tian used the Court’s automated file and pay system to file the originating application seeking orders that the caveat not lapse (the Caveat proceeding)6. At the hearing on 21 August 2024, Ms Tian produced a screenshot of the pop-up window showing payment, but for reasons that are unclear the system did not issue the standard receipt with an allocated file number. She emailed a copy of the documents to the Court with the words “The application filed and served by way of service”. That email was copied to Mr Diao, but a copy of the documents was not personally served.
3 See Tian v Diao HC Auckland CIV-2023-404-1636, 8 December 2023 (Minute of AJ Lester) at [6] and [11].
4 Diao v Tian HC Auckland CIV-2024-404-666, 10 May 2024 (Minute of O’Gorman J). The application had initially been commenced on a without notice basis and orders were made by default based on substituted service, but I set aside those orders and timetabled the application to be heard on notice.
5 The application for lapse of caveat was made on 7 May 2024.
6 CIV-2024-404-2199. This application was not officially allocated a file number until September 2024.
[8] On 22 May 2024, a further case management conference took place before Whata J as Duty Judge. On 28 May 2024, Whata J issued a minute with a replacement timetable,7 joining the Tomlin order proceeding (because Mr Diao wished to enforce those Tomlin orders, to the extent Ms Tian is involved in her parents continuing to occupy the Property) and the Caveat proceeding.8 The timetable was as follows:
(a)The plaintiff is to file a statement of claim and any application for enforcement of the Tomlin orders together with any supporting affidavits, within 15 working days, by 12 June 2024.
(b)Any statements of defence to the statement of claim and any notice of opposition to the application for enforcement together with any supporting affidavits, are to be filed within a further 15 working days, by 3 July 2024.
(c)Any other application by any party to be filed within a further five workings days by 10 July 2024.
(d)Any notice of opposition to any such applications to be filed within a further five working days by 17 July 2024.
(e)A further case management conference is to be allocated on the first available date after this step to address any remaining issues, including timetable for exchange of submissions and the preparation of a common bundle.
(f)The Caveat and the Tomlin proceedings are to be joined to these proceedings.
7 Diao v Tian HC Auckland CIV-2024-404-666, 22 May 2024 (Minute of Whata J).
8 At that time, the court reference number was unknown, so Whata J identified the caveat lodged over the Property in fn 5 of the Minute by reference to the facts related to the Tomlin Proceeding, as discussed in the Minute of AJ Lester, above n 3. There was another proceeding (CIV-2024- 404-907) commenced by Bank of China (New Zealand) Limited seeking the removal of the caveat as lodged over 27 Comins Crescent (record of title NA72B/676), but that proceeding was not about the relevant Property in Hobson Drive.
(g)A half day fixture is allocated to deal with all applications on 21 August 2024.
(h)Leave is reserved to come back to the Court if further clarification is required.
Legal principles
Jurisdiction
[9] This proceeding is not about any claims as between Ms Tian and Mr Diao under the PRA. Section 4 provides that the PRA applies as a code for claims within its ambit, instead of the rules and presumptions of the common law and equity.9 Section 4A provides that every enactment must be read as being subject to the PRA, unless the other enactment expressly provides to the contrary. Whether an application is one under the PRA or another enactment or cause of action is a question of substance rather than form.10 Accordingly, all questions relating to relationship property between spouses and partners, and any other person in any court proceedings, must be decided as if they had been raised in proceedings under the PRA.11
[10] Section 22(1) of the PRA provides that “[e]very application under this Act must be heard and determined in the Family Court.” This provision is given further effect in s 11(1)(e) of the Family Court Act 1980, which provides that the Family Court must hear and determine all proceedings “that are to be heard and determined by the court under or by virtue of any of the provisions of” the PRA. It follows that the High Court generally has no jurisdiction over any application under the PRA.12
[11] This does not mean the Family Court has exclusive jurisdiction over every type of civil proceeding between spouses or partners. Nor does it mean the Family Court has exclusive jurisdiction over every proceeding in which the PRA may have some application. There is a long line of authorities, beginning with Jew v Jew, to the effect
9 See Lobb v Ryan [2023] NZHC 1297 at [37]–[39].
10 Property (Relationships) Act 1976, s 4(4); Martin v Martin [2023] NZHC 2162 at [25]–[27], citing
Kake v Napier [2022] NZHC 2395 at [24]; and Lobb v Ryan, above n 9, at [39].
11 David Hicks Laws of New Zealand Matrimonial and Relationship Property (online ed, LexisNexis) at [11].
12 Martin v Martin, above n 10, at [22].
that the exclusive jurisdiction of the Family Court applies only where a party has applied for orders under the PRA.13 The High Court retains jurisdiction to make orders under the PLA, notwithstanding the wide scope of the Family Court’s exclusive jurisdiction. This includes when the relief sought concerns the sale or partition of real property,14 and when third party interests are involved.15
Family tenancies
[12] The Residential Tenancies Act 1986 applies to “every tenancy for residential purposes”, except those expressly excluded.16 One of the exclusions is contained in s 5(1)(n):
where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
[13] Where the Residential Tenancies Act does not apply, the tenancy falls to be considered on the general law of landlord and tenant.17 This includes the general provisions applicable to leases in the PLA, the Land Transfer Act 1952 where relevant, and the residual common law.18
[14] In CIR v Cutbush, a residential tenancy falling within the exclusion under the then s 5(n)19 was held to be a statutorily implied monthly tenancy under s 105 of the 1952 Act:20
It was conceded, however, that she was in occupation as tenant and was paying rent. It appears that there was no written tenancy agreement nor any oral agreement concerning a term or a right of termination. Accordingly there was a statutory tenancy arising under s 105 of the Property Law Act 1952.
13 Martin v Martin, above n 10, at [23], citing Jew v Jew [2003] 1 NZLR 708 (HC) at [41] and other subsequent authorities.
14 Struan Scott and others Adams’ Land Transfer (online ed, LexisNexis) at [S61.10.4]; and Gledhill v Gledhill HC Palmerston North M73/96, 18 March 1997.
15 Such as Martin v Martin, above n 10, at [27]–[29].
16 Residential Tenancies Act 1986, s 4.
17 David Grinlinton Residential Tenancies: The Law and Practice (4th ed, LexisNexis, Wellington, 2012) at [2.8].
18 At [1.2]. Note: the text refers to the predecessor to the PLA, the Property Law Act 1952.
19 Now enacted in the Residential Tenancies Act, s 5(1)(n). Section 5(1)(n) was substituted for s 5(n), as from 1 October 2010, by s 6(3) Residential Tenancies Amendment Act 2010.
20 Commissioner of Inland Revenue v Cutbush [1994] NZFLR 598 (HC) at 602.
[15]Section 105 of the 1952 Act provided as follows:
No tenancy from year to year shall be created or implied by payment of rent; and if there is a tenancy it shall be deemed in the absence of proof to the contrary to be a tenancy determinable at the will of either of the parties by one month’s notice in writing.
[16]The current equivalent provision provides as follows:21
210 Implied term of lease if no other term agreed
(1) This section applies to a lease if—
(a)the lessee is in possession of the land, although the lessor and the lessee have not agreed, expressly or by implication, on the duration of the term of the lease; or
(b)the lessee remains in possession of the land with the lessor’s consent, although the term of the lease has expired and the lessor and the lessee have not agreed, expressly or by implication, that the lessee may continue in possession for some other period.
(2) A lease to which this section applies—
(a)is terminable at will; and
(b)may be terminated, at any time, by the lessor or the lessee giving not less than 20 working days’ written notice to the other party to the lease.
[17] A lease terminable at will under s 210 is called a “statutory tenancy”.22 It also falls within the definition of “short-term lease”.23 The consequence of a statutory tenancy is that the implied obligations of lessor and lessee under pt 2 of sch 3 of the PLA apply.24 Under cl 4(1) of sch 3, the lessee is obliged to pay the rent when it falls due.
Analysis
[18] The statement of claim is not in an orthodox format because it has been filed by Mr Diao acting in person. Some supporting evidence for the relief sought in the claim is contained in the affidavit of Mr Diao sworn on 23 February 2024 (filed with
21 Property Law Act 2007, s 210.
22 Section 207.
23 Section 207.
24 Lowry Bay Section One Ltd v Pukeatua Kohanga Reo Charitable Trust [2012] NZHC 1498, (2012) 13 NZCPR 611 at [62].
the original application commencing the proceeding). The exhibited evidence included the following:
(a)The Deed of Trust, dated 16 May 2014. Mr Diao’s parents were the settlors. The discretionary and final beneficiaries are Mr Diao, his parents, and any of his issue (the discretionary beneficiaries also include any charitable trust that the trustee may see fit). None of the defendants is a beneficiary.
(b)A letter, dated 19 June 2023, making demand for rent arrears in the sum of $28,500.00, and water rates of $625.89.
(c)A notice of intention to cancel lease under s 245 of the PLA, issued on 9 February 2024. By this time, the outstanding rent and water rates totalled $46,353.83. It also sought costs of the notice in the sum of
$477.50 (plus GST and disbursements). The notice attached the details of how those sums had been calculated.
[19] On 20 August 2024, Mr Diao filed and served another affidavit in the PLA proceeding, repeating statements from the claim document, and attaching evidence from the Tomlin order proceeding.
[20] In the evidence filed for the Tomlin order proceeding, affidavits from Mr Diao and his father explain that the funding to purchase the Property was provided by Mr Diao’s parents, with a secured loan for $380,000 from the Bank of New Zealand (BNZ). This was on the express basis that the Property was to be bought as an asset of the Trust. None of these assertions have been disputed by the defendants.
[21] The record of title for the Property shows that it was transferred to Mr Diao on 30 March 2015.
[22] Mr Diao seeks orders for possession of the Property so that he can sell it to meet liabilities owed to Bank of China (a shortfall after other properties securing loans have been sold), and to meet the debt owed to BNZ secured against the Property.
[23]The relief sought in the statement of claim is as follows:25
(a)Possession Order for 29 Hobson Drive Panmure against the first [defendant] and second [defendants].
(b)Ancillary order for the second [defendants] to pay rent arrears, penalty interest and costs under s 251 of the PLA to date on 29 Hobson Drive.
(c)Lapse the caveat no 12889187.1 or any further caveat lodged by the [first and second defendants] on 29 Hobson Drive, 27 Comins Crescent and 27a Comins Crescent.
(d)Order the first [defendant] to pay market rent from 16 November 2023 to date as per the Tomlin Order.
(e)Order to first [defendant] and second [defendants] to pay legal costs towards Bank of China from November 2023 after the Tomlin Order.
(f)Order the first [defendant] and second [defendants] to pay for mortgage interest on 27a Comins Crescent from November 2023 after the Tomlin Order.
(g)Order the first [defendant] and second [defendants] to share the total deficit from the sales of 27 Comins Crescent and 27a Comins Crescent.
[24] The second defendants have not taken any steps in this proceeding. They did not file any defence to the claim. They were present at the hearing but were not represented, nor did they seek to be heard on the PLA proceeding.
[25] Ms Abdale and Dr Leung appeared for the first defendant (on legal aid). They have no instructions to represent the second defendants. Their client, Ms Tian, has filed a statement of defence, addressing the PLA proceeding and the relief sought to enforce the Tomlin orders.
25 The statement of claim named Ms Tian as first respondent, and Weiming Tian and Weijie Wang as second respondents. I have renamed these the first defendant and the second defendants.
[26] Ms Abdale and Dr Leung did not represent the caveators in the Caveat proceeding, because the caveat has been lodged by all three defendants. Ms Tian addressed me in person in respect of those matters.
[27] At the outset of the hearing, Ms Abdale informed me that progress has been made in the context of the Family Court proceedings towards them signing a Heads of Agreement, which provides for the second defendants to vacate the Property to enable it to be sold. Ms Tian confirmed, on behalf of herself and her parents, that they recognised these steps need to be taken. At the end of the hearing, I reserved my decision but asked to be advised within 14 days of the hearing if any Heads of Agreement was signed, in which case I would take into account any agreed terms.
[28] On 29 August 2024, the defendants filed two affidavits, going beyond that scope (providing evidence and making substantive arguments), but Ms Tian’s parents confirmed that they have started packing to move out of the Property and that it will be vacant by “either [September26] 5th or 6th”.
Caveat Proceeding
[29] I begin by determining the Caveat proceeding. At the hearing, Ms Tian asked for that to be adjourned, saying that she did not realise it would be heard and that she proposed to file further evidence. I do not accept that, given that it was made clear in the case management conferences and resulting Court minutes referred to in [6] and
[8] above that the caveat issues would be dealt with alongside the PLA application, and all evidence needed to be filed and served in advance of the hearing. While the Court might not have had clarity about what she had filed to sustain the caveat (since it was not processed properly on the file and pay system), Ms Tian knew what documents she had filed and served for that purpose. The obligation rests with the caveator to file sufficient evidence to sustain the caveat at the time of making the application.
26 Although they referred to August, this was presumably in error given the affidavit was affirmed on 29 August 2024.
[30] The principles governing the determination of applications to sustain caveats are well-established:27
(a)The onus is on the caveator to demonstrate an interest in the land that suffices to support the caveat, and the caveator must demonstrate a reasonably arguable case to support the claimed interest. This means the caveator need not definitively establish their right to the interest.
(b)An order for removal will only be made if it is clear the caveat cannot be maintained — either because there was no valid ground for its lodging in the first place, or because the ground on which it was lodged has now ceased to exist.
(c)The process by which applications to sustain a caveat are determined is ill-suited to resolving disputed factual questions, so any conflict between affidavits will generally be resolved in the caveator’s favour.
(d)However, the Court is not bound to accept uncritically statements in an affidavit that lack precision, are equivocal, inconsistent with the documentary evidence or other statements of the same deponent, or inherently improbable.
[31] The grounds on which the caveators sought to sustain the caveat in this case are as follows:
(a)Ms Tian and Mr Diao were in a relationship.
(b)Her parents “have financially supported the mortgages and done a lot of maintenance and renovations” for Mr Diao and Ms Tian’s first property [Hobson Drive], which “increased value of that property”.
27 Ku v Lang [2024] NZHC 2136 at [18]–[2], citing (among other cases) Philpott v Noble Investments Ltd [2015] NZCA 342 at [26] and Wallace v Studio New Zealand Ltd [2021] NZCA 392 at [39]–[41].
(c)Mr Diao has been dishonest to the relationship so Ms Tian “should [be entitled] to the share of the properties”.
(d)Mr Diao required Ms Tian at one stage to be a full-time mother, “resulting [in the] applicant not been able to obtain loan from the banks to hold any of the properties in trust”.
[32] A narrative document from Ms Tian is attached behind a sworn exhibit note. That document outlines the nature of her relationship with Mr Diao and addresses substantive issues that fall within the exclusive jurisdiction of the Family Court. It also says she thought she was a beneficiary of the trust, but that she “had no idea what a trust was or meant”, and she never saw the Trust Deed until after separation. That narrative includes the following statements (without any supporting evidence or attempt to quantify the value of the work or who paid for it):
My parents also did a lot of maintenance and renovations at the Panmure Property:
(a) Fixing the driveway;
(b) Building a path;
(c) Tidying up hedges and trimming them every 3 weeks to keep them in good condition;
(d) Making a garden with a self-watering system;
(e) Planting grass seeds to keep the lawn condition healthy;
(f) Cutting down dead trees;
(g) Trimming and planting trees;
(h) Fixing and refreshing fence of rose garden;
(i) Changing ten broken windows;
(j) Changing kitchen and bathroom taps;
(k) Changing shower kits;
(l) Removing backyard concrete paths;
(m) Fixing and changing gas pipes;
(n) Fixing the electric gate; and
(o) Renovating the basement into a workshop/studio.
Alongside my household duties, I also did maintenance and renovations around the house by myself without assistance from [Mr Diao] at our Family Home after we moved there because he was busy with work obligations. These include:
(a) Changing the entry door and replacing the door bell;
(b) Installing locks on the front and back entry doors;
(c) Changing all of the doorknobs in the house;
(d) Changing shower kits;
(e) Changing and installing a new kitchen tap with water filtration system;
(f) Installing SPC floor inside and outside;
(g) Refurnishing the inside of the house;
(h) Refreshing outdoor entry stairs and installing solar stair lights;
(i) Fixing and painting the deck;
(j) Installing curtain rods and blinds;
(k) Changing closet door;
(I) Installing two large barn doors;
(m) Replacing bathroom cabinets and shower box;
(n) Changing ceiling lights;
(o) Changing all of the kitchen cabinet handles;
(p) Installing cabinet storage sliding units; and
(q) Changing floor plan (using wood boards to cover some windows and doors, adding an extra bedroom, and changing the arrangement of other rooms).
[33] The post-hearing affidavit dated 29 August 2024 from Ms Tian does not refer to these issues further. The only references to contributions in the post-hearing affidavit dated 29 August 2024 filed by the second defendants are to the weekly payments (addressed below), and to the following:
We also paid for the gardener and lawnmower to maintain the house and always repaired anything that broke inside the property.
[34] Based on the evidence filed for the application to sustain the caveat, and having reviewed the post-hearing affidavits dated 29 August 2024, I find that it is not reasonably arguable that the caveators could expect to have any proprietary interest in the Property under a constructive trust.
[35] The four elements that must be satisfied to establish an institutional constructive trust are:28
(a)the applicant made contributions, direct or indirect, to the property in question;
(b)the applicant has an expectation of an interest in the property;
(c)that expectation was a reasonable one; and
(d)the respondent should reasonably expect to yield the interest to the applicant.
[36] The nature of the contributions listed in the narrative document and the second defendants’ 29 August 2024 affidavit are what one would expect from an occupant (e.g. a tenant) maintaining the Property in good repair or making adjustments for their quiet use and enjoyment. There is no evidence that the financial value or “work” involved was material, let alone that it would justify any reasonable expectation of a proprietary interest that the trustee would yield to.
[37] In terms of the allegation that Ms Tian’s parents “have financially supported the mortgages”, this is based on the fact they made weekly payments of $500, which could have been applied to mortgage payments and other outgoings. While not substantiated with proper evidence, it seemed to be common ground at the hearing that this weekly payment was below what a market rental would be for the Property (Ms Tian objected that neither she nor her parents could afford to pay a market rental). Given that the second defendants occupied the Property and paid below market weekly
28 Lankow v Rose [1995] 1 NZLR 277 (CA) at 294; and Vervoort v Forrest [2016] NZCA 375, [2016] 3 NZLR 807 at [69]−[70].
payments for that privilege (but diverted that to Ms Tian rather than Mr Diao from 18 May 2022), I find no basis for those payments giving rise to any proprietary interest.
[38] The balance of the grounds are based entirely on the nature of the relationship between Ms Tian and Mr Diao, and issues that fall to be addressed under the PRA. At the time of their separation, the Property was not the family home. As noted, all PRA claims are for determination by the Family Court. Such claims cannot justify a caveat by these three defendants for a “constructive trust”.
[39] For the above reasons, Mr Diao is entitled to orders extinguishing the caveat. Given the background of the Tomlin order proceeding and the defendants’ willingness to vacate the Property to enable sale (as expressed in the hearing), I also accept it is appropriate to restrain the defendants, directly or through third parties, from lodging any further notices of claim or caveats against the Property without prior leave of the Court.
PLA Proceeding
[40] I now move on to consider the PLA proceeding, which is undefended by Ms Tian’s parents. They have not alleged any legal entitlement to remain in the Property. To the contrary, they have belatedly acknowledged that they must vacate it.
[41] Their post-hearing 29 August 2024 affidavit says that the narration of “rent” in the bank transfers was entered by Mr Diao, which they did not understand because they do not speak English. They also say that they diverted the payments to their own daughter at the suggestion of Ms Tian’s former lawyer (in lieu of Ms Tian applying for spousal maintenance), even though Mr Diao had not agreed to this (they decided to take silence as acquiescence).
[42] Even if there was no written or verbal tenancy agreement, I find that there was a statutory implied tenancy under s 210 of the PLA. This was on the basis of a weekly payment of $500, which can properly be described as “rent” under the PLA, cl 4(1) of sch 3. The second defendants had no entitlement to divert those weekly payments to their daughter, who did not own the Property. Mr Diao is accordingly entitled to
judgment against the second defendants as the occupants for the rental payments that he did not receive, plus outgoings, such as water rates.
[43] The issue of spousal maintenance is an entirely separate matter, within the exclusive jurisdiction of the Family Court.
[44] It is for Ms Tian and her parents to resolve between them whether Ms Tian needs to reimburse her parents for the payments she received. That is not an issue for determination in this proceeding.
[45] Given that Ms Tian is not occupying the Property and has acknowledged it must be vacated to enable sale, I do not consider it necessary to make possession orders against her, but I reserve leave for Mr Diao to apply for such orders informally and on an urgent basis if this becomes necessary (i.e. if she enters the Property and/or obstructs its sale).
[46] This proceeding does not concern the properties in Mission Bay. I am not prepared to make any orders for legal costs in unrelated proceedings. My orders are based on the agreed weekly payment of $500 up until the Property is vacated, since there was no evidence to substantiate a proper market rent for the Property or an alternative measure of mortgage consequences post-November 2023.29 I find that the proper defendants for the rental liability are the parents who occupied the Property, rather than Ms Tian.
Result
[47]I make the following orders:
(a)that caveat no. 12889187.1, lodged by Weijie Wang, Weiming Tian, and Gloria Yumeng Tian, on record of title NA1D/317 (North Auckland Land Registration District) be removed from that title immediately;
29 In terms of s 275 of the Interest on Money Claims Act 2016, the claim did not seek or quantify interest up until judgment, so the Court may not award that.
(b)restraining the first and second defendants, directly or through third parties, from lodging any further notices of claim or caveats on record of title NA1D/317 (North Auckland Land Registration District) without prior leave of the Court;
(c)that any implied tenancy is terminated, and the second defendants must give vacant possession of the Property at 29 Hobson Drive, Panmure to the plaintiff by 9.00 am on 7 September 2024;
(d)that Weiming Tian and Weijie Wang are liable to pay to Mr Diao:
(i)rent arrears of $59,143 from 18 May 2022 until 6 September 2024;
(i)outgoings for water consumption, wastewater, and other charges of $2,734.92; and
(ii)reimbursement of any court filing fees paid by him.
(e)interest is payable under s 10 of the Interest on Money Claims Act 2016 on the above sums until the date of payment;
(f)leave is reserved for Mr Diao to apply informally for orders in the PLA proceeding requiring Ms Tian to vacate the Property urgently, if this becomes necessary.
[48] As these findings determine the Caveat proceeding, the call scheduled for 10 September 2024 will not proceed. Registry allocated that hearing on 4 September 2024 upon eventually finding Ms Tian’s Caveat proceeding documents in the file and pay system, without realising that the application had already been heard on 21 August 2024.
[49] Unless Ms Tian enters the Property and/or obstructs its sale, there are no remaining substantive issues for determination in the PLA proceeding or the Tomlin order proceeding, so those will be at an end too.
O’Gorman J
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