General Finance Limited v Lau - [2023] NZHC 2205

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2023-404-001364 CIV2023-404-001506

CIV2023-404-001608 [2023] NZHC 2205

UNDER the Declaratory Judgments Act 1908

BETWEEN

GENERAL FINANCE LIMITED

Applicant

AND

EU KUOH (AUGUSTINE) LAU

First Respondent

AND

LIYUN CHEN

Second Respondent

Hearing: 9 and 16 August 2023

Appearances:

M G P Martin for the Applicant E K Lau in person

Judgment:

16 August 2023

ORAL JUDGMENT OF WHATA J

This judgment was delivered by me on 16 August 2023, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:
Martelli McKegg, Auckland Copy to: E Lau, L Chen

GENERAL FINANCE LIMITED v LAU [2023] NZHC 2205 [16 August 2023]

[1]General Finance Limited (GFL) seeks the following orders:

(a)removal of caveat registered by Mr Lau against the property at 9 Sunderlands Road, Half Moon Bay (the Property);1

(b)removal of notice of claim by Mr Lau against the title to the Property;

(c)a declaration that a document, alleged by Mr Lau and Ms Chen to be a residential tenancy agreement in respect of the Property is unlawful, invalid and of no effect.

[2] These matters have come before the Court in a haphazard way reflecting and responding to various steps taken by Mr Lau to protect his interests. I resolved in a telephone conference the day before the initial of hearing this matter, that we should focus on the application to remove the caveat, being the most pressing matter for GFL.

[3]The central issues in dispute are whether:

(a)It is reasonably arguable that Mr Lau has any interest in the Property that might sustain the caveat; and

(b)I should exercise my discretion to remove the caveat in any event.

Process post first hearing

[4] At the hearing I indicated to Mr Martin and Mr Lau that various matters needed to be attended to in order to put the case on a proper footing before me. I mean no criticism of the parties in this regard. It is simply a reflection of the mobile and urgent nature of the matters in dispute. In this regard:

(a)Given the relevant information was spread across multiple files and at least two sets of proceedings, a further common bundle was necessary with all key documents included.

1 The application to remove caveat in respect of another property at 92 Jeffs Road, Flat Bush was withdrawn prior to the hearing.

(b)I also indicated to Mr Martin that further attention was needed in terms of specific legal issues and associated authorities.

(c)Mr Lau also needed to produce affidavit evidence as to various matters he had raised, and in particular he needed to confirm the date of execution of a separation agreement, a tenancy agreement, a lease and the sale and purchase agreement which he says provide the basis for his caveatable interest.

[5]As a consequence of this, I gave leave to:

(a)Mr Martin to file a further bundle of documents and authorities, together with supporting submissions.

(b)Mr Lau to…

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.

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Details

Case: [2023] NZHC 2205
Decision Date: 16 August 2023

CaseChat Overview and Summary

General Finance Limited (GFL) brought an application for the removal of a caveat registered by Mr Lau against a property at 9 Sunderlands Road, Half Moon Bay, and for a declaration that a document alleged by Mr Lau and Ms Chen to be a residential tenancy agreement in respect of the property was unlawful, invalid, and of no effect. The central issues in dispute were whether it was reasonably arguable that Mr Lau had any interest in the property that might sustain the caveat, and whether the Court should exercise its discretion to remove the caveat in any event. The Court held that while there was a reasonably arguable case for the interest claimed in the caveat, Mr Lau's scheme of arrangements was never brought to GFL's attention prior to the execution of the loan. GFL was therefore a bona fide mortgagee without notice of Mr Lau's asserted interests. The Court agreed with GFL that Mr Lau's interests had no priority over GFL's or the purchaser's interests, and therefore no automatic protection in respect of the registration of any transfer executed by GFL for the purpose of the exercise of its power of sale over the property. The Court ordered the removal of the caveat and the notice of claim, and that GFL were entitled to costs on a 2B basis together with disbursements to be fixed by the Registrar.

Orders