Hinds v Song - [2023] NZHC 3285

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1226

[2023] NZHC 3285

UNDER The equitable jurisdiction of the High Court

IN THE MATTER OF

A constructive trust claim

BETWEEN

JAMES DANIEL HINDS

Plaintiff

AND

XIULING SONG and YING DONG

First Defendants

XIULING SONG
Second Defendant

XIULING TRUSTEE LIMITED

Third Defendant

YING DONG

Fourth Defendant

Hearing: 16 November 2023

Appearances:

V A Crawshaw KC and S P Chandra for Plaintiff

D A T Chambers KC and D C-J Oh for respondents

Judgment:

20 November 2023

JUDGMENT OF O’GORMAN J

Solicitors / Counsel:
Martelli McKegg, Auckland Meredith Connell, Auckland

D Chambers, KC, Auckland S Chandra, Auckland
V Crawshaw KC, Auckland

HINDS v SONG and DONG [2023] NZHC 3285 [20 November 2023]

[1] This is a determination of an interlocutory application by the plaintiff under ss 74 and 94 of the District Court Act 2016 seeking to transfer this proceeding from this Court to the District Court. The plaintiff makes the application on the grounds that a quantity surveyor expert has recently undertaken a quantum analysis and the amount to be pursued in the institutional constructive trust claims will now be less than $350,000. Accordingly, the plaintiff’s position is that claims currently pursued in this proceeding will now fall within the jurisdiction of the District Court.

[2] The respondents oppose the interlocutory application. This constructive trust proceeding is related to other proceedings presently before the Family Court involving common parties, properties and factual events. The plaintiff had previously expressed his intention to apply to transfer the Family Court proceedings to the High Court, then apply for all related claims to be consolidated. The respondents have consented to that approach in memoranda filed in the Family Court. Furthermore, the respondents say that the amounts claimed in this proceeding exceed the jurisdiction of the District Court, and in any event the complexities and nature of the claims make this proceeding unsuitable for transfer.

Procedural background

[3] This proceeding was commenced on 20 July 2022 with a statement of claim that asserts an institutional constructive trust in respect of nine properties. Five of those properties have been sold, and the relief sought is “a sum equivalent to 50% of the proceeds of sale” of those properties, being $3,103,000. For the remaining four properties still owned by the respondents, the relief sought is “a sum equivalent to 50% of the current market value (less borrowings)” of those properties. The pleaded market value of those four remaining properties totals $11,160,000, and they are all located in Auckland:

(a)8 Francis Street, registered in Ms Song’s name;

(b)10 Quebec Road, registered in Ms Song’s name;

(c)26 Spencer Terrace, registered in Ms Song’s name; and

(d)44 Channel View Road, registered in XTL’s name.

[4] On 20 July 2022 the plaintiff also filed an originating application that the plaintiff’s caveats not lapse over the four properties listed above.1 Notwithstanding that application, the caveats did lapse, for failure to notify the Registrar General…

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 Hinds v Song

Details

AGLC: Hinds v Song [2023] NZHC 3285
Case: [2023] NZHC 3285
Decision Date: 20 November 2023

CaseChat Overview and Summary

In this matter, the plaintiff, James Daniel Hinds, sought to transfer his constructive trust claim from the High Court to the District Court, contending that the quantum analysis had reduced the amount sought below the District Court’s jurisdictional limit. The defendants, Xiuling Song, Ying Dong, Xiuling Trustee Limited, and Ying Dong, opposed the transfer, arguing that the complexity, nature, and amount in issue made the High Court the more appropriate forum. The court was required to determine whether the jurisdictional and other criteria for transfer were met.

The court considered the nature of the case, the complexity, the general public importance, the amount in issue, the likely length of the hearing, and the financial resources of the parties. The court found that the jurisdictional threshold was not met as the pleaded claim far exceeded $350,000. Even if the plaintiff capped the relief sought to meet the jurisdictional limit, the pleaded contributions were likely beyond the value of the District Court’s jurisdiction, with higher evidential burdens than usual for District Court claims. The court also found that the nature of the institutional constructive trust claim against third-party assets and the complexity of the case, including the number of properties, the relevant time period, and cultural considerations, made the High Court the more suitable forum. The court was not satisfied that the District Court was more appropriate than the High Court to hear this proceeding.

Accordingly, the court dismissed the plaintiff’s application to transfer the proceeding to the District Court. The court ordered that the respondents were entitled to costs unless there were special reasons to the contrary and directed that a case management conference be held to timetable further steps.

Orders