Hinds v Song - [2022] NZHC 3017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001289

[2022] NZHC 3017

UNDER Land Transfer Act 2017, s 143

IN THE MATTER OF

An originating application to lodge a second caveat

BETWEEN

JAMES DANIEL HINDS

Applicant

AND

XIULING SONG

First Respondent

XIULING TRUSTEE LIMITED

Second Respondent

Hearing: 2 November 2022

Appearances:

A C M Fisher KC and S M Wilson for Applicant D A T Chambers KC and D Oh for Respondents

Judgment:

17 November 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 17 November 2022 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date………………………

HINDS v SONG & OR [2022] NZHC 3017 [17 November 2022]

Introduction

[1] Mr James Hinds makes an application under s 146 of the Land Transfer Act 2017 for an order that a second caveat may be lodged against four properties on Auckland’s North Shore. The properties are owned by the respondents. Mr Hinds was previously married to the daughter of the first respondent, Ms Song.

[2] The original caveats lapsed because of administrative error by Mr Hinds’ legal representatives.

[3] In the substantive proceedings Mr Hinds contends for an institutional constructive trust over the four properties based on what he says were extensive contributions made over a sustained period to the acquisition, preservation and enhancement of the properties. Mr Hinds says that he was an integral part of a family property enterprise.

[4] In opposing the application, the respondents say that Mr Hinds has not discharged the onus put on him by s 146 to justify the lodging of a second caveat. They say that Mr Hinds does not have a reasonably arguable case because the contributions he made to the properties were minor, that there was never a reasonable expectation that he would have an interest in the properties and that it is not reasonably arguable the respondents should reasonably expect to yield to Mr Hinds any interest in the properties.

[5] The critical issue I must determine is whether Mr Hinds has established a reasonably arguable case for an institutional constructive trust based on the principles of the well-known case Lankow v Rose upon which he relies.1

Factual background

[6] Mr Hinds and his former wife, Ms Dong, were in a de facto relationship from approximately May 2007 to 2013. They were married in 2013 in China and separated

1 Lankow v Rose [1995] 1 NZLR 277.

in 2018. Their marriage was dissolved in July 2022. They have one child together, born in 2013.

[7] Mr Hinds and Ms Dong met as bartenders at SkyCity in 2007. Between 2008 and 2016, they lived in various properties on the North Shore owned by the respondents.

[8] Attached and marked ‘Appendix A’ is a chronology of the acquisitions by the respondents, of which Mr Hinds says comprises the family property portfolio. It demonstrates which properties the…

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 [2022] NZHC 3017
Case: [2022] NZHC 3017
Decision Date: 17 November 2022

CaseChat Overview and Summary

The case of Hinds v Song is an originating application by James Hinds to lodge a second caveat against four properties owned by the respondents, Xiuling Song and Xiuling Trustee Limited. The original caveats had lapsed due to administrative error by Hinds' legal representatives. Hinds is the ex-husband of Song's daughter and contends for an institutional constructive trust over the properties based on his alleged contributions to their acquisition, preservation, and enhancement. The respondents argue that Hinds has not satisfied the requirements of s 146 of the Land Transfer Act 2017 to justify lodging a second caveat. The critical issue before the court was whether Hinds had established a reasonably arguable case for an institutional constructive trust based on the principles set out in Lankow v Rose.

The court found that while Hinds' case was weak, it was not patently clear that his caveat could not be maintained. The court held that an application to sustain a caveat is not the place to resolve disputed issues of fact. The court found that it was reasonably arguable that Hinds' contributions to the properties were more than minor and not outweighed by the benefits he received. The court also found that it was reasonably arguable that Hinds had a reasonable expectation of an interest in the properties and that the respondents should reasonably expect to yield to him such an interest. The court therefore concluded that Hinds had demonstrated a reasonably arguable case for a second caveat against the properties.

The court granted Hinds' application to lodge a second caveat against the four properties. The court also ordered that Hinds, the successful party, is entitled to costs on a 2B basis. If agreement cannot be reached on costs, then memoranda are to be filed and served within 14 days.

Orders