Hu v Zheng HC Auckland CIV 2007-404-1895 - [2007] NZHC 586

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-1895

UNDER Section 145A of the Land Transfer Act
1952

BETWEEN JINGYI HU AND AIZHEN MAO Applicants

AND XIAN QING ZHENG Respondent

Hearing: 7 June 2007

Appearances: J B Murray for Applicants
L J Turner for Respondent

Judgment: 12 June 2007 at 3:45 pm

JUDGMENT OF ASSOCIATE JUDGE D.H. ABBOTT

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of 3:45pm on 12 June 2007

Solicitors:
Vallant Hooker & Partners, Auckland, for Applicants – Fax 360 9291
Russell McVeagh, Auckland, for Respondent – Fax 367 8069

L J Turner, Auckland - Fax 912 0085

JINGYI HU AND AIZHEN MAO V XIAN QING ZHENG HC AK CIV 2007-404-1895 12 June 2007

[1] The application before the Court for order that a caveat not lapse relates to a residential property at 24A Maple Street, Avondale Auckland (“the property”). The property has been registered in the name of the respondent since October 1999, but which has been the applicants’ home since December 1998.

[2] The parties, for a time, were related by marriage. The respondent married one of the applicants’ two sons in November 1998. In the same month, the other son purchased the property. The applicants, their two sons and the respondent initially lived in the property for a short time until the respondent and her former husband moved to separate rented accommodation.

[3] The property was transferred to the respondent in December 1999 in the face of a threat of a mortgagee sale. The basis upon which the transfer took place lies at the heart of the present application. The applicants say that the property was transferred to the respondent to hold on their behalf, and that they contributed the money needed to clear the prior mortgage. The respondent denies that there was any arrangement for her to hold the property on behalf of the applicants. She says that she contributed the money needed to clear the previous mortgage.

[4] The applicants lodged the caveat which is the subject of the present application claiming an interest in the property under an express oral or an implied trust. The present application was filed after the respondent took steps to have the caveat removed.

Name of respondent

[5] At the commencement of the hearing, counsel for the applicants informed me of an error in the name of the respondent. She has been named in the application as Xian Qing Zheng as that is the name entered on the title. The applicants accept that her correct name is Xiao Qing Zheng. For the sake of this application (given that the title is in the incorrect name) I record that the respondent’s correct name is Xiao Quing Zheng, but she is also known as Xian Quing Zheng.

Relevant background

[6] The applicants have filed three affidavits in support of the application. They are by the first-named applicant, Jingyi Hu, the applicant’s son and respondent’s former husband, Jian…

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 Hu v Zheng HC Auckland CIV 2007-404-1895

Details

AGLC: Hu v Zheng HC Auckland CIV 2007-404-1895 [2007] NZHC 586
Case: [2007] NZHC 586
Decision Date: 12 June 2007

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Jingyi Hu and Aizhen Mao v. Xian Qing Zheng HC Auckland CIV 2007-404-1895 involved a dispute over the ownership of a residential property at 24A Maple Street, Avondale Auckland. The applicants claimed a beneficial interest in the property under an express oral trust or a trust implied by law due to the funds they provided towards the property purchase. The respondent, who had been the registered proprietor of the property since October 1999, denied any trust arrangement and claimed to have contributed all the money towards the purchase price.

The legal issues before the court were whether the applicants had established an arguable case for an express trust and whether they had established an arguable case that they provided funds towards the purchase of the property. The court found that there was an arguable case for an express oral trust based on the circumstances of the case and the applicants' role in the initial purchase. The court also found that the applicants had an arguable case for a resulting trust, as they provided funds towards the purchase of the property.

The court ordered that the caveat registered against the title to the property not lapse until further order of the court, subject to certain conditions. The applicants were to commence proceedings for a declaration that the respondent held the property on trust for them, and as to the terms of such trust, within 28 days. The respondent had leave to apply for rescission of the order if the proceeding was not prosecuted with reasonable diligence. The court reserved costs until the substantive issue had been determined.

Orders