Lau v Kopu - [2023] NZHC 2137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000537

[2023] NZHC 2137

BETWEEN
EE KUOH LAU

Applicant

AND

GORDON ALEXANDER KOPU, LORRAINE WIKI KOPU, and

DELAMERE MARIE KOPU GLEESON

Respondents

Hearing: 7 August 2023

Appearances:

Applicant in Person

L Ponniah for the Respondents

Judgment:

10 August 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 10 August 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Daniel, Overton and Goulding, Auckland L Ponniah, Auckland

LAU v KOPU [2023] NZHC 2137 [10 August 2023]

Introduction

[1] Ee Kuoh Lau applies for an order that caveat number 12662545.1, registered on the title of a property owned by the respondents at Clifton Road, Hillsborough, Auckland not lapse. The respondents, Gordon and Lorraine Kopu and their daughter Delamare-Marie Kopu Gleeson oppose the application.

[2] Mr Kopu’s father purchased the Clifton Road property in around 1955. In 1981, the property succeeded to Mr Kopu and in 1982 he and Mrs Kopu became joint owners. In 2007 the property was transferred to their family trust, Blue Gum Grove Trust. Mrs Kopu Gleeson was appointed trustee in 2014. In July 2022, Mr and Mrs Kopu retired as trustees and were replaced by Mrs Kopu Gleeson’s sisters, Puawai Kopu and Awhina Wikitoria Kopu-Lowerson. The Record of Title still records Mrs Kopu Gleeson, and Mr and Mrs Kopu as the registered owners.1

[3] Mrs Kopu Gleeson owns and manages a construction company called KKG Limited with her partner Jim Gleeson. Mrs Kopu Gleeson and Mr Gleeson each independently own one share in the company and KKG Custodians Limited owns the balance. Mr Gleeson is the sole director of KKG Limited. Mrs Kopu Gleeson and Mr Gleeson jointly own and direct KKG Custodians Limited.

[4] KKG Limited, trading as ‘Refresh Renovations’ entered into a Master Builders ‘Alterations and Additions’ contract with Yuansheng Lin for the renovation of his property on Shore Road, Remuera. A dispute arose and KKG Limited terminated the contract for breach in June 2022.

[5] On 3 February 2023, Mr Lau manually filed a caveat against dealings form with respect to the Clifton Road property. Mr Lau recorded his interest in the property as:

…a beneficial interest in the land contained in the CT NA42A/682 pursuant to a constructive trust of which the registered owner is trustee.

1 Mrs Kopu Gleeson says the record has not been updated due to her being unwell for some time.

[6] The issue is whether it is reasonably arguable that Mr Lau has a beneficial interest in the property pursuant to a constructive trust.

Legal principles

[7] An application to sustain a caveat under s 143 of the Land Transfer Act 2017 is determined on a summary basis with the Court having regard to the following principles:2

(a)The applicant caveator bears the onus of demonstrating that they have an interest in the land sufficient to support a caveat. They…

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 Lau v Kopu

Details

AGLC: Lau v Kopu [2023] NZHC 2137
Case: [2023] NZHC 2137
Decision Date: 10 August 2023

CaseChat Overview and Summary

The applicant, Ee Kuoh Lau, sought an order preventing the lapse of a caveat lodged against a property owned by the respondents, Gordon and Lorraine Kopu, and their daughter, Delamare-Marie Kopu Gleeson. The respondents opposed the application. The property in question was purchased by Mr Kopu's father in 1955, and subsequently owned by the Kopu family through various entities, including a family trust. Lau claimed a beneficial interest in the property pursuant to a constructive trust. The court had to determine whether Lau had presented a reasonably arguable case to sustain the caveat.

Lau's affidavit and submissions suggested that Mrs Kopu Gleeson, as a trustee and shareholder in KKG Limited, a construction company, had the capacity to transfer funds from KKG to the Clifton Road property for her personal benefit. Lau also stated that KKG Limited had overcharged the Lin family for renovations, and that materials paid for by the Lin family were used for the Clifton Road property. Lau attached a deed of assignment between Mr Lin and himself, but did not provide evidence to support his claims. The court found Lau's allegations inherently improbable and not supported by any evidence.

The court held that Lau did not present a reasonably arguable case for a beneficial interest in the Clifton Road property. The caveat was an abuse of process, intended to gain leverage in a dispute with KKG Limited over the Shore Road renovation. Lau's failure to provide evidence to support his claims, and the lack of any evidential foundation for his allegations, led the court to conclude that the caveat should lapse.

The court dismissed Lau's application for an order preventing the lapse of the caveat, and ordered Lau to pay the respondents' costs on an indemnity basis, as well as reasonable disbursements to be fixed by the Registrar.

Orders