Lau v Kopu
[2023] NZHC 2137
•10 August 2023
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 need not establish that interest definitively — it is enough if they present a reasonably arguable case.
(b)An order for a caveat’s lapse will only be made if it is patently clear it cannot be maintained — either because there was no valid ground for lodging it in the first place or, alternatively, that such ground has now ceased to exist.
(c)The process by which these applications are determined is ill-suited to resolving disputed questions of fact. A conflict between affidavits will generally be resolved in the caveator’s favour. However, the Court is not bound to accept uncritically statements in an affidavit that are equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable.
(d)Where the applicant has discharged its burden, the Court retains a residual discretion to remove the caveat. The Court will exercise this
2 Botany Land Development Ltd v Auckland Council [2014] NZCA 61; Philpott v Noble Investments Ltd [2015] NZCA 342; Bethell v Rickard [2013] NZCA 68 at [22]; MacRae v Rapana HC Auckland M633/94, 17 June 1994; Barrett v IBC International Ltd [1995] 3 NZLR 170 (CA) at 175 citing Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 at 341; Xie v 126 Waimumu Ltd [2020] NZHC 1109 at [8]; and Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656.
discretion cautiously and must be satisfied removal will not prejudice the caveator’s legitimate interest.
Mr Lau’s claimed interest in the property
[8] In his affidavit filed in support of the application, Mr Lau points to Mrs Kopu Gleeson’s role as manager of KKG Limited, her shareholding in that company and in KKG Custodian Limited and her ownership of the Clifton Road property and states that:
…[Mrs Kopu Gleeson] had capacity to transfer any funding from KKG to the disputed property for development of her benefit as trustee of the property.
[9]He also states:
While this affidavit is prepared, the updated report of … actual costs (in the range of $250,000.00) to be prepared by another Registered Master Builder and Kwanto valuation that due to KKG did not obtain Ps3 or Ps4 from Auckland [C]ouncil, the work done needed to be demolished and redo the work according to building act 2004 and applicant will file the reports in due course comparable where KKG received 1.02 million from Celine Lim on behalf of her father.
[10] Mr Lau attaches a Deed of Assignment between Mr Lin (signed by his daughter, Celine Lim, as his attorney) and Mr Lau dated 1 February 2023. In this document Mr Lin purports to assign to Mr Lau all his rights, titles and interests under the ‘Alteration and Additions’ contract between KKG Limited and Mr Lin, including any litigation rights.
[11] Through his submissions, Mr Lau articulated his beneficial interest in the Clifton Road property as arising from KKG Limited charging $1.08 million for the Shore Road renovation but allegedly delivering work valued under $300,000. He says this value was established by quantity surveyors, Kwanto.
[12] Mr Lau further alleges (through oral submissions) that he has evidence from a private investigator that the Lin family paid KKG Limited for materials which were used to renovate the Clifton Road property. He states that this evidence cannot be disclosed in this caveat hearing due to Privacy Act 2020 issues.
[13] As to his personal interest in the Clifton Road property, Mr Lau states that he is the ‘Property Manager’ for the Shore Road renovation. He says (again, through oral submissions) that Mr Lin and his family owe him around $100,000 in relation to another renovation, and that as they could not pay him, they assigned their rights under the renovation contract with KKG Limited to him instead. Mr Lau says he has filed proceedings in this Court relating to the alleged overpayment by the Lin family to KKG Limited. He asks the Court to sustain the caveat until those proceedings are determined.
No beneficial interest
[14] Mr Lau has not presented any evidence to support his allegations, which are inherently improbable. There is no evidence to support the assertion that KKG Limited overcharged the Lin family by some $700,000. Mr Lau has not filed the described evidence from the quantity surveyor, Kwanto.
[15] There is no evidential foundation for the allegation that KKG Limited charged the Lin family for materials that were used to renovate the Clifton Road property. The onus is on the caveator to show a reasonably arguable basis for their claimed interest in the caveated property. I draw the assumption from Mr Lau’s failure to file any evidence to support his claimed interest that no evidence exists.
[16] Mr Lau’s explanation for how he came to be assigned Mr Lin’s rights under the contract with KKG Limited also strains credibility.
[17] He has not, as he says, filed a statement of claim under the CIV number he gave.3
[18] I conclude that Mr Lau does not come close to presenting a reasonably arguable case for a beneficial interest in the Clifton Road property.
[19] Rather, it appears from correspondence attached to Mr Lau’s affidavit that he lodged the caveat to gain leverage for negotiations with KKG Limited or its insurers
3 CIV-2023-404-357.
for a refund of payments made for the Shore Road renovation. On 8 March 2023, Mr Lau wrote to Mrs Kopu Gleeson and Mr Gleeson saying:
Please look at the engineering report below;
I am not satisfied with the work that Jim done on site.
I would like the refund of the construction costs that paid to Jim or your company asap
There are few fail inspection report from Auckland Council.
I understand that you have the insurer who can do the refund and please refer me to them.
The work that you done not worth $1.02million.
You may use the money to build the house that owned by you or your other company that totally a fraud transaction.
I am open for all proposal of how you can refund the funding
either I file statement of claim against your company, both directors and shareholder
OR
refer the insurer for the project and I can discuss with the insurer lawyer to get the funding back.
[20] If there is a dispute between the Lin family and KKG Limited about the charges for the Shore Road renovation, it should be resolved according to the terms of the Alterations and Additions contract between them. It is an abuse of the caveat process for Mr Lau, acting under a purported assignment and based on unsubstantiated allegations, to lodge a caveat over an unrelated property to gain leverage for that dispute.
Result
[21] The application for an order that caveat 12662545.1 over the land in Record of Title NA42A/682 not lapse is dismissed.
[22] In accordance with the usual principle, Mr Lau will pay the respondents’ costs. I heard submissions on the appropriate measure of costs. The respondents seek indemnity costs on the basis that the caveat is an abuse of process.
[23] Mr Lau opposes an order for indemnity costs, repeating that there are grounds for his allegations, though he is unable to provide them to the Court.
[24] As noted, I consider that the lodging of this caveat was a blatant abuse of process. Mr Lau will pay the respondents’ costs on an indemnity basis and reasonable disbursements, to be fixed by the Registrar.
Associate Judge Gardiner
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