Liang v Han - [2023] NZHC 2070

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000547

[2023] NZHC 2070

BETWEEN
CHAO LIANG

Applicant

AND

YANGFENG HAN

Respondent

Hearing: 24 July 2023

Appearances:

C Liang in Person (with J Young as Translator)

D van Hout / R Selby for the Respondent (with A Gu as Translator)

Judgment:

8 August 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 8 August 2023 at 12.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors:

Russell Legal, Auckland

LIANG v HAN [2023] NZHC 2070 [8 August 2023]

Introduction

[1] Chao Liang claims that Yanfeng Han, a real estate agent, tricked him into selling his two properties at Kelwyn Road in Auckland at an undervalue of around
$2.4 million.

[2] Mr Liang has lodged a caveat over a property at Vaughans Road, Auckland owned by Mr Han as a trustee for NB Vaughans Limited (the Trust). Mr Han has applied to the Registrar-General of Land for the caveat to lapse. Mr Liang now applies to the Court under s 143 of the Land Transfer Act 2017 (Act) for an order that the caveat not lapse.

[3] The essential issue is whether Mr Liang has demonstrated that he holds a beneficial interest in the Vaughans Road property sufficient to support the caveat.

Further background facts

[4] In December 2018, Mr Liang listed his properties at 12 and 14 Kelwyn Road for sale with Barfoot & Thompson’s Glenfield branch. The listing agents were Lars Kuo and Sharon Lim. The listing report records the method of sale being by negotiation, with a price range of $920,000 to $970,000 for number 12; and $830,000 to $850,000 for number 14.

[5] Mr Han, a newly qualified real estate agent at Barfoot & Thompson’s Milford branch, became aware of the listings. Mr Han and his supervisor, Kai Deng, acted for the property developer Precise Homes Limited (Precise Homes). On 23 January 2019, Mr Han visited Mr Liang at home and presented him with offers from Precise Homes for the Kelwyn Road properties. Ms Lim was also present.

[6] The events of that day are heavily disputed, but formal agreements for sale and purchase signed and initialled by Mr Liang record that he agreed to sell 12 and 14 Kelwyn Road to Precise Homes for $970,000 and $850,000 respectively. The settlement date was stated to be 29 April 2019. Mr Liang claims that he was tricked into the sales by Mr Han; and that Mr Han forged his signature and initials on the agreements. Mr Han denies this allegation.

[7] Two months later, in March 2019, Mr Liang laid a complaint about Mr Han with Barfoot & Thompson. He complained that: Mr Han had deceived him about the net amount he would receive from the sale of the Kelwyn Road properties; that he did not understand what he was signing as he did not…

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 Liang v Han

Details

AGLC: Liang v Han [2023] NZHC 2070
Case: [2023] NZHC 2070
Decision Date: 8 August 2023

CaseChat Overview and Summary

Chao Liang brought an application under section 143 of the Land Transfer Act 2017, seeking to maintain a caveat over a property at Vaughans Road, Auckland. Yangfeng Han, the respondent, is the sole trustee for the property in question, which was purchased by a trust for $4.15 million. Mr Liang claims that Mr Han, a real estate agent, tricked him into selling his two properties at Kelwyn Road at an undervalue of around $2.4 million and now seeks to claim this amount from Mr Han in separate proceedings. Mr Liang lodged the caveat to prevent Mr Han from selling the Vaughans Road property until his claim is resolved.

The court had to determine whether Mr Liang had demonstrated that he held a beneficial interest in the Vaughans Road property sufficient to support the caveat. The court considered that a caveat protects a beneficial estate or interest in the land in question and is not a tool for a plaintiff to deploy to secure the property of a defendant from whom the plaintiff claims damages. Mr Liang argued that he had a beneficial interest in the Vaughans Road property because he considered that Mr Han tricked him into selling the Kelwyn Road properties for around $2.4 million less than their market value, and he now looks to recover that amount from Mr Han and Barfoot & Thompson in separate proceedings. However, the court held that Mr Liang's claim to damages for an alleged loss of chance to make an additional $2.4 million on the Kelwyn Road sales did not amount to an arguable estate or interest in the Vaughans Road property sufficient to support the caveat.

The court also considered whether there was an alternative basis for a caveatable interest, such as if Mr Han had used funds derived from the alleged fraud to acquire or service the mortgage on the Vaughans Road property. However, the court found that Mr Liang did not provide any evidence or explanation for the allegation in the caveat form that Mr Han used profits of $400,000 to service the Vaughans Road properties. The court concluded that Mr Liang had not discharged the onus on him to demonstrate that it was reasonably arguable that he holds a beneficial interest in the Vaughans Road property.

Accordingly, the court dismissed Mr Liang's application to sustain the caveat over the property at 106 Vaughans Road and ordered that Mr Liang should pay Mr Han's costs. The court invited Mr Han to make submissions on the amount of costs he should receive, and Mr Liang to respond within ten working days.

Orders