Lin v Jia - [2018] NZHC 1033

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-69

[2018] NZHC 1033

IN THE MATTER OF Land Transfer Act 1952, section 137

BETWEEN

SHUN YI ZHU LIN

Applicant

AND

SHUNWEI JIA and XIAO XI ZHU

First Respondents

DE CHENG ZHU

Second Respondent

Hearing: 8 May 2018

Appearances:

R J Connell and J E M Connell for the Applicant D J Rooke for the Frist Respondents

No appearance for the Second Respondents

Judgment:

8 May 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Connell & Connell, Auckland, for the Applicant
David Rooke Law Office, Botany Town Centre, Auckland, for the First Respondents

LIN v JIA and ZHU [2018] NZHC 1033 [8 May 2018]

[1] The applicant seeks to sustain caveat 10638598.1, which is lodged against identifier 742658 (North Auckland Registry) for a property at Hollowout Street, Takanini. The first respondents are the registered proprietors. The interest claimed in the caveat is:

The registered proprietors, namely Shunwei Jia and Xiao Xi Zhu, as trustees of the land on a constructive trust for the caveator Shun Yi Zhu Lin as beneficiary for an interest in the land subject to this caveat.

[2] The applicant is the wife of De Cheng Zhu, the second respondent. They married in April 1993. There are three children of the marriage. They separated in September 2016. Xiao Xi Zhu is the sister of De Cheng Zhu. Shunwei Jia is the husband of Xiao Xi Zhu. They are the registered proprietors of the caveated property at 1/46 Hollowout Street, Takanini, Auckland. They bought it in November 2016.

[3] Shun Yi Zhu Lin believes that funds of her husband, De Cheng Zhu, went into that property. That is the essential basis for her lodging a caveat against the title.

[4] Xiao Xi Zhu has given affidavit evidence showing how the purchase of the property was financed. She has shown records from their solicitors’ trust account for the purchase that the purchase price came from a bank mortgage and from other funds. She has attached bank statements, which show a flow of funds into the solicitor’s trust account. The funds flowed through accounts in her own name, but appear ultimately to have been sourced from a family trust in the name De Qun Zhu, the brother of Xiao Xi Zhu and De Cheng Zhu.

[5] The caveat application is to be heard on 15 May 2018. Shun Yi Zhu Lin wishes to probe the assertions of Xiao Xi Zhu that none of the funds that went into the purchase of the property came from De Cheng Zhu. To that end she has given notice requiring Xiao Xi Zhu to appear for cross-examination. She has also applied for discovery of bank accounts in the names of the first respondents and the family trust of the second respondent.

[6] Originally the caveat application and the discovery application were set down to be heard on the same day, 15 May 2018.…

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 Lin v Jia

Details

AGLC: Lin v Jia [2018] NZHC 1033
Case: [2018] NZHC 1033
Decision Date: 8 May 2018

CaseChat Overview and Summary

Lin v Jia is a case involving a dispute over a property located at 1/46 Hollowout Street, Takanini, Auckland. The applicant, Shun Yi Zhu Lin, lodged a caveat against the property, claiming an interest in the property under a constructive trust. The registered proprietors are the first respondents, Shunwei Jia and Xiao Xi Zhu, who purchased the property in November 2016. Shun Yi Zhu Lin, the wife of De Cheng Zhu (the second respondent), believes that funds belonging to her husband were used to purchase the property. The case revolves around the legitimacy of the caveat and the need for further discovery of financial records to substantiate the claim.

The primary legal issues before the court were whether the applicant had established an arguable case for the interest claimed in the caveat and whether discovery of certain bank account statements was necessary for the just resolution of the substantive proceeding. The court needed to determine if the caveat was appropriately lodged and if discovery was warranted under the circumstances presented. The court had to balance the need for a prompt resolution of the matter with the necessity to ensure that the applicant's claim was adequately supported by evidence.

The court found that the caveat was not appropriately lodged as it was based on suspicion rather than a firm evidential foundation. The court emphasized that a caveator must be able to identify their claimed interest with sufficient certainty at the time of lodging the caveat. In this case, Shun Yi Zhu Lin had lodged the caveat based on suspicion rather than concrete evidence. The court also ruled that discovery was not required because the applicant's claim lacked a solid basis at the time of lodging the caveat. The court highlighted that discovery should not be used as a means to search for evidence that might substantiate a claim after the fact.

Ultimately, the court dismissed the application for discovery and determined that the matter would proceed based on the information already disclosed. The court also noted that the first respondent, Xiao Xi Zhu, would be required to attend for cross-examination. The decision did not indicate the outcome of the case, as it would depend on the evidence presented during the cross-examination and subsequent hearings.

Orders