Liu v Jiang - [2018] NZHC 1897

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CIV-2018-419-69 [2018] NZHC 1897

UNDER The Land Transfer Act 1952 and Property (Relationships) Act 1976

IN THE MATTER

of originating application by Ning Liu to sustain a caveat

BETWEEN

NING LIU

Applicant

AND

JIUBO JIANG

Respondent

Hearing: 6 July 2018

Appearances:

S Y Lu and A Teow for the Applicant M T Milroy for the Respondent

Judgment:

24 August 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 24 August 2018 4 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors/Counsel: Nolan & Lu, Hamilton
Foster & Milroy, Hamilton

LIU v JIANG [2018] NZHC 1897 [24 August 2018]

[1] The applicant Ning Liu (“Kitty”) married Shuai Jiang (“Michael”) in April 2008. The couple were together for some nine years and had one child before splitting up in February 2017.

[2] Following unsuccessful attempts to resolve relationship property issues between them, Kitty has filed a notice of interest pursuant to s 42 of the Property (Relationships) Act 1976 over a property located at 479 Tauwhare Road, RD 4, Hamilton (“the Tauwhare Road property”). The Tauwhare Road property is owned by Michael’s father, the respondent Jiubo Jiang, and used as a berry farm by Matangi Berry Farms Ltd (“the Company”). Mr Jiang is the sole shareholder and director.

[3] Despite Mr Jiang’s legal ownership over both the Tauwhare Road property and the Company, Kitty claims that Michael has a beneficial interest in the Tauwhare Road property “by virtue of a constructive/resulting trust”.

The Application

[4] The s 42 notice is opposed by Mr Jiang and he has applied for the notice to lapse. This has resulted in the present application made by Kitty to sustain the s 42 notice.

[5] The principles for sustaining s 42 notices are not in dispute. A notice under s 42 has the same effect as a caveat against dealings with the property. In the caveat context those principles were summarised by the Court of Appeal in Philpott v Noble Investments Ltd in the following terms:1
(a)The onus is on the applicants to demonstrate that they hold an interest in the land that is sufficient to support the caveat, but they need not establish that definitively;
(b)It is enough if the applicants put forward a reasonably arguable case to support the interest they claim;
(c)The summary procedures involved with applications of this nature are not suited to the determination of disputed
questions of fact. An order for removal of a caveat will only

1 At 660 [2015] NZCA 342 at [26] (footnotes omitted). See also Sims v Lowe [1988] 1 NZLR 656 (CA); Orams Marine (Auckland) Ltd v Ports of Auckland Ltd (1994) 6 TCLR 88 (CA) at 92; Geneva Healthcare Ltd v Essential Assets Ltd [2014] NZHC 3236, (2014) 15 NZCPR 826 at [27]- [28].

be made if it is patently clear that the caveat cannot be maintained – either…

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 Liu v Jiang

Details

AGLC: Liu v Jiang [2018] NZHC 1897
Case: [2018] NZHC 1897
Decision Date: 24 August 2018

CaseChat Overview and Summary

In Liu v Jiang, Ning Liu (Kitty) sought to sustain a notice of interest over a property located at 479 Tauwhare Road, Hamilton, owned by Jiubo Jiang (Mr Jiang), the father of Kitty's ex-husband, Shuai Jiang (Michael). The application arose from an unresolved dispute regarding relationship property between Kitty and Michael following their separation. Kitty claimed a beneficial interest in the property via a constructive trust, alleging that Michael had a beneficial interest in the property through his father, Mr Jiang. The core legal issue in this case was whether Kitty had established a reasonably arguable case to support her claim of a beneficial interest in the Tauwhare Road property under the Property (Relationships) Act 1976.

The High Court, in delivering its judgment, examined the evidence presented by Kitty, which included financial transactions, social media posts, and bank statements. The court noted that while numerous questions remained about the financial arrangements, Kitty had provided sufficient detail to establish an arguable case that Michael had a beneficial interest in the Tauwhare Road property, making it relationship property in which Kitty could claim an interest. The court also highlighted that the summary procedures involved were not suited for determining disputed questions of fact and that the onus was on Kitty to demonstrate a reasonably arguable case.

The court concluded that Kitty had indeed provided sufficient evidence to sustain her claim, thereby allowing the notice of interest to remain in effect. The judge ordered that the notice of interest not lapse and gave Kitty one month to file substantive proceedings to explore the beneficial interest claim in detail. Additionally, Kitty was awarded costs on a 2B basis.

Orders