Liu v Qian - [2023] NZHC 2653

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-756

[2023] NZHC 2653

UNDER
The Trusts Act 2019

The Property (Relationships) Act 1976

IN THE MATTER OF

An application for the removal and replacement of a trustee

BETWEEN

JINGWEN LIU

Plaintiff

AND

HAO QIAN

Defendant

Hearing: 11 September 2023

Appearances:

No appearance for the plaintiff E Hong for the defendant

Judgment:

22 September 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 22 September 2023 at [Time] pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

LIU v QIAN [2023] NZHC 2653 [22 September 2023]

[1] The parties married in October 2013 and separated in November 2019. In the course of their marriage, the Qian Duo Duo Family Trust (the Trust) was settled. The parties are the two trustees of the Trust.

[2] This proceeding began in March 2022 as one by the plaintiff, Ms Liu, seeking orders under the Trusts Act 2019 against the defendant, Mr Qian, as trustee of the Trust (the Trust Proceeding). In February 2023, Mr Qian brought his own proceeding against Ms Liu in the Family Court, applying for division of relationship property (the Relationship Property Proceeding). In that proceeding, Mr Qian made an interlocutory application for orders for sale of the parties’ home and for interim distribution of the proceeds (the Sale and Interim Distribution Application).

[3] The Relationship Property Proceeding was subsequently transferred (by consent) to this Court. The two proceedings were consolidated on 3 August 2023.

[4]This judgment determines the Sale and Interim Distribution Application.

Factual background

[5] The parties began dating in 2008. In October 2012, before their marriage, they purchased a family home in Fairview Heights, Auckland, for $835,000 (the Family Home). About $210,000 of the purchase price was paid using funds gifted from Mr Qian’s family. The balance was funded by a loan from the Bank of New Zealand.

[6] In November 2013 (shortly after their marriage), the parties refinanced the Bank of New Zealand loan with a loan from the ANZ Bank. That loan is secured by a mortgage registered against the Family Home.

[7] In February 2015, the parties’ daughter was born. Mr Qian says that in September 2015 he and Ms Liu agreed to set up a family trust in which they would be the trustees and beneficiaries and their daughter would be the final beneficiary. The Trust was settled that month. However, Mr Qian says that Ms Liu gave instructions to the law firm that drafted the Trust documents that were contrary to the agreement the parties had reached. Under the Trust, Ms Liu and Mr Qian are the trustees, the daughter is the final beneficiary, but Ms Liu’s parents are discretionary beneficiaries.

[8] Currently, the Trust owns three Auckland properties: a rental property in Te Atatu South, a rental property in Belmont, and a piece of bare land in…

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 Qian

Details

AGLC: Liu v Qian [2023] NZHC 2653
Case: [2023] NZHC 2653
Decision Date: 22 September 2023

CaseChat Overview and Summary

The case of Liu v Qian involved a dispute between the plaintiff, Jingwen Liu, and the defendant, Hao Qian, who were married and subsequently separated. Liu sought orders under the Trusts Act 2019 against Qian, who was a trustee of the Qian Duo Duo Family Trust. Qian, in turn, applied for the division of relationship property in the Family Court, and subsequently for the sale of the family home and interim distribution of the proceeds. The Family Court transferred Qian's proceeding to the High Court, where it was consolidated with Liu's Trust Proceeding. The court was required to decide whether to grant Qian's application for the sale and interim distribution of the family home.

The court considered the governing legal principles under the Property (Relationships) Act 1976, which allow the Court to make orders for the sale of relationship property and interim distribution of the proceeds as it considers just. The court must balance any prejudice to the respondent against any prejudice to the applicant of not making the order, taking into account various relevant considerations such as the needs and circumstances of the applicant, possible prejudice to the respondent or others, delays in the proceeding, and whether an interim distribution will cause further delays in finally determining the relationship property proceeding.

The court found that the amount sought by Qian as an interim distribution would be no more than his ultimate share of the relationship property pool, which includes chattels and motor vehicles. The court accepted Qian's evidence that he was financially disadvantaged and had moved to China to receive family support. The court also found that Liu had failed to comply with several directions made in the consolidated proceedings and had ignored Qian's attempts to discuss or reach an agreement on the division of their relationship property. The court concluded that all these factors favoured exercising its discretion to grant the orders sought by Qian.

The court ordered that the family home be sold, and after repayment of the ANZ Bank loan and deducting any reasonable costs of the sale, the balance of the sale proceeds of the Family Home be divided equally between Qian and Liu. Leave was reserved for the parties to seek further directions from the Court to implement the orders. If any costs issues arose, the parties could file brief memoranda.

Orders