Lo v Lo

Case [2020] NZHC 1614 8 July 2020

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1398

[2020] NZHC 1614

BETWEEN
HO SHING LO

Applicant

AND

HO CHEONG LO

First respondent

CHI NA KWOK

Second respondent

Hearing: 29–30 June and 1 July 2020

Appearances:

M D Lloyd for the applicant M G Keall for the respondents

Judgment:

8 July 2020

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 July 2020 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel:
M D Lloyd Barrister, Auckland M G Keall Barrister, Auckland

LO v LO [2020] NZHC 1614 [8 July 2020]

[1] The applicant (“Ho Shing”) and first respondent (“Ho Cheong”) are twins and the registered proprietors of a half-share each in a six-bedroom property in Auckland’s Flat Bush. The property was acquired in May 2015 with a mortgage secured over it and another three-bedroom property in Auckland’s Papakura (since sold, the proceeds going to reduce the mortgage), of which they also were registered proprietors on its acquisition in October 2010. The two properties served sequentially as the twins’ family home, in which they had lived with the second respondent (their mother (“Chi Na”), and their younger brother (“Ho Kwan” Lo) and maternal grandmother (“Yanyi” Wang). I mean no disrespect by using their common names as at the hearing.

[2] Ho Shing now applies for orders under s 339 of the Property Law Act 2007 for sale of the Flat Bush property and division of its proceeds between him and Ho Cheong, or requiring Ho Cheong to purchase his share in it. The property was valued in June 2019 at $1.250 m, over which is secured a $662,000 mortgage. Ho Cheong and Chi Na oppose largely on grounds Chi Na contributed the entirety of the purchase price of the Papakura property not covered by the original mortgage, which was acquired (and succeeded by the Flat Bush property) as a home for the extended family. (The Papakura property was retained as collateral for the Flat Bush mortgage, and maintained as a rental property, rent going to reduce the amount of the mortgage.) They argue Ho Shing, Ho Cheong, and Chi Na contributed roughly equal sums to the family’s living expenses (including mortgage repayments and other property expenses). That includes the twins’ payment of ‘board’ to Chi Na while living at the family home, when Chi Na ceased to obtain child support payments after they turned eighteen years of age.

Background

[3] Chi Na separated from her sons’ father in 2001, when the three boys were twelve and eight years old. The terms of the parents’ relationship dissolution were settled in 2010, with Chi Na receiving $300,000. At the time, the extended family had been living in two-bedroom rental accommodation, although Ho Shing and Ho Cheong also lived together for some unspecified period(s) in separate rental accommodation.

[4] In 2010, Ho Shing and Ho Cheong both obtained financial scholarships to support their intended…

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 Lo v Lo

Details

AGLC: Lo v Lo [2020] NZHC 1614
Case: [2020] NZHC 1614
Decision Date: 8 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Lo v Lo involved Ho Shing Lo, who sought orders for the sale and division of a six-bedroom property in Auckland's Flat Bush, which he co-owned with his twin brother, Ho Cheong Lo. Ho Shing's application was opposed by Ho Cheong and their mother, Chi Na Kwok, who argued that Chi Na had contributed significantly to the family's living expenses and the acquisition of the property. The central legal issue was whether the court should grant Ho Shing's application for sale and division of the property under section 339 of the Property Law Act 2007.

The court considered various factors, including the extent of each party's share in the property, the nature and location of the property, the number of other co-owners and their shares, and the comparative hardships that would result from granting or refusing the application. The court also examined the value of contributions made by each party to the property's improvements and maintenance, as well as any other relevant matters. After evaluating the evidence presented, the court concluded that the parties had not clearly established the terms of their joint ownership or how their interests could be realized.

Ultimately, the court determined that there was no impasse that required it to make an order for sale and division of the property. The court found that Ho Shing's desire for financial independence was not sufficient grounds for compelling the sale of the property, particularly considering the potential hardship it would cause to Ho Cheong and Chi Na. The court also noted that the registration of the property did not confer any right to division or sale under the new legislation. Therefore, the court dismissed Ho Shing's application for orders under section 339 of the Property Law Act 2007 but granted each party leave to issue ordinary proceedings seeking relief under that provision in relation to the co-ownership of the Flat Bush property. The court also decided that costs should lie where they fell, but reserved the right to determine costs if the parties could not agree otherwise.

Orders