Legal Research
Cases
Lung v Liu

Lung v Liu

Case [2021] NZHC 1810 16 July 2021

Standing

Limitation Periods

Unconscionable Conduct

Unjust Enrichment

Specific Performance

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-001268

[2021] NZHC 1810

UNDER the Property Law Act 2007

IN THE MATTER OF

An application under section 339 of the Property law Act 2007

BETWEEN

JU-TING LUNG

Applicant

AND

YU-CHEN LIU

Respondent

Hearing: On the papers

Counsel:

K Sun for the Applicant

Judgment:

16 July 2021

JUDGMENT OF VAN BOHEMEN J

[For leave to commence proceeding by originating application]

This judgment was delivered by me on 16 July 2021 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors
Capstone Law Ltd, Auckland

LUNG v LIU [2021] NZHC 1810 [16 July 2021]

Introduction

[1] The applicant, Ju-Ting Lung, applies without notice for permission to commence a proceeding by originating application. As required by r 19.5(3) of the High Court Rules 2016, the proposed originating application is filed with the application for permission.

[2] Ms Lung seeks an order under s 339 of the Property Law Act 2007 (PLA) for the sale of a property at 27 Studfall Street, Pakuranga Heights (NA20A186) (the Property) that she and the respondent, Yu-Chen Liu, own as tenants in common, and for a division of the proceeds of sale.

[3] The application for permission states that the proceeding is a straightforward application of the test and considerations in s 342 of the PLA to which the Court must have regard to when considering whether to make an order under s 339 of the PLA. It also states that the use of the originating application procedure will not cause unfairness or prejudice to Mr Liu, would be in the interests of justice, and would better achieve the just speedy and inexpensive determination of the dispute between the parties.

Relevant background

[4] As explained in an affidavit by Ms Lung, Ms Lung and Mr Liu were previously married. They separated in June 2019. In October 2019, their former matrimonial home at 336 Bucklands Beach Road, Pakuranga was sold and the net proceeds of sale ($1,095,412) were deposited into their joint bank account. Ms Lung says she and Mr Liu divided the net proceeds of the sale equally in accordance with s 11 of the Property (Relationships) Act 1976.

[5] In February 2020, Mr Liu entered into an agreement to purchase the Property for $990,000. Ms Lung says that Mr Liu used $560,000 from his separate property to fund the purchase but was unable to borrow $430,000, the sum he needed to complete the purchase. Ms Lung says she and Mr Li made a verbal agreement under which she would support Mr Liu’s application to borrow $430,000 by becoming a joint borrower and taking on associated risks. In return, Ms Lung became the legal and beneficial

owner of a half share in the property. Under the verbal agreement, Mr Liu was responsible for interest on the loan and outgoings associated with the Property.

[6] Ms Lung says the loan was secured and the…

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 Lung v Liu

Details

AGLC: Lung v Liu [2021] NZHC 1810
Case: [2021] NZHC 1810
Decision Date: 16 July 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to consider an application by Ju-Ting Lung to commence a proceeding by originating application, seeking an order for the sale of a property owned as tenants in common with Yu-Chen Liu. The application was brought under section 339 of the Property Law Act 2007. The key issue before the court was whether the proceeding should be permitted to commence by way of an originating application without notice to the respondent, Yu-Chen Liu. The court had to assess whether the use of the originating application procedure would be fair, in the interests of justice, and would facilitate a just, speedy, and inexpensive determination of the dispute.

The court noted that while the originating application procedure is an exceptional one, particularly for contested proceedings not listed in rule 19.2 of the High Court Rules, it has become more widely used. The court held that the procedure is most suited to straightforward applications under specific statutory provisions where issues are clearly defined and confined, and not well suited for cases involving multiple parties or where there is a possibility of cross-claims. In this case, the court observed that the evidence provided by Ms Lung was cursory, and there was a lack of documentary evidence supporting her claims. There was also a possibility of significant disagreement between the parties regarding the factual basis of the dispute and potential cross-claims by Mr Liu. The court concluded that given the potential for contestation and the need to test the facts, including through cross-examination, the proceeding was not suitable for the originating application procedure.

In light of these considerations, the court declined Ms Lung's application for permission to commence the proceeding by way of an originating application without notice to Mr Liu. The court found that it was not in the interests of justice to proceed in this manner, given the potential for a complex and contested dispute.

The final orders of the court were that the application for permission to commence the proceeding by originating application was declined.

Orders