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Luo v Jin

Luo v Jin

Case [2021] NZHC 709 31 March 2021

Constructive Trust

Implied Terms

Unjust Enrichment

Discovery & Disclosure

Standing

Property Law

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001906

[2021] NZHC 709

BETWEEN
LIN LUO

Applicant

AND

QIAO JIN

Respondent

Hearing: 2 February 2021

Appearances:

G Kohler QC and A Cook for the Applicant H McKee for the Respondent

Judgment:

31 March 2021

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 31 March 2021 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Meredith Connell, Auckland O’Sheas Solicitors, Hamilton

G Kohler QC, Auckland

LUO v JIN [2021] NZHC 709 [31 March 2021]

Introduction

[1] The applicant, Lin Luo, and the respondent, Qian Jin, were in business together. Their intention was to jointly invest in and develop properties and to share the profits equally. Several properties were purchased, some by a company they established, some by Ms Luo personally, and some by related companies. They did not record in writing the terms of the arrangement between them.

[2] Eventually the relationship broke down. Mr Jin has brought proceedings against Ms Luo concerning her withdrawal and use of company funds. Ms Luo has counterclaimed that Mr Jin breached his fiduciary obligations to her as a joint venture partner. She seeks an inquiry into the loss she says she has suffered. That proceeding, CIV-2019-419-000269 (the 269 proceeding) will be heard on 9 August 2021.

[3] This application relates to a property at 16 Farnworth Avenue, Rotorua (the Farnworth property). The property was purchased by Mr Jin and remains in his name. Ms Luo lodged a caveat against the title of the property. Mr Jin applied to the Registrar to have the caveat removed. Ms Luo applies to sustain the caveat pending the outcome of the 269 proceeding.

[4] Ms Luo says that the Farnworth property was one of those that they agreed to develop together. She says she worked on and expended significant sums to maintain and develop the property. Mr Jin maintains that the property was not part of the arrangement between them. He says he purchased it before he and Ms Luo agreed to go into business together. He says that most of the payments upon which Ms Luo relies were made by their company, not her personally.

Issues

[5]The issues for determination are:

(a)Has Ms Luo satisfied the Court that she has a reasonably arguable case for a beneficial interest in the Farnworth property, under an implied

(resulting and/or constructive) trust, based on contributions made to maintain and develop the property and/ or fiduciary obligations arising out of a joint venture arrangement between her and Mr Jin?

(b)If Ms Luo has established an arguable beneficial interest in the Farnworth property, should the Court exercise its discretion not to sustain the caveat because there is no practical advantage in maintaining it and Ms Luo’s interests can be reasonably accommodated another way?

Facts

[6] Before Mr Jin and Ms Luo agreed to buy and develop properties together,…

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 Luo v Jin

Details

AGLC: Luo v Jin [2021] NZHC 709
Case: [2021] NZHC 709
Decision Date: 31 March 2021

CaseChat Overview and Summary

In Luo v Jin, Lin Luo applied to sustain a caveat she lodged against a property in Farnworth Avenue, Rotorua, which was registered in the name of Qiao Jin. Mr Jin sought to remove the caveat so he could sell the property. Ms Luo argued that the property was part of a joint venture agreement between her and Mr Jin, and she had made significant financial contributions to its maintenance and development. She sought to sustain the caveat to protect her interest in the property. The court had to determine whether Ms Luo had established a reasonably arguable case for a beneficial interest in the property to sustain the caveat and whether, if she had, it should exercise its residual discretion to remove the caveat. The court held that Ms Luo had established a reasonably arguable case for a beneficial interest in the property based on her contributions made in the context of the joint venture agreement with Mr Jin. The court found that the summary nature of the proceeding was not suited to determining disputed questions of fact. The court also found that the interest claimed by Ms Luo was not inconsistent with the interest recorded in the caveat. The court declined to exercise its residual discretion to remove the caveat, ordering that the caveat be sustained. Ms Luo was successful in her application and the court ordered Mr Jin to pay her costs and disbursements.

Orders