Luo v Shiu - [2020] NZHC 611

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-706

[2020] NZHC 611

BETWEEN
ZHENLIN (ROBERT) LUO

First Plaintiff

KC BROTHERS LIMITED
Second Plaintiff

ANG YIP
Third Plaintiff

MANFEI COMPANY LIMITED

Fourth Plaintiff

AND

XIAOLING (ANNIE) SHIU
First Defendant

Cont…

Hearing: 19 March 2020

Appearances:

A Barker QC for Plaintiffs/Applicants

D Bigio QC for Defendants/Respondents

Judgment:

23 March 2020

JUDGMENT OF LANG J

[on application for interim relief]

This judgment was delivered by me on 23 March 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

LUO v SHIU [2020] NZHC 611 [23 March 2020]

R & G PHOENIX LIMITED
Second Defendant

CSR POKENO LIMITED
Third Defendant

CIV-2020-404-34

UNDER THE Land Transfer Act 2017
IN THE MATTER of an application under s 143 BETWEEN ZHENLIN (ROBERT) LUO
First Applicant
R & G PHOENIX LIMITED
Second Applicant
CSR POKENO LIMITED
First Respondent
XIONGLING (ANNIE) SHIU
Second Respondent
ALISON HEIDI ST JOHN, MAURICE DESMOND HAYES and MICHAEL GRAHAM SMITH
Third Respondents

CIV-2020-404-32

UNDER THE Land Transfer Act 2017
IN THE MATTER of an application under s 143 BETWEEN ANG YIP
First Applicant
MANFEI COMPANY LIMITED
Second Applicant
CSR POKENO LIMITED
First Respondent
XIONGLING (ANNIE) SHIU
Second Respondent
ALISON HEIDI ST JOHN, MAURICE DESMOND HAYES and MICHAEL GRAHAM SMITH
Third Respondents

[1] This judgment deals with issues arising out of three separate proceedings. Two of the proceedings are applications to sustain caveats. The third is a substantive proceeding arising out of joint venture agreements (JVA’s) Ms Xiongling (Annie) Shiu has entered into with Mr Zhenlin (Robert) Luo and Ms Ang (Anny) Yip. The agreements relate to the acquisition of parcels of land situated near Pokeno.

[2] The land in question currently has a rural zoning and comprises farmland. The Waikato District Council is currently considering whether to re-zone the land so it can be subdivided for residential purposes. Mr Luo and Ms Yip say Ms Shiu persuaded them to purchase parcels of land on the basis that the land would be re-zoned and developed in tandem with adjoining land at 53 Munro Road. Ms Shiu has paid a deposit of $2 million for the Munro Road land and is due to complete the purchase of it on 1 May 2020. Mr Luo and Ms Yip say Ms Shiu told them they would make significant profits from the re-zoning and development of the land.

[3] Mr Luo and Ms Yip contend Ms Shiu has breached, and will continue to breach, her obligations under the JVA’s. They have lodged caveats over the Munro Road land to prevent her from disposing of or encumbering it without their consent. During the hearing Mr Barker advised me that Ms Yip and Mr Luo no longer seek to sustain their caveats against the Munro Road property. The applications in the caveat proceedings are accordingly dismissed with no issue as to costs.

[4] Mr Luo sought summary judgment in the substantive proceeding in 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 Luo v Shiu

Details

AGLC: Luo v Shiu [2020] NZHC 611
Case: [2020] NZHC 611
Decision Date: 23 March 2020

CaseChat Overview and Summary

The case of Luo v Shiu involves three separate proceedings related to joint venture agreements (JVAs) concerning the acquisition and development of parcels of land near Pokeno. The first two proceedings are applications to sustain caveats lodged by Mr. Zhenlin (Robert) Luo and Ms. Ang (Anny) Yip over certain properties to prevent Ms. Xiaoling (Annie) Shiu from disposing of them without their consent. The third proceeding is a substantive action arising from the JVA's, where Mr. Luo and Ms. Yip claim that Ms. Shiu has breached her obligations under the agreements. The court had to decide whether to grant an interim order prohibiting Ms. Shiu from disposing of her interest in the Munro Road land. The applicants argued that such an order was necessary to ensure Ms. Shiu did not sell the land to someone who would not be subject to the obligations imposed by the JVAs. Ms. Shiu opposed the application, arguing that the applicants could not establish a serious issue to be tried and that the balance of convenience weighed against the making of such an order. The court found that while the applicants had established a serious question to be tried, there was no legal basis on which the court could impede Ms. Shiu's right to deal with the land at 53 Munro Road. The court also found that the balance of convenience weighed against the granting of interim relief, as damages were likely to be the appropriate remedy for any wrongdoing proven on Ms. Shiu's part. The court therefore declined to make an interim order prohibiting Ms. Shiu from selling or disposing of her interest in the Munro Road land without the consent of the applicants or an order of the court. Costs were to lie where they fell in relation to all applications in CIV 2019-404-706.

Orders