MA v MA - [2016] NZHC 1426

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-837 [2016] NZHC 1426

IN THE MATTER OF
an application that Caveat 10252404.1

against 16 Wineberry Place, Albany, Auckland, not lapse

BETWEEN

LULU MA Applicant

AND

GUO LIANG MA AND LK TRUSTEES (NO.91) LIMITED (AS TRUSTEES OF THE GOOD HOPE TRUST)

First Respondent

GUO LIANG MA Second Respondent

Hearing: 28 June 2016

Appearances:

R S Pidgeon for the Applicant
D K Wilson for the Respondents

Judgment:

28 June 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Hong Hu Lawyers Ltd, Auckland, for Applicant
Loo & Koo, Auckland, for Good Hope Trust and Guo Liang Ma
Raymond S Walker, Auckland

Counsel:
R S Pidgeon, Auckland, for Applicant
David K Wilson, Auckland, for Respondents

MA v MA AND LK TRUSTEES (NO.91) LIMITED (AS TRUSTEES OF THE GOOD HOPE TRUST) [2016] NZHC 1426 [28 June 2016]

[1] Lulu Ma applies for an order that caveat 10252404.1 not lapse. The caveat was lodged against the title to the property at 16 Wineberry Place, Albany, Auckland, described in identifier NA96D/301. The first respondents are the registered proprietors. The interest claimed in the caveat is:

The abovenamed caveator claims a beneficial interest in the land contained in the above certificate of title NAS96D/301 as cestui que trust of which the registered proprietors: Guo Liang Ma and L K Trustee (No.91) Ltd are trustees.

General principles on caveat applications

[2] In Holt v Anchorage Management Ltd, McMullin J stated the purpose of a caveat against dealings under the Land Transfer Act:1

Once lodged, a caveat is notice to all who search the title to the land against which it is registered and to the registered proprietor of the land (to whom notice of its receipt is given pursuant to s 142) that the caveator claims the estate or interest the subject of the caveat. It is both a warning to the persons mentioned that the caveator asserts rights against the land and a protection of those rights. (Section 143(1) uses the phrase "protected by the caveat".) Once the caveat is lodged the Registrar is prohibited from making any entry on the register which has the effect of charging or transferring or otherwise affecting the estate or interest protected by the caveat (s 141).

[3] In caveat applications under ss 143, 145 and 145A of the Land Transfer Act

1952, the caveator generally has the onus of showing a reasonably arguable case for the interest claimed. The interest must come within s 137(1) of the Act:

137 Caveat against dealings with land under Act

(1) Any person may lodge with the Registrar a caveat in the prescribed form against dealings in any land or estate or interest under this Act if the person—

(a) claims to be entitled to, or to be beneficially interested in, the land or estate or interest by virtue of any unregistered agreement or other instrument or transmission, or of any trust expressed or implied, or otherwise; or

(b) is transferring 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 MA v MA

Details

AGLC: MA v MA [2016] NZHC 1426
Case: [2016] NZHC 1426
Decision Date: 28 June 2016

CaseChat Overview and Summary

Lulu Ma applied for an order that a caveat against the title to a property at 16 Wineberry Place, Albany, Auckland, not lapse. The registered proprietors, Guo Liang Ma and LK Trustees (No.91) Limited (as trustees of the Good Hope Trust), opposed the application. The primary issue before the court was whether the applicant had a caveatable interest in the property. The court considered whether the applicant had a vested interest under the trust deed and whether the applicant’s claim based on the oral promise was valid. The court found that the applicant’s interest under the trust deed was not vested and therefore not caveatable. Furthermore, the court held that the oral promise made by the applicant's father was based on a void agreement and did not provide a basis for a caveatable interest. Consequently, the court dismissed the application and ordered that the caveat lapse. The lapse of the caveat would take effect from 19 July 2016, allowing time for potential appeal instructions. The court also noted that if the parties could not resolve costs, memoranda could be filed, and costs would be decided on the papers.

Orders