Mo v Yang - [2019] NZHC 2712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000997

[2019] NZHC 2712

BETWEEN
QINGHUA MO and YU HUANG

First Plaintiffs

DH and PM LIMITED
Second Plaintiff

AND

ZHE YANG

First Defendant

YAN YANG

Second Defendant

Hearing: 17 October 2019

Appearances:

G D Wiles and R Kaur for Plaintiffs I Hutcheson for Defendants

Judgment:

31 October 2019

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 31 October 2019 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date……………………….

MO & OR v YANG & OR [2019] NZHC 2712 [31 October 2019]

Introduction

[1] In these summary judgment proceedings, the plaintiffs (Pat and David)1 seek an order for sale of a property at Dairy Flat, pursuant to s 339 of the Property Act 2007. The property is registered in the name of the second defendant (Emily). The plaintiffs say they are entitled to an 87.32 per cent share of any sale proceeds on the basis that that percentage represents the proportion of the funds they advanced for the purchase.

[2] The plaintiffs rely upon a Deed of Nomination between themselves and the first defendant (Calvin) nominating them as the purchasers of the property. They sue in contract and alternatively contend for a resulting trust in their favour.

[3] The defendants do not object to a sale of the property but say that there is a dispute between the parties as to their respective shares in it. They submit that given the disputed factual circumstances, this critical issue is wholly unsuitable for summary judgment. The defendants contend that the arrangements between the parties were for the plaintiffs to have a one-third share in the property and the balance of the funds they advanced were loans.

[4] The critical issue I must determine is whether the plaintiffs have established the defendants have no defence. That turns on a determination of whether the arrangements for which the defendants contend are so inherently improbable or lacking in credibility (on the basis of inconsistency with undisputed contemporary documents) that they cannot rebut the presumption of a resulting trust for an 87.32 per cent share.

Background facts

[5] In December 2014, Calvin, the brother of Emily, signed an agreement for sale and purchase of Lot 4, Bawden Road, Dairy Flat (the property) with Kim Valerie Campbell for $750,000. He paid a deposit of $105,000.

[6] Pat and David say they first became involved in property dealings with Calvin and his colleague, Jackson Law (Jackson), in 2015.

1 The first named plaintiffs are the directors of the second plaintiff company.

[7] Pat, David, Jackson and Calvin are currently involved in litigation in the High Court at Auckland relating to the following Auckland properties:

(a)12 Ropata Avenue, Point England, and the subject of proceedings Mo v Tamaki Homes Ltd, CIV-2018-404-2619. That is an ordinary proceeding that has recently been the subject of case management…

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 Mo v Yang

Details

AGLC: Mo v Yang [2019] NZHC 2712
Case: [2019] NZHC 2712
Decision Date: 31 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mo v Yang involved the plaintiffs, Qinghua Mo and Yu Huang, suing the defendants, Zhe Yang and Yan Yang, seeking an order for the sale of a property at Dairy Flat under Section 339 of the Property Act 2007. The plaintiffs claimed an 87.32 per cent share of the sale proceeds based on their contribution to the purchase price. They argued that a Deed of Nomination signed by the parties in May 2017 established their entitlement to this percentage, and they sought either a declaration of a resulting trust or a declaration of breach of contract. The defendants did not oppose a sale but contested the percentage of the proceeds to which the plaintiffs were entitled. They argued that the plaintiffs were only entitled to a one-third share and that the balance of the funds they advanced was a loan.

The court had to determine whether the plaintiffs had established that the defendants had no defence to their claim. This involved examining whether the plaintiffs had demonstrated that the defendants' proposed arrangement (a one-third share plus loan) was so inherently improbable or lacking in credibility that it could not rebut the presumption of a resulting trust. The court found that while the plaintiffs had established a strong evidential foundation for a presumption of a resulting trust, there was credible evidence supporting the defendants' position. Specifically, there were discussions between the parties about the title being registered in the name of Emily, the second defendant, and WeChat communications that suggested the plaintiffs had agreed to this arrangement. The court also found that the broader context of the parties' relationship and other property transactions might be relevant but could not be determined at the summary judgment stage. Consequently, the court concluded that the plaintiffs had not established that the defendants had no defence to their claim for an 87.32 per cent share. The plaintiffs' application for summary judgment was dismissed, and costs were reserved. The court directed that a case management conference be arranged to make further directions for the proceedings.

Orders