Nie v Guan - [2021] NZHC 2058

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-384

[2021] NZHC 2058

UNDER THE Land Transfer Act 2017

BETWEEN

YUNFEI NIE and JUANJUAN MA

Applicants

AND

SHENSHEN GUAN

Respondent

Hearing: 25 May 2021

Appearances:

SWM Piggin for the Applicant

Ms S Guan, Respondent in person with Mr Lyttleton as McKenzie Friend

Judgment:

10 August 2021

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 10 August 2021 at 4.30pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Northern Legal Ltd, Silverdale Vodanovich Law Ltd, Kumeu
SWM Piggin, Auckland Copy to:
S Guan, Auckland

NIE and MA v GUAN [2021] NZHC 2058 [10 August 2021]

Introduction

[1] This is an application by Mr Nie and Ms Ma that Caveat 11530129.1 lodged against the respondent’s interest in Record of Title WN 531/272 (Wellington Registry) not lapse.

[2] In lodging their caveat, the applicants rely on a document headed “IOU” which records that Ms Guan agreed to place two properties, including the property against which the caveat has been lodged, “as securities against my debt” and that she has “agreed to the creditors lodging a caveat against the interests of the above properties”.

[3] Ms Guan does not dispute that she owes the applicants money or that she signed the IOU but she says that she was coerced into doing so. These are factual issues that are not required to be determined in the current application. For the purposes of an application that a caveat not lapse, an applicant is only required to show that it has a reasonably arguable claim to an interest in land sufficient to support a caveat. The applicant does not need to establish the claim definitively. To determine final legal rights between the parties (including whether Ms Guan was coerced into signing the caveat as she alleges) it is necessary for general proceedings to be brought where full evidence can be given.

[4]The caveat describes the interest claimed as follows:

The caveators – Yunfei Nie and Juanjuan Ma as creditors and the registered owner Shenshen Guan as debtor reached an IOU on 2 August 2019. The registered owner agrees the caveators to have Mortgage to be secured by lodging a caveat against this title pursuant to the IOU. The agreement to mortgage is recorded in the IOU dated 2 August 2019.

[5] It is settled law that where there is an agreement to mortgage, there will be a caveatable interest in the property.1 The issue is whether the IOU recorded Ms Guan’s agreement to mortgage the property or, if not, whether it still provides a reasonably arguable basis for a caveatable interest.

1 Federal Capital Ltd v MTE 31 Ltd [2020] NZHC 811 at [19].

Factual background

[6] Mr Nie and Ms Guan have known each other since primary school in China and their families are friends.

[7] The applicants lent significant sums of money to the respondent between 2015 and…

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 Nie v Guan

Details

AGLC: Nie v Guan [2021] NZHC 2058
Case: [2021] NZHC 2058
Decision Date: 10 August 2021

CaseChat Overview and Summary

Yunfei Nie and Juanjuan Ma (the applicants) applied for a caveat not to lapse over a property owned by Shenshen Guan (the respondent). The applicants lodged the caveat against the respondent’s interest in a property at 17 Frederick Street, Tawa, Wellington, on 21 August 2019. The applicants relied on an IOU dated 2 August 2019, signed by the respondent, that recorded the respondent’s agreement to place two properties, including the property over which the caveat was lodged, “as securities against my debt” and that she had “agreed to the creditors lodging a caveat against the interests of the above properties”. The respondent did not dispute that she owed the applicants money or that she signed the IOU but she said that she was coerced into doing so. The court found that the IOU created a present interest in the property as it simply stated that the respondent “agrees to place the properties as securities” and that the wording in relation to the caveat, together with the agreement to “place the properties as securities”, reinforced the position that there was a present agreement to create an interest in land. The court concluded that the IOU provided a reasonably arguable basis for claiming a caveatable interest. The application by the applicants that the caveat not lapse was granted. The applicants were also granted their costs.

Orders