Pragma Designer Homes Limited v Jiang - [2016] NZHC 677

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-434 [2016] NZHC 677

UNDER The Land Transfer Act 1952

IN THE MATTER

of an application pursuant to Section 145A Land Transfer Act 1952 for an order that a caveat against dealings not lapse

BETWEEN

PRAGMA DESIGNER HOMES LIMITED

Applicant

AND

ZHOU JIANG Respondent

Hearing: 6 April 2016

Appearances:

Mr C Talbot for Applicant
Mr A Foster for Respondent

Judgment:

13 April 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
13.04.16 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

PRAGMA DESIGNER HOMES LIMITED v JIANG [2016] NZHC 677 [13 April 2016]

Introduction

[1] This proceeding arises from an originating application brought pursuant to s 145A of the Land Transfer Act 1952 for an order that caveat against dealings not lapse.

[2] The brief background to the proceeding is that the applicant alleges that it is entitled to an interest in a section of land known as Lot 140 in the Teafields subdivision at Hamilton. The applicant relies upon an agreement for sale and purchase which it executed on 5 August 2015. The agreement describes the vendor as being Zidong Jiang. The purchaser is described as Pragma Designer Homes Limited. The price of the section was $275,000 and settlement was to take place on
6 August 2015. It subsequently turned out that the vendor Zidong Jiang was not in fact the registered proprietor of the property. The section was actually owned by his son, Zhou Jiang. The son is named as the respondent to the present application.

[3] The applicant lodged a caveat against the title to the property claiming an interest or estate in the land in the following terms:

Estate or interest claimed

Pursuant to an agreement for sale and purchase dated 5 August 2015 between the Caveator as purchaser and Zidong Jiang as Vendor who has a beneficial interest in the property through a trust relationship with the registered proprietor Zhou Jiang.

[4] The present application was filed to prevent the lapse of the caveat. The key provisions of the notice of application setting out the grounds which were relied upon to support the caveat stated:

(a) The applicant has entered into the ASP with the vendor and has an unregistered interest in the section;

(b) The vendor at all material times had a beneficial interest in the section through a trust relationship with the registered proprietor Zhou Jiang;

(i) The vendor at all material times when negotiating concluding and then seeking to avoid the ASP was represented by a real estate agency [Harcourts]… . Harcourts various correspondence and discussions with the applicant when concluding the ASP

referred to amendments and an additional clause required by “the current owner”.

[5] The originating application went on to state that after the agreement for sale and purchase became conditional Harcourts represented to the applicant that “the owner” wished to withdraw from the agreement and would only…

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.

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Details

Case: [2016] NZHC 677
Decision Date: 13 April 2016

CaseChat Overview and Summary

Pragma Designer Homes Limited brought an originating application seeking to prevent the lapse of a caveat against dealings it had lodged in respect of Lot 140 in the Teafields subdivision at Hamilton. The applicant lodged the caveat claiming an interest or estate in the land under an agreement for sale and purchase dated 5 August 2015 with Zidong Jiang as vendor. The property was actually owned by Zhou Jiang, the son of Zidong Jiang, who was named as the respondent to the present application. Zhou Jiang opposed the application on the basis that the caveat was defective and did not state all of the particulars required by s 137 of the Land Transfer Act 1952, in particular, how the land claimed was derived from the registered proprietor. The applicant argued that there was a trust relationship between Zidong Jiang and Zhou Jiang such that Zidong Jiang had a beneficial interest in the property. The court held that the caveat did not contain a sufficient statement of particularity regarding the source from which the rights of the caveator originated. The court found that the statement in the caveat failed to satisfy the requirements of s 137(2)(c) of the Land Transfer Act. The court concluded that because the caveator had not complied with the mandatory requirements of this section, it was not entitled to now seek sustention of the caveat. The result was that the application was dismissed. Costs were awarded against the party who failed in the proceeding and were to be on a 2B basis. The applicant was also entitled to have disbursements as fixed by the Registrar.

Orders