Qian v Dong - [2022] NZHC 744

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000132

[2022] NZHC 744

BETWEEN
DONG QIAN

First Plaintiff

GRZ PROPERTIES LIMITED
Second Plaintiff

AND

JIAQING DONG

First Defendant

NAC INTERNATIONAL TRADING LIMITED
Second Defendant

YU WEN
Third Defendant

YU HOMES LIMITED

Fourth Defendant

Hearing: 21 March 2022

Appearances:

G Blanchard QC and K Puddle for the Plaintiffs C Jiang for the First and Second Defendant

Judgment:

13 April 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 13 April 2022 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

QIAN v DONG [2022] NZHC 744 [13 April 2022]

Introduction

[1] Dong Qian (Mr Qian) claims that he and Jiaqing Dong (Mr Dong) bought a property at Wicklam Lane, Greenhithe, to develop together as partners. A resource consent for the subdivision of the property was obtained. Mr Qian and Mr Dong then had a falling out. Mr Dong sold Wicklam Lane to Yu Wen (Mr Wen). Mr Qian was not informed of the sale. A month later, Mr Wen sold around 50 per cent of the land area of the property to Yu Homes Group Limited (Yu Homes). That company has lodged a caveat against the certificate of title for the property.

[2] Mr Qian claims that Mr Dong breached their partnership or joint venture by not completing the development, transferring the property to Mr Wen below market price and without his knowledge, not receiving full payment or accounting to Mr Qian for the transfer, requiring Mr Qian to pay development costs after the transfer, and depriving Mr Qian of the ability to profit from the development and/or not paying him his share of the profits. Alternatively, he and his company QRZ Properties Ltd (QRZ) claim damages for breach of contract, or that they have a beneficial interest in the property under a constructive trust arising out of contributions they made towards the property’s purchase and development. Mr Qian alleges that Mr Dong and Mr Wen conspired to deprive him of his unregistered interest in the property and the development profits.

[3] Against Mr Wen, Mr Qian claims that he knew, or ought to have known, that he received the property from Mr Dong further to a breach of partnership, joint venture, or trust. On the basis that Mr Wen had actual knowledge or was wilfully blind to Mr Qian’s unregistered interest, and intended to defeat that interest, Mr Qian seeks declarations including that Mr Wen holds the property on trust for him and is prevented from settling the sale to Yu Homes, and an order that the caveat registered against the certificate of title for the property is removed.

[4] This decision deals with discovery. Mr Qian and QRZ have applied for further and better discovery from Mr Dong of documents relating to the purchase and sale of Wicklam Lane. Of…

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 Qian v Dong

Details

AGLC: Qian v Dong [2022] NZHC 744
Case: [2022] NZHC 744
Decision Date: 13 April 2022

CaseChat Overview and Summary

The case of Qian v Dong involved a dispute between Dong Qian and Jiaqing Dong regarding the sale of a property in Greenhithe. Qian alleged that he and Dong had entered into a partnership or joint venture to develop the property, but Dong sold it to Yu Wen without Qian's knowledge or consent. Qian sought declarations, damages, and other relief for breach of partnership, breach of contract, and conspiracy, among other claims. The case involved a request for further and better discovery of certain documents from Dong.

The court considered whether the plaintiffs were entitled to discovery of two categories of documents: bank statements for the period 2 to 10 November 2020 and any record of an agreement with Dong's mother for the advance of money for the purchase of the property. The plaintiffs argued that the documents were relevant to their causes of action, while the defendants claimed that the request was speculative and without evidential foundation.

The court considered the relevance of the documents to the issues before it, whether there were grounds for believing that the documents existed, and whether the time and cost of discovery were proportionate to its potential value. The court found that the bank statements were relevant and important to the issues for determination under the relevant causes of action, particularly the allegation that the transfer of ownership from Dong to Wen was a fraudulent scheme to defeat Qian's unregistered interest in the property and deprive him of his entitlement to a profit share. The court also found that the record of agreement with Dong's mother was not relevant or important to any of the issues before it.

The court ordered Dong to provide discovery of the bank statements but declined to order discovery of the record of agreement with Dong's mother. The court also ordered Dong to provide discovery of several other categories of documents that the plaintiffs had not sought orders for, and invited the parties to try to agree on a costs position.

Orders