Qian v Dong - [2022] NZHC 378

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-132

[2022] NZHC 378

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: 16 February 2022

Appearances:

Tim Rea for Yu Wen, Third Defendant/Applicant

Greg Blanchard QC and Kerry Puddle for the Plaintiffs/ Respondents

Judgment:

8 March 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 8 March 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

DONG QIAN v JIAQING DONG [2022] NZHC 378 [8 March 2022]

Introduction

[1] The third defendant in this proceeding, Mr Yu Wen, applies for leave to pursue an application for summary judgment after filing a statement of defence, and an order for summary judgment against the plaintiffs. He also seeks an order for increased costs against the plaintiffs, and disbursements.

Background

[2] This proceeding concerns a dispute over a property at 39 Wicklam Lane, Greenhithe, Auckland. On 13 November 2020, Mr Wen purchased the property from the first defendant, Mr Jiaqing Dong, for its subsequent development and subdivision. In December 2020, Mr Wen agreed to on-sell eight (not yet subdivided) sections of the property to the fourth defendant, Yu Homes Group Ltd.

[3] Mr Wen says the subdivision of the property is incomplete and the sale to Yu Homes Group Ltd remains unsettled. He wishes to complete the subdivision and settlement but is prevented from doing so by a caveat that the first plaintiff, Mr Dong Qian, has lodged over the property.

[4] Mr Qian and Mr Dong met in April 2017. They were neighbours on Wicklam Lane. Mr Qian alleges that when Mr Dong first purchased 39 Wicklam Lane in August 2019, he had an oral agreement with Mr Qian that the purchase would be for both their benefit. Mr Dong, meanwhile, says he purchased the property alone and that Mr Qian’s interest was only that of a lender. In mid-2020, the two men had a falling out. Mr Dong then sold the property to Mr Wen.

[5] Mr Qian has commenced the present proceeding, alleging that Mr Wen holds the property as a constructive trustee for him and that Mr Wen acquired the property from Mr Dong while knowing, or being wilfully blind to, the alleged fact that the transfer constituted a breach of Mr Dong’s fiduciary duty to Mr Qian.

[6] That breach is said to arise out of the alleged agreement between Mr Qian and Mr Dong that they would develop the property together and share in any profits arising from its development and sale.

[7] Mr Qian’s claim appears to be that Mr Wen and Mr Dong are associated, and that the two colluded to deprive Mr Qian of his interest in the property, or that Mr Wen knew or ought to have known of Mr…

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 378
Case: [2022] NZHC 378
Decision Date: 8 March 2022

CaseChat Overview and Summary

The third defendant, Mr Yu Wen, applied for leave to pursue a summary judgment application against the plaintiffs, Dong Qian and GRZ Properties Limited, and for an order for summary judgment against the plaintiffs. Mr Wen also sought an order for increased costs against the plaintiffs and disbursements. This proceeding concerns a dispute over a property at 39 Wicklam Lane, Greenhithe, Auckland. The plaintiffs claim that Mr Wen holds the property as a constructive trustee for Mr Qian and that Mr Wen acquired the property from Mr Dong while knowing, or being wilfully blind to, the alleged fact that the transfer constituted a breach of Mr Dong’s fiduciary duty to Mr Qian. Mr Wen denies the allegations and says he had no knowledge of Mr Qian before he bought the property and that he bought the property in good faith as a bona fide purchaser for value.

The court found that the plaintiffs’ claims were not entirely baseless or lacking in merit, and that there were a number of circumstances which required further investigation and explanation. The court noted that the circumstances leading up to the sale by Mr Dong to Mr Wen of the property were not detailed, and that the exact nature of the relationship between Mr Dong and Mr Wen needed to be explored. The court also found that there were conflicts in the affidavit evidence as to the costs of the property to Mr Dong, and that the sale price of the property to Mr Wen raised issues that required further explanation. The court held that proper determination of the issues in this proceeding would require cross-examination and credibility assessments, and that the issues were properly to be determined at trial. Therefore, the court declined Mr Wen’s substantive summary judgment application.

The court granted Mr Wen’s leave application but declined his substantive summary judgment application. The court awarded costs on a 2B basis to the plaintiffs.

Orders