Qin v Awesome Home Limited
[2025] NZHC 1856
•9 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1015
[2025] NZHC 1856
UNDER the Land Transfer Act 2017 IN THE MATTER OF
an application for an order that a caveat not lapse
BETWEEN
YUEFA QIN
Applicant
AND
AWESOME HOME LIMITED
Respondent
Hearing: 1 July 2025 Appearances:
David Connor and Ms Oh for the Applicant Gregory Thwaite and Ms Teh for the Respondent
Judgment:
9 July 2025
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application for an order that caveat not lapse]
This judgment was delivered by me on 9 July 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
………………………….
Registrar/Deputy Registrar
Solicitors:
Nolen Walters (James Nolen/Dala Oh), Auckland, for the Applicant Millennium Lawyers (Fei Fei Teh), Auckland, for the Respondent
Copy for:
David Connor, Auckland, for the Applicant Gregory J Thwaite, Auckland, for the Respondent
QIN v AWESOME HOME LIMITED [2025] NZHC 1856 [9 July 2025]
The application
[1] Yuefa Qin (Mr Qin) applies to sustain a caveat 13188506.1 (the Caveat) lodged over the property at 13 Kerema Way, Schnapper Rock, Auckland, Record of Title 170109 (the Property). The application is opposed by the respondent, Awesome Home Limited (AHL), on the basis that Mr Qin does not have any equitable interest in the Property and therefore the caveat cannot be sustained.
[2]The Caveat claims an interest:
The Caveator, Yuefa Qin, claims an equitable or beneficial interest in 13 Karema Way, Schnapper Rock, Auckland, being the land in Record of Title 170109, pursuant to a resulting trust arising from financial contributions made towards the purchase price and/or development of the property, of which the Registered Owner Awesome Home Limited is a trustee and the Caveator is the beneficiary.
[3]An interim order made on 13 May 2025 currently sustains the Caveat.
Background
[4] The applicant, Mr Qin, is retired and with his wife Ms Peijue Wang migrated from China to New Zealand to be near their daughter, Ms Gongyan Qin (Ms Qin), who was married to Mr Yizi Zhang (Mr Zhang). The marriage ended in 2022. Mr Qin and his wife granted Mr Zhang powers of attorney meaning he was able to make payments from, and deposits to, their personal bank accounts.
[5] Mr Qin says that on 21 September 2010, he and his wife purchased a property located at 807/11 Liverpool Street, Auckland (the Liverpool Street Property). The Property was registered in the name of Ms Qin and Mr Zhang, but a deed of trust was signed by Mr Qin and Mr Zhang on 17 September 2010 recording that the Liverpool Street Property was held on trust for Mr Qin and his wife.
[6] Mr Qin says that on 31 July 2017 Mr Zhang used money from Mr Qin and his wife’s ANZ joint account to facilitate the acquisition of a property located at 31 St Jude Street, Avondale (the St Jude Street Property). This property was eventually registered in the names of Mr Qin and his wife.
[7] On 8 March 2021, Mr Xiaonan Luo (Mr Luo), the sole director of AHL, entered into an agreement to purchase the Property for $2,450,000. Mr Qin says Mr Luo needed financial help as completion of the purchase was imminent. Mr Qin says that Mr Luo was aware that Mr Qin had agreed to sell the St Jude Street Property, so asked whether Mr Qin would agree to use the sale proceeds towards purchase of the Property. Mr Qin says Mr Luo assured him that he would get his money and “fair share” back.
[8]Mr Luo in his evidence says that he has never met Mr Qin.
[9] In October 2021, Mr Zhang caused $900,000 to be paid from Mr Qin’s personal account to AHL.
[10] AHL says it has repaid Mr Qin and his wife part, but not all, of what is owing. Mr Qin says he and his wife are entitled to the Caveat’s protection because there is a resulting trust in respect of the Property.
Legal principles
Caveats
[11]Section 138 of the Land Transfer Act 2017 provides, relevantly:
138 Caveats against dealings with land
(1)A person may lodge a caveat against dealings with an estate or interest in land (a caveat against dealings) on the basis that the person—
(a)claims an estate or interest in the land, whether capable of registration or not; or
(b)has a beneficial estate or interest in land under an express, implied, resulting or constructive trust[.]
…
[12]Schedule 2 of the Land Transfer Regulations 2018 provides:
Caveat against dealings document
A description of the nature of the estate or interest claimed by the caveator (which must be stated with sufficient certainty) or, for a caveat under section 138(1)(d)(ii) of the Act, the matters that establish that there is a risk that the estate or interest may be lost through fraud.
Details of how the estate or interest claimed is derived from the registered owner.
[13] The principles governing the determination of applications to sustain caveats are well-established.1 The onus is on the caveator to demonstrate an interest in the land sufficient to support the caveat, and the caveator must demonstrate a reasonably arguable case to support the claimed interest.2 This means the caveator need not definitively establish his or her right to the interest.
[14] The process by which applications to sustain a caveat are determined is ill- suited to resolving disputed factual questions. An order for removal will only be made if it is clear the caveat cannot be maintained — either because there was no valid ground for its lodging in the first place, or because the ground on which it was lodged has now ceased to exist.
[15] Although the onus of proof lies with the caveator, any conflict between affidavits will generally be resolved in the caveator’s favour.3 This is not to say that the Court is bound to accept uncritically statements in an affidavit that lack precision, are equivocal, inconsistent with the documentary evidence or other statements of the same deponent, or inherently improbable.4
[16] While the Court retains a residual discretion to remove a caveat or allow it to lapse even if the caveator has a legitimate and caveatable interest, that discretion is to
1 See generally Philpott v Noble Investments Ltd [2015] NZCA 342 at [26]. For a general statement of the principles, see Wallace v Studio New Zealand Ltd [2021] NZCA 392 at [39]–[41].
2 Botany Land Development Ltd v Auckland Council [2014] NZCA 61 at [24]–[25].
3 Bethell v Rickard [2013] NZCA 68 at [22]. See also MacRae v Rapana HC Auckland M633/94, 17 June 1994.
4 Barrett v IBC International Ltd [1995] 3 NZLR 170 (CA) at 175, citing Eng Mee Yong v Letchumanan s/o Velayutham [1980] AC 331 (PC) at 341; and Xie v 126 Waimumu Ltd [2020] NZHC 1109 at [8].
be exercised cautiously. The Court must be completely satisfied removal would not prejudice the caveator’s legitimate interests.5
Resulting trust
[17] The legal test for a resulting trust is based around the presumption against a gift as was explained in Westdeutsche Landesbank Girozentrale v Islington London Borough Council:6
Under existing law a resulting trust arises … where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested either in B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if [they are] the sole provider of the money) or in the case of a joint purchase by A and B in shares proportionate to their contributions.
Submissions for Mr Qin
Alleged repayments
[18] Mr Connor, for Mr Qin, deals with the allegation that the money has been repaid to Mr Qin as follows:
(a)Both Mr Zhang and Mr Luo confirm that AHL received $900,000 with the transfer having been arranged by Mr Zhang.
(b)On 21 March 2025 the solicitors for AHL wrote to Mr Qin’s former solicitors and asserted that $840,000 had been repaid, and that it had been paid to Mr Zhang.
(c)Mr Qin’s solicitors wrote to AHL asking for evidence that he had been repaid, but none was provided. This caused him to commence the present application.
(d)It is unclear precisely how much is claimed to have been repaid. While bank statements have been provided, they lack sufficient context.
5 Pacific Homes Limited (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656.
6 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (HL) at 708.
Mr Luo appears to suggest that $840,000 was repaid, whereas Mr Zhang refers to $300,000.
(e)Regardless, Mr Qin’s position is that no repayment has been made to him. The alleged repayments were made by AHL to Mr Zhang. Mr Zhang knew the money had originally come from Mr Qin, and likewise, Mr Luo having, on Mr Qin’s evidence, met with him to arrange the borrowing, means that AHL knew that the payment was to Mr Zhang, not to Mr Qin.
Basis of the resulting trust: contribution to purchase price
[19] Mr Connor submits that the resulting trust in respect of the Property arises from contributions by Mr Qin and his wife to the purchase price of the Property, and submits:
(a)In October 2021 the sum of $900,000 was transferred directly from Mr Qin and his wife’s joint account to AHL’s bank account. This transaction is not disputed, and is documented in bank statements exhibited to Mr Zhang’s second affidavit dated 9 May 2025.
(b)Relying on the authority of Li v 110 Formosa (NZ) Limited,7 the holder of a bank account is treated as having both the legal and beneficial ownership of funds in the bank account and, unless there is evidence to the contrary, funds in a bank account are treated as belonging to the account-holder.
(c)The funds are directly traceable to the sale proceeds of the St Jude Street Property. The St Jude Street Property settled and the net proceeds of sale of $799,292.28 were deposited into Mr Qin and his wife’s joint account. This is the account the $900,000 was drawn from.
7 Li v 110 Formosa (NZ) Limited [2020] NZCA 492.
(d)In the unlikely event the $900,000 was found to have originated from Ms Qin and Mr Zhang, Mr Qin maintains that Ms Qin and Mr Zhang’s financial position was only made possible through his and his wife’s earlier contribution, specifically the acquisition of the property at 14 September Place, Forrest Hill, Auckland, using the equity of the Liverpool Street Property, an asset funded by Mr Qin and his wife.
No intention to gift
[20] Mr Connor asserts that Mr Qin had no intention to give the money away to AHL/Mr Luo or to Mr Zhan, and in support of this he submits:
(a)Mr Luo of AHL met with Mr Qin and directly requested financial help in respect of the purchase of the Property, promising Mr Qin he would be repaid his money and get a “fair share” in return. At no point was there any suggestion the funds were a gift.
(b)As to the argument that the funds were given by Mr Qin to Mr Zhang pursuant to Chinese cultural expectations around parental support, any suggestion that this money constituted a customary or unconditional gift within this context is misplaced — Mr Zhang is not Mr Qin’s child, and additionally Chinese cultural traditions are grounded in trust, reciprocity, and accountability. To take the money on the pretext of cultural custom and deny any obligation for a return is contrary to those values.
(c)Mr Qin and his wife had saved diligently for their retirement and it defies logic they would simply gift $900,000, a substantial portion of their savings, to AHL or to Mr Zhang.
(d)The trust deed in respect of the Liverpool Street Property confirms that despite legal title being held by Ms Qin and Mr Zhang, the beneficial ownership of this Property lay with Mr Qin and his wife and similarly the power of attorney granted to Mr Zhang made it clear he was authorised to act on their behalf, not to treat their assets as his own.
(e)By analogy with the decision in Wang v Wang,8 where the Court rejected similar arguments to those raised by Mr Zhang, Mr Qin and his wife were not donors, they were investors expecting repayment or recognition of their beneficial interest.
Intention to retain beneficial interest in the Property
[21] Mr Connor submits that Mr Qin has evidenced an intention to retain a beneficial interest in the Property. On learning that the Property was listed for sale in December 2024, Mr Qin lodged the Caveat, which Mr Connor submits is not consistent with the behaviour of a party who donated the money as a gift; such behaviour is that of a person who believes he has a beneficial interest in the Property.
Contradictions in AHL’s evidence
[22] Mr Connor also points to the following contradictions in AHL’s evidence before the Court, and says the only proper place to resolve these matters is at trial. These include:
(a)AHL denies that the arrangement was commercial, with Mr Zhang claiming it was a gift. Yet on Mr Qin’s evidence he met with Mr Luo who asked to borrow the money and in return pay it back along with a “fair share”.
(b)AHL relies on affidavits from Mr Zhang — who admits the money came from Mr Qin and his wife’s joint account and acknowledges the concept of trust in intra-family arrangements — yet simultaneously claims Mr Qin has no relevant interest.
(c)Mr Zhang’s affidavits refer to cultural norms, legal trust principles, and his use of powers of attorney to access Mr Qin and his wife’s accounts. His narrative contradicts AHL’s claim that it had no knowledge of Mr Qin’s involvement. On Mr Qi’s evidence, Mr Luo met with Mr Qin, and text messages from Ms Qin corroborate those meetings.
8 Wang v Wang [2025] NZHC 951.
(d)Part of the alleged repayment by AHL to Mr Qin derives from a GST refund for Mr Qin. It is inconsistent with Mr Qin having no interest in the Property but receiving a GST refund in respect of it.
Submissions for AHL
[23] Mr Thwaite, for AHL, submits that for there to be a resulting trust, Mr Qin would need to show firstly that funds belonged to him, and secondly that there was no intention to gift the funds or transfer them on a commercial basis, and thirdly that no consideration was received. He submits the landowner can provide evidence to overcome any presumption in favour of the caveator, and he refers to the following comments in Lendich v Codilla:9
The authors of Equity & Trusts in New Zealand referring to the rebuttal of the presumption regarding the existence of a resulting trust say:
The presumption of a resulting trust will be rebutted by evidence of an intention to make a gift, loan or trust, or where consideration has been provided, or where there is any other evidence of any intention inconsistent with the trust.
Caveat
[24] Mr Thwaite submits the Caveat is defective as, if the funds utilised in purchasing the Property were funds belonging to Mr Qin, they were actually funds belonging to Mr Qin and his wife. Consequently he, as the caveator, could only ever have an equitable interest in the Property jointly with his wife, and could not hold an equitable interest solely on his own account. The interest recorded in the Caveat is incorrect and the Caveat should be lapsed on that basis alone.
[25] I do not accept this argument. The underlying purpose of the caveat régime could be undermined if too strict an approach is taken to the detail to describe the interest claimed and its derivation from the registered proprietor.10 What is important is that AHL and the Court understand the nature of the interest claimed and the basis of that claim. In my view the Caveat does that sufficiently, albeit it only refers to
9 Lendich v Codilla [2023] NZCA 222 at [13], citing Andrew Butler Equity & Trusts in New Zealand
(2nd ed. Thomson Reuters, Wellington, 2009) at [12.5.2] (footnotes omitted).
10 Zhong v Wang (2006) NZCPR 488 at [58].
Mr Qin’s interest in the Property notwithstanding the funds may have been joint funds of Mr Qin and his wife.
No proof that Mr Qin’s money
[26] Mr Thwaite submits that there is no proof that the money is Mr Qin’s. He points to the following evidence in support of this claim:
(a)Mr Qin placed sums at the disposal of Ms Qin and Mr Zhang. The financial structure included the establishment of trust arrangements and the appointment of Mr Zhang as the attorney for both Mr Qin and his wife.
(b)There is evidence that Mr Qin and his wife held the St Jude Street Property on trust for Ms Qin and Mr Zhang, and the proceeds of the sale of the St Jude Street Property were paid to Ms Qin and Mr Zhang.
(c)Using the powers of attorney given by Mr Qin and his wife, Mr Zhang transferred funds from the joint bank account of himself and Ms Qin to the joint account of Mr Qin and his wife. The funds were then transferred to AHL.
(d)AHL has no record of Mr Qin or his wife being party to any financial transaction with AHL. In particular, Mr Qin and/or his wife are not identified as shareholders, office holders, or creditors of AHL.
(e)Mr Qin now claims that the funds, which he describes as an “advance”, were due to be repaid to him alone by AHL, either when the Property was sold or at some earlier time.
[27] Mr Connor submits that the ultimate source of the funds was Mr Qin and his wife in their capacity as trustees of the St Jude Street Property under which Mr Zhang and Ms Qin were beneficiaries and:
(a)The passage of the funds through the joint account of Mr Qin and his wife was a decision of Mr Zhang as attorney for Mr Qin and his wife, as he transferred the funds onwards; and
(b)the passage of the funds through that account did not change the nature of the funds as belonging to Mr Zhang and Ms Qin.
No intention to create an equitable interest
[28] Mr Thwaite submits that there was no intention to create an equitable interest. In his submission, Mr Quin had empowered Mr Zhang to take money from his account using the power of attorney, and this accords with Mr Zhang’s evidence that there was no “precise involvement” of Mr Qin as part of the transfer. He submits AHL has provided evidence that no intention existed on the part of Mr Qin (either personally or through his attorney) to create an equitable interest in the Property.
Mr Qin was expecting a repayment
[29] Mr Thwaite submits that Mr Qin was expecting a repayment, and that although he expected to be repaid, he demonstrated no other claim as an owner or the Property, for example, by paying a portion of rates or outgoings. He submits that it is acknowledged by Mr Qin that no more than an advance was intended.
Discretion to remove the Caveat
[30] Mr Thwaite submits that even if Mr Qin can show an arguable claim, the Court should exercise its residual discretion to remove the Caveat for the following reasons:
(a)The Caveat has caused a delay to AHL’s development plans in respect of the Property and has impeded its financing arrangements. Mr Qin could have lodged the Caveat earlier and the Caveat unnecessarily blocks AHL’s business intentions;
(b)the Family Court is an appropriate forum for the dispute between Ms Qin and Mr Zhang. The issue of whether the funds in Mr Qin and his wife’s bank account should be subject to a claim from Ms Qin as
belonging to both Ms Qin and Mr Zhang is a matter for resolution between them.
Result
[31] I am of the view that the Caveat should be sustained as Mr Qin has an arguable case that AHL holds the Property subject to a resulting trust in his favour, and hence he has a caveatable interest in the Property. The reasons for this view are:
(a)There is conflicting evidence in respect of important factual issues:
(i)As to the ownership of the funds used in the purchase of the Property, there is evidence from Mr Qin that the St Jude Street Property from which the funds were derived was a property beneficially owned by Mr Qin and his wife and therefore the funds belong to them. There is evidence from Mr Zhang that the St Jude Street Property was beneficially owned by Mr Zhang and Ms Qin. It is unexplained that if, in Mr Zhang’s contention, the funds from the sale of St Jude Street Property were beneficially owned by Mr Zhang and Ms Qin, why they should be transferred through Mr Qin and his wife’s account before being on-transferred to AHL.
(ii)As to whether, on Mr Qin’s evidence, Mr Qin and Mr Luo met and discussed the use of the proceeds of sale of the St Jude Street Property for the purchase of the Property or, as on Mr Luo’s evidence, he did not meet Mr Qin and Mr Qin had no involvement in the transfer of funds to AHL.
(iii)As to what amount (if any) of Mr Qin’s funds have been repaid, and whether they have been repaid to Mr Qin and is wife or to Mr Zhang.
These conflicts of evidence need to be resolved at trial, and Mr Qin has a reasonably arguable case that the funds were his and his wife’s funds,
and that they were advanced to AHL for the purpose of purchasing the Property.
(b)While clearly there was an expectation of repayment of the funds loaned by Mr Qin and his wife to AHL, there is also arguably an expectation that Mr Qin would share in the proceeds of the ultimate sale of the Property based on the allegation that that Mr Luo represented that he would receive his funds back plus a “fair share”. Consequently, Mr Qin has an arguable case for a resulting trust based on his contribution to the purchase price of the Property together with an expectation of repayment and a share in the proceeds of sale of the Property.
(c)The contention that Mr Qin and his wife intended the $900,000 to be a gift to Mr Zhang and/or AHL is clearly disputed between the parties and there is clearly a serious issue to be dealt with as to whether Mr Qin and his wife intended to give away a large proportion of their retirement savings. This will need to be established in evidence, and Mr Qin has an arguable case that no gift of the funds was intended.
[32] I do not accept the proposition that, notwithstanding that I have determined Mr Qin has an arguable caveat interest in the Property, the Court should nevertheless remove the Caveat. As noted at paragraph [16], the discretion to remove a caveat where a caveatable interest has been established should be exercised cautiously and the Court must be satisfied that there is no prejudice to the caveator’s interest. In this instance the removal of the Caveat would allow sale of the Property by AHL and put at risk dissipation of the proceeds of sale without Mr Qin being able to benefit from his interest in the Property if that is ultimately established.
Orders
[33]I make the following orders:
(a)that caveat 13188506.1 lodged over the property at 13 Kerema Way, Schnapper Road, Auckland, Record of Title 170109 not lapse;
(b)as Mr Qin is the successful party, costs should follow the event. Counsel are directed to endeavour to agree costs and, failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for Mr Qin will file a memorandum as to costs (not to exceed five pages) within five working days after the expiry of the 20 working day period, and counsel for AHL will file a memorandum (not to exceed five pages) in response, within five working days of receipt of counsel for Mr Qin’s memorandum. A decision as to costs will then be made on the papers.
……………………………… Associate Judge Taylor
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