Qiu v Wang - [2023] NZHC 589

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001385

[2023] NZHC 589

BETWEEN
TINGSONG QIU

Applicant

AND

ROBERT JUNGAN WANG

Respondent

Hearing: 16 November 2022

Appearances:

T A Hwang for the Plaintiff

S R J Hamilton for the Defendant

Judgment:

24 March 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 24 March 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

Queen City Law, Auckland Simpson Lawyers, Auckland

S R J Hamilton, Auckland

QIU v WANG [2023] NZHC 589 [24 March 2023]

Introduction

[1] Tingsong Qiu (Mr Qiu) applies for an order that caveat 12385681.1 registered against a property in Albany, Auckland (the Property) not lapse.1 Mr Qiu says he has an interest in the Property as a beneficiary of a constructive trust, alleging that after purchasing the Property the respondent agreed to hold it on trust for his benefit. He states that he would suffer significant prejudice if the caveat were removed.

[2] The respondent, Robert Wang (Robert), opposes the application. He says that Mr Qiu has no interest in the Property as he never agreed to hold the Property on trust for Mr Qiu. He says if the Court finds it is reasonably arguable that Mr Qiu has an interest, it should exercise its discretion to remove the caveat.

[3]The issues to be determined are:

(a)Has Mr Qiu established that it is reasonably arguable that he has an interest in the Property capable of supporting the caveat?

(b)If yes, can the caveat be removed without prejudicing Mr Qiu’s interest?

Factual background

[4] The property at issue is 14 Stevensons Crescent, Albany, Auckland (legally described as Lot 5 Deposited Plan 430542, record of title 518767). The Property was previously owned by Rivava Trustee Company Ltd (Rivava). Rong Jiang is the sole director and shareholder of Rivava, albeit Mr Qiu controlled the company.

[5] Mr Qiu had been a friend and business associate of Robert’s father, Youren Wang (Mr Wang), for several years. On 30 July 2020, Mr Wang advanced
$2,300,000 to Rivava. The parties entered into a mortgage agreement over the Property, with the mortgage being registered by Mr Wang on 3 August 2020. That year Mr Wang also loaned Mr Qiu $773,220 and the parties entered into a mortgage

1 Land Transfer Act 2017, s 143.

agreement and term loan agreement on 30 July 2020 over a property in Flat Bush, Auckland (Flat Bush property).

[6] On 16 September 2021, Mr Qiu, Rivava and Mr Wang signed a Deed of Arrangement (the Deed). The Deed stated that Rivava and Mr Qiu owed Mr Wang
$3,600,000 plus interest for the sums he had lent them. It recorded how Mr Qiu and Rivava would repay Mr Wang by selling the Property and the Flat Bush property. The Deed provided:

(a)Mr Qiu and Rivava…

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 Qiu v Wang

Details

AGLC: Qiu v Wang [2023] NZHC 589
Case: [2023] NZHC 589
Decision Date: 24 March 2023

CaseChat Overview and Summary

The case of Qiu v Wang involves Tingsong Qiu, who seeks to prevent the lapse of a caveat he registered against a property in Albany, Auckland. Qiu asserts that he has a beneficial interest in the property as a beneficiary of a constructive trust, and that he would suffer significant prejudice if the caveat were removed. Robert Wang opposes the application, arguing that Qiu has no interest in the property as he never agreed to hold it on trust for Qiu. The issues before the court were whether Qiu has established that it is reasonably arguable that he has an interest in the property capable of supporting the caveat and, if so, whether the caveat can be removed without prejudicing Qiu's interest. The court held that Qiu has not established a reasonably arguable claim to a beneficial interest in the property under a constructive trust. Qiu's claim based on a loan to Rivava, contributions to the property, and an agreement to hold the property on trust were not reasonably arguable. The court dismissed Qiu's application that the caveat not lapse. As for costs, the court held that Wang is entitled to costs on a 2B basis. If costs cannot be agreed, then the parties are to file written submissions within 14 days.

Orders