Sun v Varmani Limited - [2024] NZHC 1386

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1958

[2024] NZHC 1386

UNDER Section 143 of the Land Transfer Act 2017

BETWEEN

YIN SUN

Applicant

AND

VARMANI LIMITED

Respondent

Hearing: 13 May 2024

Appearances:

N G Lawrence and O E G Harding for Applicant A V Shinkarenko for Respondent

Judgment:

30 May 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 30 May 2024 at 12:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

………………………………..

SUN v VARMANI LIMITED [2024] NZHC 1386 [30 May 2024]

[1] Ms Yin Sun (Ms Sun) who lives in China and who does not speak English, appointed her sister Nicole Varmani (Nicole), who has lived in New Zealand for many years, to be her attorney. That appointment is recorded in a formal power of attorney.

[2] In 2014, Ms Sun purchased a property at St George Street, Papatoetoe (the property). In August 2020, using the power of attorney, Nicole signed a contract to sell the property to Armani Developments 1 Limited (ADL). Victor Armani (Victor) was the sole director of ADL, which is now removed from the Register.

[3] Victor nominated another company of which he was the sole director, that company being NV Armani Limited (NVAL), to take title to the property. Settlement occurred in April 2022.

[4] In July 2022, NVAL transferred the property to another company of which Victor was sole director — the respondent, Varmani Limited (Varmani).

[5] Victor and Nicole were in a de facto relationship from 2013/2014 to November 2020. Victor and Nicole were involved in a number of business ventures together.

[6] Ms Sun says she knew nothing about the sale of the property until mid-2023 when she lodged a caveat over the property on 12 July 2023. The caveat records the interest Ms Sun claims as follows:

The abovenamed Caveator claims a beneficial interest in the land contained in the above record of title as beneficiary of a constructive trust of which the Registered Owner is trustee.

[7]One of the issues I need to address is whether this description is adequate.

[8] Ms Sun applies to sustain the caveat following Varmani’s application that it lapse.

[9] Nicole has provided evidence in support of Ms Sun’s application. In Nicole’s affidavit (affirmed on 22 August 2023) at para (10) she says:

Mr Armani [Victor] forced me to use my power of attorney to sell the St George Street Property to Armani Development 1 Limited, a company controlled by Mr Armani [Victor]. Mr Armani [Victor] promised that we should co-own and develop the St George Street Property together.

[10] Mr Shinkarenko, counsel for Varmani, describes this evidence as a bare assertion without detail and that it can be discounted.

[11] Nicole also says in her affidavit that she had a personal and business relationship with Victor and says…

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 Sun v Varmani Limited

Details

AGLC: Sun v Varmani Limited [2024] NZHC 1386
Case: [2024] NZHC 1386
Decision Date: 30 May 2024

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Ms. Yin Sun had a caveatable interest in property she sold through her attorney, Nicole Varmani, to Varmani Limited. Ms. Sun claims a beneficial interest in the property via a constructive trust and has lodged a caveat to prevent the transfer of title to Varmani Limited. The primary issue was whether Ms. Sun's caveat sufficiently described her claimed interest in the property and how it derived from the registered owner, Varmani Limited. The court found that while the caveat identified a constructive trust, it did not sufficiently explain how this interest derived from Varmani Limited, leaving the registered owner unaware of the basis for the claim. The court also considered whether Ms. Sun had a reasonably arguable case for a constructive trust, despite the lapse of significant time since the sale and the payment of full market value. The court concluded that the evidence of duress was sufficiently credible to warrant allowing Ms. Sun to lodge a second, more detailed caveat. The court granted leave for Ms. Sun to file a second caveat, on the condition that she initiate proceedings to establish her entitlement to the property within 20 working days. The court also ordered that costs would lie where they fell unless memoranda on costs were filed within five working days.

Orders