Tian v Zhang - [2019] NZHC 2785

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001204

[2019] NZHC 2785

BETWEEN
LINGBI TIAN

Plaintiff

AND

JIE ZHANG

First Defendant

AND

NAIQIAO GU

Second Defendant

AND

NAIQIAO GU and KTT TRUSTEE

LIMITED as trustees of the KTT FAMILY TRUST

Third Defendants

AND

E-JOY LIMITED

Fourth Defendant

On the papers

Appearances:

R Reed and M Tan for Plaintiff T-C Wu for Defendants

Judgment:

30 October 2019

JUDGMENT (NO. 2) OF TOOGOOD J [DISPOSITION AND COSTS]

This judgment was delivered by me on 30 October 2019 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

TIAN v ZHANG & ORS [2019] NZHC 2785 [30 October 2019]

Introduction

[1] This judgment concerns the making of orders under the Property Law Act 2007 (PLA) and competing applications for costs following liability findings made in a judgment issued on 9 September 2019 (“the liability judgment”).1

The proceeding

[2] Kelly Tian and Anson Zhang were engaged to be married. Four properties were acquired. Both Ms Tian and Mr Zhang contributed to the amounts paid for the deposits. The properties were registered in Ms Tian’s name or her mother’s. The parties separated, and Mr Zhang lodged caveats over the properties.

[3] Ms Tian alleged that Mr Zhang’s contributions were gifts; each being part of a dowry that Mr Zhang agreed to pay. She sought a declaration that Mr Zhang had no beneficial interest in the properties and orders that his caveats be removed. In the alternative she sought declarations she and Mr Zhang were co-owners of those properties in shares proportionate to their contributions to the purchase price. Mr Zhang argued in favour of the alternative.

[4] Ms Tian also sought judgment for amounts she said were outstanding under an alleged personal loan and for invoices that she had submitted for assistance provided to Mr Zhang’s mortgage broking company E-Joy Ltd (E-Joy).

[5] In the liability judgment, I held that Mr Zhang was entitled to an equitable interest in the properties equivalent to $568,522.52. I also dismissed Ms Tian’s claims based on the personal loan and invoices. As to disposition, I said:

[81] Unless the parties can resolve the basis upon which Mr Zhang should be repaid, it will be necessary for the Court to make appropriate orders under the Property Law Act. I am reluctant, however, to make orders directing the sale of the properties if Mr Zhang’s interests can be satisfied in some other way. In the absence of further assistance from the parties, I would be prepared to make orders in terms of the relief sought in the amended statement of claim, but the parties may prefer to resolve the matters themselves.

…

1 Tian v Zhang [2019] NZHC 2231.

[83] Accordingly, I direct the parties to confer and, having done so, to file a joint memorandum informing the Court of what relief, if any, is required to be granted in the proceeding to reflect the findings that have…

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 Tian v Zhang

Details

AGLC: Tian v Zhang [2019] NZHC 2785
Case: [2019] NZHC 2785
Decision Date: 30 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Tian v Zhang and others, the court was required to determine how a man who had been awarded a beneficial interest in four properties, should be paid and who should bear the costs of the litigation. The case involved a former couple who had acquired four properties during their engagement, with both parties contributing to the deposits. Upon separation, the man lodged caveats over the properties, and the woman sought a declaration that he had no beneficial interest in them and orders for the removal of the caveats. Alternatively, she sought declarations that they were co-owners of the properties in proportion to their contributions to the purchase price. The man argued in favour of the alternative. The woman also sought judgment for amounts she claimed were outstanding under a personal loan agreement and for invoices submitted for assistance provided to the man's mortgage broking company. The court held that the man was entitled to an equitable interest in the properties equivalent to $568,522.52. The court also dismissed the woman's claims based on the personal loan and invoices. The court determined that ordering the woman to sell one of the properties was the simplest means of ensuring the man was paid in a timely fashion, and ordered her to sell the property at 35 Corunna Road within six months. The court also considered the issue of costs and determined that the defendants were entitled to scale costs against the woman on a 2B basis, with the sum for costs apportioned on the basis of 80 per cent to the man and 20 per cent to E-Joy Ltd. The court did not accept the submission that the man should be entitled to increased costs.

Orders