Wen v Qian - [2022] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000634

[2022] NZHC 1586

UNDER Land Transfer Act 2017

IN THE MATTER OF

An application to remove caveat No. 12044428.1 pursuant to s 142 of the Land Transfer Act 2017

BETWEEN

YU WEN

Applicant

AND

DONG QIAN

Respondent

Hearing: 15 June 2022

Appearances:

T D Rea for Applicant

K D Puddle for Respondent

Judgment:

5 July 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 5 July 2022 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date………………………….

WEN v QIAN [2022] NZHC 1586 [5 July 2022]

Introduction

[1] The applicant, Mr Wen, applies to remove a caveat registered by the respondent, Mr Qian, over the title to Mr Wen’s property in Greenhithe, Auckland.1 Mr Wen seeks removal so that he can obtain titles to a subdivision of the Property and sell eight lots to Yu Homes Group Ltd.2

[2] These proceedings are an offshoot of substantive proceedings3 commenced by Mr Qian and his company, QRZ Properties Ltd,4 against four defendants, including Mr Wen.

[3] It is not in dispute that Mr Qian has an arguable caveatable interest in the Property. Mr Wen seeks removal of the caveat on conditions, including a re- imposition of the caveat after subdivision and sale of sections to Yu Homes. It is said that the conditions, together with the freezing orders obtained in the substantive proceedings, will protect the legitimate interests of Mr Qian, pending resolution of those substantive proceedings.

[4] The critical issue I must determine is whether there would be any practical advantage to the caveat remaining. Can I be completely satisfied that the legitimate interests of Mr Qian, as caveator, will not be prejudiced by the removal sought?

Factual background

[5] In the substantive proceedings, Mr Wen, as defendant, sought summary judgment. He failed.

[6] I adopt the following paragraphs from the summary judgment decision of AJ Taylor of 8 March 2022.5 The first defendant in those proceedings is Mr Dong:

[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

1      The Property; 39 Wicklam Lane, Greenhithe, Auckland.
2      Yu Homes.
3      Substantive proceedings, namely Qian v Dong CIV-2021-404-132.
4      QRZ.
5      Qian v Dong [2022] NZHC 378.

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…

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 Wen v Qian

Details

AGLC: Wen v Qian [2022] NZHC 1586
Case: [2022] NZHC 1586
Decision Date: 5 July 2022

CaseChat Overview and Summary

Yu Wen, the applicant, sought the removal of a caveat registered by Dong Qian, the respondent, over Wen’s property in Greenhithe, Auckland. Wen sought the removal of the caveat to facilitate the subdivision of the property and the sale of eight lots to Yu Homes Group Ltd. Qian opposed the application, arguing that his proprietary interests in the property were not purely financial and that the removal of the caveat would prejudice his legitimate interests. The critical issue was whether there would be any practical advantage to the caveat remaining and whether the removal of the caveat would prejudice Qian’s legitimate interests.

The court examined the legal principles governing the removal of caveats and the residual discretion of the court to remove a caveat. The court held that there is a residual discretion to remove a caveat once a reasonably arguable case has been established, but it will be exercised cautiously, for example, where the court finds there is no practical advantage to maintaining a caveat and the caveator would not be prejudiced. The court also held that the case law under the old section 143 of the Land Transfer Act 1952 is still applicable to the interpretation of the current section 142 of the Land Transfer Act 2017.

The court rejected Wen’s argument that Qian’s interest in the property was purely financial and that Qian’s legitimate interests would be adequately protected by the freezing orders obtained in the substantive proceedings. The court held that Qian’s chosen remedy was recovery of the land and that remedy would be defeated if the caveat was removed. The court also held that there was evidence supporting Qian’s contention that his legitimate interests were not purely financial and that he had the foresight to extend a wastewater pipe down Wicklam Lane and to use that connection to subdivide other properties on the lane.

The court found that it was not completely satisfied that the legitimate interests of Qian, as caveator, would not be prejudiced by the removal order sought. The court declined Wen’s application for removal of the caveat and held that the caveat remains in place pending the substantive proceedings or further order of the court. As to costs, the court held that Qian, having succeeded, is entitled to costs and on a 2B basis plus disbursements.

In summary, the court held that Qian’s proprietary interests in the property were not purely financial and that the removal of the caveat would prejudice his legitimate interests. The court declined Wen’s application for removal of the caveat and held that the caveat remains in place pending the substantive proceedings or further order of the court.

Orders