Zhang v Zhang

[2017] NZHC 361

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2016-404-003164

[2017] NZHC 361

UNDER THE

Land Transfer Act 1952

IN THE MATTER OF

an originating application to sustain a caveat

BETWEEN

WEI ZHANG

Applicant

AND

LIBING ZHANG

Respondent

Hearing:

7 March 2017

Appearances:

J Guy for the Applicant

S Lu and A J Nolan for the Respondent

Judgment:

7 March 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

WEI ZHANG v LIBING ZHANG [2017] NZHC 361 [7 March 2017]

[1]                The applicant applies to sustain a caveat he has registered over a property he says it was agreed he would jointly purchase with the respondent.

[2]                The parties met to discuss the purchase of the property. It was agreed they would co-own it.

[3]                Then it was proposed the property be purchased in the respondent’s name and that a share agreement would be entered into by which property costs and profits would be shared.

[4]                An offer to purchase was made. The applicant and respondent approached the Bank to get a mortgage together. They were required by the Bank to apply separately.

[5]                The applicant borrowed $186,000 to pay the 10 per cent purchase deposit. Both shared payment of the interest payable on that loan.

[6]Later the respondent was approved a purchase loan of $1,488,000.00.

[7]                The applicant says he then agreed to pay the second instalment of $186,000 in order for the respondent to meet the Bank’s lending criteria.

[8]                One week later the applicant instructed his solicitor to draft the 50/50 share agreement.

[9]                Two weeks later on 2 December 2014 the parties met in the car park outside the lawyer’s office. Each side has their own view about what was said there. The applicant says the respondent had promised to sign the 50/50 agreement if he had nominated her to buy the property.

[10]            The respondent says the applicant was desperate to get out of the agreement because he had recently discovered leaky building problems with it. The respondent says it was agreed that she keep the deposit paid and that the applicant would pay the second instalment in order to purchase a debt owing to the respondent by a company in liquidation – and because they had invested in that company with the encouragement of the applicant.

[11]            The applicant denies that account. He says he was not aware of a leaky home problem until 17 January 2015. He says he did not quit the project.

[12]            The applicant admits on 3 December 2014 writing to the ANZ Bank confirming he had signed a deed nominating the respondent as the purchaser, and advising he had no interest in purchasing the property, and that no share agreement had been signed.

[13]            The applicant says that information to the Bank was incorrect and was not what was agreed. The respondent received a copy of that letter to the Bank.

[14]            The applicant paid the second $186,000 instalment on 12 December 2014. On that day the property was transferred to the respondent.

[15]            On various occasions after 13 January 2015 the respondent says she would not sign the share agreement based on legal advice.

[16]            There is other evidence of the applicant’s involvement with the property subsequently including addressing leaky home issues.

[17]            There are some matters of fact suggesting inconsistencies in particular regarding claims by the respondent concerning payment of the two separate 10 per cent instalments.

[18]            The applicant claims a common intention constructive trust interest. The evidence is clear that the applicant contributed in much more than in a minor way to purchase the property. There is also clear evidence of a share agreement proposal. In issue are the different claims regarding the second instalment payment.

[19]            There is a clear case of contribution. For determination by the court is that purpose for which the property settlement was achieved.

[20]            In the Court’s view that is not for determination by the present summary caveat process. For present purposes the Court accepts there is evidence sufficient to support the caveat; and that there is a reasonably arguable case of a claim.

[21]            It is not patently obvious to the Court that an order for removal should be made at this time.

[22]            The respondent argued the applicant does not come to this hearing with clean hands. The Court does not accept there is any certainty of those claims made. It is a matter for further enquiry.

[23]The application to sustain the caveat is granted.

[24]The Court directs the respondent pay 2B costs and disbursements.

[25]The Court will fix these if the parties cannot agree upon them.

[26]            The applicant has already filed his High Court proceeding seeking orders upon his claims of an interest. The Court directs those should be served forthwith.

Associate Judge Christiansen