Zhong v Wang

Case [2006] NZCA 242


IN THE COURT OF APPEAL OF NEW ZEALAND

CA282/05

BETWEENCHENG RONG ZHONG
Appellant

ANDJIA YI WANG
Respondent

Hearing:22 June 2006

Court:William Young P, Wild and Heath JJ

Counsel:D P H Jones QC for Appellant
M I S Phillipps for Respondent

Judgment:5 September 2006 at 11 am

JUDGMENT OF THE COURT

ATHE APPEAL IS ALLOWED.  THE ORDERS REMOVING THE TWO CAVEATS ARE SET ASIDE AND THE APPLICATION TO REMOVE THE CAVEATS IS DISMISSED.

BCosts are awarded in favour of the appellant in the sum of $6,000 together with reasonable disbursements to be fixed, if necessary, by the Registrar.

____________________________________________________________________

Wild and Heath JJ  [1]
William Young P  [105]

REASONS OF WILD AND HEATH JJ

(Given by Heath J)

Table of Contents

Para No

Introduction  [1]
Background facts  [5]
Mr Zhong’s case  [26]
Mr Wang’s case  [30]
The High Court judgment  [33]
Analysis of competing submissions  [40]
Abuse of process issue  [40]
Specificity to support caveat  [43]
The estate or interest claimed by Mr Zhong  [59]

(i)     General  [59]

(ii)     The Quistclose claim  [63]

(iii)    Claim based on constructive trust  [86]
Availability of alternative remedies  [99]
Result  [103]

Introduction

[1]       Mr Zhong appeals against an order removing caveats lodged by him against two properties registered in the name of Mr Wang and his ex-wife, Jue Jin.  The order was made by Associate Judge Doogue in the High Court at Auckland on 29 November 2005.  An order staying execution of the judgment was made on 14 December 2005.  Pending determination of this appeal, the caveats remain registered against the titles.

[2]       Mr Zhong claims an interest in the two titles of land as a beneficiary under a constructive trust.  Mr Wang is alleged to be the trustee. 

[3]       Mr Wang denies the trust alleged by Mr Zhong.  He contends that he and his former wife hold the properties as trustees for the beneficiaries of The Great Shanghai Family Trust.  That Trust is said to have been settled by Mr Wang in (he thinks) early 2001.  Mr Wang says he is but “one of a number of discretionary beneficiaries” of the Trust.

[4]       Judge Doogue held that the caveats could not be sustained because the evidence did not disclose a caveatable interest in the properties in question.  That finding is challenged on appeal.

Background facts

[5]       The affidavits filed on the application to remove the caveats reveal conflicts between the primary witnesses.  Those conflicts cannot be resolved without cross-examination.  For that reason (and without making any determination on the merits of each party’s case), we rely primarily on the evidence of Mr Zhong to determine this appeal.

[6]       In August 2001, Mr and Mrs Zhong arrived in New Zealand for a short holiday.  A third party arranged a meeting between Mr Zhong and Mr Wang at the Stamford Plaza Hotel in Auckland on 12 or 13 August 2001.  An immigration consultant was also present at that meeting.

[7]       Mr Zhong and his family intended to emigrate from the People’s Republic of China to New…

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Zhong v Wang [2006] NZCA 242
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[2006] NZCA 242
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CaseChat Overview and Summary

The appeal in Zhong v Wang was heard before the Court of Appeal of New Zealand. Mr Zhong lodged caveats against two properties registered in the name of Mr Wang and his ex-wife, seeking to claim an interest in the properties as a beneficiary under a constructive trust. Mr Wang denied the trust and claimed to hold the properties as a trustee for the beneficiaries of The Great Shanghai Family Trust. The primary issue before the Court was whether Mr Zhong had established a reasonably arguable case that he had a beneficial interest in the properties, either under a Quistclose or a constructive trust. The Court found that the caveats described the interest claimed sufficiently, and there was a clear link between the claimed interest and Mr Wang. The Court held that the nature of the transaction between Mr Zhong and Mr Wang did not give rise to a Quistclose trust, but there was a basis to argue that Mr Wang was a fiduciary for Mr Zhong and that the dissipation of the funds involved in the acquisition of the properties involved a breach of Mr Wang's fiduciary duties to Mr Zhong. The appeal was allowed, and the orders removing the caveats were set aside. Costs were awarded in favour of Mr Zhong.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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