Zhong v Wu - [2022] NZHC 3322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001822

[2022] NZHC 3322

UNDER The Land Transfer Act 2017

BETWEEN

XING ZHONG

Applicant

AND

XIAOQING WU

First Respondent

TOWER LAW LIMITED

Second Respondent

CIV-2022-404-001823

UNDER

The Land Transfer Act 2017

BETWEEN

XING ZHONG

Applicant

AND

ERYUN CAO

First Respondent

SAM C S NGU
Second Respondent

…/2 cont’d

Hearing: (On the papers)

Judgment:

9 December 2022

JUDGMENT OF VENNING J

This judgment was delivered by me on 9 December 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ZHONG v WU & ORS [2022] NZHC 3322 [9 December 2022]

CIV-2022-404-001942

UNDER

The Land Transfer Act 2017

BETWEEN

XING ZHONG

Applicant

AND

NIKUL PANSILA

First Respondent

CHURTON HART AND DIVERS LIMITED

Second Respondent

Solicitors: Carson Fox Bradley Ltd, Auckland Counsel: R O Parmenter, Auckland
Copy to: Applicant

Introduction

[1] In these three applications Xing Zhong seeks an order against the named respondents that caveats lodged by the respondents and described in the applications be removed upon the registration of transfer by him to a mortgagee’s purchaser pursuant to power of sale. He also seeks orders that the respondents, by their agents or otherwise, be permanently restrained from lodging, attempting to lodge, or instructing any other person or entity to lodge any caveats against the titles to the properties.

[2]The applications are opposed by the respondents.

Background

[3] The basis for the applications is that Mr Xing says he has cancelled the sale and purchase agreements between Green Land Investment Limited (Green Land) and the purchasers which the respondents, either directly or indirectly, derive their interest in the property through. Mr Xing says that Green Land is now insolvent and any agreements signed between Green Land and other parties are voidable.

[4] The respondents in each case oppose the application to remove the caveats. They rely on a judgment of Jagose J in Li & Ors v Green Land Investment Ltd & Ors,1 which confirmed their interest in the lots. They note that, subject to any appeals or cross-appeals Mr Xing is bound by the judgment of Jagose J in which His Honour held the various mortgagee sales relied on by Mr Xing, (including that of the subject land) are “void, of no effect”, and that Green Land “remains liable on its agreements with the plaintiffs”.2

[5] As to the proposed injunction the respondents say there is no basis for a quia timet injunction and the balance of convenience favours not restricting the respondents from what could be a legitimate action in lodging a caveat, particularly given the proscription of a second caveat under s 146 of the Land Transfer Act 2007, and that there is no undertaking as to damages to support the application.

1 Li & Ors v Green Land Investment Ltd & Ors [2022] NZHC 1906.
2 At [61].

[6] This judgment should also be read with a further judgment in

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 Zhong v Wu

Details

AGLC: Zhong v Wu [2022] NZHC 3322
Case: [2022] NZHC 3322
Decision Date: 9 December 2022

CaseChat Overview and Summary

Xing Zhong sought an order against Xiaoqing Wu, Eryun Cao and Nikul Pansila that caveats lodged by the respondents be removed upon the registration of transfer by him to a mortgagee's purchaser pursuant to power of sale. Mr Zhong also sought orders that the respondents be permanently restrained from lodging, attempting to lodge, or instructing any other person or entity to lodge any caveats against the titles to the properties. The applications were opposed by the respondents. The court had to decide whether the respondents had a caveatable interest sufficient to support the caveat lodged against the property. The respondents each had an interest in the land subject to the caveat which would support the maintenance of their caveats over the property at present. The applications to remove the caveat in each case were dismissed. The caveators were entitled to costs on a 2B basis for the notices of opposition and affidavits in opposition in each case, but only one set of submissions is allowed. They are also to have disbursements as fixed by the Registrar.

Orders