Having a work colleague join in financing a south Auckland home purchase led to later complications when the colleague vanished without trace to Australia, leaving his name on the title as part-owner.
The High Court was told when Hiep Xuan Son did not meet income thresholds demanded by a financier for his proposed 2003 purchase of a family home in Glenveagh Park Drive, Manurewa, his work colleague, Hai Dan Le offered to assist. Mr Le was the then partner of Mr Son’s daughter.
The agreed deal was that both would apply for a loan and title would be taken in their joint names. In what was in substance a guarantee with Mr Le having backup security over the land, Mr Son agreed to pay all outgoings for the Manurewa property.
Mr Le came to live rent free with the Son family at Glenveagh Park. He did not contribute to mortgage payments. Mr Son paid all costs, including food and power. Mr Le started making weekly contributions of one hundred dollars for living expenses after living with the family for two years.
The court was told Mr Le left for Australia in 2007. Nine years later, Mr Son received a letter from lawyers in Perth representing Mr Le requesting Glenveagh Park be sold and that Mr Le’s half share of the proceeds be remitted to him in Australia. Subsequent attempts to have Mr Le’s agreement to be taken off the title proved fruitless; he had moved on without leaving contact details with his Perth lawyers.
Mr Son was unable to sell or refinance Glenveagh Park Drive without Mr Le’s signature as co-owner.
In New Zealand, Justice Tahana ordered Mr Le’s name be taken off the title to Glenveagh Park as part owner, leaving Mr Son as sole owner.
The normal rule is that ownership of land cannot be changed without prior written agreement. Mr Son said there was an oral agreement with Mr Le that Mr Le’s half share would be transferred into his name at a later date.
Oral agreements for sale of land are enforced if there has been ‘part-performance’ of the oral agreement. Courts take the view that while the need for written contracts for sale of land is intended to prevent fraud, failure to complete a partly performed oral contract for sale of land on the simple ground that it is not in writing is itself a fraud.
Justice Tahana said the oral agreement was both evidenced and partly performed by Mr Le living at the property rent-free and not at any time contributing to mortgage costs.
Notice of intended New Zealand proceedings was served on Mr Le in Australia after a process server managed to track him down in late 2022. Mr Le did not defend the claim.
Son v. Le – High Court (29.11.23)
24.019