//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] ACTSC 129
Supreme Court of the ACT
2026-05-08
Muller J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Qiu v Zhang Citation: [2026] ACTSC 129 Hearing Date: 9 April 2026 Decision Date: 8 May 2026 Before: Muller J Decision: As to the plaintiff’s application:
(1) Order 3 made by Baker J on 10 March 2026 is continued until further order of the Court. (2) The costs of and incidental to the application are costs in the cause. As to the defendant’s application: (1) The application is dismissed. (2) The costs of and incidental to the application are costs in the cause. Catchwords: REAL PROPERTY – CAVEATS – Application to extend caveats – asserted equitable interest in property – resulting trust – tenants in common – whether a serious question to be tried – where the balance of convenience lies – caveats extended PRACTICE AND PROCEDURE – SECURITY FOR COSTS – Application for security for costs – plaintiff’s visa expiring – self-represented litigant – self-represented litigant cannot recover costs – application refused Legislation Cited: Court Procedures Rules 2006 (ACT), r 1901 Land Titles Act 1925 (ACT), ss 104, 105, 107 Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 Boral Ltd v Aghili [2009] ACTCA 18 Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 GR8 Constructions Pty Ltd v O’Donnell [2011] ACTSC 92 Hanson v Construction Materials Pty Ltd v Roberts [2016] NSWCA 240; 93 NSWLR 1 Elliot v Elly Property Wright Residential Pty Ltd [2024] ACTSC 192 Li v Chen [2026] ACTSC 24 Piroshenko v Grojsman [2010] VSC 240; 27 VR 489 Vella v Aliperti (1995) NSW ConvR 55-570 Yamine v Mazloum [2017] VSC 601 Parties: Haifeng Qiu (Plaintiff) Shuang Zhang (Defendant) Representation: Counsel D Robens (Plaintiff) Self-represented (Defendant) Solicitors Du & Associates Lawyers (Plaintiff) Self-represented (Defendant) File Number: SC 53 of 2026 MULLER J:
Mr Haifeng Qiu and Ms Shuang Zhang are in dispute about the ownership of five residential properties (“the properties”). Each of the properties was purchased in Ms Zhang’s name: (a) Block 7 Section 74 Gungahlin in Volume 1769 Folio 99 – known as 64 Swain Street, Gungahlin ACT 2912 (purchase completed on 30 November 2021 for $955,000); (b) Unit 33 Block 1 Section 118 Harrison in Volume 2027 Folio 63 – known as 33/134 Flemington Road, Harrison ACT 1912 (purchase completed on 17 December 2021 for $669,000); (c) Unit 1 Block 1 Section 149 Gungahlin in Volume 1776 Folio 71 – known as 47A Mary Gillespie Avenue, Gungahlin ACT 2912 (purchase completed on 24 June 2022 for $795,000); (d) Block 18 Section 30 Lyneham in Volume 472 Folio 48 – known as 119 Brigalow Street, Lyneham ACT 2602 (purchase completed on 13 June 2024 for $920,000); and (e) Block 3 Section 123 Gungahlin – known as 275 Anthony Rolfe Avenue, Gungahlin ACT 2912 (the “Anthony Rolfe Property”).
Mr Qiu says between June 2021 and August 2025, he and Ms Zhang were in a de facto relationship. She does not say there was no relationship between the two but she does not admit it had the character asserted by Mr Qiu. He asserts during the same period, he and Ms Zhang entered into an agreement about the joint operation of a cleaning business, with proceeds from the operation of the business to be used to partially fund the purchase of the properties. Ms Zhang does not deny the existence of some business arrangement between the two but she disputes the terms asserted by Mr Qiu.
Mr Qiu seeks a declaration of an equitable interest of a half share in the properties pursuant to a resulting trust as tenants in common. He alleges his interest arises from an oral contract with Ms Zhang to jointly contribute to the property’s deposit or purchase price, with Ms Zhang to be the registered proprietor, to hold the properties on equal trust for Mr Qiu, and to equally apportion income generated from the properties.
When he filed his claim on 6 February 2026, Mr Qiu registered caveats on four of the properties (the Anthony Rolfe Property having already been sold). The caveats were to expire on 11 March 2026, but on 10 March 2026, Mr Qiu made an application to extend the caveats on each of the properties, pending the determination of his claim in equity. Justice Baker determined the application on an interim basis, making orders for the caveats to remain in place until further order of the Court.
The applications now before the Court
Each party has now filed an application in proceeding: (a) Mr Qiu seeks orders for the caveats to remain registered on the properties. (b) Ms Zhang seeks security for her costs in the amount of $80,000.
Mr Qiu relies on three affidavits. The first is undated but was filed on 10 March 2026. Mr Qiu’s counsel notes it was affirmed on 6 March 2026. The others were affirmed on 26 March 2026 and 7 April 2026. Ms Zhang relies on three affidavits she affirmed on 3 March 2026, 8 April 2026 and 10 April 2026.
Plaintiff’s application to extend the caveats
Mr Qiu moves on an application in proceeding dated 6 March 2026. The orders made by Baker J on 10 March 2026, including orders for the caveats over each of the properties to remain registered “until further order of the court”, clearly contemplated a further hearing of his application after the filing of affidavit evidence.
Relying on Elliot v Elly Property Wright Residential Pty Ltd [2024] ACTSC 192 at [17] and ff, Mr Qiu identifies two considerations in determining whether a caveat should be permitted to remain: (a) Whether there is a serious question to be tried as to the existence of an interest in the land. (b) Whether the balance of convenience favours the maintenance of the caveat.
What are the relevant legal principles?
The right to lodge a caveat arises for a person having an interest in the land: s 104(1)(b) Land Titles Act 1925 (ACT). Upon the lodgement of the caveat, the Registrar-General places the registered proprietor on notice and they may apply to the court for an order that the caveat be removed: s 105. A registered proprietor may also apply to the Registrar-General to have the caveat removed. When an application for removal is made to the Registrar-General, the caveator has 14 days to seek a court order extending the caveat, failing which it is removed: s 107.
The determination of an application to extend or remove a caveat is an exercise of the court’s equitable jurisdiction. The position of the caveator on such an application has been observed previously in this Court as similar to an applicant for an interim injunction, although the analogy cannot be pressed too far: GR8 Constructions Pty Ltd v O’Donnell [2011] ACTSC 92 at [24]-[27] (Refshauge J); Elliott at [17]. The onus rests with the caveator to establish that there is a serious question to be tried as to the existence of an interest in the land and the balance of convenience favours maintenance of the caveat: Hanson v Construction Materials Pty Ltd v Roberts [2016] NSWCA 240; 93 NSWLR 1 at [77] (Sackville AJA, Beazley P and Payne JA agreeing).
As to a serious question to be tried, Santow J observed in Vella v Aliperti (1995) NSW ConvR 55-570 at 55-772: It is sufficient for the caveators to establish that a claim of substance may be raised after the caveator has had the opportunity of discovery, inspection and interrogatories, particularly where the caveators' position will be irretrievable after the registration of a competing dealing…
The task was described by John Dixon J in Yamine v Mazloum [2017] VSC 601 at [15.3]: The caveator bears the onus of establishing that there is a serious question to be tried that it does have the estate or interest in land as claimed. What the statute requires is that the caveator show that there is at least some probability on the evidence before the court that they will be found to have the equitable rights or interest in the land asserted by them in the caveat. The court directs its analysis towards the relationship between the caveat that has been lodged and the interest claimed by the caveator. Is there a serious question to be tried?
Mr Qiu submits a prima facie case is made out on the material. He relies on bank statements which demonstrate monetary transfers from him to Ms Zhang during the relevant period amounting to approximately $200,000. There are also text message chains referring to transfers of money. He says the transfers of money support an arguable case on the pleadings that an equitable interest in the land arises. Mr Qiu’s counsel cautions against tracing the amounts and endeavouring to work out how Mr Qiu derives his income as that level of analysis is unnecessary at this interlocutory stage of the proceedings: Boral Ltd v Aghili [2009] ACTCA 18; Piroshenko v Grojsman [2010] VSC 240; 27 VR 489.
Ms Zhang submits Mr Qiu has not made out a resulting trust on the evidence placed before the Court, which means there is no serious question to be tried. She notes Mr Qiu’s assertions are all based on oral conversations but there are no written documents supporting his claim to a beneficial interest in the properties. On the contrary, all third-party documents show she was the sole person giving substantive instructions on the purchase of the properties. She was the sole borrower and the only person identified in any of the relevant documentation. She accepts there is evidence of money transfers from Mr Qiu’s account into her account, but she disputes those transfers are in any way related to funding for the purchases of the properties. She points to the fact there is no reference in any documentation identifying the transfers as being for that purpose. She explains the money transfers in this way: Because I – Haifeng Qiu and I are former friends, and because we are both Chinese, then sometimes for – when my parents transfer Chinese yuan to my accounts, I need to use Australian dollars in Australia, so sometimes I transfer through Alipay to him by Chinese yuan and then he transferred back the money in the bank statements. That’s why the maximum transaction for each is just, the maximum one is just $1,000. Please also be noted that several $1,000 is just to my account, not for the acquisition of the property.
I understand Alipay is a third-party online payment platform functioning as a digital wallet. It permits users to make payments and transfer funds utilising QR codes. It is apparently a popular payment platform in China. Accepting there is from time to time a need for Ms Zhang’s parents to transfer funds to her from China, and for those funds to be converted from Chinese yuan into Australian dollars, it has not been made clear why it was necessary to involve Mr Qiu in those transactions.
Ms Zhang also says Mr Qiu has over time shifted his case about the commencement date for the joint cleaning business. He initially asserts a start date in 2021 in his originating claim, then amended to 2022 in his affidavit. As I understood her submission, Ms Zhang suggests the shift in Mr Qiu’s evidence was as a consequence of his realising some of the properties were purchased prior to the originally asserted business start date. The difficulty with the submission is I would have expected the change to go the other way. That is, upon realising settlement of two of the purchases took place in 2021, Mr Qiu would be keen to maintain a start date for the business prior to the dates of acquisition of the properties and not to rely upon a later date.
Upon viewing the evidence placed before me as a whole, I am left with the sense that each of the parties has been resolute in presenting only the material they confidently perceive to be of assistance in their own case. At one level that is an understandable approach to litigation. However, the gaps left in the evidence create real difficulty in formulating a clear picture of the arrangement existing between the parties between 2021 and 2025.
Mr Qiu’s own evidence about the nature of the relationship between the parties, the discussions leading to the formulation of a business plan for the establishment of a cleaning business, and the intention as part of that plan for profits from the business to be utilised for the purchase of investment properties, forms part of the factual matrix I must consider in determining whether there is a serious question to be tried. The evidentiary hurdles relied upon by Ms Zhang to the effect there is a dearth of documentation to support Mr Qiu’s assertions remain. However, if Mr Qiu’s factual version is accepted, there is a basis for concluding an interest in the land will be established and there is then a proper connection between the caveats he has lodged and the interest claimed. As a consequence, I accept there is a serious question to be tried.
Does the balance of convenience favour maintaining the caveats?
In assessing the approach to be taken to the balancing exercise in the context of an application for injunctive relief, the Victorian Court of Appeal observed in Bradto Pty Ltd v State of Victoria [2006] VSCA 89; 15 VR 65 at [35] (Maxwell P and Charles JA), “the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial”. The approach applies equally in assessing the balance of convenience in maintaining a caveat.
Mr Qiu submits the balance of convenience weighs in his favour. The caveats are to protect his equitable interests. In their absence, there is no constraint on how Ms Zhang deals with the properties. She may, for example, sell the properties which would leave him with no relief at the end of the proceedings. By contrast, the inconvenience to Ms Zhang is minimal. If her financial position on the loans she has is of concern, the parties can engage in discussions on reasonable proposals for a way forward. However, Ms Zhang has made no such proposals.
Mr Qiu has also offered an undertaking as to damages which he says is of real value because he lives in Australia, has family here and has two businesses. He can be made bankrupt if that undertaking is unfulfilled.
Ms Zhang submits the caveats have frustrated her ability to refinance the loans on the properties and caused her to lose a time-limited opportunity to do so. She also has no motivation to sell the properties nor to move abroad, citing the life she has built here in Australia. She says there is no evidence the lapsing of the caveats will damage Mr Qiu’s rights.
She submits even though Mr Qiu has offered undertakings as to damages, they have little practical value considering the unstable income from his two businesses. The businesses are not registered in the Territory and she submits there is an arguable case they are operating illegally in the sense they are unlicensed sex work businesses operating outside of the designated geographical areas for the conduct of such businesses in the Territory. She also notes Mr Qiu does not have a visa that enables him to reside permanently in Australia and he is scheduled to leave the country in accordance with his visa conditions by the end of April 2026.
I consider the balance of convenience favours maintaining the caveats as opposed to other options. If Mr Qiu fails to establish the equitable interest he claims, there is no damage to the assets in the form of the properties that are registered in Ms Zhang’s name. She points to refinancing efforts having been potentially frustrated, but against that, Mr Qiu expresses a willingness to accommodate any refinance subject to maintenance of the caveats. If he were to resist a request to accommodate refinancing, it would be a relevant matter in giving further consideration to the balance of convenience in maintaining the caveats. I accept the caveats present an obstacle to any efforts to sell the properties, but there is no indication from Ms Zhang of a present plan to sell any of them. Indeed, she gave evidence about lease arrangements being in place for each of the properties and of her intention to maintain those leasing arrangements. If her plans were to change and steps were taken to sell one of the properties, there would be a proper basis for reconsidering the balance of convenience.
Defendant’s application for security for costs
Ms Zhang relies on rr 1901(f) and (h) of the Court Procedures Rules 2006 (ACT): 1901 Security for costs—when court may make order The court may order a plaintiff to give security for costs under rule 1900 only if satisfied— … (f) the plaintiff is, or is about to depart Australia to become, ordinarily resident outside Australia and there is reason to believe the plaintiff has insufficient fixed and permanent property in Australia available for enforcement to pay the defendant’s costs if ordered to pay them; or … (h) the justice of the case requires the order to be made.
She submits Mr Qiu’s visa expires at the end of April 2026 and he cannot remain in Australia after that date. As a result, any adverse costs order made against Mr Qiu raise issues about enforceability. He does not have any real property or other fixed assets within Australia, and his pleadings do not identify any assets which would satisfy an adverse costs order. He has also said to Ms Zhang by text message that he has “no money” and “no residency status”. She relies upon a search she has provided from the People’s Republic of China’s enforcement database which evinces Mr Qiu has unpaid liabilities in that jurisdiction.
Ms Zhang also relies on the estimated costs of engaging legal representation in the proceedings as to why a security for costs order should be made. To her affidavit affirmed on 3 March 2026, she attaches a table setting out estimated costs amounting to $80,000.
In response, Mr Qiu submits Ms Zhang is self-represented and has not incurred any costs to date. She is therefore unable to seek a security for costs order. The table which Ms Zhang provides has no source identified and there is no evidence about who she proposes to appoint as her representatives. Further, the amount she identifies is extraordinary in the circumstances of this case. Mr Qiu places reliance on the High Court’s decision in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 to support the proposition that a self-represented litigant cannot recover costs. Even if Ms Zhang was to engage lawyers at some future time, her present application is premature.
Mr Qiu says on the issue of his visa, he has made an application for a visa on medical grounds. Mr Qiu’s counsel conceded during the hearing there is a risk Mr Qiu’s application for a visa will be unsuccessful, but there is no evidence he will become ordinarily resident in another country, i.e., China.
Additionally, there is no reason to believe he would not be able to meet a costs order. Mr Qiu does have assets in Australia to meet an adverse costs order which include monies in bank accounts and a car. He also is a 100% shareholder in the two corporate entities that operate the businesses which provide his current source of income.
Should an order for security for costs be made at the present time?
I summarised the relevant principles in Li v Chen [2026] ACTSC 24 at [10]-[13]. The available evidence is supportive of the proposition that Mr Qiu is perhaps against his will about to leave Australia as a direct consequence of his visa difficulties. Had that already occurred, Ms Zhang would be in a stronger position in relation to an application for security. Similarly, had she taken the step of engaging lawyers who provided her with an estimate of the likely costs of defending the claim, she would have been in a stronger position. At the present time, Mr Qiu remains in Australia and she continues to conduct the litigation on a self-represented basis.
As the High Court made clear in Bell Lawyers, the general rule in Australia is that a self-represented litigant is not entitled to be indemnified for loss of time even where the self-represented party is a lawyer. Up until the present time, Ms Zhang has been a self-represented litigant in these proceedings. Until such time as she engages lawyers to represent her in the proceedings she is prevented from recovering legal costs. Statements of future intention in that regard are unhelpful for the reasons given above. If Mr Qiu is required to leave the country, and Ms Zhang retains legal representation in these proceedings, different considerations arise, but as things presently stand there is no basis upon which I may order security for costs.
Orders
In respect of each of the applications, I make the following orders.
As to the plaintiff’s application: (1) Order 3 made by Baker J on 10 March 2026 is continued until further order of the Court. (2) The costs of and incidental to the application are costs in the cause.
As to the defendant’s application: (1) The application is dismissed. (2) The costs of and incidental to the application are costs in the cause.
I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller.
Associate: Date:
Qiu
Zhang