Ali v Singh
[2025] NZHC 1660
•19 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1381
[2025] NZHC 1660
UNDER Rule 32 of the High Court Rules 2016 IN THE MATTER
of 2 Goh Place, Manurewa
BETWEEN
AMJAD ALI and SADAF SADAF
Applicants
AND
KULDEEP SINGH
Respondent
Hearing: On the papers Counsel:
E J Walton for applicants
Date of judgment:
19 June 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 19 June 2025 at 4.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
E J Walton, Barrister, Christchurch Legal Solutions, New Plymouth
ALI v SINGH [2025] NZHC 1660 [19 June 2025]
[1] As duty judge, I have Amjad Ali’s and Sadaf Sadaf’s 19 June 2025 without notice originating application for freezing and ancillary orders in respect of $200,000 held on Kuldeep Singh’s account by Westpac New Zealand Limited.
Background
[2] The applicants acquired Mr Singh’s residential property on 30 April 2025. They permitted him to remain in residence, pending his return to India. During his continued residence, Mr Singh damaged the property, including by crashing his car into the house and garage, structural repairs of which are provisionally indicated to cost $100,000–$150,000. The applicants apprehend their insurance may not respond, because of Mr Singh’s unadvised occupancy. They then would look to him for any loss, whether under the Residential Tenancies Act 1986 or otherwise.
[3] In making arrangements for his return to India, immediately after release from hospital for the serious injuries he sustained in the crash, Mr Singh is said to have agreed to provide $200,000 to be held in trust by the applicants’ lawyers. However, Mr Singh needed to give notice to Westpac to access his larger funds held on term deposit, although the bank retains discretion to release them earlier. Even if he has given such notice or sought earlier release, he has not instructed Westpac to pay the
$200,000. Mr Singh’s return to India is imminent, although there is a suggestion he has been rehospitalised.
Law on freezing orders
[4] Freezing orders may be ordered if I am satisfied, having regard to all the circumstances, there is a danger a prospective judgment in the applicants’ favour will be wholly or partly unsatisfied because the value of Mr Singh’s assets is alienated from them in some manner.1
[5] Freezing orders are “a valuable protective measure for those commencing civil proceedings”,2 for which applicants must show “a good arguable case on an accrued
1 High Court Rules 2016, r 32.5(4).
2 Hannay v Mount [2011] NZCA 530 at [20], referring to Deutsche Schachtbau-und Tiefbohrgesellschaft MBH v Shell International Petroleum Co Ltd (trading as Shell International Trading Co) [1990] 1 AC 295 (HL) at 317.
or prospective cause of action”.3 By ‘good arguable case’ is meant establishment of “a sufficiently plausible foundation” such that “the cause of action is at least tenable”:4
A good arguable case against the respondent is therefore established if the allegations in the proposed claim are capable of tenable argument and are supported by sufficient evidence, bearing in mind the early stage at which the application is likely to be brought.
It does not matter if the cause of action is in “another court”,5 meaning “a court outside New Zealand or a court in New Zealand other than the High Court”.6
[6] As to the danger of alienation, I must be satisfied assets may be removed or dealt with in a way that may frustrate the prospective judgment; that there are “circumstances from which a ‘prudent, sensible commercial man, can properly infer a danger of default’” on adverse judgment.7
[7] I then must consider where lies the balance of convenience,8 meaning if it bears harder on the applicants to be without prospective recourse to Mr Singh’s assets, or on Mr Singh to have his assets frozen, pending judgment in their respective favours.9
[8] The form of any freezing order must not prohibit dealings with the assets to pay ordinary living expenses and legal expenses relating to the freezing order or in the ordinary course of business,10 and where made without notice be limited to a particular date as early as practicable after the freezing order is made,11 and with leave reserved to discharge or vary the freezing order urgently on notice.12
3 High Court Rules, r 32.5(1)(b).
4 Hannay v Mount, above n 2, at [21], citing Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] 1 NZLR 754 (CA) at [41] and referring to Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No 2) [1989] 2 NZLR 50 (CA) at 55, and [22].
5 High Court Rules, r 32.5(1)(b)(ii).
6 Rule 32.1 (definition of “another court”).
7 Murren v Schaeffer [2018] NZCA 318, (2018) 24 PRNZ 285 at [16], citing Raukura Moana Fisheries Ltd v The Ship “Irina Zharkikh” [2001] 2 NZLR 801 (HC) (citing Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645 at 671).
8 At [17].
9 By analogy with Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV- 2007-485-1756, 30 July 2008 at [4] citing Cayne v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.
10 High Court Rules, r 32.6.
11 Rule 32.7.
12 Rule 32.8.
Discussion
[9] Being satisfied r 32.2(1) of the High Court Rules 2016 expressly permits the application to be made without serving notice of the application, I determine the application can properly be dealt with without notice.13
[10] I also am satisfied by Sadaf Sadaf’s affidavit evidence affirmed 18 June 2025 the applicants’ allegations against Mr Singh are capable of tenable argument. He is said to have damaged their property at least by crashing his car into the house and garage while intoxicated, for which he is charged with driving offences. The applicants have a range of prospective claims to be made against him, including as damage intentionally done or the result of acts or omissions constituting imprisonable offences.14 Whether Mr Singh’s driving was imprisonable turns on the level of his intoxication,15 which may afford a defence. So too may the question of his ‘tenancy’. Given both depend on subsequent findings, neither undermines the applicants’ tenable allegations. Other defences Mr Singh may have are not obvious. The imminence of Mr Singh’s return to India, and his failure to give the bank instructions to pay the
$200,000, establishes the requisite danger of default.
[11] I am in no doubt, particularly given subsequent freezing order procedures as I have explained them,16 the balance of convenience much favours the applicants. Freezing a portion of funds held on term deposit seems of little impact to Mr Singh. The applicants have given the required undertaking.17 They were obliged also fully and frankly to disclose any information casting doubt on their ability to discharge the undertaking’s obligation.18 The affidavit is silent on the point, except to say they cannot afford to fix the house if insurance does not respond. Again, given subsequent freezing order procedures as I have explained them, at least at this point any damage sustained in consequence of the freezing order likely is modest and the obligation accordingly not weighty. It may be the adequacy of the undertaking requires further attention as the procedure advances.
13 Rule 7.46(3).
14 Residential Tenancies Act 1986, s 49B(1)(a).
15 Land Transport Act 1998, s 56.
16 At [8] above.
17 High Court Rules, r 32.2(5).
18 Rule 32.2(3)(b).
Result
[12] I therefore order in terms of the High Court Rules’ Form G 38, in respect of the asset identified at the schedule to the applicants’ 19 June 2025 without notice originating application:
(a)the freezing order to have no effect after its call in the duty judge’s list
at 10.00 am on Thursday, 26 June 2025; and
(b)any interlocutory application to discharge or vary the order to be made on two working days’ notice to the applicants.
—Jagose J
0