Ash v Singh - [2019] NZHC 2878

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-589

[2019] NZHC 2878

UNDER the Trustee Act 1956 and in the inherent jurisdiction of the High Court

IN THE MATTER

of an application for removal and substitution of trustees

BETWEEN

GABRIEL SEBASTIAN ASH

Plaintiff

AND

MAHENDRA SINGH AS TRUSTEE OF THE SHEAN SINGH FAMILY TRUST

First Defendant

GEOFFREY HUGH BOURCHIER AS TRUSTEE OF THE SHEAN SINGH FAMILY TRUST
Second Defendant

DARSAN SINGH AS TRUSTEE OF THE SHEAN SINGH FAMILY TRUST

Third Defendant

Hearing: 1 November 2019

Counsel:

R Thompson for the Plaintiff Ash

S R Morris for the Defendants Mahendra Singh and Bourchier

Judgment:

1 November 2019

ORAL JUDGMENT OF MUIR J

Counsel:
R Thompson, Barrister, Auckland

Solicitors:
W M Patterson, Patterson Hopkins, Solicitors, Auckland S R Morris and AAM Newfield, Morris Legal, Auckland A J Steele, Martelli McKegg, Auckland.

ASH v SINGH [2019] NZHC 2878 [1 November 2019]

Introduction

[1] In 1993 the late Auckland solicitor, Mr Shean Singh, established a family trust, the Shean Singh Family Trust (the Trust) upon separation from his first wife. His children (then two) were the beneficiaries. He subsequently remarried. His second wife, Mrs Darsan Singh, is the third defendant in these proceedings. Their marriage lasted until 2005 when Mr Shean Singh was tragically killed in a boating accident. They had two further children, both of whom are accepted as being beneficiaries under the Trust.

[2] By a variation of the Trust Deed, executed in 1996, Mrs Darsan Singh was added as a beneficiary, with her share of the Trust assets on vesting fixed at 60 per cent. In essence therefore, the underlying issue in these proceedings is whether Mr Ash and his full sister have a 25 per cent entitlement to the corpus of the Trust or whether their entitlement (and that of the other children) is 10 per cent only.

[3] The proceedings have a long interlocutory history which has already included one appeal to the Court of Appeal.1 The matter currently before me is an application by the trustees (who now include Mrs Darsan Singh) for orders that the plaintiff's first cause of action be determined in priority to the balance of his claims.

The plaintiff’s claims

[4] I summarise the respective causes of action in the plaintiff's first amended statement of claim dated 27 April 2017:

(a)The first seeks a declaration that the 1996 Deed of Variation and appointment of Mrs Darsan Singh as a beneficiary was invalid, void and of no effect. As the Court of Appeal accepted, the 1993 Deed gave no power to add or remove beneficiaries.2 The trustees' defence to that claim is now limited to a plea of rectification. They assert that, having regard to all of the relevant factual background, including:

1 Singh v Ash [2018] NZCA 310, (2018) 4 NZTR 28-015.
2 At [3].

(i)the Deed of Variation;

(ii)Shean Singh's Memorandum of Wishes dated 23 December 1993 and an amendment to that…

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 Ash v Singh

Details

AGLC: Ash v Singh [2019] NZHC 2878
Case: [2019] NZHC 2878
Decision Date: 1 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Ash v Singh involved an application by the trustees for orders that the plaintiff's first cause of action be determined in priority to the balance of his claims. The dispute centred on the interpretation of the 1993 Shean Singh Family Trust Deed, specifically whether the plaintiff and his full sister had a 25 per cent entitlement to the Trust or only 10 per cent. The trustees sought to have the first cause of action, which sought a declaration that the 1996 Deed of Variation was invalid, decided separately and in priority to the other claims. The court considered the balance of convenience to the parties and the court, as well as the potential for appeals and the effect on the scheduled trial dates. The court found that resolving the first cause of action would not likely resolve the overall litigation and that it was not in the best interests of the parties or the court to grant the application.

The court held that determining the first cause of action separately would not likely dispose of the proceeding or substantially reduce the number of issues at trial. The court also considered the prospect of appeals and the effect on the scheduled trial dates. The court found that it was not in the best interests of the parties or the court to grant the application, as it would likely result in further delays and complications. The court dismissed the application and awarded costs to the plaintiff on a 60/40 basis.

Orders