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Ash v Singh

Ash v Singh

Case [2019] NZHC 2790 31 October 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-589

[2019] NZHC 2790

BETWEEN
GABRIEL SEBASTIAN ASH

Plaintiff

AND

MAHENDRA SINGH & ORS

First Defendants

GEOFFREY HUGH BOURCHIER
Second Defendant

DARSAN SINGH

Third Defendant

Hearing: 12 March 2019

Appearances:

Richard J Thompson for the Plaintiff

G M Sandelin and G Angus for the Defendants

Judgment:

31 October 2019

JUDGMENT (No 2) OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 31 October 2019 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

Solicitors:

………………………………………………….
Registrar/Deputy Registrar

Patterson Hopkins (W Patterson/Luke Dixon), Auckland, for the plaintiff Morris Legal (Sally Morris), Auckland, for the Defendants

Copy for:
MinterEllisonRuddWatts (G M Sandelin), Auckland, for the Defendants

GABRIEL SEBASTIAN ASH v MAHENDRA SINGH & ORS [2019] NZHC 2790 [31 October 2019]

Introduction

[1] The plaintiff applies for particulars and further discovery and opposes the defendants’ application that they not be required to answer his interrogatories. In his substantive proceeding, the plaintiff as beneficiary claims against the defendants as trustees of a trust established by his late father, the Shean Singh Family Trust. But underlying the dispute are differences between the plaintiff as the son of his father’s first marriage and the third defendant, the widow of his father’s second marriage.

[2] I have taken longer to give this decision than I told the parties I would. Because of the delay, a fixture for the substantive proceeding was vacated. That has obviously caused the parties inconvenience. I apologise for the time taken. All the same I had to work through considerable material. The application for particulars and discovery ran for more than 70 pages. The bundle of documents was nearly 1,200 pages. The United Kingdom Supreme Court has recently made a plea for proportionality.1 Similarly, more focussed applications in this case would have given a quicker result.

[3] On all matters I have directed the defendants to take further steps, but not all sought by the plaintiff. I have required few particulars.

What the case is about

[4] The late Direndra Singh, more commonly known as Shean Singh, was a lawyer practising in Dominion Road, Auckland. He died tragically on 24 May 2015 in a boating accident. His widow, Darsan Singh, was his second wife. The plaintiff, Gabriel Ash (formerly known as Shannon Singh) and his sister, Olivia, are children of the first marriage. Shean Singh and his first wife separated in March 1993. There are two children of the second marriage, Christopher and Elizabeth.

[5] The Shean Singh Family Trust was established by a deed dated 23 December 1993. Shean’s brother, Mahendra, a medical practitioner in Queensland, is the nominal settlor but Shean designed the trust and drafted the deed. The trust was for

1 Lungowe v Vedanta Resources plc [2019] UKSC 20, [2019] 3 All ER 1013 at [6]-[14] – in the context of jurisdiction disputes.

himself and his children. Mahendra and Mr Geoffrey Bourchier (Shean’s…

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 2790
Case: [2019] NZHC 2790
Decision Date: 31 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Gabriel Ash (formerly known as Shannon Singh) as the beneficiary of the Shean Singh Family Trust, commenced proceedings against the trustees Mahendra Singh and Geoffrey Bourchier, and Darsan Singh, the widow of Shean Singh, seeking declarations, removal and replacement of the trustees, monetary relief, and disclosure of trust information. The plaintiff claims that the deed of variation of the trust of 23 August 1996 is invalid, that the trustees have failed to administer the trust properly, and that they have breached their duties. The defendants deny the allegations and assert that they were entitled to take Shean’s wishes and guidance into account and that they have legitimately allowed Darsan and the children to live and use the trust properties. The court has to decide whether the plaintiff's requests for particulars and further discovery are justified, and whether the defendants should be required to answer interrogatories. The court found that the defendants were required to give particulars on certain allegations, such as the contributions made by Darsan to the trust assets, the balance sheet showing the net value of the assets, and the details of the loan repayments by Property Purchase and Sale Ltd. The defendants were also required to disclose documents relating to loans, life insurance policy, bank statements, and trustees’ minutes and records of decisions. The court held that the defendants were not required to answer interrogatories that were irrelevant, oppressive, or sought evidence rather than facts. The court ordered the defendants to provide the particulars by 29 November 2019, to make discovery by 20 December 2019, and to give sworn answers to interrogatories by 14 February 2020, subject to certain amendments and exceptions.

Orders