B W (2004) Limited v Mlouk - [2021] NZHC 1894

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-000962

[2021] NZHC 1894

UNDER Section 143 Land Transfer Act 2017 and s 42, Property (Relationships) Act 1976.

IN THE MATTER OF

of an applicant to remove notices of claim

BETWEEN

B W (2004) LIMITED

First Applicant

AND

B W RENTALS LIMITED

Second Applicant

AND

MOHAMED KADO TURKMANI

Third Applicant

AND

SALWA MLOUK

Respondent

Hearing: 21 July 2021

Appearances:

J McCartney QC & S F Round for the Applicants

L J Kearns QC and Z L Wackenier for the Respondents

Judgment:

26 July 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 26 July 2021 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Jan McCartney QC, Auckland Lynda Kearns QC, Auckland Rennie Cox, Auckland Tompkins Wake, Auckland

B W (2004) LIMITED v MLOUK [2021] NZHC 1894 [26 July 2021]

Introduction

[1] The applicants, B W (2004) Ltd and B W Rentals Ltd (the companies) and Mohamed Kado Turkmani, the sole director and shareholder of the companies, seek the removal of notices of claim lodged by the respondent, Salwa Mlouk, under s 42 of the Property (Relationships) Act 1976 (PRA), against 66 properties owned by the companies.1

[2] Mr Turkmani is Ms Mlouk’s husband, from whom she has separated and with whom Ms Mlouk is engaged in various proceedings before the Family Court.

[3] The applicants say Ms Mlouk has no interest in the properties capable of registration under the Land Transfer Act 2017 (LTA) and that the notices must be removed.

[4] Ms Mlouk says she has an arguable claim to an interest in the properties, principally on the basis that Mr Turkmani is the sole director and shareholder of the companies, the notices are necessary to protect her interests under the PRA, and it is arguable that those interests include an interest in the properties.

Relevant background

[5] Mr Turkmani and Ms Mlouk married by arrangement in Syria in February 1994. Mr Turkmani had been living in New Zealand since 1985. Ms Mlouk came to New Zealand in November 1994.

[6] From her arrival in New Zealand, Ms Mlouk was homemaker and primary care-giver of the four children born to the marriage. She was not significantly involved in Mr Turkmani’s business ventures.

[7] Mr Turkmani and Ms Mlouk lived initially in Wellington where Mr Turkmani and his brother, Adnan, established and operated a successful restaurant. That business was sold to purchase another restaurant, which was not as successful.

1 The properties are listed at Schedule A of Mr Turkmani’s affidavit affirmed on 13 July 2021.

[8] In 2000, Mr Turkmani and Ms Mlouk moved to Auckland and Mr Turkmani became involved in property development.

Incorporation and operation of companies

[9] In October 2004, Mr Turkmani incorporated Turkmani Developments Ltd (TDL). Mr Turkmani was sole director and Mr Turkmani, Adnan, and another brother, Radwan, each held one-third of the shares.…

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 B W (2004) Limited v Mlouk

Details

AGLC: B W (2004) Limited v Mlouk [2021] NZHC 1894
Case: [2021] NZHC 1894
Decision Date: 26 July 2021

CaseChat Overview and Summary

This case involved an application by the applicants, B W (2004) Ltd, B W Rentals Ltd, and Mohamed Kado Turkmani, to remove notices of claim that the respondent, Salwa Mlouk, had lodged against 66 properties owned by the applicants' companies. The applicants contended that the notices should be removed as Ms Mlouk had no interest in the properties under the Land Transfer Act 2017. Ms Mlouk argued that the notices were necessary to protect her interests under the Property (Relationships) Act 1976, as she had an arguable claim to an interest in the properties. The Court was required to decide whether the notices of claim should be removed or sustained, considering the proper legal basis for lodging the notices and the policy and provisions of the PRA. The Court found that the fact that Mr Turkmani was the sole director and shareholder of the companies did not give him a legal or beneficial interest in the properties. Consequently, Ms Mlouk did not have an interest in the properties that was registrable for the purposes of the Land Transfer Act. The Court also considered the number and scope of the notices, and the effect they had on the applicants' business. The Court concluded that the notices should be removed, as there was no proper basis for the claim. The Court granted the applicants' application and ordered the removal of the notices of claim lodged against the 66 properties. The Court also ordered that the applicants were entitled to costs on a 2B basis.

Orders