Chinappa v Narain - [2022] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA526/2021
[2022] NZCA 259

BETWEEN	AJNESH NARAIN CHINAPPA and VILASHNI VANDANA CHINAPPA Appellants
AND	ANGELINE DEEP NARAIN First Respondent
AND	KANIAMMA WINTER Second Respondent

Court:	Kós P, Woolford and Dunningham JJ
Counsel:	NTC Batts and OCS Rose for Appellants ASR Kashyap, SYY Yong and SCR Raju for Respondents
Judgment: (On the papers)	22 June 2022 at 9 am

JUDGMENT OF THE COURT

AThe application to correct the judgment of this Court issued on 12 May 2022 is allowed in part.
BParagraphs [15] and [76] are corrected by replacing the date “23 July 2012” with “3 December 2012”.
CThere is no order for costs.

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REASONS OF THE COURT

(Given by Dunningham J)

On 12 May 2022 we delivered a judgment allowing, in part, the appellants’ appeal as to the entitlement of the first respondent to an interest in a residential property at 7 Ferndown Avenue, Papatoetoe.[1]
[1]Chinappa v Narain [2022] NZCA 183.
In that judgment we held that the appellants held a 20 per cent share of the full market value of the property on constructive trust for the first respondent.[2] This departed from the High Court’s decision, which held the first respondent was entitled to a 50 per cent share of the net value of the property.[3] We also ordered that the appellants pay the first respondent occupation rental for the period since she was required to leave the property, which we recorded as being from 23 July 2012.[4]

The appellants’ application

[2]At [76].

[3]Narain v Chinappa [2021] NZHC 1886.

[4]Chinappa v Narain, above n 1, at [76].

The appellants apply for correction of our decision on those two issues relying on r 8 of the Court of Appeal (Civil) Rules 2005. Rule 8 provides relevantly:
8 Correction of accidental slip or omission
(1) This rule applies if—
(a)any judgment or order contains, or the reasons for any judgment or order contain, a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the Court; or
(b)any judgment or order is drawn up in a way that does not express what was actually decided and intended.
(2)The Court or the Registrar may correct the judgment or order or the reasons for the judgment or order on—
(a)the Court’s or Registrar’s own initiative; or
(b)an informal application made for that purpose.
The appellants say the date from which occupation rental was ordered to run is incorrect as it does not reflect the date the first respondent actually left the property. They apply pursuant to r 8(1)(a) for a correction of the judgment at [15] and [76] by replacing the date “23 July 2012” with “3 December 2012”.
In relation to the finding as to what share of the property the appellants hold on constructive trust for the first respondent, the appellants apply for correction of the judgment…

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 Chinappa v Narain

Details

AGLC: Chinappa v Narain [2022] NZCA 259
Case: [2022] NZCA 259
Decision Date: 22 June 2022 at 9 am

CaseChat Overview and Summary

In this appeal, the appellants, Ajnes Narain Chinappa and Vilashni Vandana Chinappa, sought to appeal the decision of the High Court which had ordered that the first respondent, Angeline Deep Narain, was entitled to a 50 per cent share of the net value of a residential property at 7 Ferndown Avenue, Papatoetoe. The second respondent, Kaniamma Winter, was also a party to the proceedings. The Court of Appeal allowed the appeal in part, holding that the appellants held a 20 per cent share of the full market value of the property on constructive trust for the first respondent. The Court also ordered that the appellants pay the first respondent occupation rental from 23 July 2012, which was later identified as an incorrect date. The appellants applied for correction of the judgment under Rule 8 of the Court of Appeal (Civil) Rules 2005.

The legal issues before the Court were whether the date of the occupation rental should be corrected, and whether the share of the property held on constructive trust for the first respondent should be adjusted. The Court found that the date of the occupation rental should be corrected from 23 July 2012 to 3 December 2012, as this was the date the first respondent was required to leave the property. However, the Court declined to amend the judgment in respect of the share that the appellants hold on constructive trust for the first respondent, as the Court had already determined that the first respondent's share in the property should equate to her financial contribution to the acquisition of the property, which represented a 20 per cent contribution.

The Court of Appeal held that the appellants' application to correct the judgment should be allowed in part. The date of the occupation rental was corrected from 23 July 2012 to 3 December 2012, as this was the date the first respondent was required to leave the property. However, the Court declined to amend the judgment in respect of the share that the appellants hold on constructive trust for the first respondent, as the Court had already determined that the first respondent's share in the property should equate to her financial contribution to the acquisition of the property, which represented a 20 per cent contribution. There was no order for costs.

Orders