Khan v Hussain - [2019] NZHC 99

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1648

[2019] NZHC 99

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for Judicial Review

BETWEEN

ISMAIL RAHIMAN KHAN

First Applicant

AND

……………………………/continued

MOHAMMED ZAKIR HUSSAIN, MOHAMMED RAFIQ WANIA, MOHAMED AHAMED NADAT and

ABDUL AZIA as trustees of the Abut Harairah Trust

First Respondents

NEW ZEALAND MUSLIM ASSOCIATION

Second Respondent

Hearing: 26 November 2018

Counsel:

IM Hutcheson for applicants NJ Scampion for respondents

PC Murray for New Zealand Muslim Association

Judgment:

7 February 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 7 February 2019 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors: The Small Law Firm, Auckland
Smith & Partners, Auckland

To: P Murray, Auckland

Khan v Hussain [2019] NZHC 99 [7 February 2019]

Applicants continued

FARHAZ ASHIK REHMAN
Second Applicant
MUNTAJ ALI
Third Applicant
AZAD ALI
Fourth Applicant
MOHAMMED ATIK
Fifth Applicant

Introduction

[1] The applicants seek judicial review of certain actions taken by the first respondents in their roles as the current trustees of the Abu Harairah Trust Kelston (Trust).1

[2] It is not necessary for the purposes of this costs judgment to set out the detail of the applicants’ claim, but in short, the dispute is between two factions of the purported trustees of the Trust: the former trustees (the applicants) and the current trustees (the first respondents). The first respondents have, at various times, purported to remove the applicants as trustees of the Trust. That removal and consequent actions of the first respondents as new trustees, in particular, transferring the Kelston Mosque property and certain funds (Funds) to the second respondent, the New Zealand Muslim Association (NZMA), is challenged.

[3] NZMA has been joined as second respondent to these proceedings. It takes no position on the dispute between the applicants and first respondents. The applicants’ claim again NZMA2 is contingent on their success in claims against the first respondents. The applicants’ judicial review claims are to be heard in a one-day hearing on 18 February 2019. Whether the claim against NZMA proceeds will depend on the outcome of that hearing.

[4] Pending determination of their claims, the applicants sought interim preservation orders effectively “freezing” the Funds, which are now in NZMA’s possession. That application was to be heard by me in a half-day hearing on 26 November 2018. Ultimately, and by consent, preservation orders were made, subject to a proviso sought by NZMA, to the effect that it may have access to the Funds for the reasonable ongoing costs and expenses of running the Mosque (the proviso).

[5] At the conclusion of the 26 November hearing, counsel for NZMA indicated that his client would likely seek costs on the application. I accordingly made timetable

1 The Trust is in fact an incorporated society.
2 Pursued as a claim of “knowing receipt in breach of trust and/or implied/resulting/constructive trust.”

orders in…

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 Khan v Hussain

Details

AGLC: Khan v Hussain [2019] NZHC 99
Case: [2019] NZHC 99
Decision Date: 7 February 2019

CaseChat Overview and Summary

Ismail Rahman Khan and others (the applicants) sought judicial review of certain actions taken by the current trustees of the Abu Harairah Trust Kelston (the first respondents) and the New Zealand Muslim Association (the second respondent). The applicants alleged that the first respondents had removed them as trustees and transferred funds and property to the second respondent. The applicants sought interim preservation orders to freeze the funds held by the second respondent. The court granted these orders, subject to a proviso that allowed the second respondent to access the funds for the ongoing costs and expenses of running the mosque. The second respondent and the first respondents sought costs for the interim application, while the applicants opposed the award of costs.

The court examined the circumstances of the application for preservation orders and determined that the applicants had not opposed the orders, but had made a misunderstanding about the terms of the orders. The second respondent had taken steps to prepare for the hearing based on the applicants' submissions, which included an objection to the proviso. The court found that the second respondent was successful in having the proviso added to the preservation orders and that it had incurred some unnecessary costs. The court also found that the first respondents could have avoided incurring costs on the application.

The court held that costs of interlocutory applications should generally be determined at the time the application is determined, unless special reasons exist. The court decided to make a modest costs award in favour of the second respondent, in the sum of $1,500. The court also held that costs of the application otherwise lie where they fall between the applicants and the first respondents.

The court ordered that the applicants pay the second respondent $1,500 in costs, and that costs of the application otherwise lie where they fall.

Orders