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Khan v Shariff

Khan v Shariff

Case [2017] NZHC 294 28 February 2017

Jurisdiction

Limitation Periods

Standing

Fraudulent Misrepresentation

Unconscionable Conduct

Reliance

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-122 [2017] NZHC 294

BETWEEN
MUHAMMAD SHASUD-DEAN SAHU

KHAN Plaintiff

AND

MOHAMMED SHARIFF Defendant

Hearing: 14 December 2016

Appearance:

MS Sahu Khan, plaintiff in person
No appearance on behalf of defendant

Judgment:

28 February 2017

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 28 February 2017 at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

To: MS Sahu Khan, Auckland

Sahu Khan v Shariff [2017] NZHC 294 [28 February 2017]

Table of Contents

Introduction ............................................................................................................[1] Pleaded factual background ...................................................................................[2] Procedural background......................................................................................... [11] Preliminary jurisdictional matters ........................................................................[14] Deceit/fraudulent misrepresentation ....................................................................[20] Evidence ...............................................................................................................[28]
Analysis ......................................................................................................................
Overview [34] Representations made/reliance and loss proved [37] Representations/reliance and loss not proved [40] Falsity/dishonesty - principles [41] Falsity/dishonesty – application to the facts [45]

Claims for “special damages” ..............................................................................[50] Claim for “other payments” .................................................................................[52] Conclusion............................................................................................................[56]

Introduction

[1] The plaintiff, Dr Sahu Khan, seeks recovery of $653,320.13 in damages from the defendant, Mr Shariff. The claim is made in fraudulent representation/deceit and proceeds by way of formal proof.

Pleaded factual background

[2] The pleaded factual background to Dr Sahu Khan’s claim is somewhat

unusual.

[3] Dr Sahu Khan practised as a barrister and solicitor in Fiji until May 2011, when he migrated to New Zealand as a result of political unrest around that time.

[4] Dr Sahu Khan says he held a range of prominent positions while in Fiji, including the President of the Fiji Law Society from 1982 to 1987; Fiji’s representative on the International Centre for Settlement of Investment Disputes; an independent member of a Constitutional Review Committee established in May
1987; and the elected President of the Fiji Football Association for the period October 1985 to October 2011. In the 1970s, he completed a PhD in Law at the University of Auckland, on the Constitution of Fiji.

[5] Dr Sahu Khan came to know Mr Shariff while in Fiji, particularly from around 2007. Their relationship is said to have included some financial dealings, conducted through Dr Sahu Khan’s family company which apparently lent money to Mr Shariff, secured by a mortgage over Mr Shariff’s land in Fiji.

[6] Dr Sahu Khan says Mr Shariff contacted him in late-2012, claiming to be

well acquainted with Fiji’s Prime Minister and Attorney-General.

[7] Mr Shariff allegedly told Dr Sahu Khan that, in view of Dr Sahu Khan’s qualifications in matters such as constitutional law, the Prime Minister and Attorney- General wished to appoint Dr Sahu Khan to the Fiji Constitutional Review Committee and/or as Chief Legal Officer to the Fiji Government in matters relating

to the constitution (“Appointment”). It is pleaded that Mr Shariff said the salary for the proposed Appointment would be approximately $3,000,000 per year.

[8] Further, Mr Shariff allegedly told Dr Sahu Khan that, in light of Fiji’s political situation, the Prime Minister and Attorney-General wanted to conduct the dealings relating to the Appointment indirectly, via a representative of Dr Sahu Khan in Fiji. Dr Sahu…

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 Shariff

Details

AGLC: Khan v Shariff [2017] NZHC 294
Case: [2017] NZHC 294
Decision Date: 28 February 2017

CaseChat Overview and Summary

In Khan v Shariff, Dr Sahu Khan sought to recover $653,320.13 from Mr Shariff in damages for fraudulent representation and deceit. The claim was made by way of formal proof. The parties first came before Hinton J, who adjourned the matter to enable Dr Sahu Khan to file further evidence and written submissions in support of his claim. The matter was subsequently heard before Fitzgerald J. Dr Sahu Khan sought recovery of two broad heads of claim: payments made by Dr Sahu Khan to Mr Shariff, and “special damages” which Mr Shariff had agreed to pay Dr Sahu Khan if the Appointment did not occur. Fitzgerald J found that the evidence adduced by Dr Sahu Khan was not sufficient to prove the various elements of the deceit claim to the requisite standard. Fitzgerald J found that there were too many gaps in, and questions raised by, the evidence. Fitzgerald J also found that Dr Sahu Khan’s claims for “special damages” would not be recoverable pursuant to a tort claim such as this. Fitzgerald J further found that Dr Sahu Khan’s claim in respect of otherwise unrelated financial dealings was not supported by the evidence. For all of these reasons, Fitzgerald J declined to grant the relief sought by Dr Sahu Khan.

Orders