Kumar v Kumar

[2022] NZHC 2043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-845

[2022] NZHC 2043

UNDER

District Court Act 2016 Section 124 and the High Court Rules 20.4 and 20.8

BETWEEN

VANDANA KUMAR

Appellant

AND

SATESH KUMAR

Respondent

Hearing:

17 August 2022

Appearances:

N C King for appellant

D W Grove for respondent

Date of judgment:

18 August 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 August 2022 at 12.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

N C King, Barrister, Auckland D W Grove, Barrister, Auckland Castleview Law, Auckland Khan & Associates, Auckland

KUMAR v KUMAR [2022] NZHC 2043 [18 August 2022]

[1]    Vandana Kumar appeals the 4 May 2022 decision of Judge D J Clark in the District Court at Manukau,1 entering judgment for at least $205,531.19 in favour of Satesh Kumar.

Background

[2]    The Judge concluded, largely as a matter of their respective credibilities,    Mr Kumar lent Mrs Kumar money to assist with her property development in Manurewa, including by payment for materials or of contractors in the development, for repayment on the property’s refinancing or sale. That is not contested on this appeal. At issue instead is if the Judge erred in law by allowing Mr Kumar to recover as damages sums sourced in payments from or by companies under Mr Kumar’s control, and on fact as to the quantum of those payments.

Approach on appeal

[3]    Appeals to this Court from the District Court are general appeals conducted by way of rehearing,2 in which the appellant bears the onus of satisfying me I should differ from the District Court’s decision. I only am justified in interfering with that decision if I consider the decision is wrong — in other words, the Judge erred.3

[4]    I then am to come to my own assessment of the merits of the case afresh, without deference to the District Court (save for some caution in differing on witness credibility, when I have not had the advantage of observing the witnesses).4 I may rely on the Judge’s reasons in reaching my own conclusions, but the weight I give those reasons is a matter for me.5

[5]    To the extent the decision involved exercise of the Judge’s discretion, I only may interfere with it if the appellant establishes the Judge acted on wrong principle,

1      Kumar v Kumar [2022] NZDC 6865.

2      District Court Act 2016, ss 124 and 127.

3      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

4 At [13].

5      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

did not address relevant matters or took into account irrelevant matters, or was “plainly wrong”.6

[6]    After hearing the appeal I may make any decision I think should have been made, or direct the District Court to rehear the proceeding or consider and determine any particular matter.7

Discussion

—erred in law?

[7]For Mrs Kumar, Noel King contends the Judge erred in law in concluding:8

Mr Kumar is not prevented from claiming the repayment of these figures just because they came from one or more of his companies. The money was advanced by Mr Kumar using the companies as a vehicle to source the funding on his behalf. If there was an issue over this arrangement it would between Mr Kumar and his companies and not between him and Mrs Kumar.

He argues such requires assignment to Mr  Kumar  of  the  companies’ ‘loans’ to  Mrs Kumar, otherwise any director could demand personal repayment of debts owed to the company.

[8]    The argument only makes sense if the Judge had found Mrs Kumar owed a debt to the companies, which Mr Kumar sought to collect. But the Judge found:9

[A]n oral agreement was entered into between Mr Kumar and Mrs Kumar that Mr Kumar would advance sums to Mrs Kumar to assist her in the costs of the development.

…

[I]t was a term of the agreement that the funds advanced would be repaid on Mrs Kumar refinancing her loan or upon her selling one of both houses. In breach of the agreement Mrs Kumar failed to repay the funds and has maintained the funds have either been repaid or were never advanced to her.

6      May v May (1982) 1 NZFLR 165 (CA); and Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40.

7      District Court Act 2016, s 128.

8      Kumar v Kumar, above n 1, at [65].

9      At [87]–[88].

[9]    No contractual nexus was established between Mrs Kumar and the companies. There is no suggestion Mrs Kumar owes the companies anything. If the companies’ payments were to Mr Kumar’s account with them was not disputed on his cross-examination. The debt is owed solely to Mr Kumar, irrespective of the funds’ source. The Judge did not err.

—erred on facts?

[10]   Mr King also contends the Judge erred in concluding “[t]he bank statements clearly show large withdrawals made during this period — the total of which exceeds the sum claimed”.10 Mr King illustrates the bank statements fall short of the $200,000 and more claimed.

[11]The Judge was well aware of Mr Kumar’s incomplete accounting:11

In support of his claim, Mr Kumar has produced what he has available in terms of invoices held and bank statements. He accepts his record keeping was not what it should be. That is an understatement. Even though he has attempted to categorise his claim in the manner that he has, his evidence is far from linear and is difficult to follow. That in no small way is a consequence of Mr Kumar being happy to deal in cash — both in respect of the advances made to Mrs Kumar and the payment to contractors.

[12]   The Judge’s impugned conclusion was made in the context of a subcategory of “Payments Made to Contractors Made at the Direction of Mrs Kumar and Cash Advances Made to Mrs Kumar: $58,130”,12 “a mixture of payments to contractors, payments for informal labouring jobs, paying for supplies/materials and cash advances to Mrs Kumar”,13 for which “Mr Kumar relies on bank statements he has produced to support the advances/payments”.14

[13]The particular payments and advances were set out in line items adding up to

$58,130. In context, the Judge’s observation is only the withdrawals exceeded that sum, which they did, satisfying him Mr Kumar had established this aspect of the debt. The Judge did not err.

10 At [70].

11 At [67].

12     At [69]–[73].

13 At [69].

14 At [70].

Result

[14]The appeal is dismissed.

Costs

[15]   As the unsuccessful party on this appeal, in principle, Mrs Kumar is liable to pay costs to Mr Kumar. In my preliminary view, from what I presently know, that liability should be calculated at 1B, as steps in this straightforward proceeding reasonably required only a normal amount of time. If that is not accepted by the parties and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by Mr Kumar within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

—Jagose J