Kumar v Saily - [2020] NZCA 376

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA397/2019
[2020] NZCA 376

BETWEEN	NAVDEEP KUMAR Appellant
AND	NEERAJ SAILY Respondent

Court:	French and Miller JJ
Counsel:	K J Patterson for Appellant J Delaney for Respondent
Judgment: (On the papers)	31 August 2020 at 9 am

JUDGMENT OF THE COURT

AThe appellant’s application for leave to adduce further evidence is declined.
BThe appellant must pay the respondent costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

Introduction

Before us is an application by the appellant Mr Kumar for leave to adduce further evidence at his upcoming appeal. The application is made under r 45 of the Court of Appeal (Civil) Rules 2005. It is opposed by the respondent Mr Saily.
In accordance with a direction made by Courtney J, the application is being determined on the papers prior to the hearing of the substantive appeal.[1] That direction was necessary because of the significant impact the new evidence would be likely to have on the scope of the hearing.
[1]Kumar v Saily CA397/2019, 10 July 2020.
Before addressing the further evidence now sought to be adduced, it is necessary to provide a brief summary of the background and the High Court decision under appeal.[2]

Background

[2]Kumar v Saily [2019] NZHC 1682 [High Court judgment].

The parties are first cousins and the case concerns a dispute between them over a joint business venture. In June 2015, the two signed an agreement to purchase a bare section from a developer on terms that enabled them to take possession of the land on payment of a deposit, pay for the construction of a house on it and then pay the balance of the purchase price. Throughout the rest of this judgment, we refer to the property purchased as the Lakes property.
Mr Kumar paid the deposit. He claimed it was agreed the two would contribute equally to the costs of building the house. The High Court Judge, Katz J, found that even if that was the original agreement, it had been superseded by mid July 2015. The Judge based that finding on independent contemporaneous file notes written by a lawyer and a banker at ANZ setting out the agreed arrangements between Messrs Kumar and Saily. Those arrangements were:
(a)The construction costs would be funded by an ANZ flexi-loan secured against a residential property owned by Mr Kumar (the Amy Road property).
(b)The balance of the purchase price due once construction was completed would be funded on the basis, 80 per cent by a new ANZ loan secured over the jointly owned property itself and 20 per cent by the two men in equal contributions.
In October 2015, Mr Kumar and Mr Saily incorporated a company called New Venture Capital Ltd which they then nominated as purchaser of the Lakes property. They did this in the mistaken belief it would enable them to claim a…

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 Kumar v Saily

Details

AGLC: Kumar v Saily [2020] NZCA 376
Case: [2020] NZCA 376
Decision Date: 31 August 2020 at 9 am

CaseChat Overview and Summary

Kumar v Saily was an appeal heard by French and Miller JJ. The case was an appeal against a decision of the High Court, which was in turn a dispute between the parties over a joint business venture. The appellant, Mr Kumar, sought leave to adduce further evidence at the appeal, an application made under r 45 of the Court of Appeal (Civil) Rules 2005. The application was opposed by the respondent, Mr Saily. The court was required to decide whether the appellant's application for leave to adduce further evidence should be granted. In reaching its decision, the court considered the principles governing applications to adduce further evidence in a civil appeal. The court held that the evidence was not fresh, and while some of it was credible, it was not cogent. The court further held that there were no exceptional or compelling circumstances and that admitting the evidence would result in a substantial rehearing, which was beyond the proper scope of r 45. The court declined the application.
The final orders of the court were that the appellant's application for leave to adduce new evidence was declined and that the appellant must pay the respondent's costs on a standard application on a band A basis with usual disbursements.

Orders