Kumar v Saily - [2019] NZHC 1682

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2017-470-0138

[2019] NZHC 1682

BETWEEN
NAVDEEP KUMAR

Plaintiff

AND

NEERAJ SAILY

Defendant

Hearing: 1 May 2019

Counsel:

S A McKenna for plaintiff J Delaney for defendant

Judgment:

18 July 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 18 July 2019 at 4:30pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Grantham Law, Lawyers, Hamilton
Harris Tate Lawyers, Tauranga

Counsel: S A McKenna, Hamilton
J Delaney, Barrister, Tauranga

KUMAR v SAILY [2019] NZHC 1682 [18 July 2019]

Introduction

[1] Navdeep Kumar (“Navdeep”) and Neeraj Saily (“Neeraj”) are cousins. Navdeep’s father, Dharam Pal, is the brother of Neeraj’s mother, Rekha Rani. Both families belong to a tightknit community centred around the Hindu Temple in Tauranga.

[2] Over the years Navdeep and Neeraj have been involved in several joint business ventures. This proceeding relates to one such venture — the joint acquisition of a property at Lakes Boulevard, Tauranga (“the Lakes Property”). Navdeep claims that, at a family meeting in April 2016, Neeraj agreed to transfer his interest in the Lakes Property to him.

[3] Neeraj denies that any agreement was reached. He has filed a counterclaim in which he asserts that, at a meeting held at the Temple on 4 December 2016, he and Navdeep agreed to divide the equity in the property 65/35 in Navdeep’s favour, with Neeraj having the first option to purchase. That agreement was recorded in writing, signed by both Navdeep and Neeraj, and was witnessed by 15 or so community members (“the December Agreement”).

[4] Navdeep acknowledges that he and Neeraj both signed the December Agreement. He says, however, that he entered into it under pressure from the community member who was running the meeting. He also asserts that he was under significant cultural pressure at the time he signed the agreement, as to fail to accept it would have brought shame on his family in their close-knit community. As a result, he says, he signed the December Agreement under duress.

[5] Navdeep further argues that the terms of the December Agreement are unenforceable because he and Neeraj did not hold their interests in the property directly, but through a company, New Venture Capital Limited (“NVCL”). The December Agreement makes no reference to NVCL.

[6]The key issues I must determine are:

(a)Did Navdeep and Neeraj enter into a binding oral contract on 25 April 2016? If so, what were the terms of that oral contract?

(b)Did Navdeep sign the December Agreement under duress?

(c)If not, what are the terms of the December Agreement? Is the agreement enforceable given that it makes no mention of NVCL?

Key events from early 2015 to April 2016

The commencement of the property joint venture

[7] In early 2015, Navdeep and Neeraj agreed to look for a property to purchase together. In May 2015, Navdeep and Neeraj found a suitable property. It was a section in a new…

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 [2019] NZHC 1682
Case: [2019] NZHC 1682
Decision Date: 18 July 2019

CaseChat Overview and Summary

In Kumar v Saily, the High Court of New Zealand was tasked with resolving a dispute between cousins Navdeep Kumar and Neeraj Saily over the ownership and division of a property at Lakes Boulevard, Tauranga. The key issues were whether the parties had entered into a binding oral contract in April 2016, the enforceability of a written agreement signed in December 2016, and the validity of an option to purchase under the December Agreement.

The court found that Navdeep failed to prove that an enforceable oral agreement was reached in April 2016, as the evidence did not support Navdeep's claims that Neeraj had agreed to transfer his interest in the property. The December Agreement, signed in December 2016, was found to be valid and enforceable, despite Navdeep's claims of duress and the lack of reference to the company through which the property was held. The court held that Navdeep entered into the agreement freely and that it was a shareholders' agreement between Navdeep and Neeraj. Neeraj validly exercised his option to purchase Navdeep's interest in the property, and the court ordered specific performance of the December Agreement with a new settlement date set for 22 August 2019.

The final order of the court was that Navdeep's claims against Neeraj were dismissed, and Neeraj's counterclaim was successful. The court also indicated that Navdeep should pay Neeraj's costs on a 2B scale basis, reserving leave for the parties to resolve any cost issues through memoranda if necessary.

Orders