Lad v Lad - [2019] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002833

[2019] NZHC 2965

BETWEEN
SHASHI KANT LAD

Plaintiff

AND

HEMANT KUMAR LAD

Defendant

Hearing: 6 August 2019

Appearances:

A Kashyap and S Yong for the Plaintiff P Rice for the Defendant

Judgment:

14 November 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 14 November 2019 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

Newton Law, Auckland P Rice, Auckland

LAD v LAD [2019] NZHC 2965 [14 November 2019]

Introduction

[1]This judgment deals with two interlocutory applications.

[2] The wider proceeding concerns an action by the plaintiff, Shashi Lad, seeking orders removing the first defendant, Hemant Lad (his brother) as a trustee of the Lads Family Trust. The plaintiff lives in Fiji. The trust’s main assets are a property at Dominion Road which is used as the home of Hemant; a property at Heaphy Street, Blockhouse Bay which is rented to tenants; and a bank account with approximately
$1.3 million in it.

[3] The plaintiff’s primary complaint is that the trust assets are managed by his brother as if they were his own personal assets. In particular, the first defendant has continued to reside in the Dominion Road property rent-free for a number of years.

[4] The second defendant is Mr Ranjit Budhabhai, who was appointed as independent trustee and wishes to avoid becoming involved in this proceeding insofar as is possible.

The applications

[5]The current application is by the first defendant, who seeks:

(a)security for costs in the sum of $50,000;1 and

(b)further and better particulars of paragraphs 14 and 15 of the statement of claim (now reproduced in an amended statement of claim).

[6] For reasons that will follow, I decline to grant the application for security for costs.

1 Under r 5.45 of the High Court Rules 2016.

[7] Because the plaintiff has agreed to provide the further particulars sought I will not discuss that application in any detail. The further particulars are to be provided within 10 working days.

Application for security for costs

[8] The first defendant’s central grounds as set out in the application are that the plaintiff is a resident outside of New Zealand and appears unlikely to be able to pay an award of costs should judgment be issued against him, and that it is just in the circumstances to order security.

[9] The plaintiff opposes. His grounds are that the dispute at hand relates solely to the trust, of which the plaintiff and he are the only beneficiaries (albeit discretionary beneficiaries), and he brings his claim in his capacity as a trustee. The plaintiff says any costs ordered against him may be offset against his substantial beneficial interest in the trust.

Principles on security for costs

[10]Rule 5.45 of the High Court Rules 2016 relevantly states:

5.45 Order for security of costs

(1) Subclause (2) applies if a Judge is…

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 Lad v Lad

Details

AGLC: Lad v Lad [2019] NZHC 2965
Case: [2019] NZHC 2965
Decision Date: 14 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Shashi Kant Lad filed a case against his brother, Hemant Kumar Lad, seeking orders to remove him as a trustee of the Lads Family Trust. The trust's main assets include properties at Dominion Road and Heaphy Street, Blockhouse Bay, and a bank account containing approximately $1.3 million. Shashi Lad claims that Hemant Lad has managed the trust assets as if they were his own personal assets, particularly by continuing to reside rent-free in the Dominion Road property. The second defendant, Mr Ranjit Budhabhai, appointed as independent trustee, seeks to avoid involvement in the case. Hemant Lad filed two interlocutory applications: one seeking security for costs in the sum of $50,000, and another seeking further and better particulars of paragraphs 14 and 15 of the statement of claim.

The legal issues in this case were whether the court should grant security for costs and whether the plaintiff should provide further and better particulars. The court found that the plaintiff was a resident outside of New Zealand, and therefore the threshold for granting security for costs was met. The court considered the ease, convenience, and cost of enforcing a costs judgment in the plaintiff's country of residence, as well as the plaintiff's financial situation and the likelihood of success of the claim. The court dismissed the application for security for costs, finding that the plaintiff's case had merit, and that there was a possibility of indemnification by the trust. The court ordered further and better particulars to be provided within 10 working days. The defendants were ordered to pay the costs of the application on a 2B basis together with disbursements to be fixed by the Registrar.

Orders