Mahasivam v Thuraisingham - [2024] NZHC 1715

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-794

[2024] NZHC 1715

BETWEEN
SHYAMA MAHASIVAM

Plaintiff

AND

KUMAR THURAISINGHAM

Defendant

Hearing: 20 June 2024

Appearances:

R O Parmenter for the Plaintiff M Orange for the Defendant

Judgment:

26 June 2024

REASONS JUDGMENT OF ROBINSON J

This judgment was delivered by me on 26 June 2024 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
R O Parmenter, Auckland Graham & Co, Auckland Fortune Manning, Auckland

MAHASIVAM v THURAISINGHAM [2024] NZHC 1715 [26 June 2024]

Introduction

[1] The plaintiff applies for particular discovery under r 8.19 of the High Court Rules 2016 and an unless order. The defendant (largely) opposes. He says the discovery sought is of documents that either: do not exist; are irrelevant; or have already been discovered.

Background

[2] This matter has a tortured procedural history, including in relation to discovery. The substantive disputes and the relevant procedural disputes are sufficiently set out in the judgments of Associate Judge Gardiner (dismissing a summary judgment application);1 Associate Judge Sussock (making orders for tailored discovery of defined categories of documents);2 and Woolford J (declaring that the defendant’s statement of defence is not struck-out for non-compliance with Anderson J’s unless orders, or alternatively granting relief from the effect of that order).3

[3] In short, the plaintiff alleges that she was in partnership with the defendant in respect of a property development on McKinstry Avenue, Mangere East, Auckland (McKinstry Avenue). The development involved moving an existing dwelling to the rear of the section, constructing two new dwellings at the front and then subdividing the property into three sections. The plaintiff alleges that the defendant has breached the terms of the signed partnership agreement by using partnership assets outside the ordinary course of partnership business, including by borrowing money secured against the partnership’s properties and receiving rental income derived from those properties. The plaintiff seeks an order for dissolution of the partnership and damages for breach.

[4] The defendant maintains that he was not in partnership with the plaintiff, but that she lent him $830,000 in order to develop the property at McKinstry Avenue on the basis that he would repay that amount together with a return of $55,000 once the development was completed. In any event, two new dwellings have been constructed

1      Mahasivam v Thuraisingham [2021] NZHC 3221.
2      Mahasivam v Thuraisingham [2023] NZHC 986.
3      Mahasivam v Thuraisingham [2023] NZHC 3418.

and sold but the defendant has not paid anything to the plaintiff, either by way of a loan repayment or the distribution of partnership profits.

The application

[5] Associate Judge Sussock ordered the parties to complete tailored discovery of the following categories of documents:

(a)full and complete financial reports and records associated with the ownership or development of McKinstry Avenue, including details of transactions with dates, amounts, names, bank accounts and tax numbers (Category A);

(b)all documents (including emails,…

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.

Keep reading for free

Create a free CaseChat account to read Mahasivam v Thuraisingham and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1715
Decision Date: 26 June 2024

CaseChat Overview and Summary

The case of Mahasivam v Thuraisingham involves the plaintiff, Shyama Mahasivam, and the defendant, Kumar Thuraisingham, who are embroiled in a complex property development dispute. The plaintiff alleges that she was in a partnership with the defendant regarding a property development on McKinstry Avenue, Mangere East, Auckland, and that the defendant breached their partnership agreement by misusing partnership assets. The plaintiff seeks dissolution of the partnership and damages. In contrast, the defendant maintains that there was no partnership and that the plaintiff merely loaned him $830,000 for the property development. The dispute has a lengthy procedural history, with several judgments already issued by various judges. The primary legal issue before the court was whether the plaintiff's application for particular discovery of specific documents was justified. The court considered the relevance, existence, and proportionality of the requested documents. The plaintiff sought detailed financial records, correspondence, and legal documents related to the property development and the use of partnership assets.

The court found that the plaintiff's request for particular discovery was appropriate in several respects. It granted the order for the defendant to provide documents relating to the loan with ASB Bank used to purchase McKinstry Avenue, including the guarantee provided by Auckland Construction and Electrical Solutions Limited (ACES). The court also required the defendant to disclose bank statements showing payments made from the funds received from the plaintiff. Additionally, the court ordered the defendant to provide various financial and legal documents related to the properties at McKinstry Avenue, which could be relevant if the court determines that a partnership existed and the properties were partnership assets. The court adjourned the plaintiff's application for an unless order and indemnity costs, allowing the defendant time to comply with the discovery orders. The court scheduled a teleconference to address any remaining issues. The defendant was directed to file and serve his supplementary affidavit of documents by a specified deadline.

Orders