Mahasivam v Thuraisingham - [2023] NZHC 3418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-794

[2023] NZHC 3418

UNDER Partnership Law Act 2019

BETWEEN

SHYAMA MAHASIVAM

Plaintiff

AND

KUMAR THURAISINGHAM

Defendant

Hearing: On the papers

Counsel:

R O Parmenter for the Plaintiff S S Khan for the Defendant

Judgment:

29 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 29 November 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Fortune Manning (S Khan), Auckland Counsel: R Parmenter, Auckland

MAHASIVAM v THURAISINGHAM [2023] NZHC 3418 [29 November 2023]

[1] On 20 July 2023, Davison J made an order that unless the defendant gave discovery in accordance with an earlier ruling from Associate Judge Sussock dated 28 April 2023 by 5:00 pm on 3 August 2023, the defendant’s amended statement of defence would thereupon be struck out.

[2] On 15 August 2023, and on the plaintiff’s application, Gault J adjourned the hearing of the plaintiff’s claim which had been set down for two days commencing on 24 October 2023. The plaintiff also sought confirmation that the defendant’s amended statement of defence was struck out. Gault J did not give that confirmation, but directed that the defendant was to file and serve any notice of opposition and affidavit by 5:00 pm on 17 August 2023 if he considered he had complied with the discovery order.

[3] On 17 August 2023, the defendant filed a notice of opposition and affidavit in accordance with Gault J’s directions. On 4 September 2023, Gault J noted that the parties had agreed that the strike-out issue could be determined on the papers. He also made timetable orders for the filing of submissions. To protect his position, the defendant also filed an interlocutory application for relief from the consequences of the unless order on 20 September 2023 to be considered only if the Court determined that the defendant had not complied with the unless order.

[4] The strike-out issue has been referred to me as Duty Judge to determine on the papers. More particularly, I am asked to determine:

(a)whether the defendant’s second amended statement of defence has been struck out for non-compliance with Davison J’s unless order; and, if so

(b)whether relief from the consequences of that unless order should be granted.

Associate Judge Sussock’s ruling

[5]Associate Judge Sussock made orders in the following terms:

(a)The parties are to complete tailored discovery of the following categories of documents:

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

(ii)all documents (including emails, letters, texts and other forms of correspondence) associated with ownership or development of McKinstry Avenue, including but not limited to sale and purchase agreements, leases, mortgages, loan offers, mortgage terms and solicitors’ reports and statements (Category B).

(iii)all correspondence and documents (including emails, letters, texts and other forms of…

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.

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Details

Case: [2023] NZHC 3418
Decision Date: 29 November 2023

CaseChat Overview and Summary

In Mahasivam v Thuraisingham, Shyama Mahasivam, the plaintiff, filed a claim against Kumar Thuraisingham, the defendant, under the Partnership Law Act 2019, alleging issues related to a partnership and the development of a property at McKinstry Avenue. The central dispute in this case revolves around the adequacy of discovery provided by the defendant and whether his amended statement of defence should be struck out for non-compliance with an unless order. The case was heard in the High Court of New Zealand, Auckland Registry.

The court was tasked with determining two primary legal issues: first, whether the defendant's second amended statement of defence had been struck out for non-compliance with an unless order issued by Davison J; and second, if the defendant was in breach of the unless order, whether relief from the consequences of that order should be granted. The unless order required the defendant to complete tailored discovery of specific categories of documents related to the ownership and development of McKinstry Avenue by a specified date. The plaintiff argued that the defendant's discovery was inadequate, while the defendant contended that he had substantially complied with the order.

The court examined the principles governing unless orders, noting that such orders should be clear and the consequences of non-compliance should be proportionate. The court found that the unless order did not demand subjective satisfaction of the plaintiff but rather objective compliance by a set deadline. The defendant provided an affidavit of documents and the documents themselves by the specified deadline, thus technically complying with the unless order. However, the court acknowledged that disputes over the adequacy of discovery are common and that the plaintiff could seek further discovery if needed. Given the lack of a history of non-compliance by the defendant, the potential disproportionate impact of striking out the defence, and the continued provision of documents by the defendant, the court decided to grant relief from the consequences of the unless order, ensuring the defendant's statement of defence would not be struck out.

The court ordered that the defendant's statement of defence would not be struck out for non-compliance with the unless order, and granted relief in the alternative. The proceeding was adjourned to monitor progress, with counsel requested to file a memorandum setting out proposed timetable orders leading to a hearing.

Orders