Mahasivam v Thuraisingham - [2021] NZHC 3221

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000794

[2021] NZHC 3221

UNDER the Partnership Law Act 2019

BETWEEN

SHYAMA MAHASIVAM

Plaintiff

AND

KUMAR THURAISINGHAM

Defendant

Hearing: 17 August 2021

Appearances:

R Parmenter for the Plaintiff

S Khan and M Orange for the Defendant

Judgment:

8 December 2021

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 8 December 2021 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

Graham & Co, Auckland R Parmenter, Auckland

MAHASIVAM v THURAISINGHAM [2021] NZHC 3221 [8 December 2021]

Introduction

[1] Ms Shyama Mahasivam and Mr Kumar Thuraisingham arranged to develop and sell two properties at 24 McKinstry Avenue, Māngere East. The nature of the arrangement is disputed. Ms Mahasivam claims that they were in partnership. She says that, in breach of the partnership, Mr Thuraisingham has failed to supply her with information about the development project. She wants the partnership dissolved. She seeks summary judgment of her claim for an order requiring Mr Thuraisingham to supply her with the information she has requested.

[2] Mr Thuraisingham opposes the application for summary judgment. He maintains that he and Ms Mahasivam were not in a partnership.

[3] Ms Mahasivam relies on a written agreement that she and Mr Thuraisingham signed before the project began. The document describes them as equal partners and requires them to provide each other with full information and truthful explanations of all matters relating to the partnership. Further, Ms Mahasivam maintains that Mr Thuraisingham is required by s 54 of the Partnership Law Act 2019 to provide her with true accounts and full information of all things affecting the partnership.

[4] Mr Thuraisingham does not deny that he signed the written agreement, but he says he did not read it before doing so. He contends that the agreement does not reflect the reality of the arrangement he and Ms Mahasivam made.

[5]To decide this application, I need to decide two main issues:

(a)Were Ms Mahasivam and Mr Thuraisingham in a partnership relationship?

(b)Is Mr Thuraisingham obliged to provide the information?

Legal principles concerning summary judgment

[6] To order summary judgment, this Court needs to be satisfied that Mr Thuraisingham has no arguable defence to Ms Mahasivam’s claim, meaning that there is no real question to be tried.1

[7] The principles to be applied in a plaintiff application for summary judgment have been clearly established through decisions of the Court of Appeal in Pemberton v Chappell and Krukziener v Hanover Finance Ltd.2 It is generally not possible to determine disputed issues of fact based on affidavit evidence alone, especially where issues of credibility arise. This does not mean that the Court must accept every factual assertion made in opposition to an application for summary judgment. The Court is entitled to take a robust and realistic approach where the facts require it.

[8] At the heart of this case is a factual…

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: [2021] NZHC 3221
Decision Date: 8 December 2021

CaseChat Overview and Summary

Shyama Mahasivam and Kumar Thuraisingham entered into an agreement to develop and sell two properties at 24 McKinstry Avenue, Māngere East. Ms Mahasivam claims that they were in partnership, and that Mr Thuraisingham has failed to provide her with information about the project, in breach of the partnership. She seeks summary judgment of her claim for an order requiring Mr Thuraisingham to supply her with the information she has requested. Mr Thuraisingham opposes the application for summary judgment, maintaining that he and Ms Mahasivam were not in a partnership. The court needed to decide two main issues: (a) whether Ms Mahasivam and Mr Thuraisingham were in a partnership relationship, and (b) whether Mr Thuraisingham was obliged to provide the information requested. The court found that it was at least reasonably arguable that the parties were not in a partnership relationship, as there was no evidence that they "carried on business together as partners" as contemplated by the written agreement. There was no evidence of Ms Mahasivam being involved in the project beyond advancing the funds at the outset, and there were further discrepancies between the written agreement and what happened. Additionally, Ms Mahasivam's conduct was inconsistent with the parties being in a partnership and bound by the terms of the written agreement. The court concluded that Mr Thuraisingham had a reasonable defence that the arrangement with Ms Mahasivam was not a partnership, despite the written agreement, and that the true nature of their relationship could not be resolved in the summary context where key facts were disputed or not addressed. The court also found that there was a reasonable defence that the duty to provide true accounts and full information, as set out in s 54 of the Partnership Law Act 2019, did not apply, as there was a reasonable defence that there was no partnership in substance between the parties. The plaintiff's application for summary judgment was dismissed, and costs in relation to the summary judgment were reserved.

Orders