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…
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- Case
- [2021] NZHC 3221
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