Malik v Syed - [2022] NZHC 136

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-58

[2022] NZHC 136

BETWEEN
AMIR FAZAL MALIK

Plaintiff

AND

ZAINULABIDIN SYED

First Defendant

TRANSNATIONAL LIMITED
Second Defendant

PACIFIC MOTEL LIMITED
Third Defendant

SHAH FAMILY LIMITED

Fourth Defendant

Appearances: Mr A F Malik, Plaintiff in person

Judgment
(On the papers):

9 February 2022

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 9 February 2022 at 4.30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Party: The Plaintiff

MALIK v SYED [2022] NZHC 136 [9 February 2022]

Introduction

[1]The plaintiff applies without notice for orders freezing:

(a)The property at 21 Park Avenue, Ōtāhuhu, Auckland which is presently owned by the second defendant; and

(b)All or any bank accounts related to the four defendants.

[2] In support of his application the plaintiff has filed: an affidavit with three bundles of exhibits; an undertaking as to damages; and a statement of claim setting out his substantive allegations.

[3] I convened a teleconference with Mr Malik on 9 February 2022. At the end of the teleconference I explained to Mr Malik why I did not consider it appropriate to grant the orders he seeks. I set out briefly below my reasons for that decision. As I explained to Mr Malik, this is not to dismiss his substantive claim or to conclude that it necessarily will be dismissed. Those are matters for another day. But in the meantime I am not prepared to grant the freezing orders Mr Malik has sought without notice.

Substantive claim

[4] The plaintiff alleges that on 26 May 2009 he went to Melbourne at the first defendant’s invitation (and expense) in order for them to consider business opportunities. The plaintiff alleges that at some stage during this visit he and the first defendant entered into an oral contract pursuant to which:

(a)The plaintiff and the first defendant agreed to establish educational and property development businesses in New Zealand and Australia;

(b)The first defendant would arrange loans for these businesses;

(c)The plaintiff would contribute his time, energy and support to the businesses;

(d)The plaintiff could use business accounts for his own basic necessities and otherwise run the companies at a minimal expense;

(e)The plaintiff and first defendant would share equally the profit and losses generated by the businesses.

[5] The plaintiff says that between 2009 and 2016 he and his family lived rent free in properties owned by companies related to the defendants. He says that during this time he took minimal drawings, sufficient only to cover his basic living expenses, but otherwise did not receive any wages or salary from either the first defendant or any of the companies that they were operating.

[6] The plaintiff alleges that the contractual relationship between him and the first defendant ended on 28 January 2016. He alleges that in breach of that oral contract the first defendant has failed to account to the plaintiff for 50 per cent…

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 Malik v Syed

Details

AGLC: Malik v Syed [2022] NZHC 136
Case: [2022] NZHC 136
Decision Date: 9 February 2022

CaseChat Overview and Summary

The case of Malik v Syed involves a dispute between the plaintiff, Amir Fazal Malik, and several defendants: Zainulabidin Syed, Transnational Limited, Pacific Motel Limited, and Shah Family Limited. The plaintiff has applied for freezing orders against the property owned by Transnational Limited and any bank accounts held by the defendants. The application was made without notice and the plaintiff appeared in person.

The central legal issue in this case revolves around whether the plaintiff has established a good arguable case for a freezing order under the High Court Rules. A good arguable case requires the allegations in the claim to be capable of tenable argument and supported by adequate evidence. The plaintiff must also demonstrate that there is a real risk that the respondents will dissipate or dispose of the assets to which the freezing order would apply. The court considered these requirements and the overall justice of the case.

The court found that the plaintiff had not provided sufficient evidence to demonstrate a good argugable case for an oral contract on the terms alleged or that the defendants would dissipate the assets. The plaintiff's claim was based on an oral contract between him and the first defendant, but the evidence provided was insufficient to substantiate the existence of such a contract or the alleged profits. Furthermore, the plaintiff did not allege any cause of action against the second, third, and fourth defendants. The court concluded that the plaintiff had not met the necessary threshold to warrant the granting of freezing orders.

As a result, the plaintiff's application for freezing orders was declined. The court emphasized that this decision did not dismiss the substantive claim or conclude that it would necessarily be dismissed. The plaintiff was encouraged to seek legal advice and consider serving the first defendant with the proceedings.

Orders