Masters v Masters

[2022] NZHC 2092

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000817

[2022] NZHC 2092

UNDER

The Trusts Act 2019

BETWEEN

NAYANA MASTERS

Plaintiff

AND

SANJAY ARVIND MASTERS and

BHARAT PARSHOTAM as trustees of the Sylvania Trust

First Defendants

ARROWMASTERS LIMITED and/or SANJAY ARVIND MASTERS and HASU

MASTERS as trustees of the Ennismore Trust

Second Defendants

Hearing:

22 August 2022

Appearances:

J Noble for the Plaintiff

Arvind Masters and Hasumukben Masters in person No appearance for the other Defendants

Judgment:

22 August 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 August 2022 at 5pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MASTERS v MASTERS [2022] NZHC 2092 [22 August 2022]

[1]                   Arvind Masters and Hasumukben Masters (“Mr and Mrs Masters”) have made an application on the current proceedings to vary an undertaking or undertakings previously given to the plaintiff, Nayana Masters (“Ms Masters”).

[2]                   In particular, Mr and Mrs Masters seek the release of $500,000 out of a total of some $800,000 – $900,000 held in trust according to three separate undertakings pending a court order. There is considerable urgency as unless the sum of $500,000 is deposited with a finance company on Tuesday 23 August 2022 the home in which the couple live at 26 Sylvania Crescent, Lynfield, will be auctioned in a mortgagee sale the following day, Wednesday 24 August 2022.

[3]                   In support of the application, Mr Masters contends that there was no basis for the undertakings to have given in the first place, that Ms Masters can have no claim against the monies in any event and suggests Ms Masters’ position will be secured by a caveat over the property in the event that the undertaking is varied as sought.

[4]                   Unsurprisingly Ms Masters is opposed to any variation in the undertakings pending resolution of her proceedings which in addition to the present proceedings seeking relief from two trusts, also includes Property (Relationships) Act 1976 proceedings and proceedings under s 182 of the Family Proceedings Act 1980 which were commenced in the Family Court and are currently being transferred to the High Court.

[5]                   Having considered the material filed by the parties I consider that there is insufficient information before me on which to conclude that the undertakings should be varied, and monies released as sought by Mr and Mrs Masters. Not only was there insufficient time to fully canvas all the issues in the context of a call in the Duty Judge list, it is also quite clear that the available documentation is incomplete, and the fact that Mr and Mrs Masters are self-represented makes it difficult to understand exactly what the legal basis is for the variations sought.

[6]                   In declining to vary the orders I note that Mr and Mrs Masters have known about the undertakings for some two years, at a time when both were legally represented and yet no steps were taken to challenge the undertakings that had been

given. Moreover, it appears that the notice of default under s 119 of the Property Law Act 2007 was issued on 27 April 2022 and yet no steps appear to have been taken to seek to vary the undertakings until the present application was filed on 16 August 2022.

[7]                   It is also  difficult  to see on the  information that has been provided that     Ms Masters’ position will be protected if a caveat is granted. There appears to be at least some $1,400,000 owing on the property at 26 Sylvania Crescent, and after the

$500,000 sought to be released is utilised to resolve the immediate threat of mortgagee sale it is not clear how the balance of the amounts secured against the property are to be repaid.

[8]                   In addition to these fundamental issues, I am also left with a host of questions regarding the inter-relationship of various individuals and entities named in the application and any rights they may have to the amounts held pursuant to the undertakings. For example, Mr Masters is not only not a party to the present proceedings but does not appear to be a trustee or otherwise hold any formal position with regard to any of the entities identified in the application. In a similar vein it is unclear why Sanjay Masters, Mr and Mrs Masters son and Ms Masters ex-husband, has not made the application given he appears to have been a trustee of both trusts named as defendants in the present proceedings and was the recipient of the Property Law Act notice in April 2022. Furthermore, the other trustee of the Sylvania Trust which owns 26 Sylvania Crescent is Bharat Parshotam, Mrs and Mrs Masters long- time solicitor who is indeed responsible for the principal undertaking at issue, with regard to some $560,000 which is currently held in his trust account.

[9]                   Given this position, and while I have sympathy for Mr and Mrs Masters’ position, I therefore dismiss Mr and Mrs Masters application. In the event Ms Masters seeks costs she is to file a memorandum on or before 5 September 2022. Any response on behalf of Mr and Mrs Masters is to be filed by 19 September 2022 following which I will determine the issue on the papers.

Powell J