Pasupathy v Zahim - [2023] NZHC 3415

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000576

[2023] NZHC 3415

BETWEEN
AKILAKUMAR PASUPATHY

Applicant

AND

MOHAMMED ZAHIM

Respondent

Hearing: 30 October 2023

Appearances:

A Pasupathy, Applicant in Person

J T Burley and E Wijaya for the Respondent

Judgment:

29 November 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 29 November 2023 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

McVeagh Fleming, Auckland

PASUPATHY v ZAHIM [2023] NZHC 3415 [29 November 2023]

Introduction

[1] Akilakumar Pasupathy applies for an order that a caveat registered against the interest of Mohammed Zahim in land at 56B Central Avenue, Papatoetoe, not lapse.1 Mr Zahim is one of the three joint tenants on the title for the property.

[2] The critical issue is whether Mr Pasupathy has a caveatable interest in the property pursuant to an alleged agreement to mortgage contained in a Deed of Acknowledgement of Debt dated 28 September 2010.

[3] Mr Zahim opposes the application on the grounds that he does not owe a debt to Mr Pasupathy, he did not sign the Deed of Acknowledgement of Debt, Mr Pasupathy is statute-barred from pursuing the underlying alleged debt in any case, and an agreement to mortgage does not constitute a caveatable interest in land.

Facts

[4]The facts relevant to this application are heavily disputed.

[5] Mr Pasupathy has filed affidavits dated 31 March 2023, 28 April 2023, and 17 July 2023 (in reply). In addition, he has filed affidavits from a Kushmangaran Nair,
Madhawan K Pillay and Imran Ali.2

[6] Mr Zahim has filed affidavits, one unaffirmed filed on 11 July 2023 and another affirmed filed on 17 August 2023 (in reply). He has also filed two affidavits from a handwriting expert, Linda Morrell.

[7] Mr Pasupathy claims that Mr Zahim owed him over $80,000 for rental for use of commercial premises owned by him and his wife; use of his machinery, electricity,

1 Caveat No 8604919.1 registered against Record of Title NA80A/182, Flat 2, Deposited Plan 135656, and Garage 2, Deposited Plan 135656.
2 Mr Zahim objects to Mr Ali’s affidavit being read because it is not properly in reply and was filed well past the time that the Court directed Mr Pasupathy to file any affidavits in reply. Mr Pasupathy responds that he was unable to file the affidavit earlier because he was suffering from health issues and his support person from the Community Law Centre was unavailable to help him. As I do not rely on Mr Ali’s affidavit, this issue is not resolved in this judgment.

and consumables; personal loans for payments of Mr Zahm’s personal expenses; funding of his business activities and house renovation; and use of stock.3

[8]Mr Pasupathy expands in his second affidavit:4

The Respondent had a property situated at 19 Arnwood Street, Manurewa, which he was renovating in 2010. He had asked for my help and to assist him…

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 Pasupathy v Zahim

Details

AGLC: Pasupathy v Zahim [2023] NZHC 3415
Case: [2023] NZHC 3415
Decision Date: 29 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Akilakumar Pasupathy applied for an order preventing the lapse of a caveat against the interest of Mohammed Zahim in a property located at 56B Central Avenue, Papatoetoe. The critical issue was whether Pasupathy had a caveatable interest in the property based on an alleged agreement to mortgage in a Deed of Acknowledgement of Debt dated 28 September 2010. Zahim opposed the application, arguing that he did not owe Pasupathy any debt, he did not sign the Deed of Acknowledgement of Debt, Pasupathy was statute-barred from pursuing the alleged debt, and an agreement to mortgage did not constitute a caveatable interest in land. The court found that the Deed did not provide Pasupathy with a present interest capable of supporting a caveat as it only gave him a right to request a mortgage. Even if the Deed was an actionable agreement to mortgage, Pasupathy’s remedies were statute-barred. The court dismissed Pasupathy’s application that the caveat not lapse and ordered that Pasupathy pay Zahim’s costs and reasonable disbursements.

Orders