Patel v GBCD Property Limited - [2022] NZHC 931

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2375

[2022] NZHC 931

UNDER the Land Transfer Act 2017, section 143

BETWEEN

DEVESH KUMAR PATEL

Applicant

AND

GBCD PROPERTY LIMITED

Respondent

Hearing: 29 March 2022 at 10:00am (VMR)

Appearances:

Lawrence Ponniah for the Applicant

Mihai D Pascariu and Kate M Hursthouse for the Respondent

Judgment:

6 May 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 6 May 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Patel Nand Legal (Umar Kuddus), Auckland, for the Applicant Anderson Creagh Lai (Mihai Pascariu), Auckland, for the Respondent Copy for:
Lawrence Ponniah, Barrister, Auckland, for the Applicant

PATEL v GBCD PROPERTY LIMITED [2022] NZHC 931 [6 May 2022]

Introduction

[1] Mr Devesh Patel applies for an order sustaining caveat number 12271535.1 (the Caveat).

[2] The Caveat relates to the freehold titles of six properties owned by the respondent, GBCD Property Ltd (GBCD), at Harbour Village Drive, Gulf Harbour, Auckland, details of which are set out at [19] below (the caveated properties).

Background

[3] In 2012, Mr Patel, Mr Sivamani Krishnamurthi (Mr Krishnamurthi) and Mr Aaron Colthurst (Mr Colthurst) entered a joint venture to pool resources, collectively finance, acquire and develop a number of commercial properties. The intention was that the partners would jointly own and benefit from the properties, and share equally in any profits from those properties.

[4] The partners incorporated special purpose companies to purchase and hold the joint venture properties. GBCD is one of those companies. It was incorporated to complete the purchase of the properties now the subject of the Caveat, and to hold them on behalf of the joint venture.

[5] In August 2012, Mr Patel, through his company Purchasing Management International Ltd (PMI), acquired 16 commercial units at Gulf Harbour. PMI then nominated GBCD to purchase nine of the units (six of which now comprise the caveated properties). Another joint venture company, Gaij Investments Ltd (Gaij) purchased the remaining seven units.

[6] A further joint venture company, GKLMNO Holdings Ltd, then purchased two of units from GBCD. In September 2013, to effect a refinance and borrowing arrangement from a bank, all the units held by GKLMNO and Gaij were transferred to GBCD. A convoluted GBCD share transfer and re-transfer between the joint venture partners was effected.

[7] The joint venture eventually ran into difficulties. The business relationship between the three joint venture partners deteriorated. As a result, the partners entered into a JV Agreement on 12 September 2013 (the JV Agreement). It formalised the terms of their arrangement and provided a pathway for resolving differences, distribution of the properties and for a parting of ways.

[8] The JV Agreement recorded that, while Mr Patel was not a shareholder or director of GBCD, any cheque to be issued by GBCD was to be…

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 Patel v GBCD Property Limited

Details

AGLC: Patel v GBCD Property Limited [2022] NZHC 931
Case: [2022] NZHC 931
Decision Date: 6 May 2022

CaseChat Overview and Summary

Mr Devesh Kumar Patel applied for an order sustaining a caveat over six properties owned by GBCD Property Limited. The court had to determine whether Mr Patel had a reasonably arguable case for a caveatable interest in the properties and whether the caveat should be sustained. The court found that the drafting of the caveat was not defective, and that Mr Patel had established a reasonably arguable case for a caveatable interest in the properties. The court held that the joint venture agreement and related arrangements had not been terminated by the deed of settlement and that Mr Patel had a reasonably arguable caveatable interest in the properties. The court concluded that it should not exercise its discretion to remove the caveat, and ordered that the caveat be sustained and that costs be awarded to Mr Patel.

Orders