Patel v Patel - [2023] NZCA 630

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA64/2023
[2023] NZCA 630

BETWEEN	JAYSHREE RATILAL PATEL Appellant
AND	HEMANTKUMAR RATILAL PATEL Respondent
AND	HEMANTKUMAR RATILAL PATEL, AS EXECUTOR OF THE ESTATES OF RATILAL PARBHU PATEL AND SHANTA PATEL Second Respondent
AND	RITA PATEL Third Respondent
AND	KRISAJ PROPERTIES LIMITED Fourth Respondent

Hearing:	29 August 2023
Court:	Courtney, Whata and Downs JJ
Counsel:	Appellant in person K B Arthur for first, third and fourth respondent No appearance for second respondent
Judgment:	8 December 2023 at 10.30 am

JUDGMENT OF THE COURT

A The application to adduce further evidence is declined.
B The appeal is dismissed.

CThe appellant must pay costs to the respondents for a standard appeal on a band A basis, with usual disbursements.

REASONS OF THE COURT

(Given by Whata J)

Jayshree Patel (Jayshree) appeals the decision of Harland J dismissing her claim against her brother, Hemant and his wife, Rita, for 50 per cent of the value of various properties held by them or their company, Krisaj Properties Limited (Krisaj).[1] The nub of her claim is that these properties are held subject to a constructive trust because they were acquired using their deceased parents’ wealth. Jayshree claims the Judge erred in multiple ways, but in short, Jayshree argues that the Judge erred in finding that the transfer of the family home to Hemant and Rita in 2004 was lawful and that the financial contributions made by her parents to Hemant and Rita have been properly accounted for.

Leave to adduce further evidence

[1]Patel v Patel [2022] NZHC 3567 [judgment under appeal].

Before turning to the substantive appeal, it is necessary to address the application by Jayshree for leave to adduce further affidavit evidence:
(a)A copy of a typical agreement for transfer — this is said to be relevant to the assessment of the lawfulness of the transfer of the family home.
(b)Testimonials as to Jayshree’s employment with the Social Welfare department — this is said to go to the assessment of likely level of contributions by Ratilal and Shanta in the form of social welfare benefits.
This evidence is neither fresh nor cogent. It could have with reasonable diligence been adduced at the trial. Moreover, it adds nothing to the claims made by Jayshree. The application for leave is therefore declined.
Leave was also sought to adduce a video clip of the hearing purporting to show Hemant signalling to Rita during the giving of her evidence. The video was taken without either knowledge of the respondents or the permission of the Court. This is a clear breach of the rules of the Court. Quite apart from the fact the video has no probative value whatsoever, the recording should never have occurred. Given this we simply directed that the video be deleted.

Background

The focal point of Jayshree’s claim relates to the properties obtained by Hemant and Rita over a 30-year span. It is helpful therefore to commence with an account of…

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 Patel

Details

AGLC: Patel v Patel [2023] NZCA 630
Case: [2023] NZCA 630
Decision Date: 8 December 2023 at 10.30 am

CaseChat Overview and Summary

Jayshree Ratilal Patel appeals against the High Court decision dismissing her claim against her brother, Hemantkumar Ratilal Patel and his wife, Rita, for 50 per cent of the value of various properties held by them or their company, Krisaj Properties Limited (Krisaj). The focal point of Jayshree's claim is that the properties were acquired using their deceased parents' wealth and are held subject to a constructive trust. The appeal court dismissed the application for leave to adduce further evidence, finding that the proposed evidence was neither fresh nor cogent and could have been adduced at the trial. The appeal court upheld the High Court decision, finding that there was no evidence that Ratilal and Shanta Patel were deceived into transferring the family assets to Hemantkumar and Rita. The court found that the transfer of the family home to Hemantkumar and Rita in 2004 was lawful and that the financial contributions made by Ratilal and Shanta Patel to Hemantkumar and Rita had been properly accounted for. The appeal court dismissed the appeal and ordered Jayshree to pay costs to the respondents for a standard appeal on a band A basis, with usual disbursements.

Orders