Patel v Patel

[2019] NZHC 3306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-000601

[2019] NZHC 3306

BETWEEN

PARESHKUMAR PATEL

Plaintiff

AND

PRAKASHKUMAR PATEL

Defendant

Hearing:

In Chambers (on the papers)

Appearances:

P Cogswell for the Plaintiff

A Kashyap and S C R Raju for the Defendant

Judgment:

13 December 2019

JUDGMENT (No.2) OF GWYN J

This judgment was delivered by me on 13 December 2019 at 2.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Duggan & Murphy, Auckland Cogswell Law, Auckland

A Kashyap, Barrister, Auckland

PATEL v PATEL [2019] NZHC 3306 [13 December 2019]

Background

[1]        On 22 October 2019 I gave judgment (Judgment) for the plaintiff in a dispute between the parties over the distribution of the proceeds of a development project undertaken by them.

[2]        I found that there was an oral partnership between the parties, for the purpose of undertaking the development and that the presumption of equal sharing of profits and losses as between the partners applied.

[3]The judgment amount was expressed in the following terms:

[74] I therefore order that:

(a)Prakash [the defendant] make immediate payment to Paresh [the plaintiff] of

$175,000 + $55,000 + $22,160 = $252,160.

(b)Having regard to the amounts I have found proven and payable to Paresh, counsel should confer and if possible reach agreement as to the consequent calculation of:

(i)interest payable to Paresh on his advances; and

(ii)the total partnership profit to be distributed equally between the parties.

(c)Failing agreement, the plaintiff shall file a memorandum setting out his calculations by 18 November 2019 and the defendant shall file any memorandum in response by 29 November 2019.

Subsequent Steps

[4]        On 15 November 2019 the plaintiff filed a memorandum in accordance with paragraph [74] (c) of the Judgment, noting that counsel had provided the defendant’s counsel with the plaintiff’s calculation, in order to try and reach agreement, but no response was received. In the absence of agreement the plaintiff’s memorandum set out the plaintiff’s calculation as required under [74] (b) and (c) of the Judgment.

[5]        The plaintiff’s Memorandum attached a Schedule prepared by Mr Hira, an accountant who gave evidence for the plaintiff at trial, which:

(a)deducts the disallowed cash amount of $21,060.40 (Judgment at [58]- [60]);

(b)recalculates the net profit on the development, having carried out that deduction;

(c)recalculates the interest component sought, having removed the disallowed cash amount;

(d)calculates interest at 6% on annual rests on both the advances made by the plaintiff and his share of the recalculated net profit.

[6]The plaintiff’s Memorandum seeks judgment in the following terms:

The final amount sought by the plaintiff, excluding costs yet to be determined (paragraph [73] of the Judgment) is:

a.   Advances - $252,160.00;

b. Interest on advances - $84,708.07;

c.   Net profit - $204,441.22;

d.Interest on net profit - $49,097.41;

e.Total Judgment sum excluding costs - $590,406.70.

[7]        On 19 November 2019 the defendant filed an appeal against the Judgment. No application for a stay of the judgment has been made.

[8]        On 2 December 2019 the defendant sought an extension of three working days to comply with the timetable at [74](c) in the judgment, which I granted.

[9]        On Friday 6 December 2019 the defendant filed a further memorandum in which counsel noted that the defendant had instructed his accountant to “outline all

issues taken with the plaintiff’s calculation and will provide this statement to the plaintiff within 5 working days. If there is still disagreement over the calculations, the defendant proposes to submit an affidavit from his accountant within 5 working days thereafter outlining the differences for Honour’s [sic] consideration.” The memorandum did not explain why the defendant did not undertake this exercise within the timeframe specified in the Judgment, nor why it was not referred to in the defendant’s request for an extension of time on 2 December 2019.

[10]      The plaintiff opposed the defendant’s request for further time, noting that the defendant has known since 22 October 2019 that the calculation of interest and profit share was required from him by 29 November; he has given no ground for his failure to meet the timetabled step; he has already sought and been granted one extension, at which time he failed to disclose that he had not yet sought the advice needed to respond to the Judgment.

[11]      On 9 December 2019 I directed that the defendant file and serve any further affidavit(s) or memorandum in terms of paragraph [74] of the Judgment by the close of business on Tuesday 10 December 2019.

[12]No further information was received from the defendant by that deadline.

[13]      By Minute of 12 December 2019 I sought clarification from counsel for the plaintiff of some aspects of the Schedule attached to the plaintiff’s Memorandum of 15 November 2019.

[14]      Having received the clarification sought I now finalise judgment for the plaintiff in the following terms:

(a)Advances - $252,160.00 (as per the Judgment);

(b)Interest on advances - $84,708.07;

(c)Net profit on the development x 50% - $204,441.22;

(d)Interest on net profit - $49,097.41.

Total judgment sum = $590,406.70.

Costs

[15]Counsel are to file memoranda as to costs by Friday 7 February 2020.

Gwyn J