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Perera v Singh

Perera v Singh

Case [2019] NZHC 2246 6 September 2019

Fiduciary Duty

Breach of Trust

Accounting for Profits

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-730

[2019] NZHC 2246

BETWEEN
MANTHI SRILAL PERERA

Plaintiff

AND

AVNINDERPAL SINGH

First Defendant

AND

CHAMALI SUPRIYA SINGH

Second Defendant

Hearing:
4 – 14 February 2019

22 February 2019 – submissions from defendants 1 March 2019 - reply submissions from plaintiff

Appearances:

A J Romanos for the Plaintiff

K Lakshman for the Defendants

Judgment:

6 September 2019

JUDGMENT OF CULL J

TABLE OF CONTENTS

Factual background 3

Events in 2000 10
The June 2000 email 12

Mr Perera’s claim 21
Mr and Mrs Singh’s position 25

Issues 30

Issue One: What was the nature of the Agency Agreement? 31

Conclusion 43

Issue Two: Did the Agency Agreement give rise to any fiduciary or contractual obligations between the parties?  46
Fiduciary obligations  48
Contractual obligations and the Limitation Act 1950  55
Conclusion  61
Issue Three: Whether the Power of Attorney Deed gave rise to any fiduciary duties, owing from the first defendant to the plaintiff  62
PERERA v SINGH [2019] NZHC 2246 [6 September 2019]

Conclusion 66

Issue Four: Whether Mr and/or Mrs Singh breached their fiduciary duties 67

Findings on credibility 70

(a)Mr Singh  70
(b)Mrs Singh  85
(c)Mr Perera  90

Breach of fiduciary duties under the Agency Agreement 101
(a)Failing to account for and pay over to Mr Perera the Northland Property

income  104
(b)   Making the Transactions and failing to use the proceeds for Mr Perera’s benefit     105
(c)   Failing to notify Mr Perera about the cash withdrawal on the Insurance Policy       116
(d)Failing to make payments towards the Insurance Policy  119
(e)Failing to inform Mr Perera that he continued to hold the Insurance Policy

122

(f)Allowing Mr Perera’s bank accounts to incur the Bank Charges and Fees 125

Breach of fiduciary duties in respect of the Deed and the Power of Attorney 126

Conclusion 135

Issue Five: What loss, if any, has Mr Perera suffered? 138

Ms Kelly 142

(a)The rental income  147
(b)The expenses  148
(c)The Insurance Policy  149

Mr Corke 153

(a)The rental income 156
(b)The expenses and Insurance Policy 157

Analysis 161

Issue Six: Is the plaintiff entitled to general and/or exemplary damages? 176

General damages 176

Exemplary damages 181

Issue Seven: Does the Limitation Act 1950 assist Mr and Mrs Singh? 186

Issue Eight: Does the equitable defence of acquiescence apply to any of the Transactions? 190

Interim Result 198

Costs 201
[1] This is a claim by a brother against his sister and her husband for breach of fiduciary duty. Mr Perera (the plaintiff) claims that his sister and her husband, Mr and Mrs Singh (the first and second defendants) misappropriated considerable sums of money from him over 24 years, from 1991 to 2015, when he left them in charge of his rental property, his bank account, and the responsibility for meeting his life insurance policy premiums. During that time, several hundred thousand dollars of debt was secured against Mr Perera’s…

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 Perera v Singh

Details

AGLC: Perera v Singh [2019] NZHC 2246
Case: [2019] NZHC 2246
Decision Date: 6 September 2019

CaseChat Overview and Summary

Perera v Singh is a case involving a claim by a brother against his sister and her husband for breach of fiduciary duty. The plaintiff, Perera, claims that his sister and her husband misappropriated considerable sums of money from him over 24 years, from 1991 to 2015, when he left them in charge of his rental property, his bank account, and the responsibility for meeting his life insurance policy premiums. The court upheld most of Perera's claims and found that the defendants breached their fiduciary duties. The court found that the defendants failed to account for and pay over to Perera the income generated by the Northland Property, made unauthorised transactions from Perera's bank accounts, failed to notify Perera about a cash withdrawal on the insurance policy, failed to make payments towards the insurance policy, and allowed Perera's bank accounts to incur unnecessary bank charges and fees. The court also found that the defendants breached their fiduciary duties under a power of attorney deed. The court awarded Perera compensation in the sum of $604,500, together with a compensatory sum of interest, and a deduction for insurance policy costs and losses after December 2014. The court did not award general or exemplary damages, and found that the Limitation Act 1950 did not assist the defendants. The court also found that the equitable defence of acquiescence did not apply to any of the transactions.

Orders