Sharma v Mundath - [2019] NZHC 705

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-000572

[2019] NZHC 705

BETWEEN
DATA RAM SHARMA and GANESH

DIXIT as Trustees of the SHARMA FAMILY TRUST
First Plaintiffs and 33 others

AND

MUJEEB RAHIMAN MUNDATH

First Defendant

AND

AFSHEEN MUJEEB

Second Defendant

AND

FULCRUM MANAGEMENT CONSTRUCTION LIMITED

Third Defendant

AND

MUDRA INVESTMENTS NZ LIMITED

Fourth Defendant

AND

SUJIN HWANG

Fifth Defendant

AND

KOYAMA PTY LIMITED

Sixth Defendant

Hearing: 3 April 2019

Appearances:

E Morrison & P Shanahan-Pinker for Plaintiffs P Rice for Defendants

Judgment:

4 April 2019

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 04 April 2019 at 4.30pm
Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

SHARMA & ORS v MUNDATH & ORS [2019] NZHC 705 [4 April 2019]

Introduction

[1] The second defendant, Afsheen Mujeeb, seeks leave in accordance with r 15.9(3) of the High Court Rules 2016 to file a statement of defence to the plaintiffs’ claims against her, which has been listed for formal proof.

[2]The plaintiffs oppose Ms Mujeeb’s application.

[3]Ms Mujeeb’s application called on the duty list on 3 April 2019.

Relevant procedural history

[4] In an amended statement of claim filed on 7 August 2018, Data Ram Sharma and the other plaintiffs brought claims against the first defendant, Mujeeb Raman Mundath, seeking recovery of the sum of $5,411,622.05 plus interest and costs, in causes of action alleging:

(a)Breach of statutory duty;

(b)Deceit;

(c)Knowing receipt; and

(d)Money had and received.

[5]In the amended statement of claim, the plaintiffs also allege:

(a)Knowing receipt against Ms Mujeeb (who was and may still be Mr Mundath’s wife) and the third and fourth defendants;

(b)Money had and received against Ms Mujeeb and the third, fourth and fifth defendants;

(c)Tracing against the fourth and fifth defendants.

[6] Ms Mujeeb was served with the notice of proceeding in relation to the amended statement of claim on 26 August 2018. Ms Mujeeb did not file a statement of defence within 25 working days of service of the notice of proceeding, that is by 28 September 2018, as prescribed in r 5.47(2)(b) of the High Court Rules 2016.

[7] On 4 December 2018, Associate Judge Bell heard the plaintiffs’ application for summary judgment in their causes of action against Mr Mundath for breach of fiduciary duty and deceit. In his decision of 24 January 2019, Associate Judge Bell gave summary judgment against Mr Mundath in favour of the plaintiffs for breach of fiduciary duty in the amounts set out in the schedule to his judgment, without prejudice to the plaintiffs’ right to continue their claims against him for other amounts.1

[8] By memorandum dated 20 December 2018, counsel for the plaintiffs requested that the claims against Ms Mujeeb and the third and fourth defendants be listed for formal proof pursuant to r 15.9 of the High Court Rules. In accordance with r 15.9(2), no notice was given to the defendants.

[9] By…

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 Sharma v Mundath

Details

AGLC: Sharma v Mundath [2019] NZHC 705
Case: [2019] NZHC 705
Decision Date: 4 April 2019

CaseChat Overview and Summary

The plaintiffs, represented by counsel, sought to enforce claims against the defendants for various causes of action, including breach of statutory duty, deceit, knowing receipt, and money had and received. The second defendant, Afsheen Mujeeb, sought leave to file a statement of defence to the plaintiffs’ claims against her, which had been listed for formal proof. The plaintiffs opposed Mujeeb’s application. The court had to determine whether Mujeeb had a substantial ground of defence, whether her delay in filing a defence was reasonably explained, and whether the plaintiffs would suffer irreparable injury if leave to defend was belatedly granted.

The court found that Mujeeb had an arguable defence, regardless of its merits. The court noted that the delay in this case was six months, less than the 10 months in a previous case, and that delay was not fatal. The court also found that Mujeeb should pay the plaintiffs’ costs on the application. The court concluded that the plaintiffs would not suffer irreparable injury if Mujeeb was allowed to defend the claim. The court granted leave to Mujeeb to file a statement of defence to the plaintiffs’ amended statement of claim and to defend the claim.

The court awarded the plaintiffs costs on this application on a 2B basis to be fixed by the Registrar.

Orders