Sharma v Mundath

[2019] NZHC 24

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-572

[2019] NZHC 24

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

AFSHEEN MUJEEB
Second Defendant

FULCRUM MANAGEMENT CONSTRUCTION LIMITED

Third Defendant

MUDRA INVESTMENTS NZ LIMITED
Fourth Defendant

SUJIN HWANG
Fifth Defendant

KOYAMA PTY LIMITED

Sixth Defendant

Hearing:

4 December 2018

Appearances:

Brent O’Callahan and Julie Ding for the Plaintiffs

Trevor Hall (by audiolink from Sydney) for the First Defendant

Judgment:

24 January 2019

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 24 January 2019 at 2:15pm

pursuant to Rule 11.5 of the High Court Rules.

…………………………………

Deputy Registrar

SHARMA and ORS v MUNDATH [2019] NZHC 24 [24 January 2019]

CONTENTS

Paragraph

Some procedural matters  [7]

The plaintiffs’ evidence  [12]

Alleged third party supply payments  [15]
Transfer payments  [23]
Inland Revenue refunds  [24]
Payroll payments  [25]
Rakesh Kumar Sharma  [30]
Mayank Sharma  [35]

Dr Vinod Sharma  [36]

Mr Mundath’s response  [37]

Third party supplier payments  [51]
Transfer payments  [59]
IRD refunds  [60]

Payroll payments  [61]

The Sharma reply evidence  [66]

Mayank Sharma  [66]
Rakesh Sharma  [70]

Loan returns  [74]
IRD refunds  [75]

Payroll payments  [76]

Kare Johnstone

Payments by Mr Mundath to other Sharma entities  [77]
Supplier payments  [78]

Cash payments  [80]

Payments received in the year ending 31 March 2018  [81]

Contestable matters  [82]

The claim for breach of fiduciary duty  [84]

The “cash” explanation  [91]

Accountability for “authorised” payments  [95]

Payments from Inland Revenue  [96]

Allegations of unsavoury business practices  [99]

Summary on claim for breach of fiduciary duty  [104]

The deceit cause of action  [110]

Outcome  [118]

Schedule

[1]                  The 34 plaintiffs say that Mr Mundath has embezzled at least $5,411,622.05. They apply for summary judgment against him for parts of their claims. The plaintiffs are companies, trustees and individuals associated with three brothers - Rakesh Sharma, Dr Vinod Sharma and Ashok Sharma - and their families. The plaintiffs and associated companies have business interests in hotels, motels, restaurants, property developments, service and procurement businesses. Together, they form the Sharma Group. Mr Mujeeb Mundath worked in and for the Sharma Group. He was an employee, but there is a dispute as to who in the Sharma Group employed him. The other defendants are:

Afsheen Mujeeb (Mr Mundath’s wife);

Fulcrum Management Construction Ltd (of which Mr Mundath was director until April 2018);

Mudra Investments New Zealand Ltd (of which Mr Mundath was the only director);

Sujin Hwang (said to be an associate of Mr Mundath); and Koyama Pty Ltd (an Australian corporation).

[2]                  In their amended statement of claim, the Sharma Group plaintiffs plead these causes of actions:

[a]against Mr Mundath - breach of fiduciary duty;

[b]against Mr Mundath - deceit;

[c]against Afsheen Mujeeb, Afsheen Mundath and Mr Mundath jointly, Fulcrum and Mudra – knowing receipt;

[d]against Mr Mundath, his wife, Fulcrum, and Mudra - money had and received;

[e]against Mudra – tracing and knowing receipt; and

[f]against Sujin – tracing and money had and received.

There is no pleading against Koyama. The plaintiffs apply for summary judgment only against Mr Mundath and only under the causes of action for breach of fiduciary duty and deceit.

[3]                  In Krukziener v Hanover Finance Ltd, the Court of Appeal restated the test for a plaintiff’s application for summary judgment:1

[26]      The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNMZ 183 (CA) at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart  (1997)    11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Young v Letchumanan [1980] AC 331; [1979] 3 WLR 373 (PC) at p 341; p 381. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[27]      Under r 141A, the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.

[4]                  Rule 12.2(1) of the High Court Rules 2016 recognises that a plaintiff may apply for summary judgment for only part of its claim.2 The plaintiffs have done that here. They say that at a full hearing on the merits they will be able to establish that Mr Mundath is liable to them for greater amounts, but they recognise that at least some parts of their case are contestable and not suitable for summary judgment.

[5]                  The plaintiffs’ case is that Mr Mundath, an employee, arranged for funds from their bank accounts and for some of their Inland Revenue refunds to be paid into bank accounts in his control. He received more than $9 million. They acknowledge he may have arguable defences for some of those payments, but not for all of them. They say

1      Krukziener v Hanover Finance Ltd [2008] NZCA 187 at [26]; (2008) 19 PRNZ 162.

2      Rule 12.2(1): The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action. (Emphasis added)

that they can show that the minimum amount for which he can have no defence is

$5,411,622.05. Establishing Mr Mundath’s liability for that amount requires them to show that possible defences cannot apply for at least that much. While Mr Mundath’s grounds of opposition will be considered later, potential defences they must negate include that they agreed to the transfer of funds to Mr Mundath to keep as his own, that he received the payments as legitimate earnings, that he used the funds in their interests, not his own, that the payments were to reimburse expenses he incurred on their behalf, that he was otherwise entitled to keep the money, that he has paid money back, and any affirmative defence that Mr Mundath might raise.

[6]                  The plaintiffs have not satisfied the summary judgment test for their claim in deceit. On the claim for breach of fiduciary duty, Mr Mundath has arguable defences to parts of the plaintiffs’ claim which they have not allowed for. I am nevertheless satisfied that there is a minimum amount for which he is liable and for which he has no arguable defence – $4,696,758.31.

Some procedural matters

[7]                  The plaintiffs began this proceeding in April 2018. Mr Mundath left New Zealand about the same time and has stayed away ever since. He now lives in Sydney, New South Wales, Australia. He was served by substituted service. At an early stage of the proceeding he instructed Sydney solicitors, who in turn instructed Auckland agents. In a minute of 27 September 2018, Edwards J directed Mr Mundath to file any notices of opposition and affidavits in opposition by 16 October 2018. Mr Mundath did not comply with that direction. His original solicitors prepared documents but Mr Mundath terminated the retainer. He instructed other Sydney solicitors.

[8]                  As the summary judgment application appeared to be unopposed, it was set down for hearing on 31 October 2018. Notices of opposition were then filed on behalf of Mr Mundath. With that, I directed a hearing on 4 December 2018 at which Mr Mundath could be heard. For the hearing, Mr Mundath was represented by his Sydney solicitor who took part remotely by telephone.

[9]                  In my minute of 31 October 2018, I noted that Mr Mundath required leave to take steps out of time.3 Mr O’Callahan submitted that Mr Mundath had had ample time in which to prepare his opposition and that Mr Mundath’s explanations for not taking steps earlier were unconvincing. He nonetheless conceded that the plaintiffs would not be prejudiced by an extension of time.

[10]               While it is unsatisfactory that Mr Mundath took steps so late, it would be unjust to bar him from being heard in opposition to the summary judgment application. It would not be right to deal with the summary judgment application without giving him the opportunity to be heard and without taking his evidence and the submissions made on his behalf into account.

[11]               Mr Mundath filed two documents late: an affidavit by him and an unsworn affidavit by Mr Aboobacker Kaippalli. Part of Mr Mundath’s affidavit concerns procedural matters (including representation and a freezing order the plaintiffs obtained in the Federal Court of Australia). On substantive matters he gives peripheral evidence attacking the plaintiffs’ business practices. Aboobacker Kaippalli comes from Kerala, India. He worked in the Sharma businesses between February 2014 to June 2018. His affidavit is intended to corroborate aspects of Mr Mundath’s evidence concerning the employment of immigrant workers. Both documents were filed out of time. The plaintiffs had no time to respond to them. I have disregarded them. Part of Mr Mundath’s case is that the plaintiffs have questionable and arguably illegal business practices. He raised that in his affidavits in opposition. I have dealt with that issue without needing to consider the late documents.

The plaintiffs’ evidence

[12]               The plaintiffs say that Mr Mundath was employed by Amazon NZ Ltd as a bookkeeper. He also worked for others in the Sharma Group with administrative and accounting responsibilities. On behalf of the Sharma Group he arranged for payments to third party suppliers, made intra-group transfers, payroll payments to employees, and collected refunds from the Inland Revenue. In early 2018, the plaintiffs found that Mr Mundath had misapplied funds - $394,856. Mr Mundath admitted the

3      High Court Rules, r 12.9(2).

misappropriation and said he would put it right. He repaid most of the missing amount. The plaintiffs made further enquiries and began this proceeding. They applied for freezing and disclosure orders. About this time, Mr Mundath left the country and sent substantial funds abroad. While Mr Mundath did not comply with the disclosure orders, the plaintiffs obtained extensive information from banks including banking records of Mr Mundath, his wife, Fulcrum and Mudra. They supplied this information plus extensive information from their own banking and accounting records to a forensic accountant, Ms Johnstone. Their case relies extensively on her evidence. She analysed 2,874 transactions between July 2010 and March 2018 representing payments totalling $9,224,327.00. All but $104,968.56 was paid into bank accounts under the control of Mr Mundath.4     These were bank accounts in the names of     Mr Mundath, his wife, of him and his wife jointly, Fulcrum and Mudra.

[13]               The plaintiffs say that they can make out a case for summary judgment for some of these payments, which they group as follows:

Alleged third party supply payments	$3,136,876.53
Transfer payments	$1,512,814.63
IRD refunds	$146,003.57
Payroll payments	$615,927.32
Total	$5,411,622.05

[14]               Ms  Johnstone  also  identified  payments   into   accounts   controlled   by  Mr Mundath totalling $678,212.77 from six other companies in the Sharma Group: Scotia Crossing Ltd, VR Hamilton Ltd, VR Hamilton Backpackers Ltd, VR Group Ltd, VR Courtney Place Ltd and White Pearl Commercial Laundry Ltd. These companies are not plaintiffs and therefore no claim is made for those payments.

Alleged third party supply payments

[15]Under this head there are 1,705 transactions with a total value of

$5,411,686.00. The plaintiffs’ bank statements showed these as payments to businesses who had made supplies to the plaintiffs. In fact, the payments had gone

4      The $104,968.67 was paid to the Inland Revenue as PAYE and Kiwisaver contributions for salary payments to Mr Mundath. See paragraph [27] below.

into bank accounts under the control of Mr  Mundath.  Ms Johnstone accepts that  Mr Mundath personally paid some third party suppliers of the Sharma Group with his credit card. To the extent that he paid for actual liabilities incurred by the Sharma Group, the plaintiffs accept that they have no claim against him. Ms Johnstone has matched  credit  card  payments  for  $1,237,783.05  to  statements  by  suppliers.  Ms Johnstone says that there is another group of transactions where it is possible that third party suppliers have been paid, but she has not been given invoices or similar documents to verify that the payments were for Sharma liabilities. Those payments come to $1,037,026.21. For summary judgment she gives Mr Mundath the benefit of the doubt for those payments. But after scrutinising the payments, she says that there is a balance of $3,136,876.53 which cannot be explained as payments of Sharma expenses.

[16]               The plaintiffs used three banks – ASB, Westpac and ANZ. ASB was used more than the other two. Each bank has online banking platforms on which a customer can load payee details for payments. That saves the customer adding full payment details for each payee each time a payment is made online. Ms Johnstone says that 492 payee entries on the ASB payee list were set up to pay a bank  account associated with    Mr Mundath. For 484 of them the payee description was for another entity not associated with Mr Mundath but the payee bank account was under the control of  Mr Mundath. Payee descriptions for the other eight accounts were consistent with the bank account being associated with Mr Mundath. Ms Johnstone says that in her experience, usually in the context of receiverships, administrations and forensic investigations, the only times when payee details did not match the owner of the payee bank account were where fraud was involved. For accounting purposes, there is no obvious good reason for recipient bank accounts not to match the payee descriptions in bank statements and in payee lists on online banking platforms.

[17]               Now to expand on some of the above. Ms Johnstone was provided with payment data of the Sharma Group from January 2010 to March 2018, and with data for Mr Mundath’s personal credit cards from August 2011 to February 2018. She was therefore not able to establish whether Mr Mundath did reimburse the plaintiffs for payments into his two accounts under his control before August 2011. Within the period from August 2011 to February 2018, Ms Johnston found cases where credit

card payments by Mr Mundath to third party suppliers exactly matched payments by the plaintiffs into his account. The matches came to $1,237,783.05. Transactions before August 2011 were not considered.

[18]               She also found cases where multiple payments from the plaintiffs’ bank accounts aligned with individual credit card payments by Mr Mundath, and individual payments from the Sharma bank accounts aligned with multiple credit card payments by Mr Mundath on or around  the  same  dates.  She  assumed  that  payments  by  Mr Mundath on his credit card to third party suppliers related to legitimate expenses incurred by the Sharma Group. She has given Mr Mundath the benefit of doubt for

$1,037,026.21 of these payments.

[19]               She also found cases where payments had been duplicated, that is, where a payment had been made from a Sharma bank account to the supplier for one invoice, and the same payment had been made, ostensibly to the same supplier, but the recipient account was under the control of Mr Mundath. Ms Johnstone found that in many cases Mr Mundath over-reimbursed himself by increasing the amount of a particular expense by an amount in round figures, for example $100, $200 or $1,000, so as to keep the exact number of cents associated with the particular underlying expense. In her opinion, that is a common method used to hide fraudulent transactions.

[20]               Ms Johnstone found that some of the third party supplier payments from accounts of the plaintiffs went into Mr Mundath’s personal travel cards for overseas travel expenses. The amount was $333,105.00. She could not find any reasonable explanation for supplier payments to be made to his personal travel card.

[21]               She has also noted that Mr Mundath incurred merchant credit card fees, charged for the use of a credit card. She has treated those as arguably legitimate expenses incurred by Mr Mundath, leaving open for argument later whether Mr Mundath is entitled to claim against the Sharma companies for costs he incurred in using his credit card to pay their debts.

[22]               The results of her analysis are that credit card payments of $1,237,783.05 can be matched to supplier statements. There is further expenditure on the credit cards of

$1,037,026.21 which went to suppliers, where it is arguable that the credit card payments were to meet legitimate business expenses of the plaintiffs. Ms Johnstone derives the sum of $3,136,876.53 as payments made from the plaintiffs’ bank accounts ostensibly for payment of suppliers, but which went into accounts under the control of Mr Mundath and where there is nothing to show any payment out by Mr Mundath to meet a legitimate expense or liability of the plaintiffs.

Transfer payments

[23]               The plaintiffs say that as a matter of standard practice, funds were transferred between entities in the Sharma Group as required, for example to maintain cash flow. On investigation, Ms Johnstone found that payments purportedly between Sharma Group entities were in fact made to bank accounts in the control of Mr Mundath. Again, payee descriptions were false. The total payments came to $2,639,131.27. Repayments came to $1,126,316.64. That left a net amount received by accounts in the control of Mr Mundath but not repaid amounting to $1,512,814.63.

Inland Revenue refunds

[24]               Some plaintiffs received GST refunds. Many of the GST refunds were paid into bank accounts in the control of Mr Mundath. The plaintiffs have put in evidence relevant Inland Revenue records of refunds for these plaintiffs: Amazon NZ Ltd, Bikaner Foods NZ Ltd, Maxwells Ltd, Ninety-Five NZ Ltd, Smartbuy Solutions Ltd and Travellers Inn Ltd. The payments come to $146,003.57. The plaintiffs say that Mr Mundath had no right to receive IRD refunds on their behalf.

Payroll payments

[25]               Mr Mundath was paid a salary by Amazon NZ Ltd. The plaintiffs say that he arranged to pay himself a salary increase without authority. He also arranged to be paid salary by another Sharma company, VR Group 2011 Ltd, using the name of Ankur Sharma, a member of the Sharma family based overseas. As well, he entered fictitious names in the payroll records so that what appeared to be wages payments to employees were payments into bank accounts in his control. He also arranged other payments,

which appeared to be wages paid to actual employees but were really payments to accounts under his control.

[26]               Mr Mundath’s salary was $75,000 per year, according to the plaintiffs. His personal tax summary issued by the Inland Revenue Department shows that for the year ending 31 March 2017 his salary income was $195,779 - $109,704 from Amazon NZ Ltd, and $86,075 from VR Group 2011 Ltd. Ms Johnstone’s evidence includes a “VR Group 2011 Ltd Employee Monthly Schedule 28 February 2017” which shows a payment to an employee “Ankur Sharma” with IRD number 84-334-804. The IRD number is Mr Mundath’s. Mr Ankur Sharma, a son of Rakesh Sharma, not an employee of VR Group 2011 Ltd, provides services on a contract basis via Ankur Investments Ltd as shown by invoices issued by that company. The salary payment of $4,330.26 in the February Employee Monthly Schedule was paid to Mr Mundath’s Westpac account on 2 February 2017.

[27]               Mr Mundath’s impersonation went further. Employee payee details for some entities in the Sharma Group were loaded onto an ASB business online banking facility. There are over 2,000 entries. Some employees appear more than once on the list because they have different bank accounts loaded. Ms Johnstone’s evidence includes a list of 247 payees, where the payees are apparently employees of Sharma entities, the Inland Revenue or “rental”. But in all cases, the payments were made into accounts under the control of Mr Mundath. Ms Johnstone says that some names are actual employees of the Sharma Group but others are not. Payments of $510,958.76 over and above Mr Mundath’s salary entitlement went into accounts under his control. She also identifies a further $104,968.56 as payments of PAYE and Kiwisaver contributions to the Inland Revenue for that part of his salary which he was not entitled to. There is no evidence that the plaintiffs have tried to recover the $104,968.56 from the Inland Revenue.

[28]               Ms Johnstone adds qualifications: she has examined transactions only within a date range where the plaintiffs were able to obtain data from banks. In the absence of documents from other third parties, she has had to rely on banking records to establish whether payments were legitimate. Third party supplier statements have been available only in limited cases. She believes that there are further transactions,

totalling $1,706,583.42, which are suspect. Further investigations may show that the plaintiffs have claims for those sums as well. Those transactions are not part of the plaintiffs’ claim for summary judgment.

[29]In summary, her evidence shows payments arranged by Mr Mundath which

went into accounts in his control (or to the Inland	Revenue, in the	case	of
$104,968.56):
(a)       Unmatched third party supplier payments	$3,136,876.53
(b)      Net transferpayments	$1,512,814.63
(c)       Inland Revenuerefunds	$146,003.57
(d)      Payrollpayments	$615,927.32
Total:	$5,411,622.05
Rakesh Kumar Sharma

[30]               Mr Rakesh Kumar Sharma says that Mr Mundath was employed by Amazon NZ Ltd. Rakesh owns 91 per cent of the shares. The other 9 per cent are held by him and his wife as trustees of the Ram Family Trust, the sixteenth plaintiffs. Mayank Sharma, his nephew, is a director of Amazon, but Rakesh carries out most of the management of the company. Rakesh was responsible for employing Mr Mundath. Over time, Mr Mundath was given responsibility to manage the bank accounts held by the members of the Sharma family and companies and trusts associated with them including all the plaintiffs. Rakesh found Mr Mundath competent and trustworthy. While Amazon employed Mr Mundath, the costs of his salary were spread over other family members and entities by inter-entity arrangements. Mr Mundath’s final salary was $75,000 per annum. Rakesh did not authorise any salary above that amount. Mr Mundath was not entitled to draw salary from the VR Group 2011 Ltd or any other entity in the Sharma Group. Mr Mundath had authority to load payments into the online banking platform used by the plaintiffs. He collected payments and was responsible for managing the bank accounts held by the plaintiffs. He did not,

however, have authority to receive Inland Revenue refunds of any kind on behalf of the plaintiffs. He did not have any authority to pay the plaintiffs’ expenses using his own credit cards or otherwise through his own accounts. It was common practice to transfer funds among to entities in the Sharma Group. Transfers were made on the basis that they were loans by one entity to another and were to be and were repaid. There was no basis for inter-entity transfers to be made to and from Mr Mundath. There were occasional transactions where Mr Mundath lent money and made an investment in a Sharma family entity, but those transactions were transparent in the sense that Mr Mundath was the lender and investor or recipient of the funds returned. The only transactions he is aware of are an investment Mr Mundath made in Scotia Crossing Ltd via a deposit of $100,000 to the account of the AK Sharma Trust, the twenty-first plaintiff, and an advance of $400,000 to Dr Sharma, which was repaid.

[31]               Rakesh’s son, Ankur, is based overseas. Ankur is a contractor to VR Group 2011 Ltd. In the past he has also been employed by Gateway Motel Ltd. Rakesh is the sole director of that company and the majority of the shares are held by himself and his wife.

[32]               Rakesh is unaware of any basis for any of the Sharma entities to make any payments to American Express New Zealand. While cards issued by American Express in the United States are held, there are none in New Zealand. There was no reason for the Sharma Group to pay American Express NZ.

[33]               Rakesh addresses the matter of cash held by Mr Mundath. Mr Mundath handled cash because he was responsible for regularly collecting cash from various hotel managers and depositing it into the relevant bank accounts of the plaintiffs. Rakesh is concerned that Mr Mundath may have misappropriated that cash. He expresses the same concern in relation to rent which Mr Mundath collected from tenants of Sharma properties.

[34]               Rakesh describes how the plaintiffs established that Mr Mundath had taken money he was not entitled to. Ninety-Five NZ Ltd was to receive a weekly payment, but it did not come in. It was found that the recipient account for the payment was incorrect and it had gone to an unknown account number. Mr Mundath was asked to

look into the matter. When it was checked, the recipient account had been changed to the correct Ninety-Five NZ Ltd account number. Rajesh says that only Mayank and Ashok were authorised signatories for the Ninety-Five account, but they found that Mr Mundath’s user name had been used. Rakesh confronted Mr Mundath, who admitted his wrongdoing. The plaintiffs rely on text messages between Rakesh, Mayank Sharma and Mr Mundath, which can be read as showing Mr Mundath’s acceptance that he was accountable for $394,861.62. Rakesh records that Mr Mundath made repayments totalling $314,535 to accounts of the AK Sharma Trust, to Ninety- Five NZ Ltd, to Rakesh and to Amazon NZ Ltd. Mr Mundath had been in Korea. He returned to New Zealand in late March 2018 but left New Zealand shortly afterwards.

Mayank Sharma

[35]               Mayank is a son of Ashok Sharma. He provided Sharma Group data used by Ms Johnstone in her investigation. He describes missing a weekly wage payment from VR Group 2011 Ltd while he was overseas and finding that it had been paid to Mr Mundath instead. When he raised the matter, he was paid. He found out later that that payment came from Dr Vinod Sharma’s account with the ANZ bank.

Dr Vinod Sharma

[36]               Dr Vinod Sharma has an ANZ account which is used to service mortgages taken out with the ANZ on some investment properties. Transfers were made from other accounts to this ANZ account to cover payments to service mortgages. He authorised Mr Mundath to operate that account. Mr Mundath received statements and filed them. Dr Sharma did not check them. Some of the transactions for the transfers under the second head of claim involved Dr Sharma’s account. He did not authorise Mr Mundath to make those transfers from his account.

Mr Mundath’s response

[37]               In opposition to the summary judgment application Mr Mundath says that he has arguable defences:

(a)The unmatched third party supply payments were made with the plaintiffs’ knowledge and express authorisation, and reimbursed him for payments he made to suppliers on behalf of the plaintiffs.

(b)The transfer payments were made with the plaintiffs’ knowledge and express authorisation and were to reimburse Mr Mundath for payments he had made to suppliers and/or employees and/or contractors on behalf of the plaintiffs.

(c)For the IRD refunds, Vinod and Rakesh Sharma directed Mr Mundath to pay the IRD funds to his personal accounts. On their instructions, he withdrew the amount of the IRD refunds in cash and used his existing cash funds to pay the IRD amount to Vinod and Rakesh Sharma or to otherwise deal with them in accordance with their authority.

(d)For the unauthorised employee payments, Mr Mundath says that the payments were:

(i)legitimate salaries authorised by the plaintiffs;

(ii)reimbursements to him for cash wage payments he had made to the plaintiffs’ illegal or student employees, each payment being reimbursed as having been authorised by the plaintiffs;

(iii)to reimburse Mr Mundath for expected shortfalls in the tax he was required to pay the IRD on account of additional wage payments loaded in his name, to reimburse him for the cash payments made by him to the plaintiffs’ illegal or student employees; and

(iv)pursuant to the plaintiffs’ authority.

He says there are significant disputes of fact arising from the affidavit evidence. The plaintiffs’ allegations are serious and unsuited to determination by summary judgment. The credibility of witnesses is in issue and cannot be decided in the context of a

summary judgment application. The notice of opposition also deals with procedural matters relating to delays in opposing the summary judgment application and a suggestion that he is in contempt of court. I am concerned here with only substantive merits, not with those procedural matters.

[38]               Mr Mundath swore three affidavits on 9 November 2018 marked “A”, “B” and “C”. The “C” affidavit deals with the merits of the case. The other affidavits refer only generally to substantive matters. His evidence includes these strands:

(a)The Sharma Group has unsavoury and questionable business practices, involving immigration and employment fraud, and tax evasion.

(b)Many of the Sharma Group’s business transactions were in cash to pay contractors, suppliers and employees.

(c)All the payments he made were authorised. He loaded payments on the online banking platforms for the Sharma Group, but someone else, one of the Sharmas, released the payments.

(d)He can account for the payments into accounts under his control. They were used for the Sharma Group’s cash transactions or as reimbursement for cash he had spent on their behalf.

[39]               Mr Mundath has a Bachelor of Commerce degree. He began a course to become a chartered accountant but did not complete it. He worked as a personal assistant to Mr Rakesh Sharma whom he describes as the man behind the plaintiffs. He denies that he was a bookkeeper. While Rakesh Sharma may have been the director of some companies, Mr Mundath suggests that Rakesh Sharma was the principal, and the other plaintiffs his agents. Mr Mundath says that he began working for Rakesh Sharma at the end of 2007 and continued working for him until January 2018. Rakesh Sharma carries on business through many companies and other entities:

(a)for expense and profit-sharing amongst the entities;

(b)to legitimise and regularise cash payments; and

(c)to submit returns to the IRD and claim funds from the IRD when the entity making the claim is not entitled.

[40]               While members of the Sharma family are directors of the plaintiff companies, many of them have little or nothing to do with the operation of the business.

[41]               Mr Mundath says that Mr Sharma’s business employs workers paid approximately $400 per week, but are shown on the records of the plaintiff companies as receiving higher pay. These migrant workers send half their wages back to the employer in return for obtaining permission to work in New Zealand. The plaintiffs’ accounts are set up to appear legitimate when they do not in fact accurately record these arrangements. To establish this defence he requires discovery and the opportunity to examine the books and records of the plaintiffs.

[42]               The business practices Mr Mundath describes are said to be the reason for the payments made into accounts under his control. He maintains that some companies in the Sharma Group have not been joined as plaintiffs because those companies did not approve of these proceedings. This is apparently because of a dispute between the Sharma family and another shareholding group, the Sarin family.

[43]               His evidence describes a range of unsatisfactory business practices of companies in the Sharma Group.

Scotia Crossing Ltd

Mr Mundath says that he was made a director of Scotia Crossing Ltd on incorporation and was allocated 10 per cent of the shares. The purchase price was $225,000. He says that he and a colleague gave Rakesh Sharma $200,000 for each of them to receive 22 per cent of the shares. He was allocated only 10 per cent of the share capital, not the promised 22 per cent. The company operated a motel in Auckland.

Wianx Services Ltd

Mr Mundath was made a director on incorporation. Another staff member was made a shareholder, Ajay Soemy. This company produced false and inflated invoices issued to other property-owning companies in the Sharma Group for repairs and maintenance carried out at their premises. That was done to divert income from some companies within the group. Mr Mundath and Mr Soemy were made shareholders to give a veneer of independence.

First Light Service Ltd

This was a Hong Kong company that received funds transferred from Wianx Services Ltd on the basis of forged supplier invoices for purchases purportedly made in China. In fact, there were no such payments. These transactions were carried out on the instructions of Rakesh Sharma.

Fulcrum Management Construction Limited

Fulcrum was established to allow Rakesh Sharma and his companies to pay cash to employees who were in New Zealand on visas, to manipulate payments of their wages and salary and to pay to alleged third party suppliers for services that were inflated or never provided. This was done to make the operating costs of the plaintiff companies higher than they actually were.

[44]               The plaintiff companies were used for employee and immigration fraud. The plaintiffs would provide job offers, but Rakesh Sharma would collect payments from the employees of amounts between $25,000 and $40,000. Workers who came to New Zealand under a visa worked six to seven days a week for very long hours. Mr Sharma would pay them $400 a week regardless of the hours and days worked. The difference between the salary they were offered and what they were actually paid was recycled back through personal accounts to Mr Sharma.

[45]               Mr Mundath denies that he was employed by Amazon NZ Ltd as a bookkeeper. He never prepared accounts for Amazon and the plaintiffs. Instead, he worked as a

personal assistant to Rajesh Sharma and did whatever work Rajesh Sharma directed him to do.

[46]               Rakesh Sharma would regularly direct him to pay accounts, transfer monies, and make various arrangements for all transactions that concerned many of the plaintiff companies, even though Mr Mundath was not employed by those companies. He was not an agent of those companies. He had no managerial role in any of the plaintiff companies. The plaintiffs never required him to attend or hold directors’ or shareholders’ meetings.

[47]               He saw Rakesh Sharma transfer company funds for personal reasons. Funds from one company were used to pay accounts and services for other companies. This was done without any approval of or consultation with other people. Mr Mundath acted on Mr Rakesh Sharma’s instructions alone.

[48]               Other staff also had access to the plaintiffs’ bank accounts. He had authority to access accounts and to load payments using his user name and password. Once the payments were loaded, copies of the invoices would be sent to the Sharmas for confirmation. Only the Sharmas could approve and release payments once they were loaded. The Sharmas could only authorise a payment by entering their access code to release the payment. He says that electronically he could not release the payments. Accordingly, all payments he made were authorised and released by one of the Sharmas after he loaded them. That did not change after Mr Mundath became a signatory for the accounts.

[49]               Mr Mundath says that from the early days in his employment he realised that the Sharma Group ran its businesses unconventionally. He gives an example of what happened to a property at 2 White Swan Road, Mt. Roskill, Auckland, owned by the Sharma Family Trust. He describes the property as having a commercial and residential building. One of the tenants was Dr Vinod Sharma’s medical practice. Other parts of the building were let out for retailers, pharmacy, a restaurant, clothing store, and there were residential apartments upstairs. Mr Mundath says that the Sharmas decided to sell a 50 per cent interest in the property. They had the building valued. The valuation report said it was worth around $5.5m. Rakesh Sharma changed

the lease agreements to increase the rent and the duration of the leases. Not all the tenants agreed to the amendments. Ashok Sharma forged the tenants’ signatures. The lessees continued to pay the old rent, even though the amended agreements showed a higher rent. The property was re-valued at approximately $10m. A Dr Patel bought Dr Vinod Sharma’s medical practice and 50 per cent of the property for a price that reflected the increased valuation.

[50]               In response to the initial freezing orders obtained in April 2018, Mr Mundath says that the money which was initially identified by the Sharmas as a misappropriation was to reimburse his payment of third party suppliers.

Third party supplier payments

[51]               The Sharma companies received many invoices every month from suppliers. He was responsible for checking invoices and loading payments into the banking system. He had access to the business bank accounts only to load the payments. He could not release the payments after they were loaded. The payments had to be released by one of the Sharmas. They required him to submit supporting invoices before they would release the payments.

[52]               The Sharmas often had maintenance and renovation work carried out on their properties. The contractors were paid in cash, as they were prepared to offer cheaper rates for cash. Mr Mundath assumes that the contractors would not declare that income in their returns to the Inland Revenue. He says that the Sharmas’ accounting staff kept a notebook of contractors who were paid, and that the supplier or contractors would sign to show that they had been paid in cash. The book was kept at the Sharmas’ office at Level 1, 822 Manukau Road, Royal Oak, Auckland.

[53]               Where a contractor was paid in cash, Mr Rakesh Sharna would tell him to record expenses in a different supplier’s name, so that the plaintiffs could still claim the expense for tax purposes. This accounting practice would lead to a mismatch between legitimate invoices issued by the supplier, and payments made to that supplier as shown in the books. That was to inflate costs that could be claimed.

[54]               Rakesh or Vinod Sharma would also instruct him to draw up an expense to an account and then withdraw the cash. Rakesh Sharma or Vinod Sharma would collect the cash from  him.  In  other  cases  the  contractor  would  attend  the  office  and Mr Mundath would pay the contractor in cash directly. Other employees were also told to do this. These practices were consistent. It meant that the none of the supplier invoices could be reconciled to the supplier payments. When. requested by Rakesh Sharma, he used his own personal cash to make payments and would reimburse himself from the company accounts. Rakesh Sharma was aware of this and approved the reimbursements. Mr Rakesh Sharma would also direct Mr Mundath to pay legitimate suppliers from his personal funds and reimburse himself from the companies. As a result, there would sometimes be a mismatch between the amount of the invoice and the amount that he would reimburse himself. Differences were made up in cash paid to a contractor. He was told to keep the true nature of these transactions off the books.

[55]               At times Rakesh Sharma would direct him to pay suppliers by using his credit card or his own cash, and to reimburse himself from the company.   According to   Mr Mundath, Rakesh Sharma explained that he wanted Mr Mundath to pay suppliers this way as he wanted the suppliers paid quickly. Sometimes there was no one available to authorise payments from the company accounts or there was not enough money to meet the payments. Authorisation was usually given over the telephone. It was also by email or SMS messages. He loaded the reimbursement into the online banking portal, payment would be approved and released to the supplier by one of the Sharmas, not by Mr Mundath. It was common for some employees to pay suppliers from their own personal funds and be reimbursed by the companies. Rakesh Sharma frequently paid suppliers himself and would ask Mr Mundath to deposit cash in his Kiwibank or ASB account as reimbursement. To do this, Mr Mundath would attend a Kiwibank branch and deposit cash into Mr Rakesh Sharma’s Kiwibank credit card. Rakesh Sharma was aware of this, and knew that Mr Mundath was using his personal cash, because he did not have the ability to draw cash from any company accounts.

[56]               When Mr Mundath paid cash to a supplier, it would not show up on his credit card statements. Mr Mundath says he never tried to hide or conceal his account details from Rakesh Sharma or within the accounting systems for the Sharma businesses. The

accounts in question were his own personal accounts or the joint accounts with his wife. Rakesh Sharma would check each payment, and the invoice before releasing payment. Mr Mundath could not release it himself.

[57]               As for Ms Johnstone’s evidence as to rounding-up, he says that those were petty cash payments, expenses that he had paid on behalf of the Sharma group. Rakesh Sharma approved all these reimbursements.

[58]               Some of the supplier invoice payments were to reimburse travel cards instead of his personal account because he was required to use money overseas. Mr Rakesh Sharma approved that. He travelled overseas a few times to Australia, the United States and India. He reimbursed travel card allocations after discussing expenses with Rakesh Sharma.

Transfer payments

[59]               He was not the only person authorised to load payments. There were many other staff members, including the Sharmas themselves who loaded payments. The names he gives are Rakesh Sharma, Ashok Sharma, Vinod Sharma, Mayank Sharma, Pragnesh Shaw, Daisy Wang, Rishi Chopra and Angela5. Transactions called “loan returns” were cash adjustments between Vinod Sharma, Rakesh Sharma and himself when he had paid for a service in cash and was then reimbursed. As examples of these loan return transactions, Mr Mundath says that these were incurred on construction or renovation of Sharma properties. If Mr Mundath was instructed to pay the contractor directly in cash, there would be no formal record for tax purposes. He was told that he would be “fixed up” later. He would enter the reimbursement as a “loan return” as it was really part of the third party supplier payments which he has already explained.

IRD refunds

[60]               Vinod Sharma and Rakesh Sharma instructed him to pay IRD refunds into accounts under his control. He was often instructed to enter certain non-company- related expenses into the company’s financial statements, and then claim income tax

5      Surname not known

and GST refunds. As an example, he was instructed to load Rakesh Sharma’s and Vinod Sharma’s personal expenses for matters such as buying a television and furniture for home, personal dining, and travel expenses. That would increase the company’s expenses and would sometimes result in a GST or tax refund. Rakesh Sharma would direct the Inland Revenue to pay the refund directly to Mr Mundath personally and he would receive the money directly and give it to the Sharmas.     Mr Mundath explains that the Sharmas did not want other business partners, the Sarins, to know that they were getting tax and GST refunds that would be shown in the company’s bank accounts.

Payroll payments

[61]               Mr Mundath says that he was only one employee who loaded payroll. The human resources department gave him the names of new employees. Payroll payments were always expressly approved by Rakesh Sharma or some other authorised person before payment. Mr Mundath did not have authority to release any payroll payments himself.

[62]               The Sharmas employ many people. Some of them are illegally in New Zealand or do not have visas that allow them to work in New Zealand. The Sharma Group also employs students who are allowed to work only 20 hours a week in New Zealand, but they often work more than 40 hours. It is necessary to ensure that the wage records of the employing companies do not reflect the full hours worked by the people employed, either illegally or on  work  visas.  For  payments  to illegal or  student employees, Mr Rakesh Sharma instructed Mr Mundath to load wages under different people’s names including himself, Ankur Sharma, his wife Madhu Sharma, Steffi Sharma and other names. Other employees did this also. The personal account holder to whom the salary was paid would then draw the cash from their own bank account and pay the illegitimate employee their wages in cash. Some contractors were paid in cash by the same method. Rakesh Sharma instructed Mr Mundath to load extra wages to himself as reimbursement for wages paid in cash. In some cases loan transfers were in fact reimbursement for wages paid to illegal workers. Because cash payments and wages were loaded under the name of Mr Mundath, he explained to Rakesh Sharma that he had more tax to pay. Mr Rakesh Sharma told him to pay the amount of any

IRD shortfall to himself as payments that were processed through Mr Mundath’s accounts. He loaded further wages to cover his own tax shortfall. These payments were not released by Mr Mundath but by Sharma family members. Another purpose for arranging these payments was for United States green cards. Rakesh Sharma told Mr Mundath that he wanted to show people on the New Zealand payrolls because he wanted to show United States immigration that these people were working for a New Zealand company and getting salaries. Mr Mundath denies he had a salary of $75,000. That was because Mr Rakesh Sharma approved the payments made to him. The additional payments were reimbursement of illegal workers’ wages authorised by  Mr Rakesh Sharma.

[63]               Mr Mundath often used cash to pay contractors, suppliers and illegal workers. He had large sums of cash in his possession, instead of withdrawing cash directly from his New Zealand accounts. Accordingly, not all the payments he made on behalf of the plaintiffs appeared in his bank accounts. He would often use his own money to pay the plaintiffs’ expenses because of the emergency nature of the payments. He gives, as an example, using a bank cheque from his personal account to the Auckland Council for building consent relating to a Te Atatu development.

[64]               Payments made to Fulcrum Management Ltd were for services provided by the company. Fulcrum Management Ltd carries out renovation and maintenance work on the plaintiffs’ properties and receives payments from the plaintiffs, as invoiced. This work was requested by Rakesh Sharma and Vinod Sharma. The company was also used as a payroll company for the Sharmas to pay wages to employees. The Fulcrum ledger shows thousands of dollars of unpaid disbursements that Mr Mundath made on behalf of the Sharmas and for which he had not been repaid. He gives as an example, a payment from Quadrant Management Ltd to Fulcrum Management Ltd for lift renovation work at the Quadrant Hotel.

[65]               His wife (now estranged) never had access to any accounts of Fulcrum Management and Mudra Investments. In summary, Mr Mundath denies taking any money from the plaintiffs to which he was not entitled. All the transactions were complex, and Rakesh Sharma knew of and approved them. Mr Mundath told Rakesh Sharma in December 2017 he wanted to leave his job to look after his personal and

private matters. Shortly afterwards, Rakesh Sharma accused him of helping the Sarins. He alleges that the Sharmas are suing him in retaliation for his alleged assistance to the Sarins (which Mr Mundath denies giving).

The Sharma reply evidence

Mayank Sharma

[66]               Mayank Sharma says that Mr Mundath was a signatory of some of the plaintiffs’ bank accounts, namely: Sharma Family Trust, the Bikaner Foods Mt Roskill Ltd (second plaintiff), Travellers Inn Ltd (fifth plaintiff), V and A Ltd (sixth plaintiff), VR Rotorua Ltd (seventh plaintiff), V and A 2012 Ltd (eighth plaintiff), Bikaner Foods NZ Ltd (eleventh plaintiff), Gateway Motel Ltd (thirteenth plaintiff), Smartbuy Solutions Ltd (eighteenth plaintiff), A K Sharma Trust (twenty-first plaintiff), Ninety- Five NZ Ltd (twenty-fourth plaintiff), Omax International Ltd (thirtieth plaintiff) and VR Group 2011 Ltd (thirty-third plaintiff). Mr Mundath added himself as a signatory, and authorities are attached to his affidavit as evidence. Copies of the authorities show the signatures of Rakesh Sharma and Vinod Sharma.

[67]               Because Mr Mundath became signatory of the bank accounts himself, he was able to release payments. The payments authorised by Mr Mundath were made through his ASB Fastnet Classic online banking platform. Mayank attaches to his evidence a schedule provided by the ASB listing payments said to have been made by Mr Mundath on his ASB Fastnet Classic online banking platform. These are identifiable as transactions by Mr Mundath because they were made with his ASB Fastnet Classic username.

[68]               Mayank Sharma says that other transactions would have been authorised by other signatories. Under their system, that would require production of an invoice or underlying document to support the payment. The volume of information meant that the authoriser was not able to check every payment, nor was the authoriser able to cross-reference whether there had previously been a payment for a supporting invoice.

[69]               He refers to other entities within the Sharma Group that have not been included as plaintiffs. To rebut the suggestion that Mr Mundath reimbursed those companies, he lists the companies and gives their bank account numbers. Some of those companies have been removed from the companies register. In many cases, the companies did not have bank accounts.

Rakesh Sharma

[70]               Rakesh Sharma generally denies Mr Mundath’s allegations. There was a shareholder dispute within the VR Group of companies. This was a group of hotels in which two families had interests, the Sharmas and the Sarins. A proceeding was started in April 2018 and discontinued in September 2018. At the start of this case, there were entities within the VR Group from which Mr Mundath transferred money to his own accounts. The Sharmas were not able to obtain authority to join those companies in the proceeding. The shareholders’ dispute is not relevant to the claim against Mr Mundath.

[71]               Where companies in the Sharma Group had been closed, in each case the company was solvent. There were solvent liquidations where the companies had served their purpose. Except for the named plaintiffs, the Sharmas are not claiming in this proceeding that Mr Mundath took money from any of the closed entities.

[72]               He never knew Mr Mundath to have large sums of cash. He was aware that Mr Mundath was building a house and had one or two property investments. He does not know how Mr Mundath could have such large sums of cash (going into millions of dollars) to meet the payments he alleges. The Sharma family practice is not to use cash. With many business interests, records need to be kept properly.  There was not a book recording cash transactions in the Royal Oak office. His signature was forged on documents where Mr Mundath was added as a signatory to the ASB bank accounts.

[73]               After he uncovered Mr Mundath’s fraud Rakesh asked the bank to remove  Mr Mundath as a signatory. The bank would not do so without Mr Mundath s consent. On 16 February 2018, he and Mr Mundath went to the bank where he consented to his

name being removed as a signatory. By April, Mr Mundath’s name had been removed as a signatory for all accounts.

Loan returns

[74]               He denies that payments were made to Mr Mundath to reimburse him for making cash payments to contractors. There were loans to Scotia Investment Ltd and to Dr Vinod Sharma that were repaid.

IRD refunds

[75]               He never gave Mr Mundath authority to claim GST or income tax refunds in relation to any personal purchases. At times he gave Mr Mundath instructions to buy things for him personally, because he trusted him. But he did not allow Mr Mundath to claim GST refunds for himself personally.

Payroll payments

[76]               He did not authorise Mr Mundath to put fictitious employees in the payroll system. He did not employ people illegally, nor employ people who did not have work visas. He did not authorise any payroll payments to Mr Mundath.

Kare Johnstone

Payments by Mr Mundath to other Sharma entities

[77]               Ms Johnstone has checked whether Mr Mundath made any payments from his bank accounts to other Sharma Group entities. She has identified two payments from the joint account of Mr Mundath and his wife to Scotia Crossing Ltd: $4,100 in December 2012 and $10,000 in December 2013. In both cases they were repayments of money received only a few days before.   She has also identified a payment of

$10,000 from the joint account to the account of Grafton Hotel Ltd, a Sharman Group entity which has since been removed from the company’s register. The payment was made on 20 December 2013. On the same day, Mr Mundath was registered as a shareholder in the Companies Office.  The payment can accordingly be treated as for

shares. She has not identified any other payments by Mr Mundath to companies within the Sharma Group.

Supplier payments

[78]               For supplier payments, Ms Johnstone identifies a class which she calls “excluded supplier payments”. She explains that she did not apply the benefit of the doubt assumption where supplier statements have been obtained in the name of a plaintiff but did not match a credit card payment by Mr Mundath. In cases where supplier statements had not been obtained, the differences in timing of a Mundath credit card payment and a potential reimbursement were so large that the two could not be considered related. These are worth $102,882, as set out in a table. The suppliers are Bunnings, City, Council, Dulux, IRD, Nova, Sky, Telstra, Vodafone, and Watercare. She does not however suggest or prove that the payments were not for any of the Sharma Group’s business purposes.

Cash payments

[79]               Mr Mundath’s personal tax summary for the year ending 31 March 2017 did not refer to any declared cash income. She infers that he did not have a cash income from his personal assets. Mr Mundath made very few cash withdrawals from accounts under his control. They total $122,278. They were withdrawals or cheques not deposited into known bank accounts.

[80]               Ms Johnstone considers other potential sources of cash for Mr Mundath. He came to New Zealand with about US$750,000, which he used to invest in New Zealand real estate. Those assets are not identified. Mr Mundath and his wife held

$350,000 in joint bank accounts in August 2011 at the beginning of the analysis period. That is not enough to explain cash transactions to make up for the $5.4 million paid into accounts in his control.

Payments received in the year ending 31 March 2017

[81]               Mr Mundath’s personal tax summary shows taxable income of $195,779 for the year ending 31 March 2017. $54,814.98 was deducted at source. Mr Mundath would therefore have received a net amount of $140,964 from the Sharma companies. In the year up to 31 March 2017, $2,346,575 (not salary) was paid into accounts under Mr Mundath’s control, of which $406,000 is recorded as having been repaid.

Contestable matters

[82]               Some parts of the plaintiffs’ case are disputable. There is not enough evidence to say that Mr Mundath’s positions on some issues are unarguable. I set some of these matters out. My purpose is to see if there are uncontestable parts of the Sharma case, once allowances are made for the arguable positions.

(a)Mr Mundath says that there was a book recording cash transactions. Rakesh  denies  that.   On  that  bare  assertion  I  cannot  say  that   Mr Mundath is wrong. That is a trial issue.

(b)Rakesh denies signing authorities for Mr Mundath to operate accounts for Sharma entities, notwithstanding that authorities with what appear to be Rakesh’s signature are in evidence. Rakesh’s say-so is not enough to establish that his signatures were forged. The plaintiffs need stronger evidence than that even to allege forgery, let alone to obtain a summary judgment finding.6

(c)The identity of Mr Mundath’s immediate employer is not clear-cut. Mr Mundath says that Rakesh was his employer, not Amazon NZ Ltd. While he did not develop the argument, I take it that he would say that Amazon NZ Ltd was no more than a conduit to pay him earnings. I cannot dismiss that. The plaintiffs have not provided conclusive evidence, such as an employment agreement or personnel records, to identify his employer. But as I will show, this point does not matter much.

6      Perrott-Hunt v Johnston [2018] NZHC 2568 at [13]-[17].

(d)The plaintiffs say that Mr Mundath’s final salary was $75,000 per annum, but that in the year ending 31 March 2017 he took $109,704 as salary. Mr Mundath says that he was entitled to the salary paid to him by Amazon. The payments were transparent in that anyone authorising the payments would see that they were to go to Mr Mundath, not to some other named payee. There is a triable issue whether his salary was no more than $75,000. That makes a difference of $34,704. This point does not apply to the “salary” paid by VR Group 2011 Ltd, where payments were made to Mr Mundath under a false name.

(e)Ms Johnstone has disallowed payments from Mr Mundath’s accounts to suppliers totalling $102,882. But the plaintiffs’ evidence does not show that those payments were not liabilities incurred by the plaintiffs. That part of the claim is arguable.

(f)The plaintiffs’ reply evidence shows that Mr Mundath as a signatory of their accounts made payments himself without having a Sharma release the funds for payment. There is however no evidence linking the payments in the schedule attached to Mayank’s reply affidavit to the payments in Ms Johnstone’s first affidavit. It is not possible to say conclusively whether the payments Mr Mundath made as a signatory are legitimate or not.

(g)Part of the plaintiffs’ claim is for $104,968.56, which Mr Mundath did not receive but was paid to the Inland Revenue as PAYE and Kiwisaver contributions for purported salary paid to Mr Mundath. They say that they have suffered a loss for those payments as well as the payments to accounts under Mr Mundath’s control. The amount is in issue because there is a live issue whether his annual salary was no more than

$75,000. But there is another aspect. If the plaintiffs are right, they may be able to recover the overpayments from the Inland Revenue to mitigate their loss. While that course is open, Mr Mundath has an arguable defence that the loss can be mitigated.

(h)In response to Mr Mundath’s allegations of unsavoury business practices – exploiting migrant and student workers, paying contractors in cash for tax avoidance, making false tax claims – the plaintiffs have made general denials, but have not given evidence that is so conclusive that I can confidently say that there is no basis for Mr Mundath’s assertions.

[83]               Notwithstanding those matters, the plaintiffs have established these parts of their case:

(a)Even if Amazon NZ Ltd was not directly his employer, Mr Mundath worked in the Sharma Group for the plaintiffs generally.

(b)He was in a position of trust and the plaintiffs did trust him.

(c)He was involved in payment arrangements for the plaintiffs, even if in some cases it was no more than loading payments to be released by another.

(d)The payments the plaintiffs rely on were paid into bank accounts under Mr Mundath’s control (apart from the $104,968.56 paid to the Inland Revenue).

(e)It is unusual to use false payee descriptions when loading payments and in bank statements.

(f)It is unusual for an employee such as Mr Mundath to use his personal credit card to pay his employers’ suppliers.

(g)It is unusual for Inland Revenue refunds to be paid to bank accounts of a taxpayer’s employee.

(h)For a vast number of the payments into accounts under Mr Mundath’s control, a false description of the payee was used so that it would not be apparent that the funds were going to him.

(i)While some of the money paid into the bank accounts was used for legitimate Sharma purposes or arguably so, there is a large amount for which there are no records in  evidence  showing  good  reason  for Mr Mundath receiving or keeping the money.

(j)There is no good reason for $333,105 paid to Mr Mundath’s personal travel cards. Those payments had false payee descriptions. If they were payments for genuine expenses he had incurred on behalf of the Sharmas, there was no need for subterfuge.

The claim for breach of fiduciary duty

[84]               The plaintiffs rely primarily on the cause of action for breach of fiduciary duty. Similarly, I focus on it. The deceit cause of action has difficulties.

[85]               Mr  Mundath  puts  fiduciary  duties  in  issue.  The  plaintiffs  plead  that   Mr Mundath was an employee of Amazon NZ Ltd and as such owed a fiduciary duty of loyalty. This required him to act in good faith, not to make a profit out of his trust, not to place himself in a position where his duty and interest may conflict, and not to act for his own benefit or the benefit of a third party without the informed consent of his employer. They also plead that Mr Mundath owed the other plaintiffs fiduciary duties not to personally benefit from his position as a fiduciary, to avoid conflicts of interest between his personal interests and his duties to the plaintiffs, not to use his powers for an improper purpose.

[86]               Mr Mundath’s denial of any fiduciary duty comes in part from his assertion that Rakesh Sharma was his employer, not Amazon NZ Ltd. He also disputes that he was an agent of the plaintiffs generally.

[87]               It is clear, however, that Mr Mundath worked in the Sharma group generally, no matter which entity within the group was his employer. He was an employee, even though at any moment he may have worked for only one Sharma company and no other. His work was administrator and accountant, arranging payroll payments, arranging payments to third party suppliers, attending to transfers of funds between

various Sharma entities, arranging payments of Inland Revenue and GST refunds. The Sharma companies had trust and confidence in Mr Mundath. They relied on him to carry out those transactions for them, not for his personal advantage. The case comes comfortably within the dictum of Lord Woolf in Attorney-General v Blake:7

There is more than one category of fiduciary relationship, and the different categories possess different characteristics and attract different kinds of fiduciary obligations. The most important of these is the relationship of trust and confidence, which arises whenever one party undertakes to act in the interests of another or places himself in a position where he is obliged to act in the interests of another. The relationship between employer and employee is of this character. The core obligation of a fiduciary of this kind if the obligation of loyalty. The employer is entitled to the single-minded loyalty of his employee. The employee must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interests may conflict; he may not act for his own benefit or for the benefit of a third party without the informed consent of his employer.

[88]               In short, Mr Mundath owed fiduciary duties to the plaintiffs not to use his position as a trusted employee to make unauthorised profits when arranging payments of the plaintiffs’ funds and not to use the plaintiffs’ funds paid into accounts under his control except for the plaintiffs. To take his employers’ money for himself and not to repay it involves wrongly preferring his own interests over his duty to his employers.

[89]               Mr Mundath does not dispute that the transactions described by Ms Johnstone in her evidence did take place. He accepts that payments from the plaintiffs or the Inland Revenue went to bank accounts under his control. Nor does he dispute that he was responsible for those payments, except to qualify it by saying that payments through the plaintiffs’ online banking platforms were released by others, not himself. The short point is that he does not dispute that he had a hand in arranging all the payments into accounts under his control.

[90]               The receipt of those funds into bank accounts under his control raises an issue of accountability. Unless there is a good reason for him to retain those funds, he must return them to his employers. Otherwise he will be preferring his own interests over those of his employers. Potential good reasons for keeping the funds are: he used them in the interests of his employers; a payment was in discharge of some obligation

7      Attorney-General v Blake [1998] 1 All ER 833 (CA) at 842.

the employers owed him; the employers intended to transfer funds to him to keep as his own; he was holding funds on behalf of his employers. Another possible answer is that the employers’ claim is tainted and they are not entitled to have the monies that should otherwise be returned to them. To obtain summary judgment, the plaintiffs need to negate reasons suggested by Mr Mundath for retaining the funds. If those reasons are negated, Mr Mundath cannot retain those funds to which his employers are entitled.

The “cash” explanation

[91]               Mr Mundath explains that he spent significant sums in cash on his employers’ behalf. He says, for example, that under the unmatched third party supplier payments there were cash payments to contractors. Similarly for the transfer payments. He says that many of the transactions were for reimbursement to him for services he had paid in cash. For the payroll payments, he paid many employees in cash.

[92]               It is implausible that this can be a complete explanation for millions of dollars that are otherwise unaccounted for. It cannot hold water given other indisputable aspects of the case, which are inconsistent with an innocent explanation:

(a)Mr Mundath was trained in accountancy (even if not qualified) and aware of the requirements for maintaining adequate and accurate records of transactions.

(b)It is unusual for an employee in an administrative position to pay his employer’s debts with a credit card. An explanation in this case is that Mr Mundath did it to obtain personal use of his employer’s money.

(c)Mr Mundath disguised payments to himself as payments to third party suppliers.

(d)Mr Mundath had Inland Revenue refunds paid into his personal accounts.

(e)Mr Mundath used names of fictitious employees to divert funds to himself under the pretence that they were wages payments.

(f)Mr Mundath falsely set up payments ostensibly to actual employees to go into accounts in his control.

(g)When it came to light that he was responsible for funds going missing, he left the country and sent substantial sums abroad. That is consistent with knowing that he had done wrong and did not want to be caught.

[93]                   Any residual doubts are belied by Ms Johnstone’s reply evidence which shows that there cannot have been the millions in cash that Mr Mundath requires for his explanation to work for all the payments. Mr Mundath and his wife had about

$350,000 in their accounts in August 2011. Cash withdrawals from his accounts since then came to $122,278. Even if all that was used for cash transactions, there are still large sums left for which there are no available sources of cash, especially the non- salary payments of $2,346,575 in the year ending 31 March 2017.

[94]               While this gets rid of any argument for Mr Mundath that the cash explanation is a total defence, it does not prove that there were no cash transactions at all. After all, Ms Johnstone’s evidence as to potential sources of cash allows for the possibility that some funds were available to be used in cash transactions. Further evidence might show that there were some cash transactions by Mr Mundath on behalf of his employers, even if they were not recorded. But Ms Johnstone’s evidence also sets the limits on that possible defence. Any cash transactions cannot total more than the sources of cash, the funds in the Mundaths’ accounts in August 2011 and the cash withdrawals since - $472,278. If that amount is deducted from the claim, Mr Mundath has no answer for the rest.

Accountability for “authorised” payments

[95]               Mr Mundath says that all the payments in issue were authorised. By that he means that while he loaded payments, someone else made the payments. The reply evidence, that he made payments using his username on accounts for which he was a

signatory, counts against that defence for those payments. But there is another reason why that defence cannot be accepted. Even if another signatory authorised payments, Mr Mundath was still accountable to the plaintiffs for what he did with the money. Of course he could keep legitimate salary payments, but aside from those, he was receiving his employers’ funds and he was accountable to his employers for them. That applies whether the signatory authorising the payments was deceived or not, whether he was mistaken or not, or whether he knew that the money was going into accounts in Mr Mundath’s control or not. There is nothing in the case to suggest that, apart from salary, any payments were made for Mr Mundath to keep for himself. Even on Mr Mundath’s version the payments were for Sharma purposes. He breached his fiduciary duties when he kept or used the money for himself.

Payments from Inland Revenue

[96]               Mr Mundath admits receiving refunds paid by the Inland Revenue for the plaintiffs into bank accounts under his control. He says, however, that judgment cannot be given against him for these amounts, because the plaintiffs have not proved their entitlement to the refunds. His case is that the plaintiffs were not always entitled to GST refunds, because the Sharmas wrongly included claims for personal expenses as input tax credits for taxable activities carried on by the plaintiffs. Before the plaintiffs can obtain judgment against him for the IRD refunds he received, they should discover all their records relating to their GST returns, including all the documents relating to their input tax claims and, at trial, prove that their input tax claims for each taxable period were correctly calculated and that they did not owe the Commissioner any taxes. The proceeding would become a tax audit. Only then would they be entitled to recover judgment against him for the Inland Revenue refunds paid into accounts under his control.

[97]               The matter is more straightforward than that. Mr Mundath was accountable to the plaintiffs for the Inland Revenue refunds he received as their agent. Bowstead and Reynolds on Agency puts the matter this way:8

8      Peter Watts and FMB Reynolds Bowstead and Reynolds on Agency (21st ed, Sweet & Maxwell, London, 2018) at [6-099].

Article 52

Subject to the provisions of Article 70⁹, an agent who holds or receives money for his principal is bound to hand over or account for that money at the request of his principal, notwithstanding claims made by third parties, even if the money has been received in respect of a void or illegal transaction.

The text explains:10

Even though the agent receives money for his principal in respect to a transaction which is void or illegal, the principal can sue his agent in restitution. Thus, if an agent was employed to make bets if he won money, he was under a duty to pay it over to the principal, although the betting transactions were themselves void; similarly, if an agent is employed to sell shares, he cannot retain the money he receives by saying that the sale is illegal by Act of Parliament. Even if the contract between the principal and agent is itself illegal, then the principal may be able to recover any money received by the agent. Formerly, the money would have been irrecoverable under the ex turpi causa principle, but the law has now been changed.

(citations omitted)

[98]               Article 52 is said to describe a common law duty. Here, the cause of action is in equity, breach of fiduciary duty, but the result is the same. In failing to account to his employers for the funds he received, Mr Mundath put his own interests ahead of his employers’ and made a profit to which he was not entitled. He could not keep the money intended for his employers. If he really thought that the Inland Revenue should not have paid the money to his employers, the proper course was to take interpleader proceedings or seek equivalent relief. He could not keep the money for himself.

Allegations of unsavoury business practices

[99]               Part of Mr Mundath’s evidence is intended to put the plaintiffs, especially the Sharma brothers, in a bad light. They are said to use questionable business practices: exploiting migrant labour, paying contractors cash to avoid tax, making false claims for GST refunds, and altering and forging signatures on lease documents. Much of that is intended to do no more than blacken the character of the plaintiffs. As such, it is irrelevant and a distraction.

9      Article 70 recognises an agent’s right to interplead when faced with conflicting claims to funds or goods in its possession.

10     At [6-100].

[100]           Mr Mundath did not plead and Mr Hall did not submit that the plaintiffs’ claims were barred because of illegality. They did not identify any statutory provisions that had been infringed. Accordingly, the plaintiffs did not reply on questions of illegality.

[101]           While it is not essential for the decision, I touch on the illegality question briefly, lest it be thought that I have ignored a matter of public interest. Because the plaintiffs’ claim is for breach of fiduciary duty, not under contract law, the statute law on illegal contracts does not apply.11 The recent decision of the United Kingdom Supreme Court in Patel v Mirza is a strong pointer that the ex turpi causa doctrine does not bar the plaintiffs’ claim.12 In that case the claimant paid the defendant a large sum to be used in betting on the movement of shares using inside information. The agreement was illegal. The claimant was successful in recovering the money paid as money had and received. Ordering restitution would return the parties to their original positions when the consideration for their agreement had failed for illegality and would prevent the defendant gaining by unjust enrichment. The decision is the basis for Bowstead & Reynolds’ statement as to the change in the law in [97] above. A majority (Lords Mance, Clarke and Sumption dissented) favoured a multi-factorial approach which considered (a) the underlying purpose of the prohibition that had been breached, (b) any other public policy on which denial of the claim would impact and

(c) whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is for the criminal courts. That may not be very far from the matters considered under s 78 of the Contract and Commercial Law Act 2017 (NZ). Under both this approach and the more rules-based approach of the minority, it was proper to allow recovery when it did not involve giving effect to or enforcing illegal conduct.

[102]           In this case the cause of action is for breach of fiduciary duty, but it is analogous to the restitutionary claim in Patel v Mirza in that it seeks recovery of funds paid to Mr Mundath on the ground that he has no right to keep them. Requiring return of the funds to the plaintiffs does not give effect to any illegality suggested by Mr Mundath. For example, if Mr Mundath received funds for fraudulent purposes, those purposes would not be advanced by ordering them to be returned to the plaintiffs.  Making an

11     Contract and Commercial Law Act 2017, part 2 subpart 5, replacing the Illegal Contracts Act 1970.

12     Patel v Mirza [2016] UKSC 42, [2017] AC 467.

allowance for possible cash transactions means that Mr Mundath cannot be required to pay back money used on the illegal transactions he alleges.

[103]           In summary then, the allegations of unsavoury business practices, even if they are illegal, do not stand in the way of the plaintiffs recovering the money paid into accounts under Mr Mundath’s control.

Summary on claim for breach of fiduciary duty

[104]           The point reached now is that the plaintiffs have proved that, leaving aside legitimate salary payments, Mr Mundath received funds paid into accounts under his control from accounts of the plaintiffs and from the Inland Revenue. There may be arguable explanations that Mr Mundath used some of the funds for his employers’ legitimate purposes. While the plaintiffs claim that there can be no dispute as to

$5,411,622.05, I have found that there are other matters of arguable dispute which can only be resolved at a full hearing on the merits. After allowing for those arguable matters, Mr Mundath received money for which there is no arguable legitimate explanation. For that balance he does not have an arguable defence that he is entitled to keep money that belongs to the plaintiffs. They did not transfer it to him to use for himself. It did not belong to him as salary. He did not use it for the business of the Sharma Group. In receiving and keeping those funds, he breached his fiduciary duties to the plaintiffs.

[105]           Now to work out how much he should pay back to the plaintiffs. Their total claim needs to be adjusted, as follows:

Claim for unmatched third party supplier payments	$3,136,876.53
Less excluded claims	$102,882.00	$3,033,994.53
Claim for payroll payments	$615,927.32
Less PAYE/Kiwisaver for Amazon NZ Ltd	$45,444.28
Less PAYEE/Kiwisaver for VR Group 2011 Ltd	$59,524.28
Less Amazon salary not allowed by plaintiffs	$34,704.00	$476,254.76
Transfer payments	$1,512,814.63
IRD refunds	$146,003.57

Sub-total	$5,169,067.49
Less allowance for possible cash transactions	$472,278
Amount of adjusted claim:	$4,696,789.49

[106]           That sets the total amount payable by Mr Mundath to the plaintiffs but it does not fix the amounts payable to each plaintiff. Schedule 5 of the amended statement of claim sets out amounts claimed for each plaintiff, but they need to be amended to take account of the above changes. For example, Amazon NZ Ltd’s claim of $866,222.32 needs to be reduced by $45,444.28 for the PAYE and Kiwisaver contributions and by

$34,704 for a disputable salary claim - $786,074.04. And VR Group 2011 Ltd’s claim of $477,515.71 is reduced by $59,524.28 to give $417,991.43.

[107]           It is not however possible to allocate the sums for excluded claims ($102,882) and cash transactions ($472,278) to payments made by particular plaintiffs. After all, Ms Johnstone’s reason for excluding the first item was that she could not attribute the payments to funds from particular plaintiffs. And the cash transactions could have been reimbursed from the funds of any of the plaintiffs. Where it is not possible to trace funds from particular plaintiffs to these items, the appropriate response is to require each plaintiff to carry a pro rata share of the loss. As the plaintiffs are all members of the Sharma Group, they are unlikely to be concerned about how the reduction in claims is spread. Mr Mundath is more likely to be concerned with the total amount he has to pay rather than how it is allocated among the plaintiffs. But aside from these considerations of convenience, a pro rata distribution is a standard remedy when claims are required to abate and it is not possible to work out how funds contributed by diverse claimants have been applied.13

[108]           Once the $139,672.56 for the Amazon and VR Group adjustments are deducted from the plaintiffs’ initial total claim, there is a balance of $5,271,949.49. When the other deductions are taken into account to give $4,696,789.49, the pro rata adjustment can be found: 89.09%. The schedule to the judgment sets out the principal amount for which each plaintiff recovers judgment.

13     See for example Re Registered Securities Ltd [1991] 1 NZLR 545 (CA).

[109]There is one small calculation difficulty. While the plaintiffs claim

$5,411,622.05, the amounts in the 5th schedule come to $5,411,587.05. The $35 difference is de  minimis.  I  have  applied the abatement  to  each  amount  in  the  5th schedule. The total of all the amounts for which I give judgment to the plaintiffs is

$4,696,758.31, not $4,696,789.49. Mr Mundath has the benefit of the doubt on that point.

The deceit cause of action

[110]           The plaintiffs ran the deceit cause of action as an alternative. Their case is that Mr Mundath intentionally deceived them and third parties by establishing the unauthorised payments, that is the payments of $5,411,622.05 into accounts under his control. The deception was to set up payments as going to apparently legitimate payees when the payments went to accounts under his control.

[111]           There are difficulties with the deceit claim. There are strict requirements for pleading and proving fraud, as the Court of Appeal noted in Schmidt v Pepper New Zealand (Custodians) Ltd:14

Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. As the authors of Bullen & Leake & Jacobs in Precedents of Pleadings¹⁵ emphasise, counsel must not draft any originating process of pleading containing an allegation of fraud unless they have reasonably credible material which, as it stands, establishes a prima facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.

(Emphasis added)

[112]           The plaintiffs’ evidence does not say who was deceived into making payments to Mr Mundath’s bank accounts. None of the Sharmas who gave evidence say that they made any of the payments or that Mr Mundath deceived them.

14     Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15].

15     Bullen & Leake & Jacobs Precedents of Pleadings (16th ed, Sweet & Maxwell, London, 2008) vol 2 at [49-02].

[113]           The plaintiffs’ reply evidence shows a major difficulty for the deceit claim. Mr Mundath made a lot of the payments himself, using his ASB Fastnet Classic banking platform, about $2.6 million worth. He therefore did not have to mislead anyone else into authorising the payments. These payments may have involved deception in misstating the payees, but that was to conceal the embezzlement, not to cause it. It is not possible on the evidence to say which payments Mr Mundath made entirely himself and which he induced others to authorise. Because of that uncertainty judgment for deceit cannot be given for any payment.

[114]           Mr Mundath’s salary payments by Amazon NZ Ltd did not have a fictitious payee and there was arguably no deception for those payments.

[115]           There is no evidence from the Inland Revenue that Mr Mundath deceived any of its staff into making payments to Mr Mundath.

[116]           The plaintiffs allege that third parties (unspecified but presumably the Inland Revenue) were induced by Mr Mundath to make payments to the detriment of the plaintiffs. In a claim in deceit, a plaintiff suffers damage if they have been misled by the fraudulent misrepresentations of the defendant into acting to their detriment.    Mr O’Callahan submitted that the claim was also available when a defendant dishonestly misled a third party into taking some action that caused damage to the plaintiff. But he did not cite authority for that. In injurious falsehood, a defendant may be liable for maliciously making false statements to third persons so as to cause damage to the plaintiffs, but the Sharma plaintiffs have not alleged injurious falsehood. I am not satisfied that a claim in deceit is available when the plaintiff has not been deceived.

[117]           Given these difficulties with the deceit claim, I dismiss the summary judgment application for that cause of action.

Outcome

[118]           I am satisfied that Mr Mundath does not have any defence to the claims in the plaintiffs’ cause of action for breach of fiduciary duty to the amount of $4,696,758.31.

That is a minimum amount for which Mr Mundath is liable. Judgment will be given to each plaintiff for the amount in the schedule to the judgment without prejudice to their rights to continue their claims against him for other amounts.

[119]           The plaintiffs are entitled to interest under the Interest on Money Claims Act 2016. The plaintiffs shall provide a schedule as to the amounts of interest payable to each plaintiff.

[120]           The plaintiffs are entitled to costs on the summary judgment application. They seek indemnity costs. They are to file and serve a memorandum as to costs with all supporting information by 15 February  2019.  Any  submission  in  response  by Mr Mundath is to be filed and served by 1 March 2019.

[121]           The Registrar is to arrange a first case management conference for directions for the rest of the proceeding.

……………………………….

Associate Judge R M Bell

Solicitors:

K3 Legal (Brent O’Callahan/Julie Ding), Auckland, for the Plaintiffs Hall Partners (Trevor Hall), Sydney, for First Defendant

Parshotam & Co (Shehan Ebenezer), Mt Roskill, Auckland, for the Second Defendant

Copy for:

Phillip Rice, Barrister, Auckland, for Second Defendant

Schedule of judgment amounts for each plaintiff

(a)	AK Sharma Trust	$118,321.94
(b)	Amazon NZ Ltd	$700,314.81
(c)	Ankur Enterprises Ltd	$20,544.93
(d)	Ankur Investments Ltd	$18,247.60
(e)	Bikaner Food Mount Roskill Ltd	$13,585.39
(f)	Bikaner Foods 2010 Ltd	$18,702.51
(g)	Bikaner Foods NZ Ltd	$116,179.25
(h)	Bikaner Metro Ltd	$4,200.33
(i)	Camelot Hotel Ltd	$26,848.31
(j)	Dr Vinod Sharma	$730,484.53
(k)	Gateway Motel Ltd	$698,319.26
(l)	Jaya Investments Ltd	$10,501.51
(m)	M & A Ltd	$20,664.24
(n)	M & RA Ltd	$15,253.86
(o)	Maxwell’s Ltd	$23,680.38
(p)	Ninety Five NZ Ltd	$121,575.20

(q)	Omax International Ltd	$4,564.18
(r)	Pachon Trust	$22,847.75
(s)	Pure Dairy Products NZ Ltd	$7,909.41
(t)	Quadrant Management Services Ltd	$16,321.32
(u)	Ram Family Trust	$7,568.98
(v)	Rchi Partnership	$3,016.22
(w)	R K Sharma	$29,373.35
(x)	Sharma Family Trust	$472,178.76
(y)	Smart Buy Solutions Ltd	$8,056.74
(z)	Te Atatu Developments Ltd	$14,901.05
(aa)	Travellers Inn Ltd	$116,337.14
(bb)	Travellers Receivership Ltd	$32,705.65
(cc)	Uniworld Ltd	$4,204.05
(dd)	V & A 2012 Ltd	$127,836.04
(ee)	V & A Ltd	$423,381.70
(ff)	VR Group 2011 Ltd	$371,965.51
(gg)	VR Rotorua Ltd	$79,570.05
(hh)	Wianx Services Ltd	$296,172.56

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