Siddiqui v Siddiqui - [2022] NZCA 324

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA376/2021
[2022] NZCA 324

BETWEEN	ASHISH SIDDIQUI AND YASHIKA SIDDIQUI Appellants
AND	AMIN AZHAR SIDDIQUI AND USHA AMIN SIDDIQUI Respondents

Hearing:	23 March 2022
Court:	Kós P, Woolford and Dunningham JJ
Counsel:	G D Stringer for Appellants J S Cooper QC and B D Huntley for Respondents
Judgment:	19 July 2022 at 10 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe cross-appeal is allowed in part.
CThe appellants must pay costs to the respondents for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

The Siddiquis — parents Amin and Usha, son Ashish and daughter Supriya — immigrated to New Zealand in 1991.[1] The parents did well enough; the son did better. By 2006 the parents were still renting; the son had his own house. That year a family arrangement enabled the parents to at last acquire a house.
[1]In this judgment, for ease of understanding we generally refer to the appellants as “the son” or “the son and his wife”, and to the respondents as “the parents”.
The house was acquired by the son in May 2006 for $249,000.[2] The house was fully funded by mortgage finance, which the son organised through the realtor and a bank. The son provided collateral security to enable the lending ratio requirements to work. The son told the father that the father’s name was on the title; in fact, the house was registered in the names of the son and his wife. The parents paid the mortgage (via the son) and all other outgoings: ground rates, water rates and insurance. They also maintained the property.
[2]The purchaser was the son “&/or nominee”.
The parents said they believed the house was theirs, and that they were surprised and disappointed in 2008 to find their names were not on the title. That discovery propelled the dispute that led eventually to this litigation, in which the parents sued the son and his wife.
Quite what the son believed is not exactly clear. His accounts were inconsistent and he made a very poor witness. But it may perhaps be noted that on the day the parents moved into the house, they were greeted by a letter from the son. It began:
My darling Mum + Dad
Congratulations!!
Welcome to your new home. …
Davison J rightly preferred the parents’ evidence over the son’s.[3] If the son’s understanding was unclear, we at least know what he claimed. It was that the parents were mere licensees, and that the money paid to him (the parents believed, for the mortgage) was rent. That contention, he now accepts on appeal, is quite untenable.
[3]Siddiqui v Siddiqui [2021] NZHC 1234, (2021) 22 NZCPR 342 [Judgment appealed] at [121].
The Judge rejected the son’s account.[4] He held that the house was held by the son and his wife on an institutional constructive…

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 Siddiqui v Siddiqui

Details

AGLC: Siddiqui v Siddiqui [2022] NZCA 324
Case: [2022] NZCA 324
Decision Date: 19 July 2022 at 10 am

CaseChat Overview and Summary

The Court of Appeal heard an appeal and cross-appeal in the matter of Siddiqui v Siddiqui. The primary issue was whether the house in question was held by the son and his wife on a constructive trust for the parents, and if so, what form that trust should take. The Court found that the parents had a justifiable and reasonable expectation that they had an interest in the property as its beneficial owners. The Judge's finding of an institutional constructive trust was upheld, and the appeal against this finding was dismissed. The Court also considered the adjustments that should be made in relation to the mortgage payments and bathroom expenditure. The appeal in respect of the adjustments was allowed in part, and the amount payable for the bathroom expenditure was reduced. The Court held that the son and his wife were not entitled to a guarantee fee for providing collateral, and that simple interest should be paid on the mortgage payments and overpayments made by the parents. The parents were awarded costs on a 2B basis, and the appellants were ordered to pay costs to the respondents.

The Siddiqui family, consisting of parents Amin and Usha, and their son Ashish, immigrated to New Zealand in 1991. In 2006, Ashish purchased a house for $249,000, with the parents paying the mortgage and other outgoings. The parents believed they were the owners of the property, but discovered in 2008 that their names were not on the title. The parents sued Ashish and his wife, and the Judge found that the house was held by Ashish and his wife on an institutional constructive trust for the parents. Ashish and his wife appealed this finding, as well as the adjustments made in relation to the mortgage payments and bathroom expenditure. The parents cross-appealed the adjustments made for the bathroom expenditure and interest. The Court dismissed the appeal, allowed the cross-appeal in part, and ordered Ashish and his wife to pay costs to the parents.

Orders