Siddiqui v Siddiqui - [2022] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA376/2021
[2022] NZCA 44

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

Counsel:	G D Stringer and R Rao for Appellants J S Cooper QC and A E Hansen for Respondents
Judgment: (On the papers)	9 March 2022 at 9.30 am

JUDGMENT OF GILBERT J

The High Court order staying execution of the costs judgment pending appeal is rescinded.

____________________________________________________________________

REASONS

This is an application to rescind an order made in the High Court staying execution of a costs judgment pending determination of an appeal against the substantive judgment.[1]
[1]Siddiqui v Siddiqui [2021] NZHC 2822 [Costs stay judgment].
The case concerns a family dispute over the beneficial ownership of a residential property in Manurewa, Auckland purchased in May 2006. The respondents are the parents of the first-named appellant and the second-named appellant is his wife. The appellants held legal title to the property, but the respondents claimed it was held on a constructive trust for them.
The respondents commenced their proceedings in the High Court in 2018. The appellants resisted the claim and filed a counterclaim seeking judgment against the respondents for various sums. The proceeding was heard over seven days in August 2019 and December 2020. In a careful and comprehensive judgment delivered on 28 May 2021, Paul Davison J found in favour of the respondents.[2] The Judge ordered the appellants to transfer legal title to the respondents forthwith when called upon on the basis that the respondents would pay the appellants the amount owing on the mortgage together with the sum of $92,852, described in the judgment as the adjustment sum.[3]
[2]Siddiqui v Siddiqui [2021] NZHC 1234, (2021) 22 NZCPR 342 [Substantive judgment].
[3]At [176(b)].
The Judge subsequently ordered the appellants to pay costs and disbursements to the respondents totalling $79,210.[4] These costs were calculated on the standard category 2, band B basis. There is no appeal against the costs judgment.
[4]Siddiqui v Siddiqui [2021] NZHC 2270 [Costs judgment].
The appellants have filed an appeal against the substantive judgment. They accept in their written submissions that it is “untenable to dispute” the Judge’s finding that the property was held on trust for the respondents. However, they seek judgment on appeal in respect of their set-offs/cross claims and an order granting a share in the equity in the property.
The appellants applied for a stay of execution of the substantive judgment pending determination of their appeal. This was declined by the Judge in a judgment delivered on 15 October 2021.[5] The Judge was particularly concerned that if a stay was granted, this could impede the respondents’ ability (given their ages and circumstances) to obtain mortgage finance and thus secure title to the property. In that event, the whole purpose of their claim in the proceedings would be frustrated.[6]
[5]Siddiqui v Siddiqui [2021] NZHC 2776 [Stay of execution judgment].
[6]At [25].
The appellants…

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.

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Details

Case: [2022] NZCA 44
Decision Date: 9 March 2022 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Ashish and Yashika Siddiqui to rescind a High Court order staying the execution of a costs judgment in favour of Amin Azhar and Usha Amin Siddiqui. The respondents had commenced proceedings against the appellants in 2018 to establish a beneficial interest in a property in Manurewa, Auckland. The appellants held legal title to the property but the respondents claimed it was held on a constructive trust for them. The High Court found in favour of the respondents and ordered the appellants to transfer legal title to the respondents, who would pay the appellants the amount owing on the mortgage and an adjustment sum. The Judge subsequently ordered the appellants to pay costs and disbursements to the respondents, which the appellants appealed. The appellants also applied for a stay of execution of the costs judgment pending the appeal, which the High Court granted. The Court of Appeal rescinded the stay of execution of the costs judgment.
The Court of Appeal found that the Judge misapprehended the scope of the appeal against his substantive judgment and the financial consequences of the stay for the respondents. The respondents, as the successful party, are entitled to the fruits of the judgment, including costs. The Court of Appeal found that it is unlikely that the costs judgment in favour of the respondents will be overturned and that the respondents will be detrimentally affected if the costs judgment is stayed. The appellants would face significant hurdles on appeal because they will have to overcome the fully reasoned factual findings made by the learned Judge. The Court of Appeal found that there is no sufficient justification to depart from the normal rule that a successful party is entitled to the fruits of its judgment notwithstanding that a genuine and bona fide appeal has been lodged.
The Court of Appeal rescinded the High Court order staying execution of the costs judgment pending appeal. The appellants were ordered to pay the respondents the costs of the appeal, including the costs of the application to rescind the stay of execution of the costs judgment.

Orders