Siddiqui v Siddiqui - [2021] NZHC 2776

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000798

[2021] NZHC 2776

BETWEEN
ASHISH SIDDIQUI AND YASHIKA SIDDIQUI

Applicants

AND

AMIN AZHAR SIDDIQUI AND USHA AMIN SIDDIQUI

Respondents

Hearing: On the papers

Counsel:

G D Stringer & R Rao for Applicants

J S Cooper QC, A E Hansen & L A Sheppard for Respondents

Judgment:

15 October 2021

JUDGMENT OF PAUL DAVISON J

[Re: Application for Stay of Judgment]

This judgment was delivered by me on 15 October 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Inder Lynch, Manukau, Auckland Heimsath Alexander, Auckland

SIDDIQUI v SIDDIQUI [2021] NZHC 2776 [15 October 2021]

Introduction

[1] Ashish and Yashika Siddiqui (the applicants) have appealed against my judgment delivered on 28 May 2021 in which I found that they hold the property 126A Gloucester Road Manurewa (the property) as trustees for the respondents, and made an order directing them to transfer the legal title to the respondents forthwith when called on to do so. 1 Further orders directed the respondents on transfer of the property to them, to pay the applicants the principal sum then owing under the ANZ National Bank mortgage on the property (the mortgage), together with $92,852, and the amount of the mortgage payments made by the applicants since 30 April 2021.2

[2] By interlocutory application dated 28 July 2021 the applicants now apply for an order staying execution of the judgment pending determination of their appeal. They seek a stay of the executory parts of the orders, namely the order directing them to transfer the property to the respondents when called on to do so, so that the property will remain in their ownership until their appeal is determined and the issues of ownership, beneficial interests, and any adjustment sums to be payable are determined by the appeal. The respondents oppose the application.3

[3] The proceeding arises from a dispute between family members. Ashish Siddiqui is the respondents’ son, and his wife Yashika Siddiqui is their daughter-in-law. The full background giving rise to the dispute over the ownership of the property is set out in my judgment of 28 May 2021.

[4] Both parties have filed written submissions and agree that it is appropriate that the application be determined on the papers.

Background to the application

[5] Since the judgment was delivered the respondents have continued to reside in the house on the property, and the applicants have continued to meet the mortgage payments.

1      Notice of Appeal dated and filed 24 June 2021; CA 376/2021.
2      Siddiqui v Siddiqui [2021] NZHC 1234 at [175]–[179].
3      Notice of opposition dated 12 August 2021.

[6] On 7 July 2021 the applicants’ solicitors wrote to the respondents requesting that they take no steps to enforce the judgment and that enforcement be stayed pending determination of their appeal.

[7] On 22 July 2021 the respondents’ solicitors wrote to the applicants’ solicitors enclosing a copy…

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: [2021] NZHC 2776
Decision Date: 15 October 2021

CaseChat Overview and Summary

Ashish and Yashika Siddiqui appealed against the decision that they hold the property 126A Gloucester Road Manurewa as trustees for the respondents, and that they must transfer the legal title to the respondents. The applicants sought a stay of execution of the judgment pending determination of their appeal, specifically to prevent the transfer of the property. The respondents opposed the application, arguing that the absence of a stay would not render the appeal nugatory and that a stay would be injurious to them, given their current ability to secure mortgage finance.

The court considered the balance between the respondents’ rights to the fruits of the judgment and the need to preserve the position in case the appeal is successful. The most relevant factors were whether the appeal would be rendered nugatory by the lack of a stay, whether the successful party would be injuriously affected by a stay, and the overall balance of convenience. The court found that the respondents' ability to satisfy bank mortgage lending criteria would likely become more difficult with time due to their ages and financial circumstances. Interest rate increases and changes to bank lending criteria could also make it impossible for the respondents to comply with future borrowing criteria. The real risk that the respondents' claim to ownership of the property could be entirely frustrated due to the delay outweighed the purely financial consequences for the applicants should they succeed in their appeal. The overall balance of convenience strongly favoured the respondents, and the application for a stay of execution was declined.

The court dismissed the application for a stay of execution and ordered the applicants to pay the respondents' costs. The respondents were to file and serve their costs memorandum within 10 working days of the judgment, and the applicants were to file and serve theirs within five working days following service of the respondents’ memorandum. The memoranda were not to exceed three pages in length apart from annexures.

Orders