Siddiqui v Siddiqui - [2021] NZHC 1234

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000798

[2021] NZHC 1234

BETWEEN AMIN AZHAR SIDDIQUI AND USHA AMIN SIDDIQUI
Plaintiffs/Counterclaim Defendants

AND

ASHISH SIDDIQUI AND YASHIKA SIDDIQUI

Defendants/Counterclaim Plaintiffs

Hearing: 26, 27, 28 August 2019, 7, 8, 9, 10 December 2020

Counsel:

A E Hansen & L A Sheppard for Plaintiffs/Counterclaim Defendants

G D Stringer & R Rao for Defendants/Counterclaim Plaintiffs

Judgment:

28 May 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 28 May 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

SIDDIQUI v SIDDIQUI [2021] NZHC 1234 [28 May 2021]

Introduction

[1] This is a dispute between family members over the beneficial ownership of a residential property situated at 126A Gloucester Road, Manurewa, in Auckland (the property). The plaintiffs, Amin and Usha Siddiqui are the parents of the first-named defendant Ashish Siddiqui. His wife Yashika, is the second-named defendant. The defendants are the registered owners of the property.

[2] The plaintiffs claim that they are the beneficial owners of the property which is held on trust for them by the defendants. Alternatively, the plaintiffs claim that the defendants obtained title to the property by falsely representing that they would assist the plaintiffs to purchase the property while concealing that the defendants themselves would be the registered owners of the property.

[3] The plaintiffs say that although when the property was purchased in May 2006 it was registered in the names of the defendants as owners, that was arranged by Ashish to facilitate obtaining bank finance for the purchase. The plaintiffs say that after the property was purchased in 2006 through until April 2015 they made payments to the defendants in respect of the ANZ bank mortgage Ashish had arranged on their behalf to enable them to effect the purchase, as well as meeting the other outgoings on the property including rates and insurance, and maintenance. They say that they only ceased making these payments in April 2015 after they had discovered that they were not registered as owners of the property and after the defendants had refused to transfer the property into their names.

[4] The plaintiffs seek an order vesting the title to the property in their names or alternatively an order directing the defendants to transfer the property to them. The plaintiffs also seek to recover money they claim to have paid to the defendants to meet amounts payable in respect of the mortgage over the property, but which the defendants retained.

[5] The defendants deny these allegations and deny that they hold the house on trust for the plaintiffs. The defendants counter-claim seeking an order for possession of the property. They allege that around the time of the purchase of the property in May 2006 Ashish made an oral agreement with his father Amin, that the defendants

would permit the plaintiffs to reside at the…

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 1234
Decision Date: 28 May 2021

CaseChat Overview and Summary

The plaintiffs Amin and Usha Siddiqui brought proceedings against the defendants Ashish and Yashika Siddiqui to establish that they were the beneficial owners of a residential property located at 126A Gloucester Road, Manurewa, Auckland, which was held on trust for them by the defendants. The plaintiffs sought a vesting order and/or an order directing the defendants to transfer the property to them. The defendants denied that they held the property on trust for the plaintiffs, and counter-claimed for possession of the property and rental arrears. The plaintiffs also sought a declaration that the defendants were fraudulent registered proprietors of the property and that they had been deprived of the property by fraud. The Court found that the plaintiffs had established the existence of an institutional constructive trust pursuant to which the defendants held the property as trustees for the plaintiffs. The Court found that the plaintiffs had made substantial contributions to the property, and had a justifiable and entirely reasonable expectation that they had an interest in the property as its beneficial owners. The Court also found that the defendants should reasonably expect to yield the plaintiffs an interest in the property as the beneficial owners. The Court rejected the defendants' counterclaims and found that the defendants' refusal to recognise the plaintiffs' interest in the Gloucester Road property as the beneficial owners was unconscionable. The Court made an order directing the defendants, forthwith when called on by the plaintiffs to do so, to transfer the legal title to the Gloucester Road property to the plaintiffs on the terms set out in the judgment. The plaintiffs were awarded costs.

Orders