Siddiqui v Siddiqui
[2019] NZHC 157
•14 February 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-798
[2019] NZHC 157
BETWEEN AMIN AZHAR SIDDIQUI and USHA AMIN SIDDIQUI
Plaintiffs/Counterclaim DefendantsAND
ASHISH SIDDIQUI and YASHIKA SIDDIQUI
Defendants/Counterclaim Plaintiffs
Hearing: 11 February 2019 Counsel:
A E Hansen and L A Sheppard for Plaintiffs/Counterclaim Defendants
R Rao for Defendants/Counterclaim Plaintiffs
Judgment:
14 February 2019
JUDGMENT OF WHATA J
This judgment was delivered by me on 14 February 2019 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Heimsath Alexander, Auckland
Inder Lynch, Manukau
SIDDIQUI v SIDDIQUI [2019] NZHC 157 [14 February 2019]
[1] The plaintiffs, Amin and Usha Siddiqui, claim their son, Ashish Siddiqui, holds a Gloucester Road property on trust for them. But they also claim land transfer fraud. Ashish denies the claims. The plaintiffs say that the statement of defence are inadequately pleaded and seek further particulars. This judgment addresses this application.
[2] Helpfully, the plaintiff compiled a schedule of 8 issues outlining the key parts of the pleadings and the application. A copy of this schedule is attached. It transpires that 4 of these issues (2, 6, 7 and 8) can be resolved or partially resolved with amended pleadings which the defendants have agreed to undertake.1 I note that I am not entirely clear on the agreed amendments in respect of issue 6-8. A draft of them should be provided for the Court file. I turn then to address the remaining issues.
Particulars of defence
Issue 1 – Particulars of paragraph 17 of the defence
[3]The plaintiffs’ statement of claim states at [20]:
The parties investigated the option of purchasing Gloucester Road.
[4]This is denied at [17] of the statement of defence as follows:
Paragraph 20 is denied. The defendants state further that:
(a) In April 2006, Amin Siddiqui attempted to obtain finance to purchase Gloucester Road.
(b) On or about 24 April 2006, Amin Siddiqui applied for a bank loan through Ray White Financial Services in his own name to purchase Gloucester Road.
(c) Amin Siddiqui’s application for finance was turned down by Ray White Financial Services on serviceability grounds.2
(d) Amin Siddiqui was aware that his application for finance had been turned down.3
1 Issue 2 was resolved because the defendants incorrectly referred to Ashish rather than Amin at
[18] of the defence. This will be corrected. known to me.
2 This is pleaded as [17](e).
3 This is pleaded as [17](f).
[5] The plaintiffs seek particulars about the finance applications which the defendants allege have been made and declined. They submit that such detail is necessary to give the plaintiffs fair notice of the defence. And that a main component of the defendants’ defence is that the plaintiffs attempted to obtain finance for the property but were declined, and that was the reason for their agreeing to purchase the property, a position the plaintiffs say is completely contrary to the case they advanced.
[6] The defendants say that no further particulars are required because the pleadings identify who applied (Amin), to whom (Ray White Financial Services (RWFS)) and the date of the application (on or about 24 April 2006).
[7] Ms Hansen accepted that sufficient information has now been provided to address concerns about “from whom” Amin attempted to obtain finance and “what attempts” Amin is alleged to have made to obtain finance.
[8] As to the balance of the request relating to [17] (c) and (d),4 Mr Rao conceded that with the passage of time the defendants cannot provide the particulars sought. The issue is therefore moot, save to the record that the risk of inadequate pleadings at [17] of the defence rests with the defendants, particularly in terms of potential requests for adjournment and consequential costs if the evidence materially departs from the pleading.
Issue 3 – particulars of paragraph 22 of the defence
[9]Paragraph 26 of the statement of claim states:
Unknown to the plaintiffs at the time, but on 28 April 2006, one or both of the defendants signed a sale and purchase agreement to purchase Gloucester Road.
[10]Paragraph 22 of the statement of defence responds:
Except that it is denied that the plaintiffs were unaware that a sale and purchase agreement had been signed, the balance of paragraph 26 is admitted. The defendants state further that Ashish Siddiqui signed the sale and purchase agreement in the presence of the plaintiffs and Supriya Siddiqui.
4 As noted the pleadings are 17(e) and 17(f).
[11] The plaintiffs sought clarification as to who signed the agreement and who was present. These facts, it is said, cannot be resolved by reference to the sale and purchase agreement as the defendants’ solicitor’s file has not been discovered, nor has a full copy of the sale and purchase agreement.
[12] The defendants initially submitted that these are clearly matters of evidence and not particulars. In terms of who signed the sale and purchase agreement, the defendants do not have a copy of the full agreement, nor have they been able to obtain their conveyancing file given the passage of time. A partial copy, it is said, of the sale and purchase agreement has been discovered in which “Ashish Siddiqui and/or nominee” is recorded as the purchaser.
[13] At the hearing, Mr Rao clarified that only Ashish signed the agreement and he is happy to amend the pleadings accordingly. I am satisfied this disposes with this part of the application.
Issue 4 – particulars of paragraph 23 of the defence
[14]Paragraph 27 of the statement of claim states:
In or around late April or early May 2006, the parties agreed that Gloucester Road would be purchased in the plaintiffs’ and Supriya Siddiqui’s names, with Ashish Siddiqui’s assistance.
[15]Paragraph 23 of the statement of defence responds:
Paragraph 27 is denied. There was no agreement between the parties that Gloucester Road would be purchased in the names of the plaintiffs and Supriya Siddiqui. The defendants state further that:
(a)Following the rejection of Amin Siddiqui’s finance application to Ray White, Amin Siddiqui asked Ashish Siddiqui to make a joint application for finance with him for the purposes of purchasing Gloucester Road.
(b)Ashish Siddiqui declined to make a joint application for finance with Amin Siddiqui.
(c)The defendants instead offered to purchase Gloucester Road themselves and permit the plaintiffs to rent from them.
(d)The plaintiffs verbally accepted the proposal detailed in application
(c) above.
[16] The plaintiffs seek particulars as to the date, communication method and parties and content of the alleged communications mentioned at paragraph 23. The defendants respond that paragraph 23 sets out the heart of the defence case: that after Amin Siddiqui’s attempt to purchase the property failed, the defendants instead proposed to buy it and have the plaintiffs rent from it. Paragraph 24 then sets out the terms of the verbal agreement that the defendants allege was agreed was reached between the plaintiffs for their occupation of the property and submits that the further particulars are in fact requests for evidence. They also say there is an air of unreality to the level of detail sought in relation to what has been pleaded to be an informal and undocumented family arrangement entered into some 13 years ago.
[17] As Mr Rao accepts, the pleadings are not a model of their kind on this issue. The particulars at [24] should be pleaded at [23] to clarify the terms of the offer. There also should be pleadings as to the timing of the offer and by whom the offer was made.
Issue 5 – particulars of paragraph 32 of the defence
[18]Paragraph 37 of the statement of claims states:
In or about 2014, the plaintiffs realised they were in a position to obtain finance and take over the mortgage on Gloucester Road and commenced discussions with the defendants to arrange the transfer of Gloucester Road to the plaintiffs.
[19]Paragraph 32 responds:
The defendants have no knowledge of whether the plaintiffs realised on 2014 that they were in a position to obtain finance, and are therefore unable to admit or deny paragraph 37 and require the allegation to be proved. The defendants state further that:
(a)In or about 2010, the relationship between the parties further deteriorated following a falling out between Ashish Siddiqui and Usha Siddiqui.
(b)At the time of the falling out, Ashish Siddiqui told the plaintiffs that they should either purchase Gloucester Road from the defendants or move out and go their own way.
(c)The parties had extensive discussions regarding the plaintiffs purchasing Gloucester Road from the defendants, but no agreement was or has been reached.
[20] The plaintiffs seek particulars as to date, location, communication method and participants in the alleged communications. Ms Hansen submits these details, as to who participated in the discussion and timing, may prove significant in terms of the evidence and then at trial. The defendants respond that these are matters of evidence and are otherwise a necessary background detail. They say they are not required to be pleaded.
[21] I agree with Ms Hansen. Details of the kind sought as to timing and in relation to [32] (c) should be provided to enable the plaintiffs to fully understand and respond to the defence.
Outcome
[22] Issues 2, 6, 7 and 8 are resolved by consent with amendments responding to the application to follow. A memorandum setting out the agreed proposed amendments should be filed for completeness.
[23] Mr Rao clarified that only Ashish signed the sale and purchase agreement referred to in Issue 3. The pleading is to be amended accordingly.
[24] The particulars at [24] should be pleaded at [23] to clarify the terms of the alleged offer pleaded therein. There also should be pleadings as to the timing of the offer and by whom the offer was made. This resolves Issue 4.
[25] Particulars of the kind sought as to timing and in relation to [32] (c) should be provided to enable the plaintiffs to fully understand and respond to the defence. This resolves Issue 5.
Costs
[26] The plaintiffs, who have been largely successful, are entitled to their scale 2B costs and disbursements on the application less 25 per cent. The reduction responds
to the level of success enjoyed by the defendants and what I perceive to be excessive litigation angst on the part of the plaintiffs. Quantum is to be approved by the registrar if agreement is not reached.
SCHEDULE OF PARTICULARS
1 PARTICULARS OF DEFENCE
Issue 1 - Particulars of paragraph 17 of the Defence Paragraph 20 Statement of claim
The parties investigated the option of purchasing Gloucester Road.
Paragraph 17 Statement of defence
Paragraph 20 is denied. The Defendants state further that-
(a)In April 2006, Amin Siddiqui attempted to obtain finance to purchase Gloucester Road.
(b)On or about 24 April 2006, Amin Siddiqui applied for a bank loan through Ray
White Financial Services in his own name to purchase Gloucester Road.
(e)Amin Siddiqui’s application for finance was turned down by Ray White Financial
Services on serviceability grounds.
(f)Amin Siddiqui was aware that his application for finance had been turned down.
Paragraph 4 of the Notice
The statement of defence alleges at 17(a) that "In April 2006, Amin Siddiqui attempted to obtain finance to purchase Gloucester Road."
a.From whom is it alleged that Amin Siddiqui attempted to obtain finance?
b.What attempts, whether verbally or via correspondence or otherwise, are alleged to have be made by Amin Siddiqui to obtain finance?
Paragraph 5 of the Notice
The statement of defence alleges at 17(b) that "On or about 24 April 2006, Amin Siddiqui applied for a bank loan through Ray White Financial Services in his own name to purchase Gloucester Road."
a.When and under what circumstances is it alleged that Amin Siddiqui became aware of the option of seeking a bank loan through Ray White Financial Services?
b.What assistance is it alleged was provided by either of the defendants, if any, on what dates and in what form?
c.How (whether in person, in correspondence and if by correspondence what correspondence, or otherwise), by whom, to whom and when is it alleged that Amin Siddiqui's application was submitted?
d.When and how did the application form come into the defendant’s possession?
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e.Provide the particulars of the correspondence relied upon for the allegation.
Paragraph 7 of the Notice
The statement of defence alleges at 17(e) that "Amin Siddiqui's application for finance was turned down by Ray White Financial Services on serviceability grounds and at (I) Amin Siddiqui was aware that his application for finance had been turned down."
a.When, to whom and by what form of communication is it alleged the application was declined 7
b.Provide the particulars of the correspondence relied upon for the allegation.
2 Issue 2 — Particulars of paragraph 18 of the Defence Paragraph 21 Statement of claim
On dates in or around mid-April 2006, Ashish Siddiqui advised Amin Siddiqui that:
a.an application for a mortgage based solely on Amin Siddiqui's income would be unsuccessful; and
b.that the family would not be able to purchase a property by themselves due to their age and ability to service a mortgage with the bank.
Paragraph 18 Statement of defence
Paragraph 21 and 21(a)-(b) are admitted. The Defendants state further that this advice was given to Ashish Siddiqui after his application for finance had been turned down.
Paragraph 8 Notice
The statement of defence alleges that "Paragraph 21 and 21(a)-(b) are admitted. The Defendants state further that this advice was given to Ashish Siddiqui after his application for finance had been turned down."
a.Does "his application" refer to Amin’s application referred to in paragraph 17? If not, in whose name is the application, when was it made, and to whom?
b.When and from whom, and in what form of communication is it alleged that Ashish received this advice?
c.Provide the particulars of the correspondence relied upon for the allegation.
d.When, and how is it alleged Ashish Siddiqui communicated this advice to Amin Siddiqui?
3 Issue 3 — Particulars of paragraph 22 of the Defence Paragraph 26 Statement of claim
Unknown to the plaintiffs at the time, but on 28 April 2006, one or both of the defendants signed a sale and purchase agreement to purchase Gloucester Road.
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Paragtaph22Statementotdefence
Except that it is denied that the Plaintiffs were unaware that a sale and purchase agreement had been signed, the balance of paragraph 26 is admitted. The Defendants state further that Ashish Siddiqui signed the sale and purchase agreement in the presence of the Plaintiffs and Supriya Siddiqui.
Paragraph 9 Notice
The statement of defence alleges that "Ashish Siddiqui signed the sale and purchase agreement in the presence of the Plaintiffs and Supriya Siddiqui."
a.In what location is it alleged the sale and purchase agreement was signed?
b.Who is it alleged was present when the sale and purchase agreement was
signed?
c.Is it alleged that Yashika Siddiqui signed the sale and purchase agreement? If yes, when, where and in whose presence is it alleged that Yashika Siddiqui signed the sale and purchase agreement?
Issue 4 -Particulars of paragraph 23 of the Defence Paragraph 27 of statement of claim
In or around late April or early May 2006, the parties agreed that Gloucester Road would be purchased in the plaintiffs and Supriya Siddiqui's names, with Ashish Siddiqui's assistance.
Paragraph 23 Statement of defence
Paragraph 27 is denied. There was no agreement between the parties that Gloucester Road would be purchased in the names of the Plaintiffs and Supriya Siddiqui. The Defendants state further that-
(a)Following the rejection of Amin Siddiqui’s finance application to Ray White, Amin Siddiqui asked Ashish Siddiqui to make a joint application for finance with him for the purposes of purchasing Gloucester Road.
(b)Ashish Siddiqui declined to make a joint application for finance with Amin Siddiqui.
(c)The Defendants instead offered to purchase Gloucester Road themselves and permit the Plaintiffs to rent from them.
(d)The Plaintiffs verbally accepted the proposal detailed in paragraph (c) above.
Paragraph 10 Notice
The statement of defence alleges that "(a) Following the rejection of Amin Siddiqui's finance application to Ray White, Amin Siddiqui asked Ashish Siddiqui to make a joint application for finance with him for the purpose of purchasing Gloucester Road. (b)
P1967 +9634 058
Ashish Siddiqui declined to make a joint application for finance with Amin Siddiqui. (c) The Defendants instead offered to purchase Gloucester Road themselves and permit the Plaintiffs to rent from them. (d) The Plaintiffs verbally accepted the proposal detailed in paragraph (e) above."
a.When and where is it alleged that each of the above communications took place?
b.Who is it alleged was present during each of the above communications?
c.With respect to the allegation at subparagraph (d), is it alleged that the offer was made jointly by the defendants? If not, who is it alleged made the offer?
d.With respect to the allegation at subparagraph (e) when, which of the plaintiffs, and what is it alleged was said by each plaintiff to accept the defendants' proposal?
e.With respect to the allegation at subparagraph (e), what were the terms alleged to have been proposed and agreed by the parties, and how were these terms alleged to have been communicated, by whom and when?
S Issue 5 - Particulars of paragraph 32 of the Defence Paragraph 37 Statement of claim
In or about 2014, the plaintiffs realised they were in a position to obtain finance and take over the mortgage on Gloucester Road and commenced discussions with the defendants to arrange the transfer of Gloucester Road to the plaintiffs.
Paragraph 32 Statement of defence
The Defendants have no knowledge of whether the Plaintiffs realised in 2014 that they were in a position to obtain finance, and are therefore unable to admit or deny paragraph 37 and require the allegation to be proved. The Defendants state further that-
(a)In or about 2010, the relationship between the parties further deteriorated following a falling out between Ashish Siddiqui and Usha Siddiqui.
(b)At the time of the falling out, Ashish Siddiqui told the Plaintiffs that they should either purchase Gloucester Road from the Defendants or move out and go their
[c] The parties had extensive discussions regarding the Plaintiffs purchasing Gloucester Road from the Defendants, but no agreement was or has been reached.
Paragraph 11 Notice
The statement of defence alleges that "The Defendants state further that (a) In or about 2010, the relationship between the parties further deteriorated following a falling out between Ashish Siddiqui and Usha Siddiqui. (b) At the time of the falling out, Ashish Siddiqui told the Plaintiffs they should either purchase Gloucester Road from the Defendants or move out and go their own way. (c) The parties had extensive discussions
P+967_l9634_0S8
regarding the Plaintiffs purchasing Gloucester Road from the Defendants, but no agreement was or has been reached.”
a.With respect to the allegations at subparagraphs (b) and [c) when and where is it alleged that the communications took place and/or in what form?
b.Who is it alleged was present during each of the above communications?
PARTICULARS OF COUNTERCLAIM
6 Issue 6 — Particulars of paragraph 44 - Counterclaim
The arrangement entered into between the parties on or about April May 2006 constitutes a contractual licence for the occupation of Gloucester Road by the Counterclaim Defendants.
Paragraph 12 Notice
The counterclaim alleges "The arrangement entered into between the parties on or about April - May 2006 constitutes a contractual licence for the occupation of Gloucester Road by the Counterclaim Defendants."
a.How (whether in person, in correspondence and if by correspondence what correspondence, or otherwise), and where is it alleged that a contracted licence was entered into?
b.Which of the parties are alleged to have entered into the contracted licence?
c.What were the terms of the contracted licence alleged to have been entered
d.Provide the particulars of the correspondence relied upon for the allegation.
7 Issue 7 — Particulars of paragraph 51 Counterclaim
The Counterclaim Defendants continue to service the mortgage to the ANZ Bank secured against Gloucester Road.
Paragraph 13 Notice
The counterclaim alleges "The Counterclaim Defendants continue to service the mortgage to the ANZ Bank secured against Gloucester Road."
a.What amounts and on what dates is it alleged that the Counterclaim Defendants have serviced the mortgage to ANZ?
8 Issue 8 - Particulars of paragraph 53 Counterclaim
If the Counterclaim Defendants ate found to be the legal and beneficial owners of Gloucester Road, they must account to the Counterclaim Plaintiffs for the payments that have been made in reduction of the mortgage.
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Paragraph 14 Notice
the counterclaim alleges "If the Counterclaim Defendants are found to be the legal and beneficial owners of Gloucester Road, they must account to the Counterclaim Plaintiffs for the payments that have been made in reduction of the mortgage."
a.What amounts and on what dates is it alleged that the Counterclaim Defendants have made payments in reduction of the mortgage?
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0
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