Singh v Ash - [2018] NZCA 310

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA726/2017
[2018] NZCA 310

BETWEEN	MAHENDRA SINGH, GEOFFREY HUGH BOURCHIER AND DARSAN SINGH AS TRUSTEES OF THE SHEAN SINGH FAMILY TRUST Appellants
AND	GABRIEL SEBASTIAN ASH Respondent

Hearing:	20 June 2018
Court:	Winkelmann, Simon France and Wylie JJ
Counsel:	S R Morris and G J Angus for Appellants R J Thompson and L W Dixon for Respondent
Judgment:	14 August 2018 at 12.30 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal is allowed. The order for summary judgment granting a declaration that a 1996 variation to the trust deed is invalid is set aside.
C The respondent’s cross-appeal against the High Court costs order is dismissed.
DThe respondent must pay the appellants costs for a standard appeal on a band A basis and usual disbursements. These costs are not to be met by the Trust but by the respondent in his personal capacity.
ECosts in the High Court are set aside and are to be determined by that Court following final disposition of the proceeding.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

The appellants are trustees of the Shean Singh Family Trust (the Trust). The trustees are defendants in litigation filed by Gabriel Ash, a son of Shean Singh and one of the Trust’s beneficiaries. The proceedings seek many declarations about the management of the Trust, but of concern here is a declaration that a 1996 variation of the Trust deed is invalid and of no effect.
The variation changed who were the final beneficiaries, added a discretionary beneficiary and changed how the assets were to be distributed on vesting. Gabriel Ash’s position is considerably less advantageous under the variation than it would be if the Trust deed remained as initially drafted.
The initial deed gives no power to add or remove beneficiaries. The trustees therefore accept that on its face the variation is invalid. However, the trustees seek rectification to provide for a power of variation. Notwithstanding this defence, Associate Judge Bell granted Gabriel Ash’s application for summary judgment in relation to the invalidity of the variation.[1] The trustees appeal.

Facts

[1]Ash v Singh [2017] NZHC 2909.

We adopt the Associate Judge’s summary of the relevant facts:
[2] Dhirendra Singh, more commonly known as Shean Singh, was a lawyer practising in Dominion Road, Auckland. He married twice. Gabriel and his sister Olivia are children of the first marriage. Shean and his first wife separated in March 1993. He bought her out. Among the assets, he took on the division of property were commercial premises in Dominion Road, Mt Eden, where he carried on his practice, and a block of land at Redvale.
[3] The Shean Singh Family Trust was established by a deed dated 23 December 1993. Shean, the architect of the trust, designed it and drafted the deed. The settlor, Shean’s brother, Mahendra, is a medical practitioner living in…

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 Singh v Ash

Details

AGLC: Singh v Ash [2018] NZCA 310
Case: [2018] NZCA 310
Decision Date: 14 August 2018 at 12.30 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was called upon to adjudicate in the case of Singh v Ash, involving Mahendra Singh, Geoffrey Hugh Bourchier, and Darsan Singh, as trustees of the Shean Singh Family Trust, who were appellants, against Gabriel Sebastian Ash, a respondent. The case revolved around a dispute concerning the validity of a 1996 variation of the trust deed, which altered the final beneficiaries and the distribution of assets upon vesting. Gabriel Ash, one of the beneficiaries, sought a declaration that the variation was invalid, which the High Court granted via summary judgment. The trustees appealed this decision, arguing that there was a plausible basis for rectification.

The central legal issues in the case were whether the 1996 variation to the trust deed was indeed invalid and if the trustees' defence of rectification was sufficient to warrant a trial. The Court of Appeal needed to determine if the summary judgment granted by the High Court was appropriate and whether the trustees' claim for rectification had sufficient merit to proceed to trial.

The Court of Appeal found that the High Court's decision to grant summary judgment was incorrect. The judges highlighted that Shean Singh's actions in initiating the variation in 1996, along with the belief of all parties involved at the time that there was a power to vary the trust deed, provided an arguable basis for the claim of rectification. The Court disagreed with the High Court's assessment that certain factors, such as the inherent improbability of a lawyer making a mistake in drafting a personal deed or the difficulty in proving Shean Singh's intentions posthumously, rendered the rectification claim untenable. Instead, the Court considered that the settlor's actions and the testimony of the remaining trustees offered sufficient evidence for the claim to proceed to trial. As a result, the appeal was allowed, and the summary judgment order was set aside. The respondent's cross-appeal against the High Court costs order was dismissed, and the respondent was ordered to pay the appellants' costs on a band A basis, with these costs to be borne by the respondent personally.

Orders