IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2303

[2021] NZHC 1249

UNDER Section 124 of the District Court Act 2016

IN THE MATTER

of an appeal of a judgment in the District Court

BETWEEN

KAMAN SINGH

First Appellant

SURKANDA ENTERPRISES LIMITED
Second Appellant

AND

GARY PAUL FITZPATRICK as

Administrator of the ESTATE OF SATISH SHETTY

First Respondent

SHAMIANA ENTERPRISES LIMITED
Second Respondent

…/cont

Hearing: 28 April 2021

Appearances:

T Aherne for Appellants in CIV-2020-404-2303 and Respondents in CIV-2020-404-2304

L Meys for Respondents in CIV-2020-404-2303 and Appellants in CIV-2020-404-2304

Judgment:

31 May 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 31 May 2021 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SINGH v FITZPATRICK [2021] NZHC 1249 [31 May 2021]

SHAMIANA LIMITED
Third Respondent

CIV-2020-404-2304

IN THE MATTER of an appeal of the District Court’s
judgment in CIV-2017-090-000295

BETWEEN GARY PAUL FITZPATRICK as
Administrator of the ESTATE OF SATISH SHETTY
First Appellant
SHAMIANA ENTERPRISES LIMITED
Second Appellant
SHAMIANA LIMITED
Third Appellant

AND KAMAN SINGH
First Respondent
SURKANDA ENTERPRISES LIMITED
Second Respondent

Solicitors: Aherne Legal, Auckland
Neilsons Lawyers, Auckland

[1] These appeals are about the repayment of bonds in the nature of franchise fees in the context of a contractual dispute. The first appellant in the 2303 appeal, Kaman Singh, said he paid the bonds in order to operate three restaurants owned and controlled by the Shamiana Group. The second and third respondents, Shamiana Enterprises Ltd and Shamiana Ltd, were part of the Shamiana Group. Satish Shetty was the ultimate owner of the companies in the Shamiana Group.

[2] In the District Court, Judge Cunningham found that the licence agreements for two of the three restaurants were between Shamiana Enterprises Ltd and Shamiana Ltd, both as licensors, and the second appellant, Surkanda Enterprises Ltd (Surkanda) as licensee.1 Mr Singh owned and operated Surkanda.

[3] The Judge found in favour of Surkanda in determining that the bonds for these two restaurants were refundable. However, the Judge made deductions from the amount to be refunded in relation to one of the restaurants for unpaid licence fees, general damages and (agreed) rent arrears.

[4] The appellants say the Judge was wrong in relation to her finding as to the contracting parties for those two restaurants. They say the parties to the two agreements were Mr Singh and Mr Shetty personally. They further say the Judge should not have made deductions for unpaid licence fees and should not have awarded general damages to the respondents.

[5] In relation to the third restaurant, the Judge found that the parties to the licence agreement were another company owned by Mr Shetty, Amigo Brothers Ltd (Amigo Brothers), as licensor and Surkanda Holdings Ltd (Surkanda Holdings), a second company set up by Mr Singh. Although the Judge found the bond was repayable, no relief was ordered as Surkanda Holdings was not a party to the proceeding.

[6] Amigo…

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 Fitzpatrick

Details

AGLC: Singh v Fitzpatrick [2021] NZHC 1249
Case: [2021] NZHC 1249
Decision Date: 31 May 2021

CaseChat Overview and Summary

This appeal involves a contractual dispute over the repayment of franchise bonds in the context of a franchise arrangement. The first appellant, Kaman Singh, sought to operate three restaurants under the Shamiana brand, owned by the Shamiana Group, in return for paying franchise fees. The appellants, Kaman Singh and Surkanda Enterprises, appeal against a decision of the District Court that found in favour of the respondents, Gary Fitzpatrick as administrator of the estate of Satish Shetty and Shamiana Enterprises and Shamiana Limited. The respondents cross-appealed, arguing that the Judge was wrong to admit transcripts of recordings, find accord and satisfaction, and join Amigo Brothers as a party. The High Court found the District Court Judge erred in awarding general damages to the respondents, in her approach to the award of interest, in joining Amigo Brothers as a party, and in giving leave to the respondents to file a second amended statement of defence. However, there was no practical consequence as regards the two latter points. The appeal was otherwise dismissed. The High Court also found the cross-appeal was allowed to the extent that the District Court Judge was wrong to determine there was accord and satisfaction in relation to the two New Plymouth restaurants and the Judge was wrong to join Amigo Brothers as a party. However, neither finding affects the ultimate outcome. The application for leave to appeal the Judge’s decision regarding transcripts was refused. The Judge ordered the respondents to pay the appellants for the bonds for the two restaurants, with interest calculated as set out in the judgment. Costs were reserved.

Orders