Syed Family Limited v Malik

[2017] NZHC 1022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-977 [2017] NZHC 1022

BETWEEN

SYED FAMILY LIMITED

Plaintiff

AND

AMIR FAZAL MALIK First Defendant

TRINITY WILSON Second Defendant

CIV-2016-404-1110

BETWEEN  AMIR FAZAL MALIK Applicant

ANDSYED FAMILY LIMITED Respondent

Hearing:	10 October 2016
Appearances:	D Bennington for Plaintiff in CIV-2016-404-977 and Respondent in CIV-2016-404-1110 M S Sahu Khan for Defendants in CIV-2016-404-977 and Applicant in CIV-2016-404-1110
Judgment:	18 May 2017

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 18 May 2017 at 12:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms D Bennington, Duncan Cotterill, Solicitors, Auckland

Mr M S Sahu Khan, Barrister, Auckland

SYED FAMILY LIMITED v MALIK [2017] NZHC 1022 [18 May 2017]

Introduction

[1]      There are two proceedings for determination.

[2]      In  CIV-2016-404-977,  the plaintiff,  Syed  Family  Ltd,  seeks  an  order for possession of land at Aranui Road, Mt Wellington, Auckland (Aranui Road).  Syed Family Ltd is the registered proprietor of Aranui Road.   The defendants in this proceeding, Mr Amir Malik and Ms Trinity Wilson, with their children, are living in a house at Aranui Road.

[3]      In CIV-2016-404-1110 Mr Malik, as applicant, seeks against Syed Family Ltd an order under s 145 of the Land Transfer Act 1952 sustaining a caveat which Mr Malik  has  lodged  against  the  titles  to Aranui  Road  property and  two  other properties of which Syed Family Ltd is the registered proprietor (Monmouth Street and Park Avenue).

Facts

[4]      The main protagonists in both proceedings are Mr Malik and Mr Zainulabidin

Syed.  Mr Syed is based in Australia.  Mr Malik is based in New Zealand.

[5]      In  2005,  Mr  Syed  decided  to  invest  in  property  in  New  Zealand.    He incorporated a company for this purpose, Top Services (2005) Ltd, and that company purchased a property which was rented out.  Mr Syed and Mr Malik met through the tenant.

[6]      Mr Malik says that in 2009 he was invited by Mr Syed to visit him in Melbourne to discuss business and investment opportunities.   Mr Malik says that during his visit, Mr Syed asked him to renovate a property that Mr Syed owned in Auckland.  He says they also agreed to start two schools in Auckland and to enter into property development.  Mr Malik claims that the property development was his idea as Mr Syed had no experience with property development.  Mr Malik says that they agreed to share the profits equally.

[7]      In August 2009, Mr Syed set up the Syed Family Trust (the trust) to own his property investments in New Zealand.   Mr Syed says that he was advised that he needed someone independent to act as settlor.  Mr Malik agreed to act as the settlor. The final beneficiary of the trust is Mr Syed.  There are various named discretionary beneficiaries who do not include Mr Malik. All but one appear to be members of Mr Syed’s family.  The original trustees are Mr Syed and Darsan Trustee Ltd.  Darsan Trustee Ltd appears to be a solicitor’s trustee company.  The final beneficiary, Mr Syed, is given the power to appoint and remove trustees.

[8]      Mr Malik said that he was told by Mr Syed that it was in the best interests of all, including Mr Malik, that the trust be created to facilitate Mr Malik’s interests in the properties developed in New Zealand.  In his affidavit Mr Malik stated that “it was much later that I realized [sic] that it was a fraudulent device by him to deceive me and deprive my rights and entitlements in the property developments in New Zealand.”  Mr Malik nevertheless acknowledged that his role as settlor of the trust was purely a formality.  Mr Malik signed the trust deed as settlor.

[9]      In October 2009, NZ Coporate [sic] Finance Ltd (NZCF) was incorporated. Mr Malik states that he believed that he was a 50 per cent shareholder and a director of that company.  The sole director and shareholder was Mr Syed.

[10]     In  October  and  November  2009,  Mr  Syed  and  NZCF  purchased  two properties on Taylor Street, Blockhouse Bay (Taylor Street), one on Blockhouse Bay Road, Blockhouse Bay (Blockhouse Bay Road), and one on Rosebank Road, Avondale (Rosebank Road).

[11]    Mr Syed claims that he and Mr Malik entered into a written ‘Service Agreement’ on 3 October 2009 under which Mr Malik was allowed to live in one of the Taylor Street houses while the house was being renovated and until the property was sold or until he was instructed to vacate.  Also under the service agreement, Mr Malik was to provide works “across a number of Mr Syed’s properties including but not limited to organising labour, hiring equipment, purchasing equipment and tools, and purchasing materials”.  Payment to Mr Malik was rent free accommodation plus payment for the hours put in by him, with a minimum of 20 hours per week, and no

payment to be made if it was less than 20 hours per week.   Mr Malik denies that there was such an agreement, oral or written, and claims that his signature on the document produced by Mr Syed in evidence is a forgery.

[12]     Mr Malik and his partner did live at Taylor Street.   In August 2010 Taylor Street  was  sold  and  Mr  Malik  and  his  partner  moved  to  Rosebank  Road  in September.  They stayed in that property until December 2011 when they moved to Blockhouse Bay Road.

[13]     In 2012, the trust purchased the three properties at issue: Park Avenue, Aranui Road, and Monmouth Street.   Mr Malik and his partner, Ms Wilson, claim that NZCF funds were put towards the purchase of those properties and that funds also came from Australian companies and from Top Services Ltd.

[14]     In May 2012, Mr Syed incorporated Syed Family Ltd with the intention that it would become trustee of the trust and would take title to and manage the properties of the trust.  Mr Syed was the sole shareholder and director of Syed Family Ltd.

[15]     In June 2012, Mr Malik was appointed a director of Syed Family Ltd and became a minority shareholder, holding five shares jointly with Mr Syed out of a total of 100 shares.  Mr Syed says that Mr Malik was appointed as a director as Mr Malik was dealing with all of the contractors in New Zealand and Syed Family Ltd needed a New Zealand based director.  Mr Syed says that Mr Malik was given five shares held jointly with Mr Syed in recognition of the work he was doing for the company.

[16]     Mr Syed claims that in 2012 Mr Malik was employed by the trust as a full- time project manager to manage the development of a motel at Park Avenue.   Mr Malik denies this.  He claims that he worked on the development in his capacity as an owner of the development and claims that he hired others to work as project managers.

[17]     In July 2013, Mr Malik and Ms Wilson moved to Aranui Road.  Syed Family

Ltd claims that this was on the basis of a licence to occupy under the service

agreement.  Mr Malik claims that he made the decision to move to Aranui Road as an owner of the property and did not need a licence.

[18]    In March 2014, Mr Malik incorporated Building Future Enterprises Ltd (Building Future) of which he was the sole director and shareholder.  Also in 2014, Mr Malik purported to enter into a contract with Building Future on behalf of the trust to develop Park Avenue.  Mr Syed claims that he was not aware until early 2015 that Building Future was owned and operated by Mr Malik.  He says that when he found out he lost confidence in Mr Malik.

[19]     In late 2015 Inland Revenue advised Mr Syed and Mr Malik that it was going to undertake an audit of Mr Syed’s property development business for the years 2009 to 2013 and that this audit would include developments undertaken by NZCF and the trust.  Mr Syed claims that Mr Malik resigned as a result of this audit as he did not want to be liable for any tax debts.

[20]     On 31 October 2015, Mr Malik sent an email to Mr Syed.  Mr Syed claims this email amounts to notice from Mr Malik of his resignation as a director of Syed Family Ltd, and as project manager, and authority and instructions to Mr Syed to transfer Mr Malik’s shares in Syed Family Ltd and cancel Mr Malik’s signing authority on the trust’s bank accounts. The email reads:

salam lala

as i told u, i m no longer working for family trust AFTER OCT15….., please start giving jobs to my company, and i charge you accordingly, hope that works out for both of us. SYED FAMILY LIMITED 5% SHARES need to transfer and BNZ ACCOUNT too…

i wish to run my company (building future) and focus myself, i m looking forward to working with u

respect&regards

[21]     Mr Malik’s removal as a shareholder in Syed Family Ltd was registered on

29 December 2015.

[22]     Mr Syed claims that he told Mr Malik in November 2015 that, because the trust wanted to sell Aranui Road, Mr Malik and his family would need to move out.

[23]     On 23 November Mr Malik sent an email to Mr Syed which includes a proposal to pay $400 rent per week for Aranui Road from December 2015.   The email reads:

attention: HAPPY TO WORK WITH FAROOQ OR HASEEB or any other, BUT plz keep things clear

i m on salary, paid till sep 2015, security from 9th march til today DAILY

$80 TILL TODAY IT’S A CASH JOB.

$6500 BALANCE NEED TO BE CLEAR TOO….

I M GETTING 700 A WEEK SINCE JAN 2015… BEFORE WAS 600 A

WEEK, SO THAT MEAN I DON’T HAVE TOO MUCH.

MY INCOME IS FROM SYED FAMILY TRUST LIMITED (5% DIRECTOR  only  on  papers)  or BUILDING  FUTURE  i  also  saving money for syed family trust, NOT MAKING MUCH PROFIT…. cause i don’t believe in looting or using

please start paying me weekly regular…. our accountant fee, ird and payee is overdue. $20000. no more payee from dec 2015….

from dec I start paying 400 rent for ARANUI, PLEASE PAY ME 1500

WEEKLY for property management. I will pay my own TAX. no need to pay security cause I will do. will issue u invoice monthly

please do let me know if ANYTHING NEED TO BE CHANGE?

balance is $5600+18600 till nov 2015

======================================================

EXTRA WORK TO BE DONE before title…………….. i did mention in previous email

…

(Emphasis in original)

[24]     Mr Malik then listed a number of jobs which still needed to be done on the property. Mr Malik claims that this email was sent as Mr Syed wanted to show to a potential purchaser of Aranui Road that he would receive rental income if he purchased the property.

[25]     Mr Syed says Mr Malik did not start paying rent  in December 2015  as proposed in his email.   Mr Syed says that on 15 January 2016 he spoke with Mr Malik and Mr Malik agreed that he and his family would move out of Aranui Road, but they did not.

[26]     On 28 January 2016, Mr Syed served Mr Malik with a trespass notice which, amongst other things, gave formal notice to Mr Malik to vacate Aranui Road by 10

February 2016.  Mr Malik and his family did not move out.  The trust then made an application  to  the  Tenancy  Tribunal  for  orders  terminating  the  tenancy,  for possession of Aranui Road, and for outstanding rent of $4,400.  The Tribunal found that there was no residential tenancy and dismissed the application for want  of jurisdiction.

[27]     On 22 April 2016, Mr Malik lodged the caveat against the titles to Aranui

Road, Monmouth Street and Park Avenue. The caveat states:

The abovenamed cavetor claims a beneficial interest contained in the above certificate of titles as a beneficiary by way of a constructive trust of which the registered proprietor, Sayed [sic] Family Limited, is trustee.

[28]     On 9 May 2016, Syed Family Ltd gave notice to lapse the caveat.  Mr Malik then made the present application that the caveat not lapse.   On 7 June 2016 an interim order was made that the caveat not lapse until further order of the Court.

The application to sustain the caveat

[29]     In an application to sustain a caveat the caveator has the onus of showing a reasonably arguable case for the interest claimed.1  A caveat against dealings may be made pursuant to s 137 of the Land Transfer Act 1952.  That section provides that a caveat can be lodged by a person who “claims to be entitled to, or to be beneficially interested in, the land or estate or interest by virtue of any unregistered agreement or other  instrument  or  transmission,  or  of  any  trust  expressed  or  implied,  or

otherwise”.2    What the caveator must establish is an arguable case for claiming an

1      Castle Hill Run Ltd v NZI Finance Ltd [1985] 2 NZLR 104 (CA) at 106.

2      Section 137(1)(a).

interest of the kind referred to in s 137.   The class of caveatable interests is not closed;3 but something more than a potential or future interest is required.4

[30]     The Court’s approach to assessment of an application to sustain a caveat was helpfully summarised by Associate Judge Bell in Body Corporate 329331 v Escrow Holdings Forty-One Ltd:5

Caveat applications are summary and are therefore not suitable for deciding disputed questions of fact. On the other hand, the court is not required to accept uncritically as raising a dispute of fact which calls for further investigation, every statement in an affidavit, however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements made by the same deponent or inherently improbable it may be. For a caveat to be removed, it must be patently clear that the caveat cannot stand either because there was no ground for lodging it at the outset or because  any  such  ground  no  longer  exists.  In  addition,  the  court  has  a residual discretion not to uphold a caveat that is exercised cautiously, as when the caveat could serve no useful purpose or alternative safeguards are available.6

To establish a reasonably arguable case there must be evidence tending to prove the facts relied on. Assertion, whether in pleadings or affidavit, is not enough. The evidence need not be as extensive as that given in a hearing on the substantive merits. It may be circumstantial. But if there is no evidence to prove the facts contended for, the caveator will not have made out a reasonably arguable case for those facts. As a qualification to the reasonably arguable standard, where there are allegations of fraud or other reprehensible conduct, it is necessary to show a prima facie case.7

[31]     There is a fundamental problem for Mr Malik on his application to sustain the caveat.   This is that he claims an interest in the three properties on two distinct grounds  which  cannot  stand  together  and  one  of  which  appears  to  disclaim  an interest of the sort claimed in the caveat.  I will outline the nature of these distinct claims, and indicate why, in my judgment, the fact that there are these conflicting

claims means that an arguable case is not made out.  In fairness to Mr Malik I will

3      Philpott v Noble Investments Ltd [2015] NZCA 342 at [28].

4      Philpott v NZI Bank Ltd (1989) 1 NZ ConvC 190,246 (CA); and Body Corporate 329331 v

Escrow Holdings Forty-One Ltd [2017] NZHC 754 at [8].

5      At [8]-[9].

6      Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656;

Stewart v Kaipara Consultants Ltd [2000] 3 NZLR 55 (CA).

7      Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15], followed in Trustees Executors Ltd v Steve G Ltd [2013] NZHC 16 at [63]-[66]; Paugra Holdings Ltd (in liq) v Harvestfield Holdings Ltd [2013] NZHC 1297 at [78] (overturned on appeal, but not on this point: Paugra Holdings Ltd (in liq) v Harvestfield Holdings Ltd [2014] NZCA 164, (2014) 15

NZCPR  227);  S  &  S  Ltd  v  XYZ  Ltd [2016]  NZHC  26  at  [6];  and  Virtual  Spectator  v

Rothlander [2016] NZHC 499.

nevertheless also consider whether there is a reasonably arguable case that either of the claims, standing alone, would provide an interest in the properties, and even though one of those claims is not the interest claimed in the caveat.

[32]     Mr Malik’s caveat claims an interest pursuant to a constructive trust.   A beneficial interest under a constructive trust is capable of supporting a caveat, although, as noted by Ms Bennington for Syed Family Ltd, while an institutional constructive trust can give rise to a caveatable interest, a remedial constructive trust cannot.8

[33]     Mr Malik, seemingly in support of the claim to a constructive trust recorded in  his  caveat,  contended  that  he  and  Ms  Wilson  contributed  financially  to  the purchase of the three properties.  Mr Malik’s counsel, Mr Sahu Khan, in respect of financial contributions, but not specifically in relation to a claim to a constructive trust, referred to a number of companies in which Mr Malik and Ms Wilson claim they have, or had, or should have had an interest: Top Services (2005) Ltd; NZCF; Auckland College of Learning Ltd; Elm Education Ltd; Building Future Enterprises Ltd; Austwide Institute of Training Pty Ltd; and Technical Education Australia Pty Ltd.    It  was  contended  that  profits  of those  companies,  or moneys  that  moved through those companies, were applied towards some unidentified portion of the purchase price of the three properties.  There was no adequate evidence of this.  Mr Sahu Khan in fact submitted that bank accounts and financial records will be needed to calculate the exact amount that Mr Malik is claiming and further that “only open trial will expose the culprit and the fraud”.

[34]     The  claim  that  Mr  Malik  and  Ms  Wilson  contributed  financially  to  the purchase of the properties, leaving aside any other considerations arising from the preceding summary, at least suggests that the “constructive trust” asserted in the caveat is a conventional institutional constructive trust of the sort discussed and

explained by the Court of Appeal in Lankow v Rose.9    The alternative basis for a

8      Boat Harbour Holdings Ltd v Steve Mowat Building & Construction Ltd [2012] NZCA 305, (2012) 13 NZCPR 489 at [45]; Three Chicks Ltd v NZ Building and Projects Ltd (2011) 12

NZCPR 799 (HC) at [19]-[23]; and Woodroffe v Coleman (2011) 13 NZCPR 161 (HC) at [28]- [29].

9      Lankow v Rose [1995] 1 NZLR 277 (CA).

claim is in a submission from Mr Sahu Khan and what amounts to a submission from Mr Malik in an affidavit.  Mr Sahu Khan submitted “…it must be made very clear that the Defendant do not claim as beneficiaries of a trust as such but as 50% legal owners …”.  Mr Malik in his affidavit said:

Although we [Mr Malik and Ms Wilson] are not beneficiaries of the Trust as such but we have 50% beneficial ownership in the three properties held by the Trust and also all profits and investments coming into the Trust, we are the 50% beneficial owners thereof.

[35]     Mr Sahu Khan’s submission is not readily reconciled with what Mr Malik simply asserted in his affidavit, but neither of these contentions advances a claim to a constructive trust on the claimed basis of financial contributions from Mr Malik and Ms Wilson.  (And in respect of Ms Wilson, I leave aside the fact that she does not even assert an interest through the caveat.)   Mr Sahu Khan’s submission that Mr Malik and Ms Wilson are “50 per cent legal owners”, and Mr Malik’s contention that he and Ms Wilson have “50 per cent beneficial ownership in the three properties”, appear to be based on the assertions that Mr Malik (although not also Ms Wilson) was a 50 per cent shareholder in Syed Family Ltd and that he has been deprived of this shareholding by allegedly fraudulent actions of Mr Syed.

[36]     In Harvey v Beveridge the Court of Appeal stated that “… with any case involving a trust, it is essential to articulate precisely the relevant terms of the trust at issue.”10   This has not been done here, either as to the essential factual foundation for the claimed constructive trust, or with sufficient particularity, supported by adequate evidence, the nature of the constructive trust said to be established by those facts. At least on one interpretation, Mr Sahu Khan’s submission expressly disclaims a claim

to an interest as beneficiaries of a trust, whether constructive or of any other sort.

[37]     Given the onus on Mr Malik, his application to sustain the caveat might properly be dismissed at this point.   However, and as earlier noted, I will address each of the two grounds on which Mr Malik appears to be arguing that an interest in the  properties  exists  and  examine  whether  either  of  these  claims  provides  a

reasonably arguable case for a caveatable interest on the asserted facts.

10     Harvey v Beveridge [2014] NZCA 72, [2014] NZAR 677 at [29].

[38]     The first alternative claim is that a constructive trust arises on the basis that Mr Malik made financial contributions to the properties and had a reasonable expectation of an interest in the properties.  In order to establish a constructive trust on this basis, the claimant must show:11

1.        Contributions, direct or indirect, to the property in question.

2.        The expectation of an interest therein.

3.        That such expectation is a reasonable one.

4.That the defendant should reasonably expect to yield the claimant an interest.

If the claimant can demonstrate each of these four points equity will regard as unconscionable the defendant's denial of the claimant's interest and will impose a constructive trust accordingly.

[39]     Mr Malik’s claim falls at the first hurdle.  There is no evidence that Mr Malik

– or Ms Wilson – personally made any financial contributions towards any of the properties.   Mr Malik claims that the funds to purchase the properties came from companies in which he, or Ms Wilson, had, or should have had, an interest.   To support this, Mr Malik provided bank account statements of Auckland College of Learning Ltd showing transfers to “Syed Family Trust”.  However, these assertions, even if proved to be correct, would not provide Mr Malik, or Ms Wilson, with an interest in the properties. At most, funding from one or more of the companies might provide the company or companies with a claim of some sort, although not necessarily a claim to an interest in the land. And any such claim plainly would have to be brought by the company or companies concerned.  Neither Mr Malik nor Ms Wilson can purport to bring a claim on behalf of a company.

[40]     Mr Malik also claimed that the trust is indebted to Building Future for work done on the Park Avenue property.   This does not appear to be relied upon in the application  to  sustain  the  caveat  but  I  note,  for  completeness,  that  this  almost certainly would not provide Building Future with a caveatable interest12 and it would

certainly not provide Mr Malik with such an interest.

11     Lankow v Rose, above n 9, at 294.

12     Rosser v Global Construction Services Ltd (2004) 5 NZ ConvC 193,961 (HC) at [18].

[41]     Mr Malik’s second apparent argument is that he was, or was entitled to be, a

50 per cent shareholder in Syed Family Ltd and was unlawfully removed as shareholder by Mr Syed without his knowledge.   The correspondence sent by Mr Malik to Mr Syed clearly demonstrates that he knew that he was a 5 per cent shareholder in Syed Family Ltd rather than a 50 per cent shareholder.  There is no documentary evidence that Mr Malik at any point was registered as holder of 50 per cent of the shares in Syed Family Ltd.  Contemporaneous documents from Mr Malik

– the emails of 31 October and 23 November – cannot be reconciled with the claim

Mr Malik now makes and are consistent with Mr Syed’s evidence.

[42]     The claim is tenuous to the point of implausibility at this point.   However, even if it is assumed that Mr Malik was entitled to 50 per cent of the shares, this still would not assist him.   All he would have would be a claim to an interest in the company.   This is a claim which is fundamentally distinct from a claim to assets owned by the company.  In simple terms, a shareholder in a company does not have a claim to an interest in assets owned by the company. This is elementary.

[43]   Accordingly, Mr Malik’s alternative argument that he is a 50 per cent shareholder in the registered proprietor of the properties, Syed Family Ltd, does not provide Mr Malik with a caveatable interest in any of the properties.

[44]     Mr Malik has not been able to show that he has a reasonably arguable case for the interest claimed in the caveat. The application to sustain the caveat fails.

The summary judgment application for possession

[45]     Syed Family Ltd seeks an order for possession of Aranui Road and an order requiring Mr  Malik  and  Ms  Wilson  to  vacate  the property.   The  application  is intituled as one under Part 13 of the High Court Rules.  Part 13 has some relevance, particularly in relation to the definition of “unlawful occupier”, but the procedure adopted by Syed Family Ltd as applicant is in fact an application for summary

judgment.  In consequence, the procedural deficiencies in Part 13 do not arise.13

13     See the discussion in Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HRPt13.01] and see r 13.2 which provides that Part 13 does not affect an application for summary judgment under Part 12 of the Rules.

[46]     The contentions of Syed Family Ltd on the one hand, and Mr Malik and Ms Wilson on the other, in relation to occupancy of Aranui Road, are recorded in the summary of the facts, but for convenience the essence is recorded here.  Syed Family Ltd claims that Mr Malik and Ms Wilson, along with their children, had been living at Aranui Road since 2013 pursuant to the revocable licence contained in the service agreement but that has been revoked.   Mr Malik and Ms Wilson oppose the application on the grounds that Mr Malik is entitled to occupy Aranui Road because he is, or claims to be entitled to be, a 50 per cent shareholder and a director of Syed Family Ltd.

[47]     Rule 12.2 of the High Court Rules provides that the Court may give judgment against a defendant if the plaintiff is able to satisfy the Court that the defendant has no defence to the claim. The principles that apply on summary judgment are well settled. Those principles, as summarised by the Court of Appeal in Krukziener v

Hanover Finance Ltd are:14

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3(CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341(PC). In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ

84 (CA).

[48]     Although the Court will not normally resolve material conflicts of evidence on a summary judgment application, the Court does not need to decline to enter summary judgment on the basis that there are conflicts of evidence which are not

material, and no matter how numerous such conflicts are.

14     Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

[49]     The starting point is that Syed Family Ltd, as registered proprietor, is entitled to exclude all other persons from its land.15   It therefore has a prima facie right to the possession order it seeks.16

[50]     An ‘unlawful occupier’ is defined in r 13.1 as a person who:

(a)       occupies or continues to occupy land of the plaintiff without the licence or consent of the plaintiff or the plaintiff’s predecessor in title; and

(b)       is not a tenant or subtenant holding over after the termination of a tenancy or subtenancy.

[51]     It is clear that Mr Malik and Ms Wilson are unlawful occupiers in terms of that definition.  Mr Malik and Ms Wilson expressly disclaim any right as tenants or sub-tenants, either holding over after termination of a tenancy or sub-tenancy or, indeed, pursuant to any existing right to a tenancy.  The parties also agree that Mr Malik and Ms Wilson have no licence to occupy the property, although they reach this conclusion by different routes.  Syed Family Ltd claims that there was a licence, but that this licence was validly revoked.  Mr Malik and Ms Wilson claim that there never was a licence.

[52]     There is the issue raised by Mr Malik as to whether his purported signature on the service agreement is his signature.  This is not relevant to the application for orders for possession and for the defendants to vacate Aranui Road.  If the service agreement is authentic, it is clear that any licence granted under it has since been revoked and Mr Malik’s other contentions then become tenuous.   If Mr Malik is correct, and there was no such agreement, then neither Mr Malik nor Ms Wilson can point to any arrangement between them and Syed Family Ltd granting to them a right to occupy recognised by law.

[53]     The  sole  basis  for  the  claimed  right  of  occupancy  is  the  claim  of  an entitlement to a 50 per cent shareholding in Syed Family Ltd and the claim of a right to be a director of the company.  There are marked conflicts of evidence between Mr

Malik and Mr Syed over these matters, and Mr Malik’s contentions are not borne out

15     Kelly v Green HC Tauranga CIV-2009-470-426, 27 January 2010 at [4].

16     Palmerston North City Council v Birch [2012] NZHC 2979 at [26].

by the documentary evidence produced on these applications.   But this conflict of evidence does not need to be addressed, because the basis for the claimed right of occupancy is untenable as a matter of law.

[54]     Shareholders of a company do not have personal interests in the assets of the company.  Nor do directors of a company have interests in the assets of the company. Even if Mr Malik was at the present time registered as owner of 50 per cent of the shares, that would not give him a right to occupy Aranui Road (and I note in that regard that any right of occupancy for Ms Wilson would be entirely dependent on Mr Malik’s right).   Similarly, if it is assumed that Mr Malik was a director of Syed Family Ltd, holding that position would not give Mr Malik a right to occupy Aranui Road.

[55]     The defendants have no defence to the plaintiff’s claim for an order for

possession and an order requiring the defendants to vacate Aranui Road.

Formal orders

[56]     In CIV-2016-404-977:

(a)      There  is  an  order  granting  to  the  plaintiff  possession  of  the  land having the legal description of Lot 3 Deposited Plan 382247 and Lot 4

Deposited Plan 382247 (1/3 share), North Auckland, 328972, being a property at 84B Aranui Road, Mt Wellington, Auckland (Aranui Road).

(b)There is an order that the defendants Amir Fazal Malik and Trinity Wilson  vacate Aranui  Road  in  a  proper  and  orderly  manner  and deliver up to Syed  Family Ltd  vacant possession of Aranui Road within 7 days of delivery of this judgment.

[57]     In CIV-2016-404-1110:

(a)      There  is  an  order  discharging  the  interim  order  made  in  this proceeding on 2 June 2016 that caveat number 10407855.1 not lapse pending further order of the Court.

(b)There is an order dismissing the application in this proceeding for an order that caveat number 10407855.1 not lapse.

Costs

[58]     As Syed Family Ltd has been successful in both proceedings, it is entitled to costs  on  a  2B  basis,  together  with  reasonable  disbursements.    Any  dispute  on quantum is to be referred to the Registrar for determination in the first instance. Any reference to the Registrar may be made, on notice, one month or more after delivery of this judgment and must be made, on notice, within two months of the date of delivery of this judgment.  The reference will be subject to any further directions of

the Registrar.

Woodhouse J