Venkataswamy v Kadoor - [2017] NZHC 2038

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002374 [2017] NZHC 2038

BETWEEN
SHYLA VENKATASWAMY

Plaintiff

AND

MURALI GANESH KODOOR AND GEETA MURLI GANESH Defendants

Hearing: 18 August 2017

Appearances:

J Murray for Plaintiff
M Phillips for Defendants

Judgment:

24 August 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on 24 August 2017 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors/Counsel:
J Murray, Auckland
Vicki Ammundsen Trust Law Limited, Auckland

VENKATASWAMY v KODOOR & ANOR [2017] NZHC 2038 [24 August 2017]

Introduction

[1] On 28 March 2017, Doogue AJ dismissed the defendants’ application for a stay of these proceedings.1 The defendants had argued that the plaintiff’s claim should be heard and determined in India and not in New Zealand. The Judge disagreed and found that New Zealand was the appropriate forum.

[2] The defendants say Doogue AJ got it wrong. They now seek to review his decision under r 2.3 of the High Court Rules as in force immediately before 1 March
2017.2

Approach to review

[3] Rule 2.3 provides:

2.3 Review of decision

(1) An application for a review, under section 26P(1) of the Act, of an order or a decision made by an Associate Judge must be by interlocutory application, which must fully state the grounds of review and what exactly is challenged by the applicant.

(2) Unless a Judge or an Associate Judge directs otherwise, notice of the application must be filed and served,—

(a) if it is made by a party who was present or represented when the order was made or the decision was given, within 5 working days of the order being made or the decision being given; or

(b) if it is made by a party who was not present or represented, within 5 working days after the receipt by that party of notice of the making of the order or the giving of the decision.

(3) Unless a Judge or an Associate Judge directs otherwise, the application does not operate as—

(a) a stay of the proceeding; or

(b) a step in the proceeding.

1 Venkataswamy v Kodoor & Anor [2017] NZHC 554.
2 The proceeding must be dealt with as if the provisions of the former High Court Rules 2016 referring to s 26P of the Judicature Act 1908 were in force under the Senior Courts Act 2016 s 186 and sch 5, cl 11(2). This includes r 2.3.

(4) If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—

(a) the review proceeds as a rehearing; and

(b) the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.

(5) In all other cases,—

(a) a review proceeds as a full rehearing; and

(b) the Judge may give the order or decision the weight he or she thinks appropriate.

[4] Under…

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: [2017] NZHC 2038
Decision Date: 24 August 2017

CaseChat Overview and Summary

In Venkataswamy v Kadoor, the plaintiff Shyla Venkataswamy filed a claim against the defendants Murali Ganesh Kodoor and Geeta Murli Ganesh for the recovery of funds advanced for a commercial property investment in New Zealand. The defendants sought to have the case heard in India, arguing it was the more appropriate forum. Doogue AJ previously dismissed the defendants’ application for a stay, finding New Zealand to be the appropriate forum. The defendants sought a review of Doogue AJ’s decision under r 2.3 of the High Court Rules. Woolford J upheld Doogue AJ’s decision, finding that New Zealand was the natural forum to resolve the dispute as the significant events giving rise to the claim occurred in New Zealand. The key factual issues, including the basis of the initial $740,000 transfer and what happened to the funds when the investment did not proceed, have a clear connection to New Zealand. Although some issues involve third party payments in India, the defendants have documentation evidencing these transactions, which can be obtained through discovery in New Zealand. The defendants also failed to demonstrate that the Indian civil justice process would provide a more appropriate forum. Woolford J dismissed the application for review and awarded the plaintiff costs on a 2B basis.

Orders