Venkataswamy v Kodoor - [2017] NZHC 554

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2374 [2017] NZHC 554

BETWEEN
SHYLA VENKATASWAMY

Plaintiff

AND

MURALI GANESH KODOOR AND GEETA MURALI GANESH Defendants

Hearing: 6 March 2017

Appearances:

Mr J B Murray for Plaintiff
Mr M Phillipps for Defendants

Judgment:

28 March 2017

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on
28.03.17 at 3.30 pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

VENKATASWAMY v KODOOR And Anor [2017] NZHC 554 [28 March 2017]

[1] The plaintiff resides in the United States of America and the defendants in New Zealand, although their immigration status in India is virtually the same as that of citizenship. They spend quite a lot of time in India.

[2] The plaintiff and the defendants had for some time been acquaintances when an opportunity presented itself to invest in a commercial building in Orewa, New Zealand.

[3] The proposal to purchase the building in Orewa called for a deposit from the plaintiff of US $750,000 and on 12 September 2010 the plaintiff agreed to pay such amount.

[4] A company was to be established in New Zealand and a bank account was opened in the name of a trading trust into which the plaintiff was to deposit her investment. She in fact contributed US $740,000.

[5] The terms on which the money was initially paid for the commercial building venture are alleged to have involved the defendants agreeing to pay interest and also a profit figure over and above the interest payments to the plaintiff.

[6] As it turned out, the commercial building investment did not proceed and, in circumstances which are contentious, the first named defendant applied some or all of the money towards a liquor importing venture the objective of which was to import liquor sourced in Dubai for sale in New Zealand. It would appear that the plaintiff agreed to part or all of the funding being diverted to the liquor importation scheme but the details of the terms upon which that was to be done are not clear and are not pleaded.

[7] The plaintiff asserts that in addition to the US $740,000 that she arranged for payments from third parties totalling US $258,561 to be paid on her behalf to the defendants for investment purposes. I will refer to these payments as “the third party payments”.

[8] The assertion which the plaintiff makes is that by February 2011 the total amount that had been invested or advanced was, after including the third party payments, US $998,551.

[9] The defendants do not accept that the payments from third parties were anything to do with the plaintiff. As I understand their position, they accept that while they did receive such payments they did so quite independently of the plaintiff. I understand that their argument is that the money was theirs and not the plaintiffs.

[10] The plaintiff’s counsel accepted that this was so. That the third party payments were…

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 554
Decision Date: 28 March 2017

CaseChat Overview and Summary

In Venkataswamy v Kodoor, the plaintiff, Shyla Venkataswamy, brought an action against the defendants, Murali Ganesh Kodoor and Geeta Murali Ganesh, in the New Zealand High Court, seeking recovery of funds allegedly owed to her. The defendants filed a protest to the jurisdiction of the Court and applied for the proceedings to be stayed or dismissed on the grounds that the New Zealand Court was not the appropriate forum, and the matter should be dealt with in the Republic of India. The court held that although there were some advantages to proceeding in India, particularly in relation to the evidence of the witnesses based in India, the defendants were not able to clearly demonstrate that India was the preferable venue. The court found that the overall factors were reasonably balanced, and that there were alternative means of taking the evidence of the witnesses in India, either by video link or by a letter of request. The court also noted that the procedures in India may not provide the same level of procedural rights as in New Zealand, and that the defendants were not able to show that substantial justice could be achieved in India. The application for a stay order was dismissed, and the parties were directed to consult on the question of costs.

Orders