Werder v Singh (aka Lyons) - [2023] NZHC 853

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2160

[2023] NZHC 853

BETWEEN
IAN KEVIN WERDER

Plaintiff

AND

ROSHYN SINGH (LYONS)

First Defendant

RAJESHWARI SINGH (GOSAI)
Second Defendant

ROSHYN SINGH LYONS TRUSTEE COMPANY LIMITED
Third Defendant

JAG SAI RAJ TRUSTEE COMPANY LIMITED

Fourth Defendant

Hearing: 14 March 2023

Appearances:

P McCutcheon for Plaintiff

A R Gilchrist for First Defendant M Singh for Third Defendant

Judgment:

21 April 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

This Judgment was delivered by me on 21 April 2023 at 12:30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: …..

WERDER v SINGH [2023] NZHC 853 [21 April 2023]

[1] Over the last 25 years or so, Ian Werder (Mr Werder), Roshyn Singh (Mr Lyons) and Rajeshwari Gosai (Ms Gosai) have had, to say the least, an involved relationship. That relationship saw Mr Werder and Mr Lyons owning a property in Calgary Street, Auckland and the parties having what is said by Mr Lyons to have been in a limited joint venture enterprise involving two residential properties in Ōtāhutu (Nikau Road and Park Avenue Road). At one point, the parties were flatmates and Mr Lyons and Ms Gosai were married between 1996 and 2013, when they were known as Mr and Mrs Singh.

[2] Mr Werder claims there was also a long running joint venture between the three of them in relation to the acquisition of a number of residential properties in Auckland, beyond the limited joint venture referred to above. Mr Werder claims the joint venture began in 1997 and he relies on a signed document dated 31 January 1997, the status of which is controversial. There are two further documents relied on by Mr Werder to support the existence of a broad joint venture. These are referred to below; one from 2000 and one from 2003.

[3] This proceeding was set down in November 2022 for a five-day hearing commencing in August 2024.

[4] Two applications are before the Court. The first is the defendants’ application for security for costs and the second is an application by Mr Werder for further discovery and to address issues of privilege and the redaction of discovery documents by the defendants.

Calgary Street

[5] The Calgary St property was purchased by Mr Werder and Mr Lyons in 1994 as tenants in common. They held the property together until 1997. Mr Lyons and Ms Gosai were married in 1996.

[6]In 1997, Mr Werder transferred his half-share in the property to Mr Lyons for

$1.00. The solicitor acting for Mr Lyons obtained from Mr Werder a document recording that Mr Werder had been advised to seek independent advice but that he waived his…

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 Werder v Singh (aka Lyons)

Details

AGLC: Werder v Singh (aka Lyons) [2023] NZHC 853
Case: [2023] NZHC 853
Decision Date: 21 April 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an application for security for costs and an application for further discovery in the case of Werder v Singh [2023] NZHC 853. The plaintiff, Ian Werder, claimed against the defendants, Roshyn Singh, Rajeshwari Gosai, and two trusts established by the Singhs, for a share in a joint venture involving several residential properties in Auckland. The defendants applied for security for costs and opposed Mr Werder’s application for further discovery and to address issues of privilege and the redaction of discovery documents.

The court assessed the merits and prospects of success of Mr Werder’s claim against each defendant. The court found that the claim against Roshyn Singh had a reasonable prospect of success in terms of liability, but faced difficulties in terms of quantum. The claim against Rajeshwari Gosai was weaker in terms of liability. The court ordered that Mr Werder was to pay security for costs in the sum of $40,000 in favour of Rajeshwari Gosai, while declining Roshyn Singh’s application for security for costs.

Regarding the discovery application, the court ordered that Rajeshwari Gosai should disclose how much of the relationship property settlement she received went into the Netherton St property. The court also directed that certain redactions in trust account ledger printouts discovered by Rajeshwari Gosai be removed to reveal the value of the deductions, while maintaining confidentiality regarding the narrations as to what the funds were applied to. The court further directed that Mr Lyons and Rajeshwari Gosai were to co-operate in obtaining or compiling a copy of the material on their Family Court file, including any transcript of evidence, and to assess the material for relevance to the proceeding. The costs of the above applications were reserved.

Orders