SHARMA & ORS v MUNDATH & ORS [2019] NZHC 705

SHARMA & ORS v MUNDATH & ORS [2019] NZHC 705

Leave to file a statement of defence was granted because the second defendant articulated an arguable defence that puts the plaintiffs to proof, the explanation for delay (counsel error) was accepted and the plaintiffs would not suffer irreparable injury from permitting a defence; delay alone was not fatal and costs were awarded to the plaintiffs on a 2B basis.

Citation
[2019] NZHC 705
Parties
Plaintiffs: Data Ram Sharma and Ganesh Dixit as Trustees of the Sharma Family Trust and 33 others; First Defendant: Mujeeb Rahiman Mundath; Second Defendant: Afsheen Mujeeb; Third Defendant: Fulcrum Management Construction Limited; Fourth Defendant: Mudra Investments NZ Limited; Fifth Defendant: Sujin Hwang; Sixth Defendant: Koyama Pty Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 April 2019
Procedural Posture
Civil – Claims for Recovery of Funds (breach of Fiduciary Duty, Deceit, Knowing Receipt, Money Had and Received) / Application for Leave to File Statement of Defence (formal Proof Listing)
Outcome
Leave granted to second defendant Afsheen Mujeeb to file a statement of defence and to defend the claim
Legal Topics
Leave to File Defence, Knowing Receipt, Breach of Fiduciary Duty, Summary Judgment, Change of Position, Section 74 B Property Law Act 2007
Civil Procedure Equity Property Law Trusts Restitution Leave to File Defence Knowing Receipt Breach of Fiduciary Duty +3 more

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Parties

Data Ram Sharma and Ganesh Dixit as Trustees of the Sharma Family Trust and 33 others

Plaintiffs

Mujeeb Rahiman Mundath

First Defendant

Afsheen Mujeeb

Second Defendant

Fulcrum Management Construction Limited

Third Defendant

Mudra Investments NZ Limited

Fourth Defendant

Sujin Hwang

Fifth Defendant

Koyama Pty Limited

Sixth Defendant

Procedural Posture

Civil – Claims for Recovery of Funds (breach of Fiduciary Duty, Deceit, Knowing Receipt, Money Had and Received) / Application for Leave to File Statement of Defence (formal Proof Listing)

Legal Issues

  1. 1 Whether the second defendant should be granted leave to file a statement of defence under r 15.9(3) High Court Rules 2016
  2. 2 Whether the defendant has a substantial ground of defence
  3. 3 Whether the delay in filing a defence is reasonably explained

Ratio Decidendi

Leave to file a statement of defence was granted because the second defendant articulated an arguable defence that puts the plaintiffs to proof, the explanation for delay (counsel error) was accepted and the plaintiffs would not suffer irreparable injury from permitting a defence; delay alone was not fatal and costs were awarded to the plaintiffs on a 2B basis.

Court Disposition

Leave granted to second defendant Afsheen Mujeeb to file a statement of defence and to defend the claim

Orders

  • Leave granted to the second defendant to file a statement of defence
  • Plaintiffs awarded costs on a 2B basis to be fixed by the Registrar