CHINAPPA v NARAIN [2022] NZCA 259

CHINAPPA v NARAIN [2022] NZCA 259 [22 June 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA526/2021[2022] NZCA 259BETWEEN AJNESH NARAIN CHINAPPA andVILASHNI VANDANA CHINAPPAAppellantsAND ANGELINE DEEP NARAINFirst RespondentKANIAMMA WINTERSecond RespondentCourt: Kós P, Woolford and Dunningham JJCounsel: NTC Batts and OCS Rose for AppellantsASR Kashyap, SYY Yong and SCR Raju for RespondentsJudgment:(On the papers)22 June 2022 at 9 amJUDGMENT OF THE COURTA The application to correct the judgment of this Court issued on 12 May 2022is allowed in part.B Paragraphs [15] and [76] are corrected by replacing the date "23 July 2012"with "3 December 2012".C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] On 12 May 2022 we delivered a judgment allowing, in part, the appellants'appeal as to the entitlement of the first respondent to an interest in a residentialproperty at 7 Ferndown Avenue, Papatoetoe.1[2] In that judgment we held that the appellants held a 20 per cent share of thefull market value of the property on constructive trust for the first respondent.2This departed from the High Court's decision, which held the first respondent wasentitled to a 50 per cent share of the net value of the property.3 We also ordered thatthe appellants pay the first respondent occupation rental for the period since she wasrequired to leave the property, which we recorded as being from 23 July 2012.4The appellants' application[3] The appellants apply for correction of our decision on those two issues relyingon r 8 of the Court of Appeal (Civil) Rules 2005. Rule 8 provides relevantly:8 Correction of accidental slip or omission(1) This rule applies if—(a) any judgment or order contains, or the reasons for anyjudgment or order contain, a clerical mistake or an errorarising from an accidental slip or omission, whether or notmade by an officer of the Court; or(b) any judgment or order is drawn up in a way that does notexpress what was actually decided and intended.(2) The Court or the Registrar may correct the judgment or order or thereasons for the judgment or order on—(a) the Court's or Registrar's own initiative; or(b) an informal application made for that purpose.[4] The appellants say the date from which occupation rental was ordered to run isincorrect as it does not reflect the date the first respondent actually left the property.They apply pursuant to r 8(1)(a) for a correction of the judgment at [15] and [76] byreplacing the date "23 July 2012" with "3 December 2012".1 Chinappa v Narain [2022] NZCA 183.2 At [76].3 Narain v Chinappa [2021] NZHC 1886.4 Chinappa v Narain, above n 1, at [76].[5] In relation to the finding as to what share of the property the appellants holdon constructive trust for the first respondent, the appellants apply for correction of thejudgment pursuant to r 8(2)(b) on the basis that the Court's decision that thefirst respondent is entitled to 20 per cent of the "full market value" of the propertydoes not express what was actually decided and intended.[6] The appellants say the judgment as currently worded appears inconsistent withthe Court's earlier recognition that, as a 20 per cent owner, the first respondent wouldbear some responsibility in relation to the property. In particular they refer to [65] ofthe judgment where we said: we are not satisfied [the first respondent's] indirect contribution to theproperty was materially greater than the [appellants'] such that it warrantedan adjustment from a 20 per cent interest to a 50 per cent interest in the netvalue, as was done by the Judge.They say the correct position would recognise that the first respondent is partlyresponsible for expenses and liabilities arising from the property, including for themortgage and any sale costs.The respondents' position[7] The respondents accept there should be correction of the judgment at [15] and[76] by replacing the date "23 July 2012" with "3 December 2012".[8] However, in respect of the decision to award the first respondent an interest inthe property representing 20 per cent of the "full market value", the respondents do notconsider the judgment needs amendment. The respondents note that at [65] of thejudgment, this Court expressly departed from the reasoning of Hinton J. Instead weconcluded that the starting point for calculating the first respondent's interest in theproperty was her direct financial contribution, which was 20 per cent of the purchaseprice, and her indirect contributions did not warrant an uplift to that share.[9] The respondents also note that the judgment does not have the effect ofremoving any responsibility of the first respondent for expenses or liabilities arisingfrom any sale of the property. If, in fact, the property is sold, that would need to beresolved between the parties at the time of an agreed sale of the property or by theHigh Court as part of any sale order.Discussion[10] We accept that the date referred to at [15] and [76] of the judgment wasintended to be the date the first respondent was no longer able to occupy the property.Accordingly, as sought, we correct the judgment at those paragraphs pursuant tor 8(1)(a), by replacing the date "23 July 2012" with "3 December 2012".[11] However, we decline to amend the judgment in respect of the share that theappellants hold on constructive trust for the first respondent. We determined that thefirst respondent's share in the property should equate to her financial contribution tothe acquisition of the property. That represented a 20 per cent contribution.The appellants contributed 80 per cent, albeit that was funded solely throughborrowings. It is only proper therefore that the appellants should maintainresponsibility for repayment of those borrowings and the first respondent should haveno obligation in that regard.[12] For completeness, our decision awarding the first respondent a 20 per centinterest in the full market value of the property does not have the effect of removingresponsibility for expenses or liabilities arising on any sale of the property. Should theproperty be sold, the parties would need to determine how the costs of sale should beapportioned, although the obvious starting point would be that they are shared 20:80by the first respondent and the appellants respectively.Result[13] The application to correct the judgment of this Court issued on 12 May 2022on is allowed in part.[14] Paragraphs [15] and [76] are corrected by replacing the date "23 July 2012"with "3 December 2012".[15] There is no order for costs.Solicitors:Haigh Lyon Lawyers, Auckland for AppellantsAaron Kashyap, Auckland for Respondents