ASH v SINGH [2019] NZHC 2878

ASH v SINGH [2019] NZHC 2878

Application dismissed because the balance of convenience favoured refusing a separate priority trial: a decision on the first cause of action was unlikely to finally resolve the litigation (the third cause of action alleging unauthorised loans would survive), a preliminary hearing risked derailing the scheduled 2021 trials because appeals were likely and unlikely to be resolved in time, credibility issues were better assessed by a single judge hearing all evidence, and the plaintiff would be prejudiced by needing to attend multiple hearings.

Citation
[2019] NZHC 2878
Parties
Plaintiff: Gabriel Sebastian Ash; First Defendant: Mahendra Singh as Trustee of the Shean Singh Family Trust; Second Defendant: Geoffrey Hugh Bourchier as Trustee of the Shean Singh Family Trust; Third Defendant: Darsan Singh as Trustee of the Shean Singh Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 November 2019
Procedural Posture
Application Under the Trustee Act 1956 and Inherent Jurisdiction for Removal/substitution of Trustees and Rectification of Trust Deed / Interlocutory Application for a Separate/prior Trial of the Plaintiff's First Cause of Action (application Heard 1 November 2019 and Dismissed)
Outcome
Application to determine the plaintiff's first cause of action in priority dismissed
Legal Topics
Rectification of Trust Deed, Variation of Trust, Removal and Substitution of Trustees, Constructive Trust, Trustee Maladministration, Separate Trials / Severance of Issues
Trusts Equity Civil Procedure Property Law Rectification of Trust Deed Variation of Trust Removal and Substitution of Trustees Constructive Trust +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Gabriel Sebastian Ash

Plaintiff

Mahendra Singh as Trustee of the Shean Singh Family Trust

First Defendant

Geoffrey Hugh Bourchier as Trustee of the Shean Singh Family Trust

Second Defendant

Darsan Singh as Trustee of the Shean Singh Family Trust

Third Defendant

Procedural Posture

Application Under the Trustee Act 1956 and Inherent Jurisdiction for Removal/substitution of Trustees and Rectification of Trust Deed / Interlocutory Application for a Separate/prior Trial of the Plaintiff's First Cause of Action (application Heard 1 November 2019 and Dismissed)

Legal Issues

  1. 1 Whether the 1996 Deed of Variation adding Mrs Darsan Singh as beneficiary was valid or capable of rectification
  2. 2 Whether the Court should order a separate/priority two-day trial of the plaintiff's first cause of action under r 10.4 High Court Rules 2016
  3. 3 Whether determination of the first cause of action would dispose of or substantially reduce the issues in the overall litigation

Ratio Decidendi

Application dismissed because the balance of convenience favoured refusing a separate priority trial: a decision on the first cause of action was unlikely to finally resolve the litigation (the third cause of action alleging unauthorised loans would survive), a preliminary hearing risked derailing the scheduled 2021 trials because appeals were likely and unlikely to be resolved in time, credibility issues were better assessed by a single judge hearing all evidence, and the plaintiff would be prejudiced by needing to attend multiple hearings.

Court Disposition

Application to determine the plaintiff's first cause of action in priority dismissed

Orders

  • Application dismissed
  • Costs: costs against the trustees (calculated on a 2B basis) are abated by 40% on the sum otherwise prescribed; if there is any dispute as to quantification, memoranda may be filed