JALALU KHAN MAQBOOL V JAYSHREE RATILAL PATEL HC AK CIV 2008-404-007915

JALALU KHAN MAQBOOL V JAYSHREE RATILAL PATEL HC AK CIV 2008-404-007915 30 January 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-007915BETWEEN JALALU KHAN MAQBOOL Applicant AND JAYSHREE RATILAL PATEL Respondent Hearing: 30 January 2009 Appearances: Applicant in person D Smith for Respondent Judgment: 30 January 2009ORAL JUDGMENT OF ASSOCIATE JUDGE ROBINSONSolicitors: Paxton-Penman, PO Box 5530, Auckland S Smith, Barrister, PO Box 3799, Auckland[1] Mr Maqbool brings these proceedings for orders under s 143 of the Land Transfer Act 1952 discharging notices of claim lodged by Miss Patel in respect of five properties. Those notices of claim were lodged under the Property (Relationships) Act 1976. Miss Patel is opposing the application on the ground that the application is an abuse of the Court's process because an application by Miss Patel for an order that the notices of claim do not lapse was heard by Judge Fleming in the Family Court at Auckland on 28 April 2006. [2] Mr Maqbool accepts that such application was heard and dealt with on that date. However, he seeks to persuade this Court to deal with his application because he says the continuation of the notices of claim are becoming burdensome. He claims that the continuation of the registration of these notices of claim prevents him from dealing with the properties. In particular, he points out that he is having difficulties meeting outgoings. Furthermore, he has been ordered to pay arrears of tax totaling just on $300,000 and will need to sell some of the properties to pay those arrears. He also seeks a direction that if the Court does not make orders removing the notices of claim, the Court should require Miss Patel to give undertakings as to any damages suffered by Mr Maqbool resulting from the continuation of registration of the notices of claim should the Court rule that there is no basis for the notices of claim continuing to be registered against the titles to the properties. [3] When the Family Court made orders directing that the notices of claim do not lapse, there were proceedings pending between Mr Maqbool and Miss Patel under the Property (Relationships) Act for the purposes of determining Miss Patel's interest in these properties. Those proceedings are still pending. At a hearing in October last year Judge Fleming made certain findings as to the duration of the de facto relationship between Miss Patel and Mr Maqbool. Following those findings, she directed the proceedings to be adjourned to the registrar's list in two weeks for discovery issues to be clarified and concluded her decision as follows:If those can be clarified and hopefully they can, then I would expect some directions would be made at the registrar's list to bring the matter to a conclusion either as has been indicated by way of allocation at a settlement conference or alternatively to set the matter down for hearing.Consequently, there are proceedings pending in the Family Court to determine the interest Miss Patel has in these properties. Furthermore, an application by Miss Patel for an order that her notices of claim do not lapse has been heard and determined in the Family Court. [4] Mr Maqbool attempted to raise, in support of his application events that have occurred since the decision of the Family Court directing that the notices of claim do not lapse. In particular, he attempted to persuade me that continuation of these notices of claim placed an unnecessary financial burden on him. However, he was very selective in the evidence he produced relating to that financial burden. Whilst he pointed out the continuing outgoings on the property including interest on a mortgage which he claimed to amount to $1 million, he gave no evidence of the income that was being generated from these properties. [5] Furthermore, whilst there may be some justification for Mr Maqbool claiming that Miss Patel should be liable for some of his income tax on the basis that the tax was earned on income during the relationship and thus becomes a relationship debt, he may have some difficulties in persuading a Court that penalties imposed on him for not paying his tax are also a relationship debt. Be that as it may, there may very well be an injustice to Miss Patel if I grant Mr Maqbool's application to enable him to sell property to pay his personal tax which is an unsecured debt and which may not be a debt that should be paid from any share Miss Patel has in these properties. [6] I am satisfied that the bringing of these proceedings is clearly an abuse of process because the issue in these proceedings has already been determined by the Family Court when the decision was made that the notices of claim do not lapse. As an example of the way in which the bringing of this application was an abuse of process, I need only refer to Mr Maqbool's complaint relating to Miss Patel lodging these notices of claim after she had received payment pursuant to an agreement he says was drawn up between the parties. That issue was clearly before Judge Fleming. She dealt with it in the judgment she delivered on 28 April 2006 when she, at paragraph [8], referred to the payments that were made to Miss Patel following that agreement. What Mr Maqbool seeks is really an order determining that JudgeFleming was wrong. Clearly this Court cannot sit on appeal from Judge Fleming in these proceedings. Mr Maqbool apparently did not appeal the decision of Judge Fleming. It is a decision binding on the parties. The situation I am faced with is similar to the situation referred to in the English Court of Appeal in Buckland v Palmer [1984] 3 All ER 554. The effect of that decision is summarised in the headnote which states:It was an abuse of the process of the Court to bring two actions in respect of the same cause of action but where there had been no judgment in the first action that action could in appropriate circumstances be revived and amended to enable an adjudication to be made on the whole of the plaintiff's claim.[7] In this case, Mr Maqbool is bringing an application to this Court relating to continuation of registration of notices of claim where the Family Court has already ruled that those notices of claim should not lapse. They are, it seems clear, two proceedings based on the same circumstances and in effect seeking the same relief. The only difference being that in the Family Court it was Miss Patel who sought continuation of the notices of claim whereas in this Court Mr Maqbool is seeking the notices of claim be discharged. [8] Consequently, I conclude that the proceedings should be dismissed as being vexatious and an abuse of the Court's process. In any event, I doubt whether this Court would grant the relief sought by Mr Maqbool even if there had been no proceedings resulting in the notices of claim continuing in the Family Court. I say that because there is clear evidence establishing the basis for Miss Patel seeking an interest in the properties which justify the registration of notices of claim under the Property (Relationships) Act and there are proceedings pending in the Family Court to resolve the claim by Miss Patel to an interest in those properties. [9] There is no suggestion that Miss Patel is not pursuing those proceedings with due diligence. The Family Court has indicated that the proceedings should be allocated either a settlement conference or a hearing as soon as possible. There appears to have been some problem with regard to discovery but there is nothing before me to indicate that these notices of claim should be discharged because of any delay in bringing the proceedings in the Family Court on for hearing. Furthermore, ifMr Maqbool considers that circumstances have now changed and relief should be granted to him then he should bring further information relating to the income being received from the properties. It may be that to preserve the properties and to avoid a forced sale Miss Patel would agree to a sale of one or more of the properties with appropriate safeguards to ensure that her interest in the properties is protected. However, as I have already indicated, I conclude that this application is vexatious and an abuse of the Court process and consequently the application is dismissed. Miss Patel is entitled to costs on a 2B basis with disbursements as fixed by the registrar. ________________________Associate Judge Robinson