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Maqbool v Patel HC Auckland CIV 2010-404-6332 [2010] NZHC 2142 (9 November 2010)

Last Updated: 13 December 2010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-006332}

BETWEEN JALALUDIN KHAN MAQBOOL Plaintiff

AND JAYSHIREE RATILAL PATEL Defendant

Hearing: 9 November 2010

Appearances: J K Maqbool, Plaintiff in person

S A Connolly for Defendant

Judgment: 9 November 2010

_{ORAL JUDGMENT OF ASSOCIATE JUDGE BELL}

Solicitors/Counsel:

Paxton-Penman et al, PO Box 5530, Auckland

S A Connolly, PO Box 1348, Shortland Street, Auckland

Copy to:

_{J K Maqbool (Plaintiff in person), 14 Thomas Road, Mangere}

J K MAQBOOL V J R PATEL HC AK CIV-2010-404-006332 9 November 2010

[1] The plaintiff has applied for summary judgment. His statement of claim says that he and the defendant lived in a de facto relationship over two separate periods, one from either the late 1980s or early 1990s up to 1998, and again from January

2001 to March 2003. They have one child from that relationship. The statement of claim goes on to say that between the late 1980s and 2003, six properties were acquired, four in the plaintiff’s name, one in the defendant’s name, and one jointly owned. The statement of claim says that during the first period of the relationship, the family lived in a Ranfurly Road property purchased by Mr Maqbool. It goes on to say that during the second period, the parties lived in a property in Alba Street which had been purchased by the defendant. During both periods, the plaintiff contributed directly and indirectly to the relationship and the relationship property.

[2] Paragraph 7 of the statement of claim says that Wylie J made orders in favour of the defendant on her application about these properties that have been owned by the plaintiff. This is a decision given under CIV-2009-404-7323. I will come back to that decision shortly.

[3] In paragraph 8 of his statement of claim, the plaintiff says that the Alba Street property is relationship property because the parties lived in it with their child during the second de facto relationship period until the separation date and he contributed directly and indirectly towards the property and therefore had an interest in the property. In his prayer for relief, he seeks a determination as to the shares of the plaintiff and the defendant in relationship property and property held in trust. After discussion with him, it appears that he is directing that particular allegation at the Alba Street property. He also seeks an order vesting specific items of property in the plaintiff or the defendant in such shares as the Court thinks fit, and seeks further other orders.

[4] As is apparent, there have already been proceedings between the parties. These led to the decision of Wylie J in this Court in the judgment given on 27 May

2010.

[5] It appears that in the beginning proceedings had been launched in the Family

Court for a division of property but were transferred to this Court. That was done

because part of the property issues between the parties related to the first de facto relationship period which was entirely before the Family Court had the jurisdiction to determine the division of property between people who had lived in a de facto relationship. Those matters fell instead within the jurisdiction of this Court applying equitable principles as in cases such as Gillies v Keogh [1989] 2 NZLR 327 (CA). So this Court heard the parties’ claims to a division of the property under both rules of equity in force before 1 February 2002 and also under the Property (Relationships) Act which came into force as regards de facto relationships on 1

February 2002.

[6] In the course of that decision, Wylie J considered the parties’ respective claims to the assets in question. In paragraphs [95]–[98], Wylie J dealt with the Alba Street property.

[7] In paragraph [98] Wylie J stated his conclusions about Alba Street:

Mr Maqbool has made no contribution to Alba Street, either directly or indirectly. He does not claim to have done so. There cannot be any constructive trust in his favour. This property belongs in its entirety to Ms Patel.

[8] From his submissions today, I gather that Mr Maqbool wishes to establish that he did make contributions to that property and those contributions gave him some interest in the property. For him to be able to pursue that claim would involve the Court hearing again matters that were clearly in issue before Wylie J. This is where the doctrines known as res judicata and abuse of process apply. In effect, in this proceeding, the defendant is asking this Court to look again at the matters that have already been decided by Wylie J. When the Court has already made findings, the Court has jurisdiction to make those findings and those findings are final, then no other court is entitled to look at them again except on where there is an appeal. It is certainly not open to Mr Maqbool to start a fresh proceeding in this Court again, asking this Court to make new determinations as to his interests in the Alba Street after Wylie J has already determined that it belongs entirely to the plaintiff.

[9] Accordingly, I find that the present statement of claim cannot succeed and certainly there is no basis on which Mr Maqbool can apply for summary judgment.

[10] Indeed, I would also add that, even if there had not been the decision of Wylie J, an application for division of relationship property is not something normally suitable for a summary judgment application. Summary judgment applications require wide considerations of a large number of facts and it is invariably difficult to make determinations which would allow summary judgment to be entered.

[11] Accordingly, I am dismissing this application for summary judgment. This means that the proceeding still remains alive. It may be that Mr Maqbool ought to take legal advice as to what further steps should be taken in relation to the proceeding. I am not going to suggest that he can improve his case by amendment but it may be that there are some matters he could pursue – not that I am suggesting that. It is not appropriate that I strike out this claim immediately. That can await a later day, if that course is appropriate.

[12] The case will be allocated a case management conference in the New Year. In the meantime, the parties should each consider their positions.

[13] On the present application, the defendant is entitled to costs on a 2B basis. The defendant may file a memorandum setting out the costs she seeks.

[14] Mr Connolly has asked for solicitor/client costs. While the present proceeding appears to be misconceived, in my view it would be going over the top against Mr Maqbool to increase costs above the ordinary 2B basis. In part, that is because I have tried to deal with this matter as quickly and efficiently as possible so

_{that the defendant has not been exposed to needless time in this Court.}

R M Bell

Associate Judge