Chinappa v Narain [2022] NZCA 259 (22 June 2022)

Last Updated: 29 June 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA526/2021 [2022] NZCA 259

	BETWEEN	AJNESH NARAIN CHINAPPA and VILASHNI VANDANA CHINAPPA Appellants
	AND	ANGELINE DEEP NARAIN First Respondent
	AND	KANIAMMA WINTER Second Respondent

Court:	Kós P, Woolford and Dunningham JJ
Counsel:	NTC Batts and OCS Rose for Appellants ASR Kashyap, SYY Yong and SCR Raju for Respondents
Judgment: (On the papers)	22 June 2022 at 9 am

JUDGMENT OF THE COURT

1. The application to correct the judgment of this Court issued on 12 May 2022 is allowed in part.
2. Paragraphs [15] and [76] are corrected by replacing the date “23 July 2012” with “3 December 2012”.

100. There is no order for costs.

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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 residential property at 7 Ferndown Avenue, Papatoetoe.^[1]
• [2] In that judgment we held that the appellants held a 20 per cent share of the full market value of the property on constructive trust for the first respondent.^[2] This departed from the High Court’s decision, which held the first respondent was entitled to a 50 per cent share of the net value of the property.^[3] We also ordered that the appellants pay the first respondent occupation rental for the period since she was required to leave the property, which we recorded as being from 23 July 2012.^[4]

The appellants’ application

• [3] The appellants apply for correction of our decision on those two issues relying on 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 any judgment or order contain, a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the Court; or

(b) any judgment or order is drawn up in a way that does not express what was actually decided and intended.

(2) The Court or the Registrar may correct the judgment or order or the reasons 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 is incorrect 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] by replacing the date “23 July 2012” with “3 December 2012”.
• [5] In relation to the finding as to what share of the property the appellants hold on constructive trust for the first respondent, the appellants apply for correction of the judgment pursuant to r 8(2)(b) on the basis that the Court’s decision that the first respondent is entitled to 20 per cent of the “full market value” of the property does not express what was actually decided and intended.
• [6] The appellants say the judgment as currently worded appears inconsistent with the Court’s earlier recognition that, as a 20 per cent owner, the first respondent would bear some responsibility in relation to the property. In particular they refer to [65] of the judgment where we said:

... we are not satisfied [the first respondent’s] indirect contribution to the property was materially greater than the [appellants’] such that it warranted an adjustment from a 20 per cent interest to a 50 per cent interest in the net value, as was done by the Judge.

They say the correct position would recognise that the first respondent is partly responsible for expenses and liabilities arising from the property, including for the mortgage 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 in the property representing 20 per cent of the “full market value”, the respondents do not consider the judgment needs amendment. The respondents note that at [65] of the judgment, this Court expressly departed from the reasoning of Hinton J. Instead we concluded that the starting point for calculating the first respondent’s interest in the property was her direct financial contribution, which was 20 per cent of the purchase price, 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 of removing any responsibility of the first respondent for expenses or liabilities arising from any sale of the property. If, in fact, the property is sold, that would need to be resolved between the parties at the time of an agreed sale of the property or by the High Court as part of any sale order.

Discussion

• [10] We accept that the date referred to at [15] and [76] of the judgment was intended 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 to r 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 the appellants hold on constructive trust for the first respondent. We determined that the first respondent’s share in the property should equate to her financial contribution to the acquisition of the property. That represented a 20 per cent contribution. The appellants contributed 80 per cent, albeit that was funded solely through borrowings. It is only proper therefore that the appellants should maintain responsibility for repayment of those borrowings and the first respondent should have no obligation in that regard.
• [12] For completeness, our decision awarding the first respondent a 20 per cent interest in the full market value of the property does not have the effect of removing responsibility for expenses or liabilities arising on any sale of the property. Should the property be sold, the parties would need to determine how the costs of sale should be apportioned, although the obvious starting point would be that they are shared 20:80 by the first respondent and the appellants respectively.

Result

• [13] The application to correct the judgment of this Court issued on 12 May 2022 on 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 Appellants
Aaron Kashyap, Auckland for Respondents

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^[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].