Ash v Singh - [2018] NZHC 224

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-589 [2018] NZHC 224

BETWEEN
GABRIEL SEBASTIAN ASH

Plaintiff

AND

MAHENDRA SINGH as trustee of the

SHEAN SINGH FAMILY TRUST First Defendant

GEOFFREY HUGH BOURCHIER Second Defendant

DARSAN SINGH Third Defendant

Hearing: On the papers

Appearances:

R J Thompson for Plaintiff
A R Gilchrist for all Defendants

Judgment:

26 February 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 26 February 2018 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Patterson Hopkins (W M Patterson), Auckland, for the Plaintiff
Kiely Thompson Caisley for the Defendants

Copy for:
Richard J Thompson, Auckland, for the Plaintiff
A R Gilchrist, Auckland, for the Defendants,

ASH v SINGH as trustee of the SHEAN SINGH FAMILY TRUST [2018] NZHC 224 [26 February 2018]

[1] In my judgment of 24 November 20171 I found substantially for the plaintiff on his summary judgment application for the first cause of action, dismissed his summary judgment application for the fourth cause of action, dismissed the defendants’ application for security for costs and declined to refer the proceeding for a judicial settlement conference. The defendants have appealed against my judgment, but that is not a reason for putting off deciding costs. Costs should be decided promptly. Any error in fixing costs can be corrected on the appeal now pending.

[2] Counsel have filed memoranda as to costs, as directed. There are two cost questions:

(a) What order for costs should be made in favour of the plaintiff?

(b)What orders should be made for costs incurred by the defendant trustees in the proceeding?

[3] In the prayers for relief to the first and fourth causes of action in his statement of claim, the plaintiff sought orders that the trustees pay costs personally and that they not be indemnified from the trust assets for their part of any costs they are ordered to pay the plaintiff. The plaintiff’s costs submission altered that slightly, seeking an order for the defendants personally to pay increased costs, and to the extent that any order for costs made under Part 14 of the High Court Rules was less than his actual and reasonable costs, he should receive a top-up from the trust fund. He also sought an order that the defendants not be entitled to any indemnity from the trust fund for their own costs in the proceeding or for any costs they are ordered to pay the plaintiff.

[4] For the defendants, Mr Gilchrist says that the plaintiff is entitled to recover his actual and reasonable costs but only for the period from 27 June 2017, and only for
the primary application on which he succeeded.

1 Ash v Singh [2017] NZHC 2909.

[5] Mr Thompson advises that the plaintiffs’ actual and reasonable costs are

$35,414.00 in fees, exclusive of GST. While his written submission refers to a summary in a table,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ash v Singh

Details

AGLC: Ash v Singh [2018] NZHC 224
Case: [2018] NZHC 224
Decision Date: 26 February 2018

CaseChat Overview and Summary

Gabriel Sebastian Ash, the plaintiff, filed a lawsuit against Mahendra Singh as trustee of the Shean Singh Family Trust and others, resulting in the case of Ash v Singh. The legal dispute revolves around the validity of a deed of variation and the proper administration of the trust assets. The High Court of New Zealand heard the case, and Associate Judge R M Bell delivered the judgment on 26 February 2018.

The primary legal issues addressed in this case are the costs associated with the proceedings, including the period for which the plaintiff should recover actual solicitor-client costs, the specific work for which the plaintiff should recover costs, and the allocation of the burden of the costs order. The court examined whether the plaintiff, a beneficiary, is entitled to have his costs paid for the first cause of action, which was necessary for the administration of the trust. Furthermore, the court deliberated on whether the trustees could recover their costs from the trust assets for the second and third causes of action, which involved disputes between beneficiaries.

The court's reasoning and outcome determined that the plaintiff is entitled to recover his actual and reasonable costs for the first cause of action, which is necessary for the administration of the trust. The plaintiff's costs for the second, third, and fourth causes of action are to be apportioned, and he should file further evidence to facilitate the apportionment. The plaintiff is also entitled to costs against the trustees personally for the applications for a judicial settlement conference and for security for costs. However, the trustees are not entitled to indemnity from the trust assets for their costs incurred in the proceeding. The court reserved the right to apply for further directions.

In summary, the court ordered that the plaintiff recover his actual and reasonable costs for the first cause of action, with costs against the trustees who may indemnify themselves out of the trust assets. The plaintiff is also to receive costs against the trustees personally for the applications for a judicial settlement conference and for security for costs, which may not be indemnified from trust assets. The court reserved the right to apply for further directions.

Orders