Bains v Singh - [2023] NZHC 3316

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-004-1422

[2023] NZHC 3316

BETWEEN
GURWINDER S BAINS

Plaintiff

AND

HARNEK SINGH

Defendant

Hearing: On the papers

Appearances:

Peter McKnight/Ali J Romanos for the Plaintiff Robert Stewart/Neville Woods for the Defendant

Judgment:

23 November 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 23 November 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Langford Law (J A Langford), Wellington, for the Plaintiff Rice Craig (Neville Woods), Papakura, for the Defendant

Counsel:
Peter A McKight/Ali J Romanos, Wellington for the Plaintiff
Robert Stewart, Shortland Chambers Auckland, for the Defendant

GURWINDER S BAINS v HARNEK SINGH [2023] NZHC 3316 [23 November 2023]

Introduction

[1] On 23 June 2023 the Court delivered a judgment1 (the Judgment), on the plaintiff’s application for leave to appeal the decision of this Court delivered on 28 February 2023 dismissing the plaintiff’s application to strike out.2

[2] The plaintiff‘s application for leave to appeal the Judgment to the Court of Appeal was granted and the Court’s preliminary view was that costs should follow the event and accordingly the plaintiff was entitled to costs on a 2B basis against the defendant. Counsel were directed to endeavour to agree costs and file memoranda if costs could not be agreed.

[3] Costs were not agreed and counsel for the plaintiff filed a memorandum dated 6 July 2023, and counsel for the defendant filed a response dated 13 July 2023. The Court apologises for the delay in dealing with this issue as the matter has only just been referred to me.

Plaintiff’s submissions

[4] Mr Romanos, for the plaintiff, summarises the defendant’s ground for resisting costs as being that the defendant successfully opposed the plaintiff’s strike-out application. Mr Romanos submits that the issue of costs on the original strike-out application has no bearing on costs on the plaintiff’s application for leave, and this provides no basis for the defendant to oppose costs being awarded to the plaintiff. He submits the leave application is a separate interlocutory application to the original strike-out application, involving separate criteria.

[5] Mr Romanos submits the defendant could have consented to leave to appeal, whilst reserving his right to argue that the appeal should be dismissed, but he contested the leave application exposing him to the costs the plaintiff now claims.

1 Bains v Singh [2023] NZHC 1566.
2 Bains v Singh [2023] NZHC 332.

[6] Mr Romanos refers to the decision of the The Gama Foundation v Fletcher Steel Limited,3 where the appellant, The Gama Foundation, obtained special leave from the Court of Appeal against the decision of the High Court declining leave to appeal an arbitral award. He submits when The Gama Foundation obtained special leave it was awarded costs and, although the appeal ultimately failed, the Court of Appeal did not reverse the costs award in respect…

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 Bains v Singh

Details

AGLC: Bains v Singh [2023] NZHC 3316
Case: [2023] NZHC 3316
Decision Date: 23 November 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Bains v Singh involved Gurwinder S Bains as the plaintiff and Harnek Singh as the defendant. The dispute originated from an application by the plaintiff to strike out parts of the defendant's defence, which was subsequently dismissed. The plaintiff then applied for leave to appeal this decision, which was granted. The primary focus of the court's consideration was the issue of costs associated with these legal proceedings.

The central legal issues the court needed to address were the determination of costs for the plaintiff's successful application for leave to appeal and whether these costs should be calculated separately from those related to the unsuccessful strike-out application. Additionally, the court had to decide if the defendant's successful opposition to the strike-out application should offset the plaintiff's entitlement to costs on the leave application. Another consideration was whether the plaintiff should be awarded costs for preparing the costs memorandum due to the defendant's lack of a sound basis in opposing these costs.

The court ruled that the plaintiff was entitled to costs on a 2B basis for the successful application for leave to appeal. The court found it appropriate to assess costs separately for the defendant's successful opposition to the strike-out application and the plaintiff's successful leave to appeal application. The court also determined that the plaintiff should be awarded the costs of preparing the costs memorandum as the defendant's opposition to these costs lacked a sound basis. The court further directed that if the parties wished to have the costs of the strike-out application fixed, they should file memoranda regarding these costs within 10 working days of the judgment.

The final orders of the court mandated that the defendant pay the plaintiff costs amounting to $8,604.00, plus disbursements of $250.00. Additionally, if the defendant did not provide an undertaking to pay the costs of sealing the costs order within five days, they would be required to pay an additional $50.00 in sealing costs and an accompanying disbursement of $50.00.

Orders