Bhargav v First Trust Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-001260

[2023] NZHC 1086

BETWEEN

AMEET BHARGAV and RENU KHAJURIA

Plaintiffs

AND

FIRST TRUST LIMITED

First Defendant

DAVINDER SINGH RAHAL
Second Defendant

continued overleaf…

Hearing:

On the papers

Appearances:

S E Wroe & B M Foster for the Plaintiffs

A R B Barker KC (via VMR) & A Grant for the First & Second Defendant

M R T Colthart & B Sanders for the Third & Fourth Defendants N K Dhaliwal for the Fifth & Sixth Defendants

Judgment:

8 May 2023

JUDGMENT OF TAHANA J

[Costs of applications to set aside formal proof judgment]

This judgment was delivered by me on 8 May 2023 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

BHARGAV v FIRST TRUST LIMITED [Costs of applications to set aside formal proof judgment] [2023] NZHC 1086 [8 May 2023]

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AND

METSONS (NZ) LIMITED

Third Defendant

VINAY MEHTA
Fourth Defendant

LOCAL REALTY LIMITED

Fifth Defendant

GURBIR SINGH BAL

Sixth Defendant

Solicitors/Counsel:

Eldon Chambers
Grant & Co, Auckland

Andrew Barker KC, Auckland (Shortland Chambers) FortyEight Shortland, Auckland

Darroch Forrest Lawyers, Wellington Kennedys Law, Auckland

Introduction

[1]                  In my judgment dated 10 February 2023,1 I indicated that my preliminary view was that the first to fourth defendants (the defendants) should pay the plaintiffs’ costs. I directed the parties to file memoranda if they were unable to agree costs. Costs have not been agreed and memoranda have been filed.

[2]The plaintiffs claim costs of:

(a)$10,755.00 plus disbursements of $359.25 against the first and second defendants; and

(b)$11,711.00 plus disbursements of $1,822.55 against the third and fourth defendants.

[3]                  The first and second defendants do not oppose paying costs but say that costs should be payable on a category 2B basis and costs should be apportioned between the defendants so that they pay costs of $5,616.50 and disbursements of $359.25.

[4]                  The third and fourth defendants submit that costs should lie where they fall, or in the alternative, should be payable on a 2B basis and apportioned between the defendants so that the third and fourth defendants pay costs of $4,889.50 and disbursements of $1,081.40.

[5]I therefore need to determine:

(a)whether costs should lie where they fall;

(b)whether it is appropriate that some costs be payable on a category 2C basis; and

(c)whether the overall costs claimed are reasonable.

1      Bhargav v First Trust Limited [2023] NZHC 174.

Analysis

Should costs lie where they fall?

[6]                  I reject the third and fourth defendants’ submission that costs should lie where they fall. The plaintiffs have been put to the task of responding to the application in circumstances where, I held that the third and fourth defendants had no reasonable explanation for the delay in responding to the claim.2 It was appropriate for the plaintiffs to oppose and defend the application.

[7]                  This is not a case where the plaintiffs are at fault, as…