Chand v Chand

[2022] NZHC 528

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-99

[2022] NZHC 528

IN THE MATTER

of an interlocutory application for an injunction

BETWEEN

SATISH CHAND

Plaintiff/Applicant

AND

RAKESH CHAND

First Defendant/First Respondent

AND

SHREE SANATAN DHARAM PRATINIDHI SABHA MANUKAU BRANCH INCORPORATED

Second Defendant/Second Respondent

Hearing:	On the papers
Appearances:	RP Chaudhry for the Plaintiff/Applicant LT Meys for the Defendants/Respondents
Judgment:	21 March 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 21 March 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:      Neilsons Lawyers, Auckland To:           R Chaudhry, Auckland

CHAND v CHAND [2022] NZHC 528 [21 March 2022]

Introduction

[1]                 On 28 February 2022, I delivered a judgment declining the plaintiff’s application for an urgent interim injunction (seeking an order prohibiting the convening of a Special General Meeting (SGM) of the second defendant (the Society), which was to take place on the evening of 28 February 2022).1 My judgment followed a hearing of the plaintiff’s application on the afternoon of Friday, 25 February 2022.

[2]                 At the conclusion of my judgment, I encouraged the parties to confer and agree costs. They have not been able to do so.

The parties’ respective positions on costs

[3]                 The defendants say the plaintiff acted vexatiously and/or unreasonably in pressing ahead with his application, given it ought to have been clear to him that no matters likely to cause irreparable harm were to be considered at the SGM to be held on 28 February 2022. The defendants accordingly seeks an award of indemnity costs in the sum of $21,947.46. Alternatively, the defendants seek scale 2B costs uplifted by 20 percent, or alternatively, a costs award using band 2C for two of the steps leading up to the hearing, and allowing a half-day for the hearing itself.

[4]                 The plaintiff opposes the application for indemnity or increased scale costs, saying there was nothing in the content or conduct of his application that would warrant an order of such costs. The plaintiff further says that given there was a serious question to be tried on his application, and that he had sought to have matters resolved with the defendants without having to file court proceedings, the Court should exercise its discretion and order that costs lie where they fall.

[5]                 In the alternative, the plaintiff submits that “this two-thirds of the daily costs considered reasonable in the circumstances”. It is not entirely clear what is being advanced by this submission, but I proceed on the basis that it proposes a scale costs award, but reduced by one-third.

1      Chand v Chand [2022] NZHC 303.

Discussion

[6]                 In my view, the appropriate outcome is that a costs award is made in the defendants’ favour, at scale, on a 2B basis. I decline to award indemnity or increased costs. My reasoning follows.

[7]                 First, the plaintiff filed an application for urgent interim relief and was unsuccessful on that application. There is no reason why the defendants ought not to be considered the successful parties overall on that application, and therefore have a costs award in their favour in the ordinary way.

[8]                 Second, there was nothing unreasonable, in the sense necessary to attract increased and/or indemnity costs, in either the content of the plaintiff’s application or the plaintiff’s conduct in bringing it. It was filed promptly after the plaintiff was notified of the date of the proposed SGM. I found there was a serious question to be tried on the application. The plaintiff had also sought a “round table” meeting with the defendants to avoid the need for court proceedings (though given the entrenched “camps” evident in the Society, I am somewhat doubtful whether any such meeting would have obviated the need for court proceedings).

[9]                 Third, indemnity costs are reserved for very unreasonable behaviour, none of which is evident in the present application. The defendants have also not supplied copies of all underlying invoices to support their application for indemnity costs. At least at first blush, and given the application was served on the defendants only two days prior to its first call in the Duty Judge List, and then heard a few days later, approximately $22,000 of costs directed solely to the application does seem a little high. It may be that this amount includes attendances for broader matters, such as attendances in advising the defendants in the lead up to the SGM more generally. Irrespective of this however, it is not appropriate to consider or make an award of indemnity costs without evidence of those indemnity costs being put before the Court for review.

[10]              There is accordingly a costs award in the defendants’ favour on a scale 2B basis for those steps set out in the schedule to the draft order as to costs filed with the defendants’ cost memorandum, save that step 30 is to be excluded.

[11]              Step 30 concerns “preparation of affidavits”, and has a time allocation of 2 days, for the first day of hearing in a category 2 proceeding.2 Step 30 falls under the heading “preparation for affidavit hearing” (steps 30 to 32), and is to be contrasted with “preparation for witness hearing” (steps 33 to 36). The scheme of Schedule 3 is that those are substantive hearings, rather than interlocutory hearings. The application which came before the Court and which I determined in my judgment dated 28 February 2022 was an interlocutory application, which is governed by steps 22 to 25. As Woolford J observed in New Conservative v Television New Zealand Ltd (which also concerned the costs of an opposed interlocutory application):3

The preparation of an affidavit, which is claimed as item 30, is already appropriately recovered under item 23 (filing of opposition to interlocutory application), which TVNZ also claims and which the applicants accept as being appropriate. Rule 7.25 of the High Court Rules provides that an affidavit must be filed and served with a notice of opposition to an interlocutory application. The preparation of an affidavit is therefore included in item 23.

[12]              Woolford J accordingly excluded step 30 from those costs awarded on the opposed interlocutory application.

[13]              I respectfully agree with Woolford J’s approach. The costs of preparing affidavits in support of the notice of opposition are already included in step 23 (as also claimed by the defendants). This reduces the scale 2B costs award to $8,006.50.

[14]There is also an order for disbursements totalling $200.4

Fitzgerald J

2      One day is then allowed for the second to fifth hearing days, with no further allowance after the fifth hearing day.

3      New Conservative v Television New Zealand Ltd [2020] NZHC 3096 at [10].

4      Being those disbursements set out in the draft order as to costs filed by the defendants.