Dhingra v Gupta - [2020] NZHC 3081

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-352

[2020] NZHC 3081

UNDER the Contract and Commercial Law Act 2017 and Fair Trading Act 1986

IN THE MATTER

of misrepresentation, breach of contract and breach of the Fair Trading Act 1986

BETWEEN

RAJIV DHINGRA

Plaintiff

AND

GAGAN DEEP GUPTA

First Defendant

SIMMI GUPTA

Second Defendant

Hearing: 21 October 2020

Appearances:

C McLean and D Torii-Lee for the Plaintiff PM Webb for the Defendant

Judgment:

20 November 2020

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 20 November 2020 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
McLean Law, Auckland. Denham Bramwell, Auckland

Dhingra v Gupta [2020] NZHC 3081 [20 November 2020]

Introduction

[1] The defendants apply for an order for security for costs. The application has been made rather late in the proceedings in response to affidavit evidence filed by the plaintiff in support of applications firstly to appear at the trial by audio visual link (“AVL”) and then to adjourn the trial. The evidence indicated that the plaintiff was no longer in New Zealand and a property in Whangarei had recently been sold.

[2] The issues are whether a security for costs order should now be made and, if so, for how much and when.

Background

[3] The proceeding arises from a dispute over the purchase of shares in a company, now named RD International Ventures Limited1 (the Company).

[4] The plaintiff, Mr Dhingra, sues the defendants, Mr and Mrs Gupta, alleging misrepresentation, breach of contract and misleading conduct under the Fair Trading Act 1986.

[5] The plaintiff seeks judgment for $928,416.55, with further unquantified costs and expenses claimed.

[6]The defendants deny all claims.

[7] The trial was scheduled to commence on 17 August 2020 but was adjourned on 24 July 2020 on the basis that the plaintiff’s preparation for trial had been disrupted by his and his family’s evidenced medical conditions.

Application for security

[8] On 21 July 2020, the defendants filed this application for security for costs. The defendants seek the following orders:

1 The Company was originally called Aggarwal Interiors Ltd, then Bath & Tile NZ Ltd.

(a)security in the sum of $60,000 based on a Category 2B2 calculation of costs of $62,140;

(b)the security is paid in three tranches with:

(i)one-third payable on the allocation of a new trial date;

(ii)second-third payable at the close of pleadings date; and

(iii)final third payable three weeks prior to commencement of the trial; and

(c)the proceeding is stayed until security is provided.

[9]The plaintiff opposes security on the following grounds:

(a)the plaintiff’s claim has good prospects of success;

(b)the defendants’ actions have contributed to the plaintiff’s weakened financial position;

(c)an award of security for costs would cause undue prejudice to the plaintiff if granted and impede the plaintiff’s access to justice; and

(d)the defendants’ actions have contributed to the plaintiff’s inability to obtain residency in New Zealand.

[10]…

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 Dhingra v Gupta

Details

AGLC: Dhingra v Gupta [2020] NZHC 3081
Case: [2020] NZHC 3081
Decision Date: 20 November 2020

CaseChat Overview and Summary

In the case of Dhingra v Gupta, the defendants applied for an order for security for costs, which the plaintiff opposed. The primary legal issue was whether the court should grant an order for security for costs and, if so, the amount and timing of the security. The court examined the relevant principles and factors, including the merits of the case, the defendants’ actions, the plaintiff’s access to justice, and the delay in bringing the application. The court concluded that an order for security for costs was appropriate, given the plaintiff’s residency outside New Zealand and the merits of the case. The court ordered the plaintiff to pay $12,500 within 30 working days, with subsequent payments to be made before the new trial date. The court reserved costs on the application for determination with the substantive proceeding.

The court determined that the plaintiff's claim, which primarily related to alleged misrepresentations in accounts provided by the defendants, did not have strong prospects of success. The court found that the plaintiff's financial position was unclear, and the defendants' actions did not clearly contribute to the plaintiff's weakened financial position or visa issues. However, the court balanced these factors against the need to protect the defendants from unjustified litigation and determined that an order for security for costs was appropriate. The court ordered the security to be paid in three tranches, with a new trial date to be set after the first payment. The court reserved costs on the application for determination with the substantive proceeding.

Orders