Jindal v Davies as liquidator of Orange Capital Limited (in liquidation)

[2023] NZHC 3292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2280

[2023] NZHC 3292

UNDER

the Companies Act 1993

BETWEEN

GAUTAM JINDAL

Applicant

AND

KEVIN JOHN DAVIES as liquidator of ORANGE CAPITAL LIMITED

(IN LIQUIDATION)

Respondent

Hearing:

On the papers

Appearances:

Applicant is self-represented

J K Mahuta-Coyle for the Respondent

Judgment:

22 November 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 22 November 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

………………………….

Registrar/Deputy Registrar

Solicitors:

Gautam Jindal, GreenLane, Auckland, Applicant

Langford Law (J Langford), Wellington, for the Respondent

Copy for:

J K Mahuta-Coyle, Lambton Chambers, Wellington, for the Respondent

GAUTAM JINDAL v KEVIN JOHN DAVIES as liquidator of ORANGE CAPITAL LIMITED (IN LIQUIDATION) [2023] NZHC 3292 [22 November 2023]

Introduction

[1]                 By a judgment dated 1 December 2022 Associate Judge Gardiner dismissed an application by the applicant for orders giving the respondent directions under s 284 of the Companies Act 1993. The Court found that the respondent was the successful party and ordinarily would be entitled to costs on a category 2B basis. The parties were invited to agree costs and leave was reserved if costs (as to quantum) could not be agreed.

[2]                 The parties have been unable to agree and counsel for the respondent has filed memoranda dated 28 February 2023, 8 March 2023 and 10 October 2023. The applicant has filed memoranda dated 8 March 2023 and 30 September 2023.

[3]                 In counsel for the respondent’s memorandum of 28 February 2023, costs were sought of $13,264.50 together with disbursements of $160.00, totalling $13,424.50 as set out in Schedule A of that memorandum. By his various memoranda, the applicant objects to items 11, 12, and both items 36, and seeks costs to be awarded in his favour as wasted costs of $1,434.00, thereby reducing the award to $8,604.00.

[4]I review each of these items.

Items 11 and 12

[5]                 The applicant objects to these items on the basis that the memorandum of 27June 2022 filed by the respondent was meritless and the Court agreed with the applicant’s position, as set out in the minute of Peters J dated 1 July 2022. Counsel for the respondent’s response to this is that the fact the Court ultimately supported the applicant’s position did not detract from the need for the respondent to have filed the memorandum in advance of making an appearance at the mentions hearing in the first place. Counsel for the respondent submits that even in the best case for the applicant, had the parties been in agreement on the procedure, a joint memorandum would still be formulated and filed in order to obtain case management directions towards the hearing.

[6]                 In my view, items 11 and 12 should be allowed to the respondent. While the applicant was successful in the outcome of the case management conference, the filing of the memorandum in preparation for the case management conference was still necessary in any event. However as the applicant was the successful party in this application he should be entitled to his wasted costs on that application of $1434.

Item 36 - related to filing the supplementary affidavit

[7]The applicant objects to this on the basis that:

(a)the Court did not invite any additional information, but instead the respondent sought leave to file some additional information which the Court was willing to accept;

(b)it was not allowed costs when granted leave, as no costs were sought at the time;

(c)the material in the affidavit was known, or ought to have been known, to the respondent’s counsel before the hearing.

[8]                 The respondent’s response to this is that the applicant raised a new issue not previously raised by his pleadings, in the hearing, or in his evidence or written submissions. Counsel submits the issue raised for the first time concerned the reasonableness of the liquidator’s fees charged in the liquidation of the applicant’s former company, Orange Capital Ltd (In Liquidation), and the affidavit of Mr Davies addresses those allegation only.

[9]                 I accept the respondent’s position that the supplementary affidavit was both a reasonable and necessary step by Mr Davies in response to matters raised by Mr Jindal and accordingly the costs are allowed.

Item 36 – memorandum as to costs

[10]              The applicant disputes this item on the basis that the Court is reluctant to allow costs on costs, and refers to the decisions at footnote [1] of his memorandum of

30 September 2023. Counsel for the respondent responds by submitting that the respondent did endeavour to agree costs, but the applicant did not respond in a timely manner.

[11]              My view on this is that the claim for the memorandum as to costs should not be allowed to the respondent. While the applicant was slow in responding, I do not think costs on costs is justified in this instance.

Hearing time

[12]              The applicant alleges the hearing was half a day and it was unreasonable for the respondent to claim three-quarters of a day for a half-day hearing. The respondent responds that the time the hearing finished was uncertain.

[13]              Court resource to try to ascertain the time the hearing concluded for a hearing back in 2022 is disproportionate to the issue, and accordingly I will allow the respondent’s claim for three-quarters of a day.

[14]              As a result of the views I have expressed above, the respondent is entitled to costs of $11,352.50 and disbursements of $160.00, totalling $11,512.50.

Orders

[15]I order that the applicant is to pay the respondent the sum of $11,512.50.

…………………………….. Associate Judge Taylor