Jindal v Jarden Securities Limited
[2023] NZCA 117
•20 April 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA181/2022 [2023] NZCA 117 |
| BETWEEN | GAUTAM JINDAL |
| AND | JARDEN SECURITIES LIMITED |
| Hearing: | 27 March 2023 |
Court: | Cooper P, Lang and Downs JJ |
Counsel: | Appellant in person |
Judgment: | 20 April 2023 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
B The appellant must pay the respondent costs for a standard appeal on a Band A basis uplifted by 50 percent and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Downs J)
The appeal
The High Court ordered Gautam Jindal to pay costs of $1,716.48 after he abandoned an appeal he had filed in that Court.[1] Mr Jindal appeals.
Background
[1]Jindal v Jarden Securities Ltd (formerly OM Financial Ltd) HC Auckland CIV-2022-404-000206, 1 March 2022 [Minute of Venning J].
The background is messy but important. It involves a District Court claim that is still to be tried.
In 2018, Mr Jindal filed a District Court claim against Jarden Securities Ltd (Jarden). On 19 September 2019, Mr Jindal filed an application for discovery from Jarden and non-party discovery from NZX Ltd (NZX). Jarden and NZX were represented by the same law firm, MinterEllisonRuddWatts (Minter Ellison). Mr Jindal objected to Minter Ellison representing both Jarden and NZX; and applied for an order precluding that.
On 12 February 2020, Judge G M Harrison dismissed Mr Jindal’s application.[2] Mr Jindal had until 11 March 2020 to file an appeal, within time, against Judge Harrison’s decision. On 4 May 2020, Mr Jindal filed a late appeal and sought permission to do so. The High Court refused permission.[3] Mr Jindal then filed an appeal in this Court.
[2]Jindal v OM Financial Ltd [2020] NZDC 2162.
[3]Jindal v OM Financial Ltd [2020] NZHC 1993.
Mr Jindal’s discovery application remained, of course, outstanding. On 21 December 2021, Judge Harrison directed it be heard on 29 March 2022. On 31 January 2022, Mr Jindal filed an appeal in relation to this direction.
So, by the end of January 2022, Mr Jindal had two outstanding appeals: an appeal to this Court concerning Minter Ellison’s representation of Jarden and NZX in relation to Mr Jindal’s (2019) discovery application; and an appeal to the High Court in relation to Judge Harrison’s direction allocating a fixture for that application. For ease of reference, we call the former the representation appeal and the latter, the fixture appeal.[4]
[4]The representation appeal was subsequently dismissed; see Jindal v Jarden Securities Ltd [2022] NZCA 329. Increased costs were awarded against Mr Jindal.
On 1 March 2022, Venning J held a conference in relation to the fixture appeal. By then, Mr Jindal and Jarden had agreed Mr Jindal would abandon the fixture appeal on the basis that Jarden agreed to the 29 March fixture being adjourned until after the hearing of the representation appeal, which was scheduled for 13 June 2022.
This introduces the issue in this appeal: costs. Mr Jindal is a lawyer. At the conference before Venning J, Mr Jindal sought costs against Jarden. The Judge declined to award Mr Jindal costs.[5] Instead, Venning J awarded costs to Jarden of $1,716.48.[6] The award recognised Jarden’s pre-conference memorandum and its appearance at the conference.[7]
[5]Minute of Venning J, above n 1, at [21].
[6]At [21].
[7]At [20]–[21].
The Judge referred to correspondence leading up to the conference:[8]
[7] On receipt of the [fixture] appeal, the solicitors for Jarden wrote to the lawyer then representing Mr Jindal noting that the hearing date for the appeal in this Court would likely be after the allocated fixture in the District Court.
[8] Mr Jindal then replied directly to the respondent’s solicitors on 23 February 2022. He noted that he had applied for a stay (on 22 February 2022).
[9] In response, later on the same day, the respondent offered through its solicitors that, on the basis Mr Jindal withdrew his appeal/stay application, the parties could file a joint memorandum agreeing to adjourn the discovery hearing in the District Court until the appeal to the Court of Appeal was determined.
[10] Mr Jindal agreed, but sought to impose a condition the respondent pay him costs on a 2B basis for the appeal and stay application.
…
[12] The respondent could not accept that counter proposal and advised Mr Jindal of that on 24 February 2022. It then filed its memorandum for the conference on 25 February 2022.
[8]At [7]–[10] and [12].
The Judge then explained his costs decision:[9]
… The respondent was initially prepared to have costs lie where they fall, but given Mr Jindal’s opposition to that and his conditional response to its proposal it now seeks costs for the conference memorandum and appearance.
[17] In my judgment Mr Jindal acted unreasonably in not accepting the practical proposal advanced by the respondent. The respondent proposed a sensible compromise which has ultimately been implemented.
[18] The appeal and stay application have not been resolved or determined on their merits but have been resolved practically in accordance with the respondent’s proposals.
[19] The timing of events is relevant. The appeal was filed before the Court of Appeal allocated a fixture for Mr Jindal’s appeal. That appeal against the first decision has been before the Court of Appeal for some time without resolution.
[20] Further, Mr Jindal only applied for a stay after the respondent’s pointed out the issues he faced with having the appeal heard in this Court before 29 March. If Mr Jindal had accepted the reasonable and practical compromise proposed by the respondent, it would not have incurred the cost of the memorandum and appearance at the first call.
[21] Mr Jindal is to pay the respondent’s costs on a 2B basis for the memorandum and for one counsel’s appearance at the hearing this morning.
Mr Jindal’s argument on appeal and fresh evidence
[9]At [16]–[21].
Mr Jindal filed extensive submissions in support of his appeal, including submissions in reply, a step not contemplated by the Court of Appeal (Civil) Rules 2005. At the hearing, we invited Mr Jindal to identify, with clarity, the alleged error(s) in Venning J’s decision.
Mr Jindal said the decision was correct on its face, but wrong when two additional pieces of correspondence were considered. Mr Jindal sought permission to adduce this correspondence:
(a)His email to Minter Ellison of 24 January 2022.
(b)Their reply of 28 January 2022.
On behalf of Jarden, Mr Lloyd offered no objection to us receiving the correspondence as fresh evidence even though Mr Jindal could have placed it before Venning J. We received it accordingly.
Mr Jindal argued the correspondence cast events in a different light; and demonstrated he had not been unreasonable, as Venning J concluded, in seeking costs against Jarden. Mr Jindal said the correspondence revealed he had the “IP”, by which we assume he meant the intellectual property, in the idea to adjourn the discovery application until the fixture appeal was determined. Mr Jindal said had Venning J known this, he would not have ordered him to pay Jarden costs of $1,716.48.
Analysis
We begin with the correspondence.
In his 24 January email, Mr Jindal informed Minter Ellison he intended to file the fixture appeal. Mr Jindal said he would ask the High Court, “exercising its Inherent Jurisdiction”, to keep his discovery application “pending” until the fixture appeal was determined. Mr Jindal invited Jarden to agree to this proposal and sign a joint District Court memorandum adjourning the discovery application.
Minter Ellison’s reply of 28 January went to the lawyer representing Mr Jindal in the District Court and its body is best reproduced in full:[10]
We refer to Mr Jindal’s email below. As you will see, Mr Jindal has threatened to appeal Judge Harrison’s direction that the discovery applications be set down for a half-day fixture. As agreed on our recent call, we write to you as counsel acting in the District Court proceeding.
Mr Jindal’s intended appeal is illustrative of his conduct to date which has been to unnecessarily delay matters in the District Court. His intended appeal has no merit. There is no reason why the hearing of his discovery applications ought to wait until the outcome of the Court of Appeal proceeding is known. There is no nexus between Mr Jindal’s discovery applications and the issue of joint representation which is currently on appeal to the Court of Appeal. Whether our clients are separately represented cannot have any bearing on whether the discovery applications ought to be granted. Furthermore, it is unlikely that a hearing date in the Court of Appeal will be obtained until the latter half of 2022, and even if Mr Jindal were successful, the matter would be remitted to the High Court for a hearing, which will cause further delay (well into 2023). Delays of this length would be unacceptable to the Court, as Judge Harrison agreed.
Secondly, from a practical perspective, even if Mr Jindal were to appeal Judge Harrison’s minute, it is highly unlikely that his appeal would be heard before the hearing of the discovery applications in the District Court (29 March 2022). The consequence is that Mr Jindal would have to make an application for a stay of Judge Harrison’s minute. Given that there is no nexus between Mr Jindal’s discovery applications and the issue on appeal to the Court of Appeal, it is highly unlikely that the Court will grant a stay of Judge Harrison’s minute.
Mr Jindal will face further cost consequences when his appeal/application for a stay fails as he will be unrepresented in that appeal. Could you please take instructions to confirm that Mr Jindal will: (a) not appeal Judge Harrison’s minute; and (b) advise his position about his discovery applications. On the second point, if Mr Jindal’s real concern about proceeding with the discovery applications is the costs that he will incur if he is unsuccessful in the same, then could you please confirm that. That will allow us to take instructions about whether a position can be agreed to resolve the applications, now, given that JSL is due to provide updating discovery next month.
[10]Mr Jindal represented himself in the representation appeal and the fixture appeal.
We make four interrelated points. First, Mr Jindal was seeking to adjourn his own discovery application: an application that had been outstanding in the District Court since September 2019. Second, Jarden acted reasonably in seeking to dissuade Mr Jindal from filing the fixture appeal for the reasons identified in Minter Ellison’s 28 January 2022 email. Third, that it was Mr Jindal’s idea to adjourn the discovery application is beside the point; Jarden acted reasonably in seeking to dissuade Mr Jindal from seeking an adjournment, again for the reasons identified in Minter Ellison’s 28 January email. Fourth, Jarden agreed to the adjournment only after Mr Jindal filed the fixture appeal, presumably recognising this was the best way to minimise its legal costs in the face of litigation across three courts concerning an undetermined discovery application.
Contrary to Mr Jindal’s submission, the correspondence does not cast events in a different light, nor demonstrate he was reasonable to seek costs against Jarden. Indeed, we consider the correspondence provides further support for Venning J’s conclusion of Mr Jindal’s unreasonableness in seeking costs against Jarden in relation to the fixture appeal.
Mr Jindal told us he had made “every attempt” not to waste the courts’ time in relation to the litigation, including his conduct of this appeal. Mr Jindal said that was evident from an email he sent Minter Ellison on 25 August 2022, in which he offered to abandon this appeal. Absent objection, we received this email too. We record the proposed abandonment was conditional on Jarden waiving the costs awarded in its favour by Venning J. In other words, Mr Jindal offered to abandon this appeal on a “heads, I win; tails, you lose” basis. When we raised this with Mr Jindal at the hearing, he acknowledged adopting “a slightly selfish position”.
Jarden seeks increased costs on this appeal. We agree these should be ordered. The appeal is meritless; Mr Jindal filed needlessly extensive submissions, including in reply; and an appeal to this Court in relation to costs of $1,716.48 is, frankly, wasteful.
Result
The appeal is dismissed.
The appellant must pay the respondent costs for a standard appeal on a Band A basis uplifted by 50 percent and usual disbursements.
Solicitors:
MinterEllisonRuddWatts, Auckland for Respondent.