Jindal v Jarden Securities Limited - [2023] NZCA 117

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA181/2022
[2023] NZCA 117

BETWEEN	GAUTAM JINDAL Appellant
AND	JARDEN SECURITIES LIMITED Respondent

Hearing:	27 March 2023
Court:	Cooper P, Lang and Downs JJ
Counsel:	Appellant in person A J Lloyd and J J K Spring for Respondent
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…

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.

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Details

Case: [2023] NZCA 117
Decision Date: 20 April 2023 at 11.00 am

CaseChat Overview and Summary

Gautam Jindal appeals against the High Court’s order that he pay Jarden Securities Limited $1,716.48 in costs. Mr Jindal argues the order was wrong because Venning J did not consider two additional pieces of correspondence. The Court of Appeal dismissed the appeal and ordered Jindal to pay increased costs.

The appeal raises two questions: (1) whether the correspondence cast events in a different light; and (2) if not, whether the appeal was an abuse of process. The correspondence did not cast events in a different light. It shows that Jarden acted reasonably in opposing the fixture appeal because, as Minter Ellison’s email states, there was no nexus between the appeal and the discovery application. Even if the appeal had merit, it was unlikely to be heard before the discovery application was heard in the District Court. Further, the appeal was an abuse of process because it was meritless and wasteful.

The appeal is dismissed. Jindal must pay Jarden increased costs for a standard appeal on a Band A basis uplifted by 50 percent and usual disbursements.

Orders