Jindal v Jarden Securities Limited - [2022] NZHC 572

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1664

[2022] NZHC 572

BETWEEN
GAUTAM JINDAL

Appellant

AND

JARDEN SECURITIES LIMITED

Respondent

Hearing:
14 October 2021, further memoranda filed 20, 20 October 2021, 1

November 2021

Appearances:

Appellant in Person

JJK Spring and J S Hofer for Respondent

Judgment:

25 March 2022

JUDGMENT OF DUFFY J

This judgment was delivered by me on 25 March 2021 at 2.00 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
MinterEllisonRuddWatts, Auckland

JINDAL v JARDEN SECURITIES LIMITED [2022] NZHC 572 [25 March 2022]

[1] The appellant, Gautam Jindal, is the plaintiff in a District Court civil proceeding. He appeals against an order to pay $10,000 security for costs order made by Judge Harrison.1 The appeal is opposed by Jarden Securities Ltd.

[2] The security order of $10,000 was an amendment of an earlier order of security for costs that was not opposed by Mr Jindal.2 The amendment was required because Mr Jindal was granted legal aid one year after the earlier costs order was made. This required the quantum of the order to be reduced. There was a wide divergence of view between Mr Jindal and the respondent as to the appropriate quantum. The issue on appeal is whether the Judge set the quantum too high when he made the amended order that Mr Jindal pay $10,000.

Procedural history

[3] On or about 29 May 2019, the respondent filed an application against Mr Jindal seeking security for costs. On 22 October 2019, Judge Harrison directed, with the agreement of Mr Jindal, that he pay $4,000 as a partial payment of security for costs.3 Then on 10 February 2020, the Judge heard an unopposed application for security for costs. The respondent advised the Judge it anticipated that its costs in successfully defending the proceeding (based on category 2B) would come to $42,000. At this hearing, Mr Jindal had accepted he did not have funds to pay costs which might be awarded against him.4 On 12 February 2020, the Judge found it would be prohibitive to order security in the sum of $42,000.5 The Judge acknowledged that it was common practice to direct security be paid in “various tranches”.6 This led him to order payment of $21,000 to be made by 10 April 2020.7 Mr Jindal did not appeal against that decision. However, no payment was made on the due date.

1 Jindal v OM Financial Ltd [2021] NZDC 11804. Jarden Securities Ltd was formerly named OM Financial Ltd.
2 Jindal v OM Financial Ltd [2020] NZDC 2162.
3 At [14].
4 At [16].
5 At [18].
6 At [19].
7 At [20].

[4] On 29 January 2021, Judge M-E Sharp made an unless order in respect of this payment.8 However, on 12 February 2021 Mr Jindal was granted interim legal aid in the proceeding. His lawyer then sought variation of the costs order in reliance on s 45 of…

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: [2022] NZHC 572
Decision Date: 25 March 2022

CaseChat Overview and Summary

Gautam Jindal has appealed against an order made by the District Court requiring him to pay $10,000 as security for costs in a civil proceeding. The respondent, Jarden Securities Limited, opposed the appeal. The appeal was heard on 14 October 2021 and judgment was delivered on 25 March 2022. The appeal was allowed and the security order was set aside. Instead, an order was made that security of $1,200 be paid. The balance of the $10,000 already paid was to be returned to Mr Jindal forthwith.

The legal issues on appeal were whether the Judge had erred in setting the quantum of the amended security for costs and whether the security order should be returned. The court held that the Judge had erred because he had failed to take proper account of the fact that security orders are generally forward-looking and do not protect sunk costs. The court held that on a forward-looking basis the security should be fixed at around $1,200. The court also held that the balance of the $10,000 already paid should be returned to Mr Jindal forthwith.

Orders