Jindal v Jarden Securities Limited (formerly OM Financial Limited)

[2022] NZCA 513

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA584/2020
 [2022] NZCA 513

BETWEEN	GAUTAM JINDAL Appellant
AND	JARDEN SECURITIES LIMITED (FORMERLY OM FINANCIAL LIMITED) First Respondent NZX LIMITED Second Respondent MINTERELLISONRUDDWATTS Third Respondent

Counsel:	Appellant in Person A J Lloyd and J J K Spring for Respondents
Judgment: (On the papers)	1 November 2022 at 9.30 am

JUDGMENT OF COOPER P

AThe appellant must pay costs of $1,195 to the respondents in respect of the disputed costs matters.

BCosts are to lie where they fall in respect of the current costs application.

____________________________________________________________________

REASONS

1. In a judgment dated 22 July 2022 the Court declined applications for leave to adduce further evidence, declined an application to disqualify counsel from acting for the first and second respondents, and dismissed the appeal.[1]  The Court ordered Mr Jindal to pay the respondents one set of costs for a standard appeal on a band A basis uplifted by 20 per cent, and the usual disbursements.[2]

   [1]Jindal v Jarden Securities Ltd(formerly OM Financial Ltd) [2022] NZCA 329 [Substantive judgment].

   [2]At [50].

2. The parties have been unable to agree on all the costs required by the Court’s order.  The matters in dispute are:

   (a)costs in respect of the case management conference held on 23 June 2021;

   (b)costs in respect of the respondents’ application for leave to adduce further evidence, which was neither opposed nor granted; and

   (c)costs in respect of the current costs dispute.

Costs in respect of case management conference

1. Insofar as the case management conference on 23 June 2021 is concerned, the respondents seek costs totalling $717 for the preparation of a memorandum and attendance.  The memorandum and conference were necessary because the originally named first respondent was OM Financial Ltd, which subsequently amalgamated with Jarden Securities Ltd.  Mr Jindal sought that the name of the first respondent be amended to Jarden Securities Ltd, which the respondents opposed.  After hearing the parties by telephone, Goddard J suggested that the first respondent be referred to as “Jarden Securities Limited (formerly OM Financial Limited)”.[3]  The parties subsequently agreed to make that change.  In the circumstances, I am not persuaded that there should be an award of costs in favour of the respondents for this matter. 

Costs in respect of application for leave to adduce further evidence

[3]Jindal v Jarden Securities Ltd (formerly OM Financial Ltd) CA584/2020, 23 June 2021 [Minute of Goddard J].

1. The respondents seek costs totalling $2,390 in respect of the commencement of an application for leave to adduce further evidence and preparation for the hearing of that application.  Their application dated 23 May 2022 was made as a consequence of Mr Jindal’s own application for leave to adduce further evidence.  His application relied on redacted copies of documents and, in the respondents’ view, an incomplete set of documents.  The respondents’ application was made to make sure the Court was in possession of the relevant material.  On this issue the respondents say the fact that both applications were dismissed does not mean that they should not be awarded costs.  It merely reflects the fact that Mr Jindal’s own application did not have merit.

2. The reasoning in this Court’s substantive judgment supports the respondents’ position on this issue.  In particular, the Court considered that the evidence Mr Jindal sought to adduce was neither cogent nor credible for the reasons we then set out.[4]

   [4]Substantive judgment, above n 1, at [25]–[28].

3. The Court’s substantive judgment also explained that because Mr Jindal’s application was refused, it was not necessary to receive the further information on which the respondents sought to rely.  It was on that basis that the respondents’ application was declined.[5]

   [5]At [29].

4. Mr Jindal now argues that he had not opposed the respondents’ application, which was in any event declined, and on that basis costs should follow the event and an award of costs should not now be made against him.

5. I consider it was reasonable for the respondents to have made their application having regard to the shortcomings of Mr Jindal’s own application.  The terms on which this Court dismissed Mr Jindal’s application make it plain that it should never have been brought.  The dismissal of the respondents’ application reflected the fact that Mr Jindal’s application had been dismissed.  In those circumstances, I consider it appropriate to exercise the Court’s overriding discretion and make an award of costs in favour of the respondents for the commencement of the application.  However, I would not apply the uplift of 20 per cent.

6. I do not consider it appropriate to award the respondents costs for preparation for the hearing of the application.  The application was dealt with at the hearing of the substantive appeal as a side bar to Mr Jindal’s own application and did not add materially to the length of the hearing.  There would be an element of double counting if the respondents could recover costs for both the preparation for the substantive hearing (which is a matter that is not disputed) as well as the preparation for the hearing of the application.

7. In the result, the sum of $1,195 is payable for this disputed matter.[6]

Costs in respect of current costs dispute

[6]See Court of Appeal (Civil) Rules 2005, r 53C(1)(a) and sch 2, step 8; and High Court Rules 2016, sch 2. 

1. Mr Jindal also opposes the respondents’ application for costs in respect of the current costs dispute.  Given that both Mr Jindal and the respondents have been partially successful in relation to the cost issues the appropriate resolution on this point is to allow costs to lie where they fall.

Solicitors:
MinterEllisonRuddWatts, Auckland for Respondents