Jindal v Kamal - [2023] NZHC 2990

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-48

[2023] NZHC 2990

BETWEEN
GAUTAM JINDAL

Plaintiff

AND

IMRAN MOHAMMED KAMAL

First Defendant

LIQUIDATION MANAGEMENT LIMITED

Second Defendant

KEVIN JOHN DAVIES
Third Defendant

PRINCIPLE INSOLVENCY GP LIMITED

Fourth Defendant

Hearing: On the papers

Counsel:

Plaintiff In Person

S Price for First and Second Defendants
F E Geiringer for Third and Fourth Defendants

Judgment:

25 October 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

[1] On 9 October 2023 I ordered that the plaintiff was to provide security for the defendants’ costs in the total sum of $60,000 for all defendants.1 I ordered costs in favour of the defendants on a 2B basis, together with disbursements as fixed by the Registrar.

1 Jindal v Kamal [2023] NZHC 2820.

JINDAL v KAMAL [2023] NZHC 2990 [25 October 2023]

[2] On 17 October 2023, counsel for the defendants filed a joint memorandum setting out a schedule of costs which calculates the defendants’ costs on a 2B basis. Counsel for the defendants advised that the plaintiff did not agree with the schedule but had not provided any detail concerning what part of it he disputes.

[3] In a minute dated 20 October 2023 I directed that the plaintiff had until 1.00 pm on Tuesday 24 October 2023 to file and serve any memorandum (not exceeding three pages) in response to the joint memorandum of counsel for the defendants dated 17 October 2023.

[4] At 12.36 pm on Tuesday 24 October 2023 the plaintiff filed a memorandum regarding costs.

[5] The plaintiff contends that the costs position should be reversed and that he should be awarded 2B costs with a 25% uplift. He says that is because he made a Calderbank offer to the defendants on 26 June 2023 and the defendants acted unreasonably in not accepting the offer and in not indicating the quantum of the security for costs sought at an early stage.

Legal principles

[6] Costs are ultimately a matter of the Court’s discretion, the overall objective being to achieve an outcome that best meets the interest of justice.2 That discretion is qualified by the applicable costs rules, contained in pt 14 of the High Court Rules 2016. The primary principle applying to the determination of costs is that costs follow the event – meaning that a party who is unsuccessful pays costs to a party who is successful.3

[7] The Court may order a party to pay increased costs where that party has contributed unnecessarily to the time or expense of the proceeding or a step in it.4

2 High Court Rules 2016, r 14.1; Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7] and [16]; Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [21]–[24] and [28]; and Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt Ltd) (2002) 16 PRNZ 662 (CA) at [27].
3 High Court Rules, r…

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.

Continue reading Jindal v Kamal

Details

AGLC: Jindal v Kamal [2023] NZHC 2990
Case: [2023] NZHC 2990
Decision Date: 25 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff, Gautam Jindal, contested an order regarding security for costs against multiple defendants, including Imran Mohammed Kamal, Liquidation Management Limited, Kevin John Davies, and Principle Insolvency GP Limited. The case, Jindal v Kamal, was adjudicated by Associate Judge Skelton, who reviewed the plaintiff's opposition to the defendants' application for security for costs, which was previously set at $60,000. The plaintiff had argued for a reversal of the costs position and requested a 25% uplift due to a Calderbank offer he made on 26 June 2023, which was not accepted by the defendants.

The court considered whether the plaintiff's Calderbank offer justified reversing the costs position or reducing the defendants' entitlement to costs. The plaintiff's offer of $30,000 did not cover the full amount of the security for costs ordered by the court, which was twice the value of the offer. The court also found that the defendants were not unreasonable in not accepting the Calderbank offer or in not specifying the quantum of the security for costs at an early stage, as no such direction was issued by the judge. Given these findings, the court upheld the original order for costs on a 2B basis in favour of the defendants.

The court then addressed the defendants' claim for costs and disbursements, noting that the plaintiff had not disputed the calculation provided by the defendants. Consequently, the defendants were awarded costs and disbursements as detailed in their joint memorandum. The court further directed that no further steps would be taken in the proceeding by the defendants until the costs were paid, should they not be settled within 14 days of the judgment.

Orders