Jindal v OM Financial Limited

[2021] NZHC 2966

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-004-00628

[2021] NZHC 2966

UNDER

Lawyers and Conveyancers Act 2006 and Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008

BETWEEN

GAUTAM JINDAL

Intended Appellant

AND

OM FINANCIAL LIMITED

Intended First Respondent

NZX LIMITED
Intended Second Respondent

MINTER ELLISON RUDD WATTS

Intended Third Respondent

On the papers:	At Auckland
Judgment:	4 November 2021

JUDGMENT OF POWELL J

[Recall]

This judgment was delivered by me on 4 November 2021 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

JINDAL v OM FINANCIAL LIMITED [2021] NZHC 2966 [4 November 2021]

[1]    Mr Jindal applies to recall a costs judgment dated 20 November 20201 and subsequently sealed by this Court the same day (“second costs judgment”).

[2]    Mr Jindal seeks recall on the basis that costs were awarded without taking into account the fact that he was at that time in receipt of legal aid. The application is opposed by the intended respondent, OM Financial Ltd, on the basis that any grant of aid to Mr Jindal was not for the High Court proceedings.

Background

[3]    The costs awarded against Mr Jindal followed two earlier judgments. In the first,2 Mr Jindal unsuccessfully sought an extension of time to appeal an interlocutory decision of the District Court. The second judgment awarded costs against Mr Jindal on the application.3

[4]    Mr Jindal sought leave to appeal but was subsequently advised by Minute dated 15 September 2020 that leave was not required. Given that position, he was invited to withdraw his application for leave. While Mr Jindal confirmed that he would appeal directly to the Court of Appeal and ultimately did so, the application for leave in the High Court was not withdrawn until 29 October 2020. As a result, further costs were incurred by the intended respondent, reflected by the costs judgment which is the subject of the present application.

Discussion

[5]    The jurisdiction to recall a judgment is well established. Horowhenua County v Nash (No 2)4 identifies a number of circumstances where recall may be appropriate, including where counsel failed to draw the Court’s attention to a relevant legislative provision or authoritative decision or justice requires that the judgment be recalled for some other “very special reason”.5

1      Jindal v OM Financial Ltd (Costs No. 2) [2020] NZHC 3067.

2      Jindal v OM Financial Ltd [2020] NZHC 1993.

3      Jindal v OM Financial Ltd (Costs) [2020] NZHC 2444.

4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).

5      At 633.

[6]    The Court’s ability to recall a judgment is however specifically restricted by  r 11.9 of the High Court Rules 2016 which provides:6

A judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up or sealed.

[7]    As the judgment in this case was sealed on 20 November 2020, it follows that Mr Jindal is too late to seek a recall. The only available remedy would have been to appeal the second costs judgment.

[8]    This means the recall application must be dismissed. In any event, as the intended respondent has submitted, there is no basis for recall.

[9]    Although it is clear from the papers provided by Mr Jindal that he did obtain an interim grant of aid for the purposes of getting an opinion as to the chances of a successful appeal to the Court of Appeal on the first judgment, it is clear that the grant did not extend to the application for leave to appeal filed in the High Court, far less to the delay in withdrawing that application. Importantly, at no time did the counsel appointed under the interim legal aid grant ever take any formal steps in the High Court, although it appears a formal appearance was entered in the Court of Appeal before a subsequent withdrawal.

Decision

[10]   The application for recall is dismissed. As the intended respondent has been put to further costs, a further order of costs is appropriate in the circumstances. These are fixed at $750.00 together with any disbursements approved by the Registrar.

Powell J

6      This is subject to r 11.10 and the Court’s inherent power to correct errors in exceptional circumstances in the interests of justice: Clements v Clements [2019] NZHC 204 at [5].