Jindal v OM Financial Limited - [2020] NZHC 2444

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-004-00628

[2020] NZHC 2444

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

Hearing: On the papers at Auckland

Judgment:

18 September 2020

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by me on 18 September 2020 at 3 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

JINDAL v OM FINANCIAL LIMITED [2020] NZHC 2444 [18 September 2020]

[1] In my decision of 7 August 2020, I dismissed the application of Gautam Jindal seeking leave to file an appeal out of time.1 In my decision I confirmed the intended respondents, OM Financial Ltd (“OM Financial”), NZX Ltd (“NZX”) and Minter Ellison Rudd Watts, were entitled to costs on the application and set out timetable directions. OMF and NZX have now sought costs:2

(a)OM Financial has applied for costs in the sum of $10,755, being costs calculated on a 2B basis with a 50 per cent uplift and disbursements of
$110. OM Financial seeks increased costs on the basis that both Mr Jindal’s application for an extension of time and intended appeal were without merit, and Mr Jindal unnecessarily contributed to the time and expense of the proceeding.

(b)NZX a non-party to the proceeding, was named as the second respondent to the intended appeal. As a non-party NZX seeks indemnity costs totalling $7,864.96, a sum it calculates is equivalent to 2B scale costs with a 9 per cent uplift.

[2] In response Mr Jindal does not dispute that costs should be payable to OM Financial, however, he says that his impecuniosity justifies a 50 per cent reduction in the scale costs, resulting in a sum of $3,585. He does not make any references to the costs sought by NZX. As evidence of his impecuniosity Mr Jindal has filed an affidavit stating that he has been granted legal aid to appeal my decision to the Court of Appeal, which required him to show he possesses less than $3,500 in disposable capital. Mr Jindal asserts that his disposable capital is in fact below zero, and that he will be unable to afford any costs award against him.

Discussion

[3] It is well established that costs ordinarily follow the event so that the loser will pay the winner’s costs.3 There can be no doubt that OM Financial was successful and on the face of it is entitled to costs in accordance with the scale set out in the High

1 Jindal v OM Financial Ltd [2020] NZHC 1993.
2 At [22].
3 Rules 14.2 – 14.5.

Court Rules 2016. However, costs remain at the discretion of the Court and r 14.6(3)(b) provides that increased costs may be ordered if the party opposing costs has contributed unnecessarily…

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: [2020] NZHC 2444
Decision Date: 18 September 2020

CaseChat Overview and Summary

In the case of Jindal v OM Financial Limited, the plaintiff, Gautam Jindal, sought leave to file an appeal out of time against OM Financial Limited, NZX Limited, and Minter Ellison Rudd Watts. The court dismissed the application and confirmed that OM Financial and NZX were entitled to costs on the application. OM Financial sought costs in the sum of $10,755, with a 50 per cent uplift and disbursements of $110, while NZX sought indemnity costs of $7,864.96. Jindal did not dispute the entitlement to costs by OM Financial but sought a 50 per cent reduction due to his impecuniosity.

The court held that costs ordinarily follow the event, and OM Financial was entitled to costs in accordance with the scale set out in the High Court Rules 2016. However, increased costs may be ordered if the party opposing costs has contributed unnecessarily to the time or expense of the proceeding. The court found that Jindal's application for an extension of time was fundamentally flawed, and he failed to comply with timetable orders. The court also held that NZX was entitled to costs as a non-party who was put to expense by the current proceedings. However, the court was unable to be satisfied that there was no overlap in the costs incurred and/or claimed by OM Financial and NZX. Therefore, the court applied a global discount to the costs sought by OM Financial and NZX, resulting in a total of $10,000 together with disbursements as fixed by the Registry.

The court held that although financial hardship may be a reason to decline to award costs, it is not an appropriate case to reduce costs by an arbitrary amount to reflect Jindal's financial position. The court ordered that OM Financial and NZX were each entitled to costs against Jindal in the sum of $5,000 together with any disbursements as fixed by the Registry.

Orders