Jindal v Orange Capital Ltd (in liq) - [2021] NZHC 3449

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1096

[2021] NZHC 3449

BETWEEN
GAUTAM JINDAL

Applicant

AND

ORANGE CAPITAL LIMITED (IN LIQUIDATION)

Respondent

Hearing: 9 December 2021

Appearances:

Applicant in person

J Mahuta-Coyle and A Peden for Respondent

Judgment:

16 December 2021

JUDGMENT OF WHATA J

Re leave to appeal

This judgment was delivered by me on 16 December 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Langford Law, Wellington

GAUTAM JINDAL v ORANGE CAPITAL LTD [2021] NZHC 3449 [16 December 2021]

[1] Mr Jindal applies under s 60(2) of the Senior Courts Act 2016 for leave to appeal my substantive decision dated 29 October 2021 (the substantive decision). He also seeks a stay of the substantive decision.1 In the substantive decision, I:2

(a)held Mr Jindal established a credible defence to the Liquidator’s claim to the extent of liability incurred in respect of the car, the liability assumed in respect of the ASB account and the expenses incurred in respect of the Dell Laptop and the liquidation fee; and

(b)upheld the summary judgment of Judge Hinton in the sum of
$50,696.49 ($68,860.03 (original amount in summary judgment) less
$18,033.54).

(c)otherwise dismissed the appeal.

[2]Mr Jindal also seeks costs for the leave to appeal and stay applications.

[3]The Respondent opposes both applications.

Background

[4] Mr Jindal was the sole director and shareholder of Orange Capital Limited (Orange Capital). Orange Capital was incorporated on 24 May 2013. Mr Jindal said in his submissions that the company provided software and consulting services. Orange Capital did not incur any third party debt until it settled a claim with Adon Holdings Ltd on 12 June 2017. On 27 June 2017, Mr Jindal then placed Orange Capital into voluntary liquidation.

[5] Mr Imran Kamal and Liquidation Management Limited undertook the liquidation of Orange Capital. The full amount outstanding on the current account was $82,277.00. Mr Jindal did not pay the outstanding amount, which resulted in the Liquidator commencing proceedings against Mr Jindal of $82,277.00 by way of summary judgment.

1 High Court Rules 2016, r 17.29.
2 Jindal v Orange Capital Ltd [2021] NZHC 2917 at [73] and [74].

[6] On 31 May 2021, Judge Hinton issued a summary judgment decision against Mr Jindal for the amount of $68,680.03.3

[7] Mr Jindal appealed Judge Hinton’s decision to the High Court. He also sought leave to file evidence comprising five affidavits. The evidence relating to liability assumed, expenses claimed and salary forgone was not fresh and some of it was not cogent. But as summary judgment precludes substantive consideration of the merits of a defence, I considered it necessary to admit the evidence even if only to dismiss it. I did not admit evidence about a Mr Kamal as it was irrelevant to my determination.

[8] I heard the appeal on 8 September 2021 and reserved my decision. Two key matters were in issue:

(a)The Liquidator’s claim…

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: [2021] NZHC 3449
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Gautam Jindal applied for leave to appeal the substantive decision of Whata J, which had been rendered on 29 October 2021. Jindal also sought a stay of the substantive decision pending the outcome of the appeal. The substantive decision dismissed Jindal's appeal against a summary judgment issued by the District Court, which had ordered Jindal to pay $50,696.49 to Orange Capital Ltd (in liquidation). The Liquidator had commenced proceedings against Jindal for the outstanding amount on the current account of $82,277.00. Jindal argued that the District Court did not have the jurisdiction to hear the claim, and that Whata J had erred in law in several respects. The Liquidator opposed both applications.

Whata J found that the District Court did have jurisdiction to hear the liquidator's common law debt claim against Jindal for the overdrawn shareholder's account, and that Jindal had not established a credible defence. Whata J concluded that leave to appeal should be granted on the question of jurisdiction only, as the other grounds were not suitable for a second appeal. Jindal's stay application was declined, but Whata J was prepared to stay the judgment until 1 March 2022, on condition that Jindal paid the sum owing into Court by that date. If Jindal did so, the stay would continue pending the resolution of the appeal. If the sum was not paid, the stay would lapse. Costs were to lie where they fell.

Orders