Kalidas Kasabia Memorial Trust v Hari

[2022] NZHC 3359

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-1389

[2022] NZHC 3359

UNDER

The Reciprocal Enforcement of Judgments Act 1934

IN THE MATTER OF

A Judgment of The High Court of Fiji at Suva (Civil Action HBC No. 85 of 2021)

BETWEEN

KALIDAS KASABIA MEMORIAL TRUST

Judgment Creditor

AND

MANHAR LAL HARI

Judgment Debtor

On the papers
Counsel:	M Taylor for the judgment creditor A Singh for the judgment debtor
Date:	12 December 2022

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 12 December 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

KALIDAS KASABIA MEMORIAL TRUST v HARI [2022] NZHC 3359 [12 December 2022]

[1]        The parties have been unable to agree costs following the judgment creditor’s discontinuance of its application to register a foreign judgment.

[2]        In November 2021, the judgment creditor, Kalidas Kasabia Memorial Trust (KKM), obtained judgment by default in the Fiji High Court against the judgment debtor, Mr Hari, and a company (Millenium) of which Mr Hari was a director. The judgment was based on a loan that KKM said it had advanced to Mr Hari and Millenium.

[3]        Before commencing the Fijian proceeding, KKM first wrote to Mr Hari, who was living in Auckland, on 14 April 2020. The letter demanded repayment of the loan, though the letter was equivocal as to  whether the loan had been made to Mr Hari    or to Millenium. There is no evidence before me that Mr Hari responded to the letter.

[4]        KKM then applied to the Fiji High Court for leave to serve its writ against  Mr Hari out of the jurisdiction. It filed an affidavit in support. That affidavit annexed the writ and statement of claim that KKM sought to serve. The statement of claim pleaded that KKM agreed to advance loans to Mr Hari and that, at Mr Hari’s request, the advances were paid to Millenium.

[5]        The Fiji High Court granted leave to serve the writ out of the jurisdiction. The writ was served on Mr Hari. He chose to take no steps to defend the claim. He now acknowledges that he should have taken steps.

[6]        After obtaining default judgment against Mr Hari and Millenium, KKM brought this originating application to register the judgment under the Reciprocal Enforcement of Judgments Act 1934. Mr Hari filed a notice of opposition, saying that he would be applying to have the default judgment set aside. Mr Hari has since made that application in the Fiji High Court.

[7]        KKM is not going to oppose Mr Hari’s application to set aside the judgment. It intends to have the Fiji High Court determine the underlying claim on its merits.  In light of this development, KKM decided to discontinue its originating application.

[8]        KKM acknowledges the presumption in r 15.23 of the High Court Rules 2016 that a party who discontinues should pay costs to the other party. KKM says that presumption should be rebutted as it was reasonable for it to bring the application. Further, KKM says it has been the successful party as it has caused Mr Hari to engage with the legal process in Fiji. KKM seeks costs as the successful party.

[9]        Mr Hari submits he should have costs. He says the loan was to Millenium, not him, and KKM did not have any reasonable grounds for bringing the claim against him.

[10]      The presumption in r 15.23 may be displaced if the court finds there are circumstances which make it just and equitable that it should not apply.  I consider   it is just and equitable that KKM not pay costs to Mr Hari. It was entirely reasonable for KKM to commence its originating application. It served Mr Hari with a claim that it had agreed to advance loans to Mr Hari. Mr Hari chose to take no steps. He accepts he should have taken steps. As a consequence of Mr Hari failing to take steps that he accepts he should have taken, KKM obtained the default judgment and then sought to register it in this Court.

[11]      With the r 15.23 presumption to one side, costs should be awarded to the successful party in the ordinary way. But neither party can be described as more successful than the other. KKM has not obtained registration of its judgment, but it has forced Mr Hari finally to engage in the Fijian legal process. Mr Hari has resisted registration, but only by having to engage in the Fijian legal process. I therefore consider that costs should lie where they fall.

[12]I decline to make any order for costs

Campbell J