Nadan v Sharma - [2022] NZHC 3516

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002331

[2022] NZHC 3516

BETWEEN
PARAMSIWAN (SIWAN) NADAN

Plaintiff

AND

NILESHNI SHARMA

Defendant

Hearing: (On the papers)

Counsel:

Callum McLean and Wendy Prior for the Plaintiff Defendant in person

Judgment:

19 December 2022

JUDGMENT OF MOORE J

[Costs]

This judgment was delivered by me on 19 December 2022 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

NADAN v SHARMA [2022] NZHC 3516 [19 December 2022]

Background

[1] Paramsiwan Nadan and Nileshni Sharma were formerly husband and wife. Their marriage broke down after Mr Nadan had an affair. The continuing level of bitterness meant that the pair were unable to discharge their duties as trustees of the Shivam Family Trust (“the Trust”).

[2] On 5 October 2022, I granted Mr Nadan’s application to remove himself and Ms Sharma as trustees of the Trust, appoint an independent corporate trustee as replacement, and divest and vest the Trust’s property.1

[3] Mr Nadan now seeks costs on a 2B scale basis, uplifted by 25 per cent on steps taken after Ms Sharma refused an offer of settlement. The thrust of his position is that increased costs are justified because Mr Sharma’s conduct of the proceeding was unreasonable and put him to additional time and expense.

[4] Ms Sharma’s position is that her intention was to obtain the best possible outcome for the beneficiaries, not to be frivolous. She argues that her contributions to the Trust’s property should be taken into account when considering costs.

Are Ms Sharma’s alleged contributions to the Trust’s property relevant to the assessment of costs?

[5] The first issue is to deal with the relevance of Ms Sharma’s alleged contributions to the Trust’s property.

[6] Ms Sharma submitted that these should be taken into account. Her costs memorandum attaches four spreadsheets of calculations and invoices relating to the property.

[7] I do not consider this relevant to the assessment of costs. Whether Ms Sharma has made contributions to the property which are worthy of recognition is a separate substantive matter. As she points out in her costs memorandum, that is something the new corporate trustee could evaluate.

1 Nadan v Sharma [2022] NZHC 2553 at [51]–[52].

[8] For present purposes, however, these alleged contributions do not bear on the assessment of costs. There is no real question that Mr Nadan succeeded in his application and is entitled to costs on a 2B basis.

[9]I therefore proceed on that footing.

Should increased costs be awarded?

[10] The next issue is whether increased costs should be awarded. Mr McLean, for Mr Nadan, sought increased costs on two bases:

(a)that Ms Sharma’s position was unreasonable and the way she ran her defence added to the time and expense of the proceeding; and

(b)that she unreasonably failed to accept a Calderbank offer.

Taking or pursuing an unnecessary step or an argument that lacks merit

[11] Increased costs…

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 Nadan v Sharma

Details

AGLC: Nadan v Sharma [2022] NZHC 3516
Case: [2022] NZHC 3516
Decision Date: 19 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Nadan v Sharma involved a dispute between former spouses Paramsiwan Nadan and Nileshni Sharma over their roles as trustees of the Shivam Family Trust. The marriage breakdown and the couple's irreconcilable differences led to their removal as trustees, with an independent corporate trustee appointed in their place. Mr Nadan sought costs on a 2B scale, uplifted by 25% due to Ms Sharma's refusal to accept a settlement offer and her alleged unreasonable conduct during the proceedings. Ms Sharma argued that her contributions to the Trust's property should be considered when assessing costs.

The court needed to determine whether Ms Sharma's alleged contributions to the Trust's property were relevant to the assessment of costs and if increased costs should be awarded based on her unreasonable conduct and failure to accept a Calderbank offer. The court found that Ms Sharma's alleged contributions to the Trust's property were not relevant to the assessment of costs, as they were a separate substantive matter that could be evaluated by the new corporate trustee. The court also found that increased costs were appropriate due to Ms Sharma's unreasonable position and failure to accept a Calderbank offer, which added to the time and expense of the proceedings.

The court concluded that Ms Sharma's opposition to Mr Nadan's application for removal as trustees was unreasonable, as it was clear that they could no longer discharge their duties. The court further found that Ms Sharma's conduct of the proceedings was unreasonable, as she relied on arguments lacking merit and raised matters irrelevant to the dispute at hand. Additionally, Ms Sharma's failure to accept the Calderbank offer put Mr Nadan to additional time and expense. The court ordered Ms Sharma to pay Mr Nadan costs of $16,013, uplifted by 25% on steps taken from the date of the Calderbank offer, along with reasonable disbursements.

The court denied the allowance for second counsel, as the proceeding was not particularly complex or lengthy and did not have any exceptional features justifying such an allowance. The final order required Ms Sharma to pay Mr Nadan the specified costs and disbursements, taking into account calculation errors with the allowance claimed for filing the opposition to the interlocutory application and preparation of the bundle.

Orders