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Patel v Patel

Patel v Patel

Case [2023] NZHC 1466 13 June 2023

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1927

[2023] NZHC 1466

BETWEEN
JAYSHREE RATILAL PATEL

Plaintiff

AND

HEMANTKUMAR RATILAL PATEL

First Defendant

AND

HEMANTKUMAR RATILAL PATEL

as executor/trustee of the estates of Ratilal Parbhu Patel and Shanta Patel Second Defendant

AND

RITA PATEL

Third Defendant

AND

KRISAJ PROPERTIES LIMITED

Fourth Defendant

Hearing: On the papers

Counsel:

Plaintiff in person supported by K Magbool as McKenzie friend K B Arthur for the Defendants

Judgment:

13 June 2023

JUDGMENT OF HARLAND J AS TO COSTS

Introduction

[1] This judgment addresses an application for costs made by the first, third and fourth defendants who successfully defended the claim by the plaintiff, being a derivative claim in equity on behalf of the plaintiff and first defendant’s late parents’ estates, that half of the value of certain properties owned by the first, third and fourth

PATEL v PATEL [2023] NZHC 1466 [13 June 2023]

defendants were held in a constructive trust by them for the beneficiaries of their mother’s estate.

[2] I issued my reserved judgment in respect of this matter on 20 December 2022 dismissing the plaintiff’s claims against any of the defendants.1 Although observing that costs would normally follow the event, I asked the defendants to carefully consider whether they wished to advance an application for costs. The first, third and fourth defendants have applied for an award of costs on a 2B basis, totalling $58,316 plus disbursements of $550. The plaintiff asks the Court to reduce the claim on account of her financial circumstances.

The application for costs and response to it

[3] Ms Arthur acknowledged that the Court has discretion in awarding costs. However, she submitted costs following the event is a fundamental principle and the assessment as to the amount to be awarded must be predictable, with any departure from the rules justified only on a principled basis.2

[4] Ms Arthur emphasised that the fact the plaintiff represented herself should not be a shield to her liability for costs as the losing party.3 Ms Arthur noted the plaintiff was aware she would be liable for costs if she did not succeed in her claim, having previously been advised as such by Lang J4 and after costs were awarded against her in relation to an earlier Family Court dispute.5 Furthermore, Ms Arthur noted that the plaintiff was advised by Judges and Associate Judges to obtain legal advice on multiple occasions.6 Ms Arthur submitted a defendant should not be penalised because they instructed counsel, particularly in civil proceedings, because a defendant is required to continue participating in the proceeding to avoid judgment and consequently incurs costs while doing so.

1      Patel v Patel [2022] NZHC 3567.
2      Glaister v Amalgamated Dairies Ltd [2004] 2 NZLR 606 (CA) at [22].
3      Oceanic Palms Ltd v Danforth Nominees Ltd CA179/05, 15 December 2005 at [18].
4      During an interlocutory hearing on 15 July 2021, Lang J advised the plaintiff that she would…

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 Patel v Patel

Details

AGLC: Patel v Patel [2023] NZHC 1466
Case: [2023] NZHC 1466
Decision Date: 13 June 2023

CaseChat Overview and Summary

In Patel v Patel, the plaintiff, Jayshree Ratilal Patel, brought a claim against her former spouse and others for an alleged constructive trust over certain properties. The defendants successfully defended the claim, and as such, they applied for costs. The court had to decide whether the defendants were entitled to the full costs they claimed and whether any reduction should be made considering the plaintiff's financial circumstances and her decision to self-represent. The court acknowledged that the general principle is that the unsuccessful party should bear the costs of the successful party, and the amount should be predictable. However, the court had discretion to adjust the amount if there were other compelling reasons.

The defendants argued that the plaintiff's decision to self-represent resulted in unnecessary costs for them, such as responding to unsubstantiated claims and attending interlocutory hearings. The court noted that while self-represented parties should not be penalised, they must still bear the consequences of their actions that lead to additional costs for the represented party. The court found that the defendants had acted reasonably and that the plaintiff's self-representation did not justify a departure from the principle that costs should be predictable and follow the event. The court also highlighted that the plaintiff had been advised multiple times to obtain legal representation but did not do so.

Regarding the plaintiff's financial situation, the court observed that while financial hardship could be a factor in determining costs, it was not a justification for not awarding costs. The plaintiff had not provided any evidence of her financial circumstances, and the court found that the defendants' costs were reasonable and necessary. The court concluded that it would be unjust to deny the defendants their costs on the basis of the plaintiff's financial situation or her decision to self-represent.

The court ordered the plaintiff to pay the defendants' costs and disbursements as claimed, totalling $58,866, plus interest from the date of judgment until payment. The court also noted that the plaintiff's financial circumstances were not a valid reason to reduce the costs awarded to the defendants.

Orders