Patel v Tailor - [2021] NZHC 3164

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000308

[2021] NZHC 3164

BETWEEN
YOGESHKUMAR KANAIYALAL PATEL

Applicant

AND

KAVITA MAYURKUMAR TAILOR

First Respondent

AND

MAYURKUMAR MANILAL TAILOR

Second Respondent

AND

KAVITA MAYURKUMAR TAILOR as

trustee of the Kavita Family Trust Third Respondent

Hearing: On the papers

Counsel:

J A van der Zanden and J S Lim (as instructing solicitor) for Applicant

P N Allan for Respondents

Judgment:

26 November 2021

COSTS JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 November 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PATEL v TAILOR Costs Judgment [2021] NZHC 3164 [26 November 2021]

[1] This judgment concerns an application for costs by the third respondent (Mrs Tailor) following the discontinuance of this proceeding by the applicant (Mr Patel).

[2] Mrs Tailor seeks an award of costs against Mr Patel and also against Mr Patel’s solicitors, A.B. Lawyers Ltd (A.B. Lawyers) and counsel, John van der Zanden.

Background

[3] In 2018, the Labour Inspector took proceedings in the Employment Relations Authority against Indy Supa Store Ltd and the first and second respondents (Mr and Mrs Tailor) in relation to breaches of minimum standards of Mr Patel’s employment.1 Indy Supa Store Ltd was Mr Patel’s employer but penalties were sought against Mr and Mrs Tailor as persons involved in the breaches.2

[4] The Employment Relations Authority ordered Indy Supa Store Ltd to pay or enter into a payment plan acceptable to the Labour Inspector in respect of sums owing to Mr Patel amounting to $103,013.60 along with a penalty of $61,600. Mr and Mrs Tailor were each ordered to pay a penalty of $12,000. From the penalties the Labour Inspector was to transfer $20,000 to Mr Patel and the balance into the Crown account.3

[5] On 5 May 2020, the Commissioner of Police obtained a without notice restraining order under the Criminal Proceeds (Recovery) Act 2009 in respect of properties at Lower Styx Road and Marshland Road. These properties were assets of the Kavita Family Trust (the Trust). Mrs Tailor is the trustee. Indy Supa Store Ltd, Mr and Mrs Tailor in their personal capacities, and Mrs Tailor in her capacity as a trustee of the Trust were the respondents in the proceeding. The ANZ Bank and Mr Patel were interested parties.

[6] On 8 March 2021, counsel for the Commissioner of Police and the respondents advised the Court that they consented to the making of a profit forfeiture order in the sum of $65,000 and that upon receipt of that sum the Commissioner would apply to

1 A Labour Inspector v Indy Supa Store Ltd [2018] NZERA Christchurch 166.
2 At [209].
3 At [210]-[212].

release the Marshland Road and Lower Styx Road properties from the restraining order. Mr Patel was to be paid $23,900 in partial satisfaction of the orders made by the Employment Relations Authority. Dunningham J made the profit forfeiture…

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 Tailor

Details

AGLC: Patel v Tailor [2021] NZHC 3164
Case: [2021] NZHC 3164
Decision Date: 26 November 2021

CaseChat Overview and Summary

Patel v Tailor is a case in which the applicant, Mr Patel, filed a proceeding against three respondents seeking orders in relation to two properties. The proceeding was discontinued by Mr Patel. The third respondent, Mrs Tailor, sought an award of costs against Mr Patel and also against his solicitors, A.B. Lawyers Ltd, and counsel, John van der Zanden. The court held that the proceeding was fundamentally flawed and an abuse of the Court’s process. Mr Patel had no standing to seek a restraining order and there was no basis to seek leave to issue a charging order. The application was also an attempt to enforce orders of the Employment Relations Authority in the High Court, which is not permitted. Mr Patel was liable for costs and, given the failure of Mr Lim and Mr van der Zanden to achieve and maintain a proper level of competence in respect to the initiation and conduct of this proceeding, they should also pay costs. The third respondent is awarded costs jointly and severally against Mr Patel, Mr Lim and Mr van der Zanden on a 2B basis in the amount of $8,843 along with disbursements of $110.

Orders