Sadiq v Maqbool HC Auckland CP 128/00

[2001] NZHC 804

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP 128/00

BETWEEN MOHAMMED SADIQ
First Plaintiff

AND F & S TRUSTEE COMPANY LIMITED
Second Plaintiff

AND KHAN MAQBOOL
Defendant

Hearing: 30 August 2001

Counsel: J E Dorbu for Plaintiffs
Defendant in person

Judgment: 30 August 2001

ORAL JUDGMENT OF RANDERSON J

Solicitors:
T E Darby, P O Box 90959, Auckland for Plaintiffs
J H Sanders, DX EP74502, Auckland for Defendant

[1] This matter has had a lengthy and convoluted history. However, matters came to a head when on 13 June this year, the Master struck out the statement of claim for various derelictions of duty and non-compliance with the case management procedures by the plaintiffs. An application for review by the plaintiffs before Anderson J on 11 July 2001 was successful in achieving the reinstatement of the statement of claim. However, the Judge on that occasion made it perfectly plain to the plaintiffs that no further indulgence would be granted and that the case was to proceed expeditiously and efficiently to trial.

[2] The order reinstating the claim was made subject to the condition that costs totalling $3000 (partly from previous orders made by the Master and partly from costs on the reinstatement application) were to be paid within 14 days of the date of the Judge’s order, ie, by 26 July 2001. It is accepted in the hearing before me today on an application by the defendant to strike out the plaintiffs’ statement of claim for non-payment of the costs that those costs have not been paid.

[3] Initially, Mr Sadiq, the first plaintiff, maintained that he had arranged for a friend to make payment of the costs to the defendant but he now accepts that the payment has not been made. There are affidavits filed on behalf of the defendant to the effect that no-one answering the description of Mr Sadiq’s friend came to the solicitor’s office where the defendant is employed on the day Mr Sadiq understood a payment had been made at that office. Indeed, in his affidavit of 10 August this year, Mr Sadiq maintained that he had gone to the defendant’s office on the day in question with his friend in order to have the payment made but decided to remain outside the office to avoid direct contact. He claimed to have seen his friend draw a cheque for the amount and to have seen him go into the office. In the light of the evidence from the two deponents who had filed affidavits as to the alleged payment on that day, I am very sceptical about the first plaintiff’s account of what happened.

[4] In any event, as I have said, it is now accepted that the payment has not been made. I also note that despite Anderson J adjourning the application to strike out on 7 August for a week to enable Mr Sadiq to provide an affidavit giving full particulars and a further adjournment on 14 August to enable the friend to file an affidavit himself, no affidavit by Mr Sadiq’s friend has been filed.

[5] On 14 August the matter was adjourned again by Anderson J until 22 August at which time the Judge observed that the only inference from the evidence was that costs were not paid nor tendered, putting the plaintiffs in breach of the conditions of reinstatement with or without fault on Mr Sadiq’s behalf. The Judge considered that it was appropriate that another Judge deal independently with the matter and it was referred for hearing today.

[6] At the last hearing on 22 August, an adjournment for a period of two weeks until 4 September was sought on behalf of the plaintiffs to enable payment to be made. That request has been renewed today before me by counsel for the plaintiffs. I cannot see any possible basis for granting any further indulgence to the plaintiffs in view of the total history of neglect and default which the file discloses, the very clear warning given by Anderson J on 11 July and the delay of nearly six weeks from that date until the present. If the plaintiffs had the funds necessary to meet the costs, then there has been ample time to pay them.

[7] Mr Dorbu for the plaintiffs also raised an issue about costs which the plaintiffs say are due to them from the defendant. He mentioned a costs order made by Master Gambrill on 25 September 2000 when an application by the defendant to strike out was dismissed. However, an examination of the file indicates that while the Master initially made an order for costs against the defendant on that occasion, she subsequently rescinded that order and reserved costs instead. She confirmed that in a subsequent minute on 22 November 2000.

[8] On that occasion she made an order for costs on a category 1B basis in favour of the plaintiffs against the defendant on an interlocutory application to do with particular discovery. The plaintiffs now claim that this sum has not been paid. It appears that no steps have been taken until very recently to raise any issue about those costs and the existence of that order was not raised in the hearing before Anderson J on 11 July. Counsel were not even aware of the amount of costs which might be payable in terms of the order on 22 November 2000. It appears that at a maximum, they might be about $900.

[9] The point is that no part of the $3000 ordered by Anderson J on 11 July has been paid and I do not see that the possible existence of an outstanding costs order so recently raised should affect the outcome of today’s application. I also note that the defendant claims there are other costs payable to him as well but I have no evidence of that.

[10] It was also submitted by Mr Dorbu, although not pursued with any vigour, that there was an error in the costs awards made by Master Gambrill of a total of $1500 on 13 June 2001 in favour of the defendant (which sums formed part of the orders made by Anderson J on 11 July). It was submitted the order was intended for the benefit of the plaintiffs, not the defendant. I do not consider there is any merit in that submission. The whole thrust of Master Gambrill’s minute of 13 June 2001 following a conference that day, was that the plaintiffs had abused the process of the Court. Her minute makes it perfectly clear that the costs awards were in favour of the defendant.

[11] In all the circumstances, it seems to me entirely appropriate that the defendant’s application to strike out the claim by the first and second plaintiffs should succeed and I grant the application accordingly. I record that there is no reason in relation to costs to differentiate between the first and second plaintiffs whose cases have been advanced on a joint basis throughout. Any dereliction of duty clearly affects both of those parties.

[12] There is an issue about what should now happen to the defendant’s counterclaim against the first and second plaintiffs for professional fees. The amount involved is within the jurisdiction of the District Court and there has been a suggestion made earlier that it might be appropriate that the matter be transferred to the District Court. Indeed, I am advised that the claim by the defendant originally started in the District Court.

[13] Mr Dorbu says that if that occurred, then the plaintiffs might be entitled to bring a counterclaim against the defendant’s claim in the District Court. I do not intend to be drawn into that debate at the moment, but I agree with the defendant that it is appropriate that the counterclaim remaining in this Court be referred to a directions conference at which the future of the counterclaim and the issue of possible transfer to the District Court can be considered at more leisure and after the parties have had the opportunity of considering their positions.

[14] Accordingly, I direct that the Registrar is to allocate a conference before a Master as soon as convenient for those purposes. The parties should file memoranda two clear days prior to the conference setting out their positions. Although the first and second plaintiffs have now been struck out as plaintiffs, they will effectively remain as counterclaim defendants in this Court, subject to any later orders which may be made.

[15] Any previous costs orders which have been made and which are still outstanding by the first and second plaintiffs against the defendant or vice versa will remain extant for the purposes of any enforcement which may be required. The same applies to the costs ordered by Anderson J.

[16] As regards the costs of today’s application, the defendant is entitled to costs against the first and second plaintiffs jointly on a category 1B basis for today’s appearance and for the appearances on 7 August, 14 August and 22 August.

[17] I also record that the defendant is at liberty to raise the issue of costs on the plaintiffs’ application to file an amended statement of claim which were effectively reserved by Anderson J in paragraph [12] of his judgment of 11 July. Any application in relation to any other matters where costs have not already been dealt with, are to be made within 14 days prior to the date allocated for the conference with supporting affidavit evidence.