Seth v Chopra

[2020] NZHC 2525

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

HELD AT AUCKLAND

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-614898

[2020] NZHC 2525

IN THE MATTER

Of the estate of SHASHI KANT SETH of Auckland, businessman
Deceased

BETWEEN

SANGETTA SETH

Applicant

AND

JYOTI CHOPRA

Caveator

Hearing:

On the papers

Submissions dated 30 August 2020

Counsel:

Applicant in person Caveator in person

Judgment:

28 September 2020

COSTS JUDGMENT OF WHATA J

This judgment was delivered by me on 28 September 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

SETH v CHOPRA [2020] NZHC 2525 [28 September 2020]

[1]    Ms Seth obtained an order nisi for grant of probate where a caveat had been lodged. A date was set to show cause against the grant. The matter was timetabled, with a hearing to be set down for 20 March 2020. Among other things, Ms Chopra requested that Ms Seth attend the hearing on that date. A direction was made that  Ms Seth be available for cross-examination at that hearing.

[2]    The hearing was held on 20 March 2020. At the end of that hearing, I directed the appointment of an expert to undertake a forensic examination of the relevant will. Ms Chopra was to pay for the cost of that examination. Ms Chopra then provided, as sought, the requisite monies to pay the expert. However, after reflecting on her position, Ms Chopra withdrew her opposition to probate. The only remaining issue is as to costs.

[3]    In my minute of 8 May 2020, I discouraged an application for costs, noting my concerns that it appeared Ms Chopra had been left out of the relevant will. I suggested common-sense and fairness should prevail.

[4]    Ms Seth, however, has sought costs. She notes that she was legally represented until the hearing date. She says that she was deserted by her counsel who would not attend because of unpaid fees. She has attached to her affidavit emails referring to costs incurred and, effectively, a demand from counsel for payment of those fees. I also have a memorandum as to costs and disbursements which appears to be based on scheduled costs.

[5]    Unfortunately, Ms Seth did not serve her application for costs on Ms Chopra. When eventually served, Ms Chopra provided a fulsome response. Many of the matters raised by Ms Chopra are not relevant to costs, going to such aspects as the merits of her position and her difficult financial circumstances. Ms Chopra also expresses the view that she should not have to pay for decisions that her mother has willingly made. For instance, Ms Chopra submits that she chose self-representation whereas her mother hired a “high charging” lawyer to intimidate Ms Chopra and compel her to withdraw. She also submits that her mother should pay for sealing the costs orders, since the order benefits her mother.

[6]Some matters raised by Ms Chopra, however, are relevant to my assessment:

(a)Ms Seth has not provided invoices for the cost and disbursements preparation help ($1,150.00), community law centre donation ($250.00), the expert’s costs ($1,940.00) or the travel costs ($4,643.00);

(b)Ms Chopra also submits that some of the claimed legal costs may include unrelated matters, including costs relating  to  her  brother,  Mr Anmol Seth;

(c)the same $200.00 court cost has been included more than once in the claimed costs, namely:

(i)the $1,400.00 Shean Singh invoice (citing Darsan Singh’s invoice); and

(ii)the $1,940.00 expert’s costs claim.

(d)Some claimed costs do not relate to the proceedings:

(i)in relation to the Shean Singh invoice ($1,400.00), Ms Seth would have had to engage the lawyers for the Application for Probate regardless;

(ii)in relation to the Community Law Centre donation ($250.00), Ms Chopra submits that she should not pay for Ms Seth’s General Power of Attorney; and

(iii)the costs relating to Rennie Cox ($2,206.95) resulted from her own record request but submits that she did not know that the request could result in a Court hearing.

Assessment

[7]    As Ms Seth succeeded in her application, she is entitled to costs.1 I am also satisfied that Ms Seth incurred legal costs in relation to the present application because of the caveat. It appears those costs included costs for preparation for the hearing. While I had intimated that I was minded to allow costs to lie where they fall, Ms Seth has been put to considerable legal cost and, ultimately, Ms Chopra discontinued her claim. I am therefore prepared to make an award of legal costs to Ms Seth on a 2B basis for steps taken by legal counsel in the proceedings.

[8]    I am not prepared, however, to accept the memorandum prepared by Ms Seth as an accurate representation of the costs incurred. In saying that, I wish to be clear that I am not implying misrepresentation. Rather, to the extent legal costs are claimed, former counsel should provide an equivalent memorandum and confirm that the costs in relation to those steps were incurred and that they were reasonable. The quantum may include the time needed to prepare that memorandum on a 2B basis. Quantum is then to be fixed by the registrar.

[9]    I also make an order in respect of reasonable disbursements to be fixed by the registrar. I am not, however, prepared to make an award in relation to the applicant’s air fares. Ms Seth’s attendance at the hearing was premised on the basis that she was already in New Zealand. I refer in this regard to [7] of van Bohemen J’s minute of 5 March 2020.

[10] I reiterate, the costs must have been incurred in this proceeding and relate to a specified scheduled step. There shall be no award for costs on the application for costs, save in terms of the preparation of the memorandum referred to at [8].

[11]   In the result, Ms Seth is entitled to costs on a 2B basis for steps taken by counsel in the proceedings together with reasonable disbursements to be fixed by the registrar, excluding air fares.

1      High Court Rule 14.2(1)(a). See also Re Paterson (dec’d) [1924] NZLR 441.