Siddiqui v Siddiqui - [2021] NZHC 3596

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000798

[2021] NZHC 3596

BETWEEN ASHISH SIDDIQUI AND YASHIKA SIDDIQUI
Applicants

AND

AMIN AZHAR SIDDIQUI AND USHA AMIN SIDDIQUI

Respondents

Hearing: On the papers

Counsel:

G D Stringer & R Rao for Applicants

J S Cooper QC, A E Hansen & L A Sheppard for Respondents

Judgment:

22 December 2021

JUDGMENT OF PAUL DAVISON J

[Re: Costs on Stay Application]

This judgment was delivered by me on 22 December 2021 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Heimsath, Alexander, Auckland Inder Lynch, Manukau, Auckland

SIDDIQUI v SIDDIQUI [2021] NZHC 3596 [22 December 2021]

Introduction

[1] In my judgment dated 15 October 2021, I declined an application by Ashish and Yashika Siddiqui (the applicants) for a stay of the execution of my judgment pending determination of their appeal of my judgment dated 28 May 20211 in which I found that they hold a residential property in Manurewa as trustees for Ashish Siddiqui’s parents Amin and Usha Siddiqui (the respondents), and I made an order directing the applicants to transfer the legal title to the property to the respondents. 2

[2] I also ordered the respondents to pay a sum I found they owed to the applicants. At the conclusion of my 15 October decision 2021 judgment I said:3

The respondents having succeeded are entitled to an award of costs and to recover their reasonable disbursements. I direct the parties to each file a costs memorandum.

Submissions

[3] Ms Cooper QC for the respondents seeks costs on a scale 2B basis which are quantified as $2,629.00. This calculation is based on 0.6 days for filing opposition to the interlocutory application; 0.2 days for preparing memorandum of counsel in support of opposition to interlocutory application (no step is cited in support of this, but counsel relies on HCR 14.5(1)(c))4, and 0.3 days for obtaining judgment without appearance. No disbursements are claimed.

Updating memorandum regarding legal aid

[4] On 8 November 2021 I issued a Minute in which I sought clarification from Ms Cooper for the respondents as to whether her clients were in receipt of legal aid. Because scale costs should not exceed the actual costs for a step, I asked Ms Cooper to specify the actual costs invoiced to legal aid corresponding to each step for which scale costs are claimed.

1      Siddiqui v Siddiqui [2021] NZHC 2776.
2      Siddiqui v Siddiqui [2021] NZHC 1234 at [175]–[179].
3      Siddiqui v Siddiqui, above n 1, at [32].
4      For the purposes of rule 14.2(1)(c) [Principles applying to determination of costs — applying appropriate daily recovery rate to the time considered reasonable for each step reasonably required] A reasonable time for a step is, the time assessed as likely to be required for the particular step, if no analogy can usefully be made.

[5] At the time of filing of Ms Cooper’s original costs memorandum of 28 October…

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.

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Details

Case: [2021] NZHC 3596
Decision Date: 22 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Siddiqui v Siddiqui was heard by Justice Paul Davison, where the applicants, Ashish and Yashika Siddiqui, sought a stay of the execution of a previous judgment pending an appeal. The previous judgment had found that the applicants held a residential property in Manurewa as trustees for the respondents, Ashish Siddiqui’s parents, Amin and Usha Siddiqui, and directed the applicants to transfer the legal title of the property to the respondents. The applicants also sought to challenge an order that the respondents pay a sum they owed to the applicants. The respondents opposed the stay application, and Justice Davison declined the stay, ordering the respondents to be awarded costs and disbursements. The case then moved to a discussion of the costs incurred by the respondents in opposing the interlocutory application, which were claimed on a scale 2B basis.

The central legal issue in this case was the calculation of the costs incurred by the respondents in opposing the interlocutory application. The respondents claimed costs for three steps: filing opposition to the interlocutory application, preparing a memorandum of counsel in support of the opposition, and obtaining judgment without appearance. The applicants contested the basis on which the respondents calculated the costs, particularly arguing that the time claimed for preparing the memorandum of counsel in support of opposition to the interlocutory application should not be allowed as it was not prescribed in Schedule 3 of the High Court Rules 2016, and that the claim for obtaining judgment without appearance should be disallowed as no additional steps were required after the respondents filed their opposition documents.

Justice Davison examined the respondents' claim for step 23 (filing opposition to the interlocutory application) and accepted the amount invoiced to Legal Aid as appropriate to avoid a windfall for the respondents. The court allowed this portion of the claim. For the preparation of the memorandum of counsel, Justice Davison allowed the initially sought sum of $478.00, considering 0.2 days a reasonable period for preparing a supporting memorandum. The court did not address the applicants' submission regarding costs for obtaining judgment without appearance as no costs were claimed for this step.

Justice Davison ordered that the applicants pay the respondents costs in the sum of $1,591.00, comprising $1,113.00 for filing opposition to the interlocutory application and $478.00 for preparing a memorandum of counsel in support of opposition to the interlocutory application.

Orders