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 2021, the respondent’s invoice to Legal Aid had not been prepared and counsel had not considered the possibility that the costs to be invoiced might be less than scale costs. Ms Cooper in her further memorandum advised that the invoiced costs corresponding with the steps for which costs are claimed, are less than the scale amounts.

[6]This adjustment results in the respondents’ claim  for costs being  reduced  to

$1,828.50 (excluding GST). $1,113 is now claimed for step 23 in Schedule 2 of the High Court Rules 2016 for filing opposition to the interlocutory application, whereas

$1,434 had been originally claimed for that step. $556.50 is claimed for preparing memorandum of counsel in support of opposition to the interlocutory application, against the scale cost of $478.00 previously claimed for preparing the memorandum of counsel in support of opposition to interlocutory application. No costs are claimed for obtaining judgment without appearance. However, it appears that there is an error in the respondents’ memorandum which details a claim for $1,828.50. However, the sum of the two items detailed above totals $1,669.50.5 I accordingly adopt the lesser sum as being correct.

[7]    Mr Stringer for the applicants does not oppose an award of costs on a scale 2B basis. However he opposes the basis on which the respondents have calculated costs, and makes two points:

(a)the claim of 0.2 days for preparing the memorandum of counsel in support of opposition to the interlocutory application is not provided for in Schedule 3 of the High Court Rules 2016, that this step “arguably” falls under step 23 which (already claimed for) provides 0.6 days for “filing opposition to interlocutory application” and should be disallowed; and

(b)as no additional steps were required after the respondents filed their opposition documents, their claim for “obtaining judgment without appearance” should be disallowed.

5      $1,113.00+$556.00 = $1669.50.

[8]    Mr Stringer also raises the issue of the respondents being legally aided, and says that the costs claimed by the respondents should not exceed the sum invoiced to legal aid, which would result in the respondents benefitting from a windfall.

Approach

[9]    Matters relating to costs are at the discretion of the Court,6 which must be exercised on a principled basis.7 The determination of costs, so far as possible, should be both predictable and expeditious.8

[10]   Rule 14.2(1)(a) provides that, “the party who fails … should pay costs to the party who succeeds”. The other relevant principles set out in r 14.2(1) are that:

(a)an award of costs should reflect the complexity and significance of the proceeding; and

(b)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application.

Discussion

[11]   I commence by addressing the respondents’ claim for step 23, at the revised sum of $1,113.00, being the amount invoiced to Legal Aid, and being the appropriate amount to be claimed for, so as to avoid the respondents obtaining a windfall. As the respondents were successful, I allow this portion of the claim.

[12]   The other sum in dispute between the parties is the amount of $556.50 claimed by the respondents for preparing a memorandum of counsel in support of opposition to the interlocutory application. For this step, there is no prescribed step in Schedule 3 of the High Court Rules 2016. Ms Cooper relies on rule 14.5(1)(c) to assess that 0.2 of a day is the time likely to be required for the step if no useful analogy can be made. Initially the lesser sum of $478.00 had been claimed as 0.2 of the appropriate daily recovery rate ($2,390.00 per day).

6      High Court Rules 2016, r 14.1(1).

7      Huakiwi Copenhagen Lot 4 Orchard Ltd v Te Moana [2019] NZHC 1582 at [13]; Bi v Westcoast Mining Ltd [2020] NZHC 2940 at [14].

8      High Court Rules 2016, r 14.2(1)(g).

[13]   I am not persuaded by Mr Stringer’s submission that this step falls within the scope of step 23 and therefore should not be allowed. The fact that it has been billed to legal aid as a separate item indicates that it was a discrete step taken by the respondents. In exercising my discretion, I will allow the initially sought sum of

$478.00 as I am persuaded that is the appropriate sum to award when making an estimation as to the appropriate time allocation for this step. I am satisfied that 0.2 days is a reasonable period of time for preparing a supporting memorandum, and I also allow this portion of the claim, albeit not for the sum initially sought.

[14]   I do not address the applicants submission regarding costs for obtaining judgment without appearance, as from Ms Cooper’s further memorandum, no costs are sought on this point.

Conclusion

[15]I order that the applicants pay the respondents costs in the sum of $1,591.00.

Paul Davison J