Siddiqui v Siddiqui - [2021] NZHC 2822

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000798

[2021] NZHC 2822

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:

21 October 2021

JUDGMENT OF PAUL DAVISON J

[Re: Application for Stay of Costs Order]

This judgment was delivered by me on 21 October 2021 at 2:00 pm 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 2822 [21 October 2021]

Introduction

[1] Following my judgment dated 28 May 2021 in which I found in favour of the respondents (the substantive judgment),1 by a further judgment delivered on 31 August 2021 I ordered the applicants to pay costs to the respondents of $67,820.63 and disbursements of $11,390.00 being a total of $79,210.63 (the costs judgment).2

[2] The applicants have appealed the substantive judgment.3 However, no appeal has been filed against the costs judgment.

[3] By application dated 28 July 2021 the applicants applied for an order staying execution of the substantive judgment. By judgment dated 15 October 2021, I declined to make an order staying execution of the substantive judgment, dismissed the application, and ordered the applicants to pay costs to the respondents to be fixed following the filing of memoranda by the parties.4

[4] By an amended interlocutory application dated 7 September 2021 the applicants also applied for an order to stay execution of the costs judgment pending determination of their appeal. The respondents oppose the making of an order staying execution of the costs judgment pending the outcome of the appeal.

[5] The parties have filed written submissions and are agreed that the matter is appropriately determined on the papers.

[6]This judgment determines that application.

Submissions

The applicants

[7] Mr Stringer for the applicants submits that given the applicants’ appeal of the substantive judgment and the intertwined nature of the orders made with the costs

1      Siddiqui v Siddiqui [2021] NZHC 1234.
2      Siddiqui v Siddiqui [2021] NZHC 2270.
3      Notice of Appeal dated and filed 24 June 2021: CA 376/2021
4      Siddiqui v Siddiqui [2021] NZHC 2776.

judgment, it is in the interests of justice for an order to be made staying enforcement of the costs judgment until the outcome of the appeal is determined. Counsel submits that the substantive judgment provides for the Gloucester Road property to be transferred to the respondents and the costs judgment orders the applicants to pay the respondents the sum of $92,582.00. Mr Stringer notes that the relief sought by the applicants in their appeal includes sums claimed as credits or set-offs to be ordered in favour of the applicants.

[8] Counsel says that, should their appeal succeed, the applicants are concerned as to their ability to unwind…

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 2822
Decision Date: 21 October 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine an application for a stay of a costs order in the case of Siddiqui v Siddiqui. Ashish and Yashika Siddiqui, the applicants, sought a stay of a costs order pending the determination of their appeal against a substantive judgment in favour of the respondents, Amin Azhar Siddiqui and Usha Amin Siddiqui. The substantive judgment ordered the applicants to transfer a property to the respondents, while the costs judgment ordered the applicants to pay costs of $79,210.63 to the respondents. The applicants argued that the costs judgment should be stayed due to the intertwined nature of the orders with the substantive judgment and the potential for financial adjustments upon the appeal's outcome. The respondents, however, argued that the costs judgment should be enforced as it was a separate matter from the substantive judgment and that a stay would prejudice them financially.

The court considered the factors relevant to granting a stay, including the potential for the appeal to be rendered nugatory, the applicants' bona fides, the effect on the respondents, and the overall balance of convenience. The court noted that while generally a successful party should be able to recover their costs during an appeal, in this case, the intertwined nature of the costs judgment with the substantive judgment and the potential for financial adjustments upon the appeal's outcome favoured a stay. The court also considered the possibility of the applicants unwinding the financial steps required to implement the orders if their appeal succeeded. The court concluded that the balance of convenience clearly favoured making an order to stay execution of the costs judgment pending determination of the applicants’ appeal.

The court made an order staying execution of the costs judgment pending determination of the applicants’ appeal. The applicants, having succeeded in their application for a stay of the costs judgment, were entitled to costs and reasonable disbursements, which were to be determined after the outcome of the applicants’ appeal.

Orders