Siddiqui v Siddiqui - [2021] NZHC 2270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000798

[2021] NZHC 2270

BETWEEN AMIN AZHAR SIDDIQUI AND USHA AMIN SIDDIQUI
Plaintiffs/Counterclaim Defendants

AND

ASHISH SIDDIQUI AND YASHIKA SIDDIQUI

Defendants/Counterclaim Plaintiffs

Hearing: On the papers

Counsel:

A E Hansen & L A Sheppard for Plaintiffs/Counterclaim Defendants

G D Stringer & R Rao for Defendants/Counterclaim Plaintiffs

Judgment:

31 August 2021

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 31 August 2021 at 4:00 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 COSTS JUDGMENT [2021] NZHC 2270 [31 August 2021]

[1] This decision on costs follows my judgment of 28 May 2021 regarding the dispute between members of the Siddiqui family over the ownership of a residential property at Gloucester Road Manurewa (‘the property’).1 I held that the plaintiffs had proven the existence of an institutional constructive trust pursuant to which the defendants held the property as trustees for the plaintiffs, and ordered that the defendants were required to transfer the property to the plaintiffs. As to costs I said:

[180] The plaintiffs having succeeded in their constructive trust claim, they are entitled to an award of costs. I consider that scale 2B is appropriate for this proceeding.

[2] Costs have not been agreed between the parties. This decision addresses quantum of costs to be awarded to the plaintiffs (Amin Siddiqui and Usha Siddiqui) and paid to them by the defendants (Ashish Siddiqui and Yashika Siddiqui) who are their son and daughter-in-law, respectively.

[3] In my minute of 28 July 2021 I sought clarification from the plaintiffs as to: the dates on which they undertook each step for which they claim costs; and as the plaintiffs were in receipt of legal aid, I directed the plaintiffs to confirm the actual costs invoiced to legal aid, corresponding to each step for which they have claimed costs. I accordingly received a memorandum from the plaintiffs on 4 August 2021; and a memorandum from the defendants on 11 August 2021 in reply.

Approach

[4] Matters relating to costs are at the discretion of the Court,2 which must be exercised on a principled basis.3 The determination of costs, so far as possible, should be both predictable and expeditious.4

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

1      Siddiqui v Siddiqui [2021] NZHC 1234.
2      High Court Rules 2016, r 14.1(1).
3      Huakiwi Copenhagen Lot 4 Orchard Ltd v Te Moana [2019] NZHC 1582 at [13]; Bi v Westcoast Mining Ltd [2020] NZHC 2940 at [14].
4      High Court Rules 2016, r 14.2(1)(g).

(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…

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 2270
Decision Date: 31 August 2021

CaseChat Overview and Summary

Siddiqui v Siddiqui is a case between Amin Azhar Siddiqui and Usha Amin Siddiqui (the plaintiffs) and Ashish Siddiqui and Yashika Siddiqui (the defendants). The dispute centres on the ownership of a residential property located at Gloucester Road in Manurewa. The plaintiffs sought to establish an institutional constructive trust over the property, which the court found in their favour. Following this decision, the court was required to determine the costs associated with the litigation. The primary legal issues were the quantum of costs to be awarded to the plaintiffs and the appropriateness of specific claims made by the plaintiffs for various steps in the proceedings.

The court reviewed the plaintiffs' claim for $89,720.69, which included $78,330.69 for scale costs and $11,390 for disbursements. The defendants contested certain items within the scale costs, arguing that the plaintiffs were not entitled to indemnity costs or that the amounts claimed were excessive. The court evaluated each contested item based on the principles of predictability, expeditiousness, and proportionality in awarding costs. The court disallowed some of the claims, such as the excessive costs for preparation for the December 2020 trial portion, the costs for sealing the costs order, and the costs for second counsel, finding that these were either not supported by the rules or not justified by the complexity of the proceedings.

In summary, the court allowed certain items such as the costs for filing a memorandum seeking an urgent teleconference and the costs for sealing the judgment. The defendants were ordered to pay the plaintiffs a total of $79,210.63, which included the allowed scale costs and the undisputed disbursements. This decision reflects the court's careful consideration of the costs incurred and the principles governing the award of costs in litigation.

Orders