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 each step reasonably required in relation to the proceeding or interlocutory application.

[6]                 A successful party is entitled to recover the actual disbursements incurred that were reasonable and reasonably necessary for the conduct of the proceeding, and were specific to the conduct of the proceeding.5

Costs claimed by the plaintiffs

[7]The plaintiffs claim a total of $89,720.69, being $78,330.69 for scale costs and

$11,390 for disbursements. The defendants do not take issue with the disbursements sought, however, they raise four points in response to the scale costs claimed and they calculate scale costs of $66,832.00, which they say is the correct amount. I address each of these points below.

Step 33B

[8]                 The defendants’ first point relates to the plaintiffs’ costs of preparation for the December 2020 portion of the trial. They submit that the scale costs under step 33B for preparation for the additional trial days in December 2020 comes to $8,365.00, but that the plaintiffs have claimed the actual amount invoiced to legal aid for that step, being $11,980.00. Counsel for the defendants submits that there is no basis for awarding indemnity costs on this step, when 2B costs have been awarded overall. They submit that scale costs of $8,365.00 be awarded for this step. I agree, there are no grounds for the plaintiffs to be indemnified in relation to this step, the correct quantum of costs to be awarded on this point is: $8,365.00.

Teleconference costs

[9]                 The defendants next dispute whether costs are payable in respect of the plaintiffs’ memorandum of 29 April 2019 requesting a teleconference. They say that

5      High Court Rules 2016, r 14.12. See further A C Beck and others McGechan on Procedure (loose- leaf ed, Thomson Reuters) at [HR14.12].

the step relied on relates to preparing a memorandum for a case management conference. The amount claimed on this step by the plaintiffs is:

Item	Step	Time allocation	Cost
11	Filing    memorandum seeking            urgent teleconference (file on 29 April 2019)	0.4	$892.00

[10]             Step 11 in schedule 3 of the High Court Rules 2016 states that the step is for: “[f]iling memorandum for first or subsequent case management conference or mentions hearing”. I consider that a judicial telephone conference is sufficiently analogous to a case management conference and that the preparation required for each is also analogous. I accordingly find item 11 to be properly claimed. However had I found that this step did not apply, I would nevertheless have granted the plaintiffs the equivalent amount.

Costs for judgment sealing and costs order

[11]             The defendants also dispute whether costs are payable for sealing the Judgment and the costs order. The defendants submit that there is no provision for this item in Schedule 3 and that the step the plaintiffs rely on relates to the sealing of interlocutory decisions. As the successful party, the plaintiffs are entitled to the $96.60 claimed for sealing the 28 May 2021 judgment. Item 29 in schedule 3 provides for scale costs in respect of sealing an order or judgment. However, I disallow the claim for costs for sealing this costs order, although for a different reason than that advanced by the defendants. Awarding costs for sealing the costs order falls within the realm of awarding costs on costs, which this Court is reluctant to do.6

Costs for second counsel

[12]             The plaintiffs were represented by both senior and junior counsel at the hearing. The plaintiffs claim $6,552.00 in costs for second counsel for both stages of

6      See for example Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; Epsom Woods Ltd v Waitakere Farms Ltd [2020] NZHC 3137 at [4]; and Combined Property Maintenance Limited v Singh [2021] NZHC 621 at [19].

the trial ($3,585.00 for the August 2019 part of the trial, and $2,967.00 for the December 2020 part of the trial).

[13]             The defendants dispute costs for second counsel. The standard position as provided for in schedule 3 of the rules is that of costs for one counsel in a proceeding.7 Generally, a category 2 case must have some exceptional feature to justify a second counsel allowance.8 In the recent decision of SKP Inc v Auckland Council, Gault J, addressed a claim for second counsel costs and said:9

Allowance for second counsel is not automatic. It requires specific allowance. The key question is whether the nature of the proceeding was such as to justify requiring the losing party to contribute to the winning partys costs in having a junior counsel present. There will usually need to be some unusual feature to the litigation to warrant allowances for second counsel.

[Footnotes omitted]

[14]             Here the defendants submit the proceedings were of average complexity, and counsel only of average skill and experience were required. Each party called three witnesses and there was no particular complexity or “unusual feature” that would warrant the defendants being required to contribute to the cost of the plaintiffs having junior counsel present. I agree with the defendants’ submission that the complexity of the proceedings was not sufficiently unusual or exceptional as to warrant certification for second counsel, and I accordingly disallow this item of the plaintiffs’ claim for costs.

[15]To summarise, the plaintiffs’ claim for:

(a)$11,980.00 in preparation for the December 2020 portion of the trial is unsuccessful, and the correct sum of $8,365.00 is substituted;

(b)$892.00 for filing a memorandum seeking an urgent telephone conference is upheld;

7      See Prattley Enterprises Ltd  v Vero  Insurance New Zealand Ltd [2017] NZHC 1599, (2017) 23 PRNZ 484 (HC) at [44].

8 At [44].

9      SKP Inc v Auckland Council [2020] NZHC 2215 at [5].

(c)$96.60 claimed for sealing the 28 May 2021 judgment is allowed;

(d)$342.70 claimed for sealing this costs order is disallowed; and

(e)$6,552.00 for second counsel costs is also disallowed.

Result

[16]The defendants are accordingly ordered to pay the plaintiffs costs of

$67,820.63 and disbursements of $11,390.00, being a total amount of $79, 210.63.

Paul Davison J