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Singh v Brar

Singh v Brar

Case [2023] NZHC 505 14 March 2023

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-477

[2023] NZHC 505

UNDER Part 5 of the Trusts Act 2019 and Part 18 of the High Court Rules 2016

BETWEEN

AVTAR SINGH and RANJIT SINGH as

trustees of the Sikh Sangat NZ Trust First Plaintiffs

JASPAL SINGH and JASWINDER SINGH
AUJLA as trustees of the Sikh Sangat NZ Trust
Second Plaintiffs

AND

GURINDERPAL SINGH BRAR as the

Founding Trustee of the Sikh Sangat NZ Trust

First Defendant

ATTORNEY-GENERAL

Second Defendant

Hearing: 21 October 2022

Counsel:

N Williams, R Parlane and J Morriss for the Plaintiffs G Sidnam for the First Defendant

Judgment:

14 March 2023

JUDGMENT OF HARVEY J

[Costs]

This judgment is delivered by me on 14 March 2023 at 4 pm
pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Counsel: Nick Williams, Barrister, Auckland
Solicitors:Shine Lawyers NZ Limited, Auckland Anderson Creagh Lai, Auckland

SINGH v BRAR [2023] NZHC 505 [14 March 2023]

Introduction

[1] Avtar Singh, Ranjit Singh, Jaspal Singh and Jaswinder Singh Aujla were the original trustees of the Sikh Sangat NZ Trust.1 They commenced proceedings against the first defendant, Gurinderpal Singh Brar, the founding trustee.2 Interim orders were sought restraining Mr Brar from taking actions as trustee.3 These orders were initially opposed but at the hearing on 19 October 2022, an interim resolution was reached and I issued orders by consent on 21 October 2022.4 To avoid doubt, the substantive proceeding has been adjourned.

[2] The parties now seek costs. Both counsel contended that they are the successful party and seek costs from the other. They both seek actual costs, less scale costs paid by the opposing party, from the trust.

[3]The issues for determination are:

(a)Should any party be indemnified by the trust for their costs to date?

(b)What scale costs should be awarded?

Background

[4] Given the submissions made, the following further background concerns the Beddoe orders previously made by Walker J, the orders sought in the application, the agreement ultimately reached and earlier proposals by both parties.5 The plaintiffs filed the substantive proceeding on 2 September 2021. They sought orders to prevent their removal, to remove Mr Brar as a trustee and for an account or enquiry or appointment of a receiver. The Beddoe application was then filed 7 September 2021.

[5] On 30 November 2021 the plaintiffs proposed measures to maintain the status quo, pending the resolution of the substantive proceeding. They confirmed that if

1      The Trust is a charitable trust which runs gurdwaras (temples) for the Sikh communities in Auckland and Rotorua. Mr Brar purportedly removed all four original trustees, but this is disputed.
2      Mr Brar carries out preaching for the Trust. [Redacted].
3      The second defendant was not named as a respondent to the application.
4      Singh v Brar HC Auckland CIV-2022-404-477, 21 October 2022.
5      Singh v Brar [2022] NZHC 666.

Mr Brar did not agree to the proposal they…

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.

Continue reading Singh v Brar

Details

AGLC: Singh v Brar [2023] NZHC 505
Case: [2023] NZHC 505
Decision Date: 14 March 2023

CaseChat Overview and Summary

In Singh v Brar, the plaintiffs, who were trustees of the Sikh Sangat NZ Trust, brought an application for interim relief against the first defendant, Gurinderpal Singh Brar, the founding trustee of the trust. The plaintiffs sought orders to restrain the defendant from exercising his rights as a trustee and to remove him from his position. They also sought an appointment of a receiver to manage the trust’s assets until the substantive proceeding was resolved. The parties reached an interim resolution, resulting in consent orders that restrained the defendant from acting as a trustee and appointed the Public Trust as an interim independent trustee. The plaintiffs and the defendant now sought costs from the trust.

The primary issue before the Court was whether any party should be indemnified by the trust for their costs to date and, if so, what scale costs should be awarded. The plaintiffs argued that they should be indemnified because they acted reasonably in seeking interim relief to protect the trust’s assets, and their actions were consistent with the Beddoe orders previously made. They contended that the defendant should not be indemnified because he did not act reasonably in opposing the application. The defendant, on the other hand, argued that the application was unsuccessful and that he should be indemnified for his costs because he acted reasonably in defending the proceedings.

The Court found that, in principle, the plaintiffs should be indemnified because they acted reasonably in seeking interim relief to protect the trust’s assets. However, the Court decided to reserve the costs issue pending the determination of the substantive hearing. The Court noted that if both parties were to be indemnified, the total burden to the trust could exceed $250,000, which was contrary to the rationale of the previous Beddoe order. The Court also found that it was difficult to determine whether the defendant should be indemnified at that early stage due to insufficient information about the reasonableness of his actions.

Regarding scale costs, the plaintiffs argued that their application should be categorised as 2C due to the time taken to prepare and compile affidavits and the significant size of the hearing bundle. The defendant contended that the application should be categorised as 2C due to the extensive research required to oppose it. The Court noted that the question of success was moot until the issue of indemnification was resolved. Therefore, the Court decided to reserve all costs issues.

Orders