Singh v Bula Bollywood NZ Limited HC Auckland CIV 2010-404-4743

[2010] NZHC 1658

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-004743

IN THE MATTER OF     Section 253 Property Law Act 2007

AND

IN THE MATTER OF     Section 9 Contractual Remedies Act 1979

BETWEEN  SHAILENDRA SINGH Plaintiff

AND  BULA BOLLYWOOD NZ LIMITED First Defendant

ANDNAZIRUD DEAN Second Defendant

Counsel:         S Sharma for the Plaintiff

V Naidu for the Defendants

Judgment:      8 September 2010

JUDGMENT OF ASHER J (Costs)

This judgment was delivered by me on Wednesday, 8 September 2010 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
S Sharma, PO Box 104 296, Lincoln North, Henderson

V Naidu, PO Box 27 353, Mt Eden, Auckland 1440 DX CP37501

SINGH V BULA BOLLYWOOD NZ LTD HC AK CIV-2010-404-004743  8 September 2010

[1]      The plaintiff Shailendra Singh filed a document called a “without notice interlocutory application” in which he sought an interim possession order of a shop, which he claimed to be entitled to occupy as a tenant.

[2]      The application was treated as an originating application.   There was no statement of claim and the proceedings were not in the usual form for an application for relief against forfeiture.  There was no undertaking as to damages filed.

[3]      A notice of opposition was filed on behalf of the first and second defendants together with affidavits.

[4]      A Duty Judge refused to allow the matter to proceed on a without notice basis and required the defendants to be served.   It can be observed that it would be unlikely that relief against forfeiture would be granted without notice.

[5]      The matter was then called on a number of occasions in the Duty Judge list. An affidavit was filed by Mohammed Khan who held a sublease of the relevant premises and it was his evidence that he only dealt with the defendants and that the plaintiff had no sublease of the property.

[6]      Minutes in the Duty Judge list recorded major difficulties with the claim. The  plaintiff  sought  an  adjournment  and  ultimately  on  24  August  2010  the application was withdrawn and the proceeding discontinued, reserving the question of costs.

[7]      The defendants now seek costs and the plaintiff resists the making of such an order.  The total amount claimed is $4,512.

[8]      The plaintiff opposes the making of an order for costs asserting that the plaintiff  had  no  knowledge  that  the  defendants  had  not  validly  subleased  the premises.  It is submitted that the plaintiff’s application did not lack merit.  It is also submitted that the plaintiff has no current source of income, did not have sufficient assets to support undertakings as to damages and is seeking legal aid.

Decision

[9]      Under r 14.2 of the High Court Rules, a party who fails with respect to a proceeding should pay costs to the party who succeeds.  The Court has an overriding discretion.

[10]     I see no reason why the usual rule should not apply.  The plaintiff has issued a proceeding and put the defendants to cost and has now discontinued.  An order for costs should follow.

[11]     There is nothing to indicate that costs should not follow the event.  None of the factors referred to in r 14.7 of the High Court Rules can be invoked by the plaintiff.    On  its  face  the  application  was  defective  in  its  form,  and  poorly researched.  It should have been apparent that there were insuperable difficulties in obtaining relief; first, because of the plaintiff’s insolvency; and secondly, because of the lack of any valid sublease or other interest in the land.

[12]     The plaintiff’s impecuniosity is not a reason for denying the defendants their right to costs.  There has been mention of an application for legal aid, but there is nothing to indicate that such an application has been made and this is not a reason to defer a costs order.

Result

[13]     The defendants are entitled to costs on a 2B basis, which I fix in accordance with the schedule attached to the memorandum of 3 September 2010 at $4,512 together with any reasonable disbursements.

……………………….

Asher J