Singh v Official Assignee

[2020] NZHC 2539

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000491

CIV-2018-404-000116 [2020] NZHC 2539

UNDER

The Insolvency Act 2006

BETWEEN

CHERYL SITARA SINGH

Applicant

AND

OFFICIAL ASSIGNEE

Respondent

Hearing:

(On the papers)

Counsel:

Applicant in Person

Gareth Neil and Linda Hui for the Respondent

Judgment:

28 September 2020

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 28 September 2020 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SINGH v OFFICIAL ASSIGNEE [2020] NZHC 2539 [28 September 2020]

Introduction

[1]    On 10 August 2020, I gave judgment dismissing five applications by Ms Singh designed to stay her adjudication as a bankrupt and halt the sale of assets by the Official Assignee (“the Assignee”).1

[2]    At the conclusion of my judgment, I held that the Assignee, as the successful party, is entitled to an award of costs. I directed the filing of memoranda as to costs.2

[3]    By his memorandum, Mr Neil, counsel for the Assignee, seeks costs on a 2B basis in respect of Ms Singh’s applications as dismissed by me on 10 August 2020, and also 2B costs in respect of what Mr Neil terms “earlier iterations” of those same applications and “related applications, that were either dismissed by the Court or discontinued by Ms Singh”. These total $23,372. The Assignee also claims disbursements of $270.

[4]    Ms Singh, who appeared at the hearing in person, opposes the Assignee’s claim for costs. As is unfortunately, and understandably, common in the case of a self- represented litigant, her submissions are not directed at the applicable legal principles. Rather, she submits the amounts claimed by the Assignee are “very high” for an application of this type. This observation, unsupported by authority, appears to reflect her perception of what would be a reasonable costs claim.

Background

[5]    As I noted at the outset of my judgment of 10 August 2020, the index applications were “the most recent in a length procession of litigation which has its origins in a dispute [Ms Singh] has had with Body Corporate 207650”3 related to the non-payment by her of special levies.

[6]    In previous proceedings, Ms Singh has challenged the validity of the levies and her liability for them. She has made allegations of wrongdoing against the Body

1      Singh v Official Assignee [2020] NZHC 2001.

2      At [85]-[86].

3 At [1].

Corporate, its committee, and others. All of these have been unsuccessful. Judgments were obtained against her by the Body Corporate. On 4 July 2019, she was adjudicated bankrupt on the application of the Body Corporate.

[7]    She has attempted, since then, to frustrate the execution of her bankruptcy and, in particular, the Official Assignee’s attempts to sell properties that vested in the Official Assignee upon her adjudication. These attempts comprise the convoluted procedural history of the index applications.4  I set this history out in my judgment.5 It suffices to say that, as Mr Neil fairly submits, this period was consumed by a “flurry of applications” by Ms Singh. While the index applications were, in substantive terms, filed in their original form on 17 March 2020, each had, between then and the hearing on 23 July 2020, been withdrawn and reinstated by Ms Singh at least once. The applications finally determined by me in my judgment of 10 August 2020 were at last filed on 17 June 2020.

Discussion

[8]    The Assignee now claims costs on a 2B basis in respect of the index applications in the sum of $12,906 and steps taken by the Assignee in response to the earlier iterations of the index applications in the sum of $12,428.

[9]    As to the index applications, the claim by the Assignee is unexceptionable, having been arrived at according to scale and, as counsel attests, being for less than the costs actually incurred. They are therefore, so far as the High Court Rules 2016 are concerned, “reasonable and appropriate”.6 Ms Singh’s complaints as to their unreasonableness is understandable given her lay person perspective. Absent any cogent and substantiated suggestion that, say, the Assignee’s claimed costs exceed the Assignee’s actual costs,7 or that the party has pursued steps or arguments without merit,8 I award the Assignee costs on a 2B basis in the amount of $12,096 in respect of the index applications.

4 At [27].

5      At [27]-[38].

6      High Court Rules 2016, rr 14.2(1)(c)-(f), 14.3(1), and 14.4.

7      Rule 14.2(1)(f).

8      Rule 14.7(f)(ii).

[10]    As to the claim for costs of $12,428 in respect of the earlier iterations of the index applications discontinued by Ms Singh, the Assignee relies on r 15.23 of the High Court Rules 2016 (“the Rules”). This provides:

“Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.”

[11]   This principle has by analogy been applied to interlocutory applications,9 which are not, strictly, proceedings for the purposes of the Rules.10

[12]   In applying r 15.23, the Court is not limited in the factors it may consider when determining whether to disapply the presumption. It will, however, only consider the merits of the parties’ cases where these are so obvious as to influence the costs outcome. The Court will in all cases consider the parties’ conduct of their cases up until the point of discontinuance.11

[13]   As is plainly apparent from my judgment, and as Mr Neil correctly submits, Ms Singh’s conduct of her case in respect of her various applications has been entirely dissolute. While some margin of latitude must be afforded to self-represented litigants, her increasingly querulous conduct has gone beyond what the Assignee can reasonably be expected to tolerate. The Assignee has been put to the cost of responding to a flurry of applications which were subsequently withdrawn or dismissed, including in one case on the eve of hearing. In essence, the substance of these applications was identical to those I finally dismissed. A material part of what Ms Singh raised before me and, so, much of what the Assignee was required to address in opposing those earlier identical applications, represented hopeless challenges to “the conventional and legally correct approach adopted by” Hinton J in adjudicating Ms Singh bankrupt.12 Virtually all her submissions had no clear jurisdictional basis. In these circumstances, I consider that this is a case in which regard can properly be had to the meritless nature of Ms Singh’s challenges.

9      MV Celebre Ltd v Airwork Flight Operations Ltd [2015] NZHC 1400 at [9]-[10].

10 Rule 1.3.

11 See Kroma Colour Prints Ltd v Tridonicatco NZ Ltd [2008] NZCA 150, (2008) 18 PRNZ 973; FM Custodians Ltd v Pati [2012] NZHC 1902 at [10]-[12]; and Opus International Consultations Ltd v Colac Bay Vision Ltd [2015] NZHC 1782, [2015] NZCCLR 19 at [20]-[24].

12 At [65].

[14]   For all of the reasons just stated, this is not a case in which it is appropriate to depart from the presumption under r 15.23 that Ms Singh should pay the Assignee’s costs in respect of the discontinued applications. The claimed costs, again, having been arrived at pursuant to the applicable scale, I award the Assignee costs on a 2B basis in respect of the discontinued applications in the amount of $12,428.

[15]   That leaves the Assignee’s claim for disbursements of $270 in respect of the filing fees for the notices of opposition to two of Ms Singh’s interlocutory applications and for the costs of sealing a judgment. Costs following the event,13 and there being no question such disbursements are specific to and reasonably necessary for the conduct of this proceeding, and reasonable in amount,14 Ms Singh is to pay the Assignee’s disbursements in the amount of $270.

Result

[16]   For all of the above reasons, I order that Ms Singh is to pay the Assignee costs on a 2B basis and disbursements in the amount of $23,642.

Moore J

Solicitors:
Meredith Connell, Auckland

Copy to:
The Applicant

13     Rule 14.2(1)(a).

14     Rule 14.12(2).