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…

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 Official Assignee

Details

AGLC: Singh v Official Assignee [2020] NZHC 2539
Case: [2020] NZHC 2539
Decision Date: 28 September 2020

CaseChat Overview and Summary

This case involved the determination of costs claimed by the Official Assignee against Cheryl Sitara Singh, following a series of applications by Ms Singh to stay her adjudication as a bankrupt and halt the sale of her assets. The applications were dismissed, and the Official Assignee sought costs on a standard basis, arguing that the claims were reasonable and appropriate. Ms Singh opposed the costs claim, stating that the amounts were "very high" for an application of this type. The court assessed the reasonableness of the costs, taking into account the parties' conduct and the merits of the cases. It found that the Official Assignee's costs were reasonable and appropriate and awarded costs on a 2B basis, as well as disbursements.

The legal issues in this case were whether the Official Assignee's costs claim was reasonable and appropriate and whether the presumption under r 15.23 of the High Court Rules 2016 that the unsuccessful party must pay costs of and incidental to the proceeding up to and including the discontinuance should apply. The court considered the parties' conduct and the merits of the cases and found that Ms Singh's conduct had been dissolute, and that her challenges were hopeless. Therefore, the presumption under r 15.23 applied, and Ms Singh was ordered to pay the Official Assignee's costs in respect of the discontinued applications.

The court awarded the Official Assignee costs on a 2B basis in the amount of $12,096 in respect of the index applications and $12,428 in respect of the earlier iterations of the index applications discontinued by Ms Singh. The court also awarded the Official Assignee disbursements in the amount of $270. The court found that the costs claimed by the Official Assignee were reasonable and appropriate, having been arrived at according to scale and for less than the costs actually incurred. The court also found that it was appropriate to depart from the presumption under r 15.23 that Ms Singh should pay the Official Assignee’s costs in respect of the discontinued applications, given her dissolute conduct and the meritless nature of her challenges.

In conclusion, the court awarded the Official Assignee costs on a 2B basis and disbursements in the amount of $23,642. The court found that the Official Assignee's costs claim was reasonable and appropriate and that Ms Singh's conduct had been dissolute. The court also found that the presumption under r 15.23 applied, and Ms Singh was ordered to pay the Official Assignee's costs in respect of the discontinued applications.

Orders