Singh v Shetty - [2019] NZHC 1181

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1684

[2019] NZHC 1181

BETWEEN
KAMAN SINGH

First Plaintiff

AND

SURKANDA ENTERPRISES LIMITED

Second Plaintiff

AND

SATISH SHAMBHU SHETTY

First Defendant

AND

SHAMIANA ENTERPRISES LIMITED

Second Defendant

AND

SHAMIANA LIMITED

Third Defendant

Hearing: On the papers

Appearances:

T G Aherne for Plaintiffs

L T Meys & P Grant for Defendants

Judgment:

28 May 2019

JUDGMENT OF PAUL DAVISON J

[Re Costs]

This judgment was delivered by me on 28 May 2019 at 1:30 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Aherne Legal, Auckland Neilsons Lawyers, Auckland

KAMAN SINGH v SURKANDA ENTERPRISES LIMITED [2019] NZHC 1181 [28 May 2019]

Introduction

[1] This is an application by Mr Kaman Singh and Surkanda Enterprises Ltd,1 for indemnity costs of $34,664.62 in respect of the failed application by Mr Satish Shetty, Shamiana Enterprises Ltd and Shamian Ltd,2 for the proceeding to be removed from the District Court to the High Court.

[2] The plaintiffs say that indemnity costs are appropriate as the defendants have acted vexatiously, frivolously, improperly and unnecessarily in commencing and continuing the application for transfer to the High Court.

[3] The defendants oppose indemnity costs being granted, saying that they had arguable grounds for bringing the application for transfer, and had been encouraged to do so by the District Court. As a result, the defendants say that it cannot be said that the application was hopeless or vexatious, and the plaintiffs should therefore receive no more than 2B costs as a result.

Background

[4] The plaintiffs commenced proceedings in the District Court in March 2017. The statement of claim alleged that upon termination of contracts entered into between the parties, the plaintiffs were entitled to the repayment of bonds totalling $330,000.

[5] The defendants responded on 21 June 2017, filing a statement of defence and counterclaim in which they denied liability to repay the bonds to the plaintiffs. The defendants alleged that the plaintiffs were liable to them for unpaid rents, totalling
$2,500 per week from March 2016 until September 2017, plus general damages, interest and costs.

[6] On 16 February 2018 counsel for the plaintiffs and the defendants filed a “Joint Memorandum of Counsel for Second Case Management Conference 22 February 2018”. In the memorandum counsel noted that the matter had not been settled at a Judicial Settlement Conference held on 2 February 2018, and identified the issues in

1 The respondents in the proceeding for transfer, but hereinafter referred to as the plaintiffs.
2 The applicants in the proceeding for transfer, but hereinafter referred to as the defendants.

dispute. The Memorandum noted that the defendants would file and serve an amended counterclaim by 22 February 2018, and the plaintiffs would file a reply to the amended counterclaim by 8 March 2018. The Memorandum stated that the defendants were considering whether to apply for security for costs, and if applying would make the application within seven…

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 Shetty

Details

AGLC: Singh v Shetty [2019] NZHC 1181
Case: [2019] NZHC 1181
Decision Date: 28 May 2019

CaseChat Overview and Summary

Singh and Surkanda Enterprises Limited filed an application for indemnity costs of $34,664.62 against Shetty and the other defendants for the costs incurred in opposing their application for the proceeding to be removed from the District Court to the High Court. The plaintiffs argued that the defendants acted vexatiously, frivolously, improperly, and unnecessarily in commencing and continuing the application for transfer to the High Court. The defendants opposed the indemnity costs, stating that they had arguable grounds for bringing the application for transfer and had been encouraged to do so by the District Court.

The Court considered the defendants' conduct throughout the proceeding, including the District Court phase, which showed a consistent history of failing to comply with time limits, the late filing of applications, and the effect of which would inevitably delay and frustrate the plaintiffs' attempts to progress the proceeding. The Court found that the defendants' belated application to seek transfer of the proceeding from the District Court to the High Court was undertaken on clearly insufficient grounds for the ulterior purpose of causing further delay to the plaintiffs' claim and as a consequence also requiring the plaintiffs to incur legal costs to oppose their application. The Court found that the defendants had acted frivolously, vexatiously, and improperly by the belated timing of their application for transfer, which was already well out of time, and made without any sufficient explanation for the delay.

The Court concluded that the plaintiffs were entitled to an uplift of costs totalling $20,000, which also captured the time spent after the hearing in relation to the memorandum for costs. The Court found that the amount claimed by the plaintiffs was disproportionately high, having regard to the matters in dispute, the degree of complexity of the issues, and the amount of time reasonably necessary for preparation for the hearing.

Orders