Singh v Shetty - [2019] NZHC 438

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1684

[2019] NZHC 438

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: 3 October 2018

Appearances:

T G Aherne for Plaintiffs

L T Meys & P Grant for Defendants

Judgment:

13 March 2019

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 13 March 2019 at 4:00 pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Aherne Legal, Auckland Neilsons Lawyers, Auckland

SINGH v SURKANDA ENTERPRISES LTD [2019] NZHC 438 [13 March 2019]

Introduction

[1] This is an application by Satish Shetty, Shamiana Enterprises Limited and Shamiana Limited (collectively “the defendants”) for an order transferring the proceedings brought against them by Kaman Singh and Surkanda Enterprises Limited (collectively “the plaintiffs”) in the District Court at Waitakere to the High Court, pursuant to ss 89 and 91 of the District Courts Act 2016. The defendants also apply for an order granting them leave to bring the application or for an enlargement of time to bring it, and an order staying the District Court proceedings until determination of their application.

[2] The principal grounds relied on by the defendants are that the proceedings involve: complex issues relating to whether payments made by the plaintiffs were a bond or a non-refundable deposit; complex issues regarding the cancellation of contractual relationships; both the claim and counter-claim in the District Court proceedings involve substantial sums with the defendants’ counter-claim exceeding
$1 million. The defendants further say that as it is likely that a decision of the District Court will be appealed to the High Court, it is in the interests of justice that an order be made transferring the proceeding.

[3] The plaintiffs oppose the applications on the grounds that: the issues in the proceedings are not complex; the total amount claimed by them in the proceedings is
$330,000 and not an amount in excess of the District Court jurisdiction as alleged by the defendants; the defendants have consistently delayed the District Court proceedings and the present application is another delaying tactic; and that the defendants’ present application was brought on 3 August 2018, over a year after they filed their counter-claim on 21 June 2017, claiming a sum in excess of the District Court jurisdiction and consequentially well outside the five working day period prescribed by r 5.69(2)(a) of the High Court Rules 2016 (the Rules).

[4] The plaintiffs accordingly seek an order declining the application for an extension of time for the filing of the defendants’ application, and in the alternative, an order declining the application to transfer the proceeding to the High Court.

Alternatively, the plaintiffs seek timetable orders for the hearing of the application for security for costs, unless orders and a fixture for the substantive hearing.

Background

[5] The plaintiffs have commenced proceedings in…

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 438
Case: [2019] NZHC 438
Decision Date: 13 March 2019

CaseChat Overview and Summary

In Singh v Shetty, the defendants sought to transfer proceedings from the District Court to the High Court on the basis that the defendants' counterclaim exceeded the District Court’s jurisdictional limit. The plaintiffs opposed the application on the basis that the defendants had delayed the proceeding and that the issues were not complex enough to warrant a transfer. The court declined the defendants’ application to extend the time in which to bring their application for transfer, finding that the defendants had delayed the proceeding for over a year and had not provided a satisfactory explanation for the delay. The court further found that even if the defendants had been granted an extension of time, it would not have transferred the proceeding to the High Court because the defendants had consistently delayed the proceeding and it was not in the interests of justice to do so. The court also found that the proceeding was not complex enough to warrant a transfer to the High Court.

The court ordered the defendants to pay the plaintiffs' costs of the application and directed the parties to file memoranda as to costs. The court will determine the costs to be awarded to the plaintiffs following receipt of the costs memoranda filed by the parties.

Orders