Venkataswamy v Kodoor - [2023] NZHC 55

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2374

[2023] NZHC 55

BETWEEN
SHYLA VENKATASWAMY

Plaintiff

AND

MURALI GANESH KODOOR and GEETA MURALI GANESH

Defendants

Hearing: On the papers

Counsel:

CM Fisher for plaintiff

MIS Phillipps for defendants

Judgment:

1 February 2023

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

[Costs]

This judgment was delivered by me on 1 February 2023 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Fortune Manning, Auckland
Vicki Ammundsen Trust Law Limited, Auckland

VENKATASWAMY v KODOOR [2023] NZHC 55 [1 February 2023]

Introduction

[1] The plaintiff filed an application dated 3 May 2022 to strike out the affidavit of Muralidhar JS affirmed on 19 January 2022 and filed by the defendants in opposition to the plaintiff’s application for an interim payment. In addition to issues as to form, the plaintiff alleged that the affidavit was a forgery as it was not signed or approved by Muralidhar JS.

[2]Orders were made by consent by Toogood J on 19 May 2022:

(a)removing the affidavit of Muralidhar JS from the court file pending the determination of the interim payment and security for costs applications, due to be heard on 16 June 2022;

(b)confirming there was no need for any change to the timetable directions for the fixture for those applications;

(c)further confirming that no directions were required regarding the filing of papers in opposition to the application for strike out; and

(d)setting out a timetable for the filing of costs submissions on the application to strike out.

[3] Costs submissions were filed by the plaintiff on 2 June 2022 as directed by Toogood J. The defendants sent a copy of their submissions to the previous case officer’s address but not the generic court email address on 16 June 2022. Unfortunately, the submissions did not come to the registry’s attention at that time.

[4] I issued my decision on the interim payment and security for costs applications on 2 November 2022, a copy of which is being kept separate from the Court file, so it is not disclosed to the trial judge to prevent disclosure as required by r 7.74 of the High Court Rules 2016. In that decision I referred to the fact that the defendants appeared

not to have filed any submissions in response to the plaintiff’s memorandum on costs.1 Despite this, the defendants did not follow up with the Court.

[5] Newly appointed counsel for the plaintiff followed up with the Registry in December 2022 for a decision on costs for the strike out application. I issued a minute on 14 December 2022 extending the time by which the defendants were able to file any memorandum in response to the plaintiff’s costs memorandum to 19 December 2022.

[6] Counsel for the defendants then filed a short memorandum dated 15 December 2022 referring to their earlier memorandum dated 16 June 2022. The defendants’ position is that costs ought to be reserved on the application…

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.

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Details

Case: [2023] NZHC 55
Decision Date: 1 February 2023

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by Shyla Venkataswamy to strike out an affidavit filed by the defendants, Murali Ganesh Kodoor and Geeta Murali Ganesh. The plaintiff alleged that the affidavit in question, affirmed by Muralidhar JS, was a forgery as it was neither signed nor approved by Muralidhar JS. The central legal issue revolved around whether costs should be awarded at the interlocutory stage or reserved for determination following the substantive proceeding.

The court considered the rules governing costs on interlocutory applications and the discretion vested in the court. The plaintiff argued that the defendants’ failure to oppose the application, coupled with Muralidhar JS's denial of the affidavit's authenticity, justified an award of indemnity costs. The defendants countered that the application had not been finally determined and that the authenticity of the affidavit and the question of forgery were matters to be resolved at trial. The court found that the defendants had not challenged the authenticity of the statement provided by Muralidhar JS to the police, which suggested they accepted the plaintiff's version of events. However, the court also noted that the plaintiff had not provided copies of invoices to substantiate the claimed costs, and it was unlikely the defendants would require the affidavit to be used in the substantive hearing.

Therefore, the court decided to reserve costs on the plaintiff's application to strike out the affidavit until the substantive hearing. The defendants were directed to file any notice of opposition to the strike out application by 9 February 2023. If a notice of opposition was filed, the parties were required to confer and propose appropriate directions for determining the strike out application.

Orders