Werder v Singh (aka Lyons) - [2023] NZHC 1283

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2160

[2023] NZHC 1283

BETWEEN
IAN KEVIN WERDER

Plaintiff

AND

ROSHYN SINGH (LYONS)

First Defendant

RAJESHWARI SINGH (GOSAI)
Second Defendant

ROSHYN SINGH LYONS TRUSTEE COMPANY LIMITED
Third Defendant

JAG SAI RAJ TRUSTEE COMPANY LIMITED

Fourth Defendant

Hearing: (On the papers)

Appearances:

P McCutcheon for Plaintiff

A R Gilchrist for First and Third Defendants M Singh for Second and Fourth Defendants

Judgment:

26 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

This Judgment was delivered by me on 26 May 2023 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WERDER v SINGH (LYONS) [2023] NZHC 1283 [26 May 2023]

[1] Costs memoranda have been filed by the parties following my decision of 21 April 2023.1 Mr McCutcheon, counsel for the plaintiff, in his memorandum of 1 May 2023, admittedly on a broad brush basis, suggested the issues could be grouped under four heads:

(1)security for costs;

(2)discovery relating to Netherton Street;

(3)the removal of redactions; and

(4)access to the Family Court documents.

Security for costs

[2] As to the security for costs application, the second and fourth defendants were successful.

[3] Mr Mitch Singh, counsel for the second and fourth defendants, regarding security, submits there should be an award of costs in favour of his clients of $6,194.50 (being 2B costs plus disbursements), less $1,333.00 being one-third of the plaintiff’s costs of preparing the bundles for the hearing, which the plaintiff prepared. Mr Mitch Singh seeks a net costs award in the sum of $4,861.50.

[4] Given the clear success of the second defendant in respect of the security issue and given Mr Mitch Singh’s pragmatic approach to dealing with the plaintiff’s request that the cost of the bundles be shared equally, there can be no objection to the reasonableness of the sum sought.

[5] Given the success of Mr Mitch Singh’s client, the plaintiff is to pay the second defendant the sum of $4,861.50.

[6] The second part of the security costs application concerns the plaintiff’s success in resisting the application for security by the first and third defendants.

1 Werder v Singh [2023] NZHC 853.

[7] The plaintiff is entitled to costs on a 2B basis against the first and third defendants in respect of the unsuccessful security application – that conclusion being consistent with the approach I have taken in respect of the success of the second defendant in obtaining security.

[8] I see no justification for the uplift sought by Mr McCutcheon, nor can I see any justification for costs to be dealt with on a 1B basis as suggested by Mr Gilchrist, counsel for the first and third defendants. The first and third defendants are jointly liable to pay to the plaintiff costs including one-third of the bundle preparation in the sum of $7,414.20.

Discovery relating to Netherton Street

[9] As to the discovery relating to Netherston St, the plaintiff…

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 Werder v Singh (aka Lyons)

Details

AGLC: Werder v Singh (aka Lyons) [2023] NZHC 1283
Case: [2023] NZHC 1283
Decision Date: 26 May 2023

CaseChat Overview and Summary

The case of Werder v Singh (aka Lyons) involved a dispute between Ian Kevin Werder, the plaintiff, and Roshyn Singh (Lyons), Rajeshwari Singh (Gosai), Roshyn Singh Lyons Trustee Company Limited, and Jag Sai Raj Trustee Company Limited, the defendants. The primary issues addressed by the court were security for costs, discovery relating to a property on Netherton Street, the removal of redactions from certain documents, and access to Family Court documents. The court's judgment, delivered by Associate Judge Lester on 26 May 2023, provided detailed rulings on these matters.

Regarding the security for costs, the court found in favour of the second and fourth defendants, ordering the plaintiff to pay them $4,861.50. The plaintiff was also ordered to pay the first and third defendants $7,414.20 for their unsuccessful application for security. The court ruled that the plaintiff's partial success in the discovery relating to Netherton Street did not warrant costs being awarded to either party. On the issue of redactions, the court found mixed success for both parties and decided that costs should lie where they fell. The court also ruled that costs should lie where they fell on the issue of access to Family Court documents, as the plaintiff had been granted some indulgence on this matter.

In summary, the court awarded costs to the second and fourth defendants for their successful security for costs application and to the first and third defendants for the plaintiff's unsuccessful application. The court ruled that costs should lie where they fell on the issues of discovery, redactions, and access to Family Court documents. This decision highlights the importance of the principle that partial success is still success, but it also underscores the necessity for clear and pragmatic approaches in litigation, particularly in cost-related matters.

Orders