Werder v Singh (aka Lyons)
[2023] NZHC 1283
•26 May 2023
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 DefendantROSHYN SINGH LYONS TRUSTEE COMPANY LIMITED
Third DefendantJAG 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 had partial success which Mr Mitch Singh, on behalf of the second defendant, suggests is cancelled out by aspects of that application not being successful.
[10] I have not lost sight of Mr McCutcheon’s reference to the principle that partial success is still success but at the end of the day, I consider the fair result in respect of costs concerning the discovery issue is that costs on that issue should also lie where they fall.
Redactions issue
[11] On this issue I consider there was mixed success for each party. The plaintiff obtained disclosure of some information while the bulk of the redactions themselves were preserved.
[12]In respect of this aspect of the hearing there is no order as to costs.
Access to Family Court documents
[13] Mr McCutcheon accepted that in respect of the Family Court documents issues the plaintiff has to some extent been granted an indulgence and costs should lie where they fall on that issue. I agree. There is no order for costs on that issue.
[14] Mr McCutcheon filed a reply submission which for the first time raised what he considered were errors in the April 2023 judgment. The error referred to at paragraph 2(a) of the memorandum, is not related to costs. As to the alleged error concerning Ms Gosai’s signature on the 1997 agreement, I have gone back to the note I made of counsel’s submission in reply, which was that Mr Werder accepted Ms Gosai did not sign the 1997 agreement. I do not accept the April judgment contains an error on this issue but given the issue of whether a concession on that point was made, I have had the transcript checked. This issue does not change my order that Mr Werder is to pay Ms Gosai’s costs on her application for security.
[15] For completeness, I set out below that portion of the transcript of the Court hearing:
Counsel Mr McCutcheon:
They are the 1997 agreement and we have discussed that there is some dispute around that. There is the draft of that earlier agreement and my client’s saying it’s a fabrication, why is there a draft in the first defendant’s handwriting, according to the handwriting expert. The handwriting expert’s report is at 484.
Judge: Yes
Counsel Mr McCutcheon:
That was paid for by my clients and in a nutshell I understand that says that the expert has reviewed the 1997 agreement, the draft um the draft, the document dated 30 May 2000 which is at 475, and the document dated 21 January 2003 at 481. So she reviewed all of those against handwriting submitted by the defendants and the conclusion is she thinks its likely, and I am being careful with the language that may not be the 100 per cent accurate language, but in essence she is saying that its likely that the first defendant signed the 1997 agreement um and the basically, all of these documents in the first defendant’s handwriting and signed by him and that the second defendant she is saying she cannot conclude, she thinks its improbable or unlikely or language like that, that the second defendant’s signed the document. Then my client has said he accepts that because she’s the expert and I have talked to him about look, this person is the expert what is the Judge going to say and he said look I just cannot explain it but she was there when these documents were signed, we discussed them together before they were signed and she did the calculations involved in the documents when she supported us in the calculations. Now I understand that that the second defendant hotly denies that but that is my client’s evidence so there is a concession that has to be made that the evidentiary or the support for the case against the second defendant on the documents is not as strong as the first defendant and so the submission on behalf of the plaintiff is that he has a good case on the merits on the first defendant, at least on these documents, he is seeking further discovery of the Family Court documents which we’ll get to later on, um but he concedes that the documentary case is not as strong as the second defendant
as its mostly affidavit evidence that he backs that up and I have some references here. [pause] Um 140, um my apologies, its um 110, 110.
Associate Judge Lester
Solicitors:
Peter McCutcheon, Auckland (for Plaintiff)
Kiely Thompson Caisley, Auckland (for First and Third Defendants) Glaister Ennor (for Second and Fourth Defendants)
Copy to counsel:
A R Gilchrist, Barrister, Aucklasand (for First and Third Defendants)
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