JINDAL v JARDEN SECURITIES LIMITED & ORS [2022] NZCA 513

JINDAL v JARDEN SECURITIES LIMITED & ORS [2022] NZCA 513 [2 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA584/2020[2022] NZCA 513BETWEEN GAUTAM JINDALAppellantAND JARDEN SECURITIES LIMITED(FORMERLY OM FINANCIAL LIMITED)First RespondentNZX LIMITEDSecond RespondentMINTERELLISONRUDDWATTSThird RespondentCounsel: Appellant in PersonA J Lloyd and J J K Spring for RespondentsJudgment:(On the papers)1 November 2022 at 9.30 amJUDGMENT OF COOPER PA The appellant must pay costs of $1,195 to the respondents in respect of thedisputed costs matters.B Costs are to lie where they fall in respect of the current costs application.____________________________________________________________________REASONS[1] In a judgment dated 22 July 2022 the Court declined applications for leave toadduce further evidence, declined an application to disqualify counsel from acting forthe first and second respondents, and dismissed the appeal.1 The Court ordered1 Jindal v Jarden Securities Ltd (formerly OM Financial Ltd) [2022] NZCA 329 [Substantivejudgment].Mr Jindal to pay the respondents one set of costs for a standard appeal on a band Abasis uplifted by 20 per cent, and the usual disbursements.2[2] The parties have been unable to agree on all the costs required by the Court'sorder. The matters in dispute are:(a) costs in respect of the case management conference held on23 June 2021;(b) costs in respect of the respondents' application for leave to adducefurther evidence, which was neither opposed nor granted; and(c) costs in respect of the current costs dispute.Costs in respect of case management conference[3] Insofar as the case management conference on 23 June 2021 is concerned,the respondents seek costs totalling $717 for the preparation of a memorandum andattendance. The memorandum and conference were necessary because the originallynamed first respondent was OM Financial Ltd, which subsequently amalgamated withJarden Securities Ltd. Mr Jindal sought that the name of the first respondent beamended to Jarden Securities Ltd, which the respondents opposed. After hearing theparties by telephone, Goddard J suggested that the first respondent be referred to as"Jarden Securities Limited (formerly OM Financial Limited)".3 The partiessubsequently agreed to make that change. In the circumstances, I am not persuadedthat there should be an award of costs in favour of the respondents for this matter.Costs in respect of application for leave to adduce further evidence[4] The respondents seek costs totalling $2,390 in respect of the commencementof an application for leave to adduce further evidence and preparation for the hearingof that application. Their application dated 23 May 2022 was made as a consequenceof Mr Jindal's own application for leave to adduce further evidence. His application2 At [50].3 Jindal v Jarden Securities Ltd (formerly OM Financial Ltd) CA584/2020, 23 June 2021 [Minute ofGoddard J].relied on redacted copies of documents and, in the respondents' view, an incompleteset of documents. The respondents' application was made to make sure the Court wasin possession of the relevant material. On this issue the respondents say the fact thatboth applications were dismissed does not mean that they should not be awarded costs.It merely reflects the fact that Mr Jindal's own application did not have merit.[5] The reasoning in this Court's substantive judgment supports the respondents'position on this issue. In particular, the Court considered that the evidence Mr Jindalsought to adduce was neither cogent nor credible for the reasons we then set out.4[6] The Court's substantive judgment also explained that because Mr Jindal'sapplication was refused, it was not necessary to receive the further information onwhich the respondents sought to rely. It was on that basis that the respondents'application was declined.5[7] Mr Jindal now argues that he had not opposed the respondents' application,which was in any event declined, and on that basis costs should follow the event andan award of costs should not now be made against him.[8] I consider it was reasonable for the respondents to have made their applicationhaving regard to the shortcomings of Mr Jindal's own application. The terms on whichthis Court dismissed Mr Jindal's application make it plain that it should never havebeen brought. The dismissal of the respondents' application reflected the fact thatMr Jindal's application had been dismissed. In those circumstances, I consider itappropriate to exercise the Court's overriding discretion and make an award of costsin favour of the respondents for the commencement of the application. However,I would not apply the uplift of 20 per cent.[9] I do not consider it appropriate to award the respondents costs for preparationfor the hearing of the application. The application was dealt with at the hearing of thesubstantive appeal as a side bar to Mr Jindal's own application and did not addmaterially to the length of the hearing. There would be an element of double counting4 Substantive judgment, above n 1, at [25]–[28].5 At [29].if the respondents could recover costs for both the preparation for the substantivehearing (which is a matter that is not disputed) as well as the preparation for thehearing of the application.[10] In the result, the sum of $1,195 is payable for this disputed matter.6Costs in respect of current costs dispute[11] Mr Jindal also opposes the respondents' application for costs in respect of thecurrent costs dispute. Given that both Mr Jindal and the respondents have beenpartially successful in relation to the cost issues the appropriate resolution on this pointis to allow costs to lie where they fall.Solicitors:MinterEllisonRuddWatts, Auckland for Respondents6 See Court of Appeal (Civil) Rules 2005, r 53C(1)(a) and sch 2, step 8; and High Court Rules 2016,sch 2.