JINDAL v JARDEN SECURITIES LIMITED [2023] NZCA 117

JINDAL v JARDEN SECURITIES LIMITED [2023] NZCA 117 [20 April 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA181/2022[2023] NZCA 117BETWEEN GAUTAM JINDALAppellantAND JARDEN SECURITIES LIMITEDRespondentHearing: 27 March 2023Court: Cooper P, Lang and Downs JJCounsel: Appellant in personA J Lloyd and J J K Spring for RespondentJudgment: 20 April 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on aBand A basis uplifted by 50 percent and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Downs J)The appeal[1] The High Court ordered Gautam Jindal to pay costs of $1,716.48 after heabandoned an appeal he had filed in that Court.1 Mr Jindal appeals.1 Jindal v Jarden Securities Ltd (formerly OM Financial Ltd) HC Auckland CIV-2022-404-000206,1 March 2022 [Minute of Venning J].Background[2] The background is messy but important. It involves a District Court claim thatis still to be tried.[3] In 2018, Mr Jindal filed a District Court claim against Jarden Securities Ltd(Jarden). On 19 September 2019, Mr Jindal filed an application for discovery fromJarden and non-party discovery from NZX Ltd (NZX). Jarden and NZX wererepresented by the same law firm, MinterEllisonRuddWatts (Minter Ellison).Mr Jindal objected to Minter Ellison representing both Jarden and NZX; and appliedfor an order precluding that.[4] On 12 February 2020, Judge G M Harrison dismissed Mr Jindal's application.2Mr Jindal had until 11 March 2020 to file an appeal, within time, againstJudge Harrison's decision. On 4 May 2020, Mr Jindal filed a late appeal and soughtpermission to do so. The High Court refused permission.3 Mr Jindal then filed anappeal in this Court.[5] Mr Jindal's discovery application remained, of course, outstanding.On 21 December 2021, Judge Harrison directed it be heard on 29 March 2022.On 31 January 2022, Mr Jindal filed an appeal in relation to this direction.[6] So, by the end of January 2022, Mr Jindal had two outstanding appeals:an appeal to this Court concerning Minter Ellison's representation of Jarden and NZXin relation to Mr Jindal's (2019) discovery application; and an appeal to the High Courtin relation to Judge Harrison's direction allocating a fixture for that application. Forease of reference, we call the former the representation appeal and the latter, the fixtureappeal.4[7] On 1 March 2022, Venning J held a conference in relation to the fixture appeal.By then, Mr Jindal and Jarden had agreed Mr Jindal would abandon the fixture appeal2 Jindal v OM Financial Ltd [2020] NZDC 2162.3 Jindal v OM Financial Ltd [2020] NZHC 1993.4 The representation appeal was subsequently dismissed; see Jindal v Jarden Securities Ltd[2022] NZCA 329. Increased costs were awarded against Mr Jindal.on the basis that Jarden agreed to the 29 March fixture being adjourned until after thehearing of the representation appeal, which was scheduled for 13 June 2022.[8] This introduces the issue in this appeal: costs. Mr Jindal is a lawyer. At theconference before Venning J, Mr Jindal sought costs against Jarden. The Judgedeclined to award Mr Jindal costs.5 Instead, Venning J awarded costs to Jarden of$1,716.48.6 The award recognised Jarden's pre-conference memorandum and itsappearance at the conference.7[9] The Judge referred to correspondence leading up to the conference:8[7] On receipt of the [fixture] appeal, the solicitors for Jarden wrote to thelawyer then representing Mr Jindal noting that the hearing date for the appealin this Court would likely be after the allocated fixture in the District Court.[8] Mr Jindal then replied directly to the respondent's solicitors on23 February 2022. He noted that he had applied for a stay (on 22 February2022).[9] In response, later on the same day, the respondent offered through itssolicitors that, on the basis Mr Jindal withdrew his appeal/stay application, theparties could file a joint memorandum agreeing to adjourn the discoveryhearing in the District Court until the appeal to the Court of Appeal wasdetermined.[10] Mr Jindal agreed, but sought to impose a condition the respondent payhim costs on a 2B basis for the appeal and stay application.[12] The respondent could not accept that counter proposal and advisedMr Jindal of that on 24 February 2022. It then filed its memorandum for theconference on 25 February 2022.[10] The Judge then explained his costs decision:9 The respondent was initially prepared to have costs lie where they fall, butgiven Mr Jindal's opposition to that and his conditional response to itsproposal it now seeks costs for the conference memorandum and appearance.5 Minute of Venning J, above n 1, at [21].6 At [21].7 At [20]–[21].8 At [7]–[10] and [12].9 At [16]–[21].[17] In my judgment Mr Jindal acted unreasonably in not accepting thepractical proposal advanced by the respondent. The respondent proposed asensible compromise which has ultimately been implemented.[18] The appeal and stay application have not been resolved or determinedon their merits but have been resolved practically in accordance with therespondent's proposals.[19] The timing of events is relevant. The appeal was filed before theCourt of Appeal allocated a fixture for Mr Jindal's appeal. That appeal againstthe first decision has been before the Court of Appeal for some time withoutresolution.[20] Further, Mr Jindal only applied for a stay after the respondent'spointed out the issues he faced with having the appeal heard in this Courtbefore 29 March. If Mr Jindal had accepted the reasonable and practicalcompromise proposed by the respondent, it would not have incurred the costof the memorandum and appearance at the first call.[21] Mr Jindal is to pay the respondent's costs on a 2B basis for thememorandum and for one counsel's appearance at the hearing this morning.Mr Jindal's argument on appeal and fresh evidence[11] Mr Jindal filed extensive submissions in support of his appeal, includingsubmissions in reply, a step not contemplated by the Court of Appeal (Civil) Rules2005. At the hearing, we invited Mr Jindal to identify, with clarity, the alleged error(s)in Venning J's decision.[12] Mr Jindal said the decision was correct on its face, but wrong when twoadditional pieces of correspondence were considered. Mr Jindal sought permission toadduce this correspondence:(a) His email to Minter Ellison of 24 January 2022.(b) Their reply of 28 January 2022.[13] On behalf of Jarden, Mr Lloyd offered no objection to us receiving thecorrespondence as fresh evidence even though Mr Jindal could have placed it beforeVenning J. We received it accordingly.[14] Mr Jindal argued the correspondence cast events in a different light; anddemonstrated he had not been unreasonable, as Venning J concluded, in seeking costsagainst Jarden. Mr Jindal said the correspondence revealed he had the "IP", by whichwe assume he meant the intellectual property, in the idea to adjourn the discoveryapplication until the fixture appeal was determined. Mr Jindal said had Venning Jknown this, he would not have ordered him to pay Jarden costs of $1,716.48.Analysis[15] We begin with the correspondence.[16] In his 24 January email, Mr Jindal informed Minter Ellison he intended to filethe fixture appeal. Mr Jindal said he would ask the High Court, "exercising itsInherent Jurisdiction", to keep his discovery application "pending" until the fixtureappeal was determined. Mr Jindal invited Jarden to agree to this proposal and sign ajoint District Court memorandum adjourning the discovery application.[17] Minter Ellison's reply of 28 January went to the lawyer representing Mr Jindalin the District Court and its body is best reproduced in full:10We refer to Mr Jindal's email below. As you will see, Mr Jindal has threatenedto appeal Judge Harrison's direction that the discovery applications be setdown for a half-day fixture. As agreed on our recent call, we write to you ascounsel acting in the District Court proceeding.Mr Jindal's intended appeal is illustrative of his conduct to date which hasbeen to unnecessarily delay matters in the District Court. His intended appealhas no merit. There is no reason why the hearing of his discovery applicationsought to wait until the outcome of the Court of Appeal proceeding is known.There is no nexus between Mr Jindal's discovery applications and the issue ofjoint representation which is currently on appeal to the Court of Appeal.Whether our clients are separately represented cannot have any bearing onwhether the discovery applications ought to be granted. Furthermore, it isunlikely that a hearing date in the Court of Appeal will be obtained until thelatter half of 2022, and even if Mr Jindal were successful, the matter would beremitted to the High Court for a hearing, which will cause further delay (wellinto 2023). Delays of this length would be unacceptable to the Court, asJudge Harrison agreed.Secondly, from a practical perspective, even if Mr Jindal were to appealJudge Harrison's minute, it is highly unlikely that his appeal would be heardbefore the hearing of the discovery applications in the District Court(29 March 2022). The consequence is that Mr Jindal would have to make anapplication for a stay of Judge Harrison's minute. Given that there is no nexusbetween Mr Jindal's discovery applications and the issue on appeal to the10 Mr Jindal represented himself in the representation appeal and the fixture appeal.Court of Appeal, it is highly unlikely that the Court will grant a stay ofJudge Harrison's minute.Mr Jindal will face further cost consequences when his appeal/application fora stay fails as he will be unrepresented in that appeal. Could you please takeinstructions to confirm that Mr Jindal will: (a) not appeal Judge Harrison'sminute; and (b) advise his position about his discovery applications. On thesecond point, if Mr Jindal's real concern about proceeding with the discoveryapplications is the costs that he will incur if he is unsuccessful in the same,then could you please confirm that. That will allow us to take instructionsabout whether a position can be agreed to resolve the applications, now, giventhat JSL is due to provide updating discovery next month.[18] We make four interrelated points. First, Mr Jindal was seeking to adjourn hisown discovery application: an application that had been outstanding in theDistrict Court since September 2019. Second, Jarden acted reasonably in seeking todissuade Mr Jindal from filing the fixture appeal for the reasons identified inMinter Ellison's 28 January 2022 email. Third, that it was Mr Jindal's idea to adjournthe discovery application is beside the point; Jarden acted reasonably in seeking todissuade Mr Jindal from seeking an adjournment, again for the reasons identified inMinter Ellison's 28 January email. Fourth, Jarden agreed to the adjournment onlyafter Mr Jindal filed the fixture appeal, presumably recognising this was the best wayto minimise its legal costs in the face of litigation across three courts concerning anundetermined discovery application.[19] Contrary to Mr Jindal's submission, the correspondence does not cast eventsin a different light, nor demonstrate he was reasonable to seek costs against Jarden.Indeed, we consider the correspondence provides further support for Venning J'sconclusion of Mr Jindal's unreasonableness in seeking costs against Jarden in relationto the fixture appeal.[20] Mr Jindal told us he had made "every attempt" not to waste the courts' time inrelation to the litigation, including his conduct of this appeal. Mr Jindal said that wasevident from an email he sent Minter Ellison on 25 August 2022, in which he offeredto abandon this appeal. Absent objection, we received this email too. We record theproposed abandonment was conditional on Jarden waiving the costs awarded in itsfavour by Venning J. In other words, Mr Jindal offered to abandon this appeal on a"heads, I win; tails, you lose" basis. When we raised this with Mr Jindal at the hearing,he acknowledged adopting "a slightly selfish position".[21] Jarden seeks increased costs on this appeal. We agree these should be ordered.The appeal is meritless; Mr Jindal filed needlessly extensive submissions, includingin reply; and an appeal to this Court in relation to costs of $1,716.48 is, frankly,wasteful.Result[22] The appeal is dismissed.[23] The appellant must pay the respondent costs for a standard appeal on a Band Abasis uplifted by 50 percent and usual disbursements.Solicitors:MinterEllisonRuddWatts, Auckland for Respondent.