GAUTAM JINDAL v KEVIN JOHN DAVIES as liquidator of ORANGE CAPITAL LIMITED (IN LIQUIDATION) [2023] NZHC 3292

GAUTAM JINDAL v KEVIN JOHN DAVIES as liquidator of ORANGE CAPITAL LIMITED(IN LIQUIDATION) [2023] NZHC 3292 [22 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-2280[2023] NZHC 3292UNDER the Companies Act 1993BETWEEN GAUTAM JINDALApplicantAND KEVIN JOHN DAVIES as liquidator ofORANGE CAPITAL LIMITED(IN LIQUIDATION)RespondentHearing: On the papersAppearances: Applicant is self-representedJ K Mahuta-Coyle for the RespondentJudgment: 22 November 2023COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLORThis judgment was delivered by me on 22 November 2023 at 3:00pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Gautam Jindal, GreenLane, Auckland, ApplicantLangford Law (J Langford), Wellington, for the RespondentCopy for:J K Mahuta-Coyle, Lambton Chambers, Wellington, for the RespondentIntroduction[1] By a judgment dated 1 December 2022 Associate Judge Gardiner dismissed anapplication by the applicant for orders giving the respondent directions under s 284 ofthe Companies Act 1993. The Court found that the respondent was the successfulparty and ordinarily would be entitled to costs on a category 2B basis. The partieswere invited to agree costs and leave was reserved if costs (as to quantum) could notbe agreed.[2] The parties have been unable to agree and counsel for the respondent has filedmemoranda dated 28 February 2023, 8 March 2023 and 10 October 2023. Theapplicant has filed memoranda dated 8 March 2023 and 30 September 2023.[3] In counsel for the respondent's memorandum of 28 February 2023, costs weresought of $13,264.50 together with disbursements of $160.00, totalling $13,424.50 asset out in Schedule A of that memorandum. By his various memoranda, the applicantobjects to items 11, 12, and both items 36, and seeks costs to be awarded in his favouras wasted costs of $1,434.00, thereby reducing the award to $8,604.00.[4] I review each of these items.Items 11 and 12[5] The applicant objects to these items on the basis that the memorandum of27June 2022 filed by the respondent was meritless and the Court agreed with theapplicant's position, as set out in the minute of Peters J dated 1 July 2022. Counselfor the respondent's response to this is that the fact the Court ultimately supported theapplicant's position did not detract from the need for the respondent to have filed thememorandum in advance of making an appearance at the mentions hearing in the firstplace. Counsel for the respondent submits that even in the best case for the applicant,had the parties been in agreement on the procedure, a joint memorandum would stillbe formulated and filed in order to obtain case management directions towards thehearing.[6] In my view, items 11 and 12 should be allowed to the respondent. While theapplicant was successful in the outcome of the case management conference, the filingof the memorandum in preparation for the case management conference was stillnecessary in any event. However as the applicant was the successful party in thisapplication he should be entitled to his wasted costs on that application of $1434.Item 36 - related to filing the supplementary affidavit[7] The applicant objects to this on the basis that:(a) the Court did not invite any additional information, but instead therespondent sought leave to file some additional information which theCourt was willing to accept;(b) it was not allowed costs when granted leave, as no costs were sought atthe time;(c) the material in the affidavit was known, or ought to have been known,to the respondent's counsel before the hearing.[8] The respondent's response to this is that the applicant raised a new issue notpreviously raised by his pleadings, in the hearing, or in his evidence or writtensubmissions. Counsel submits the issue raised for the first time concerned thereasonableness of the liquidator's fees charged in the liquidation of the applicant'sformer company, Orange Capital Ltd (In Liquidation), and the affidavit of Mr Daviesaddresses those allegation only.[9] I accept the respondent's position that the supplementary affidavit was both areasonable and necessary step by Mr Davies in response to matters raised by Mr Jindaland accordingly the costs are allowed.Item 36 – memorandum as to costs[10] The applicant disputes this item on the basis that the Court is reluctant to allowcosts on costs, and refers to the decisions at footnote [1] of his memorandum of30 September 2023. Counsel for the respondent responds by submitting that therespondent did endeavour to agree costs, but the applicant did not respond in a timelymanner.[11] My view on this is that the claim for the memorandum as to costs should notbe allowed to the respondent. While the applicant was slow in responding, I do notthink costs on costs is justified in this instance.Hearing time[12] The applicant alleges the hearing was half a day and it was unreasonable forthe respondent to claim three-quarters of a day for a half-day hearing. The respondentresponds that the time the hearing finished was uncertain.[13] Court resource to try to ascertain the time the hearing concluded for a hearingback in 2022 is disproportionate to the issue, and accordingly I will allow therespondent's claim for three-quarters of a day.[14] As a result of the views I have expressed above, the respondent is entitled tocosts of $11,352.50 and disbursements of $160.00, totalling $11,512.50.Orders[15] I order that the applicant is to pay the respondent the sum of $11,512.50...Associate Judge Taylor