SAGE GROUP LTD (NOW WORLD COMMERCE NZ LIMITED (IN LIQUIDATION)) V INDIANA PUBLICATIONS LIMITED AND RAVIN LAL HC AK CIV 2005-404-5424

SAGE GROUP LTD (NOW WORLD COMMERCE NZ LIMITED (IN LIQUIDATION)) V INDIANA PUBLICATIONS LIMITED AND RAVIN LAL HC AK CIV 2005-404-5424 29 November 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-5424BETWEEN SAGE GROUP LIMITED (NOW WORLD COMMERCE NZ LIMITED (IN LIQUIDATION)) Appellant AND INDIANA PUBLICATIONS LIMITED AND RAVIN LAL Respondents Hearing: Determined on the papers Judgment: 29 November 2007 at 3:00 pmJUDGMENT OF ASHER J [COSTS]This judgment was delivered by me on 29 November 2007 at 3:00 pm pursuant to Rule 540(4) of the High Court Rules .. Registrar/Deputy Registrar .. DateSolicitors: Dawsons, Solicitors, PO Box 38-143 Howick R Prasad, PO Box 14-637 Panmure Auckland Copy: GM Harrison, Barrister, PO Box 4338 Auckland[1] Mr Rajendra Prasad applied on 8 October 2007 in the Appeals List for an order to, in his words, "have a matter completed in the District Court or grant of leave of High Court for continuance in the Court of Appeal". He signed the application personally as "first copyright owner" and appeared in support of the application in his personal capacity. The appellant is Sage Group Limited, now World Commerce NZ Limited (In Liquidation). Mr Prasad previously controlled this company. This was the first occasion in the proceedings in which he appeared solely in a personal capacity rather than for the company. [2] On 6 November 2007 I declined his application, concluding that Mr Prasad did not have the status either to apply for an order in the proceedings or to appear in support. Mr Harrison for the respondents then sought costs in relation to Mr Prasad's application. As the matter had been called in the Appeals List and time had run out, I adjourned the application for written submissions, which I have now received. Mr Harrison seeks costs on the basis that Mr Prasad is a non-party [3] The standard costs provisions in rr 46-53 of the High Court Rules create a detailed costs regime. Rule 46(1) sets out the general rule that all matters relating to the costs in a proceeding or a step in a proceeding are for the "discretion of the Court", and r 46(2) provides that the principles to be applied in determining costs set out in rr 47-48G are subject to that discretion. [4] The scheme of the Rules contemplates the award of costs against those who are parties to proceedings. This can be seen from the general principle at r 47(a), which is that a party who fails should pay costs to the "party" who succeeds. "Party" is defined in r 3 as:party means any person who is a plaintiff or defendant in any proceeding; and includes any person added to the proceeding:Mr Prasad was not therefore a party. Indeed, it was the fact that Mr Prasad was not a party to the proceeding that was part of the basis for the decision on 6 November 2007.[5] It was stated in Glaister v Amalgamated Dairies [2004] 2 NZLR 606 at [21] that the costs regime is of a regulatory character and that the integrity of the scheme should be maintained. If there is to be a departure from the High Court Rules, this is to be done in a particularised and principled way ([22]). It was stated at [24]:The discretion exists to enable the unexpected and the unforeseen to be fairly accommodated. It is not a case of r 46 having an exclusionary primacy over r 47 (or any other rules): The rules are complimentary, and designed to produce an effective whole.[6] This application brought against Mr Prasad personally who was not a party, is of a type which is not specifically considered by the High Court Rules. However, there can be no doubt that the Court has jurisdiction to order costs against a non- party such as Mr Prasad. The discretion of the Court in r 46 is expressed in unfettered terms. In any event, where a person who is not a party files a document and purports to appear and take the time of the Court and a party to pursue an application which is unsuccessful, as was done here by Mr Prasad, the Court has an inherent jurisdiction to order costs against the person who has made the unsuccessful application. That jurisdiction must be exercised in a principled way, consistent with the High Court Rules and existing authorities. [7] The question of costs against non-parties was considered in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2005] 1 NZLR 145. Despite the fact that rr 47-53 apparently only contemplated awards of costs against parties, the Privy Council confirmed that the discretion in r 46 extended in certain circumstances to awards against non-parties. It was stated at [156]:The ultimate question in any such "exceptional" case is whether in all the circumstances it is just to make the order.[8] The statement of Tompkins J in Carborundum Abrasives v BNZ (No 2)[1992] 3 NZLR 757 at 765, was quoted in Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2):Where proceedings are initiated by and controlled by a person who, although not a party to the proceedings, has a direct personal financial interest in their result, such as a receiver or manager appointed by a secured creditor, a substantial unsecured creditor or a substantial shareholder, it would rarely be just for such a person pursuing his own interests, to be able to do so with no risk to himself should the proceedings fail or be discontinued.[9] Mr Prasad's position is not exactly the same as that of a non-party who has funded litigation. He did not purport to appear on behalf of the appellant. Rather, he appeared for himself. The appellant is in fact in liquidation and there is no suggestion that the liquidator supports the appeal. Nevertheless, by analogy, where a non-party has not so much controlled proceedings behind-the-scenes, but rather personally instigated and appeared in them, that non-party's involvement provides an equally if not more compelling basis for a costs order. [10] Mr Prasad chose to file his application. It failed. He was the unsuccessful party. His actions required a response from the respondent and an appearance by counsel. The general principle that those who are unsuccessful in a contested matter pay the costs of those who are successful, applies. A party would have had to pay costs in these circumstances, and so should Mr Prasad. [11] Mr Harrison seeks costs of $2,080 calculated on a 2B basis. I do not consider it appropriate to order a specific amount for costs, as this aspect of the costs award is best supervised by the Registrar. I award costs to the respondents against Mr Prasad. They are to be on a 2B basis. There appear to be no disbursements.. Asher J