Jindal v Jarden Securities Limited [2022] NZHC 572 (25 March 2022)

Last Updated: 8 April 2022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1664 [2022] NZHC 572

BETWEEN	GAUTAM JINDAL Appellant
AND	JARDEN SECURITIES LIMITED Respondent

Hearing:	14 October 2021, further memoranda filed 20, 20 October 2021, 1 November 2021
Appearances:	Appellant in Person JJK Spring and J S Hofer for Respondent
Judgment:	25 March 2022

JUDGMENT OF DUFFY J

This judgment was delivered by me on 25 March 2021 at 2.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

MinterEllisonRuddWatts, Auckland

JINDAL v JARDEN SECURITIES LIMITED [2022] NZHC 572 [25 March 2022]

• [1] The appellant, Gautam Jindal, is the plaintiff in a District Court civil proceeding. He appeals against an order to pay $10,000 security for costs order made by Judge Harrison.¹ The appeal is opposed by Jarden Securities Ltd.

• [2] The security order of $10,000 was an amendment of an earlier order of security for costs that was not opposed by Mr Jindal.² The amendment was required because Mr Jindal was granted legal aid one year after the earlier costs order was made. This required the quantum of the order to be reduced. There was a wide divergence of view between Mr Jindal and the respondent as to the appropriate quantum. The issue on appeal is whether the Judge set the quantum too high when he made the amended order that Mr Jindal pay $10,000.

Procedural history

• [3] On or about 29 May 2019, the respondent filed an application against Mr Jindal seeking security for costs. On 22 October 2019, Judge Harrison directed, with the agreement of Mr Jindal, that he pay $4,000 as a partial payment of security for costs.³ Then on 10 February 2020, the Judge heard an unopposed application for security for costs. The respondent advised the Judge it anticipated that its costs in successfully defending the proceeding (based on category 2B) would come to $42,000. At this hearing, Mr Jindal had accepted he did not have funds to pay costs which might be awarded against him.⁴ On 12 February 2020, the Judge found it would be prohibitive to order security in the sum of $42,000.⁵ The Judge acknowledged that it was common practice to direct security be paid in “various tranches”.⁶ This led him to order payment of $21,000 to be made by 10 April 2020.⁷ Mr Jindal did not appeal against that decision. However, no payment was made on the due date.

¹ Jindal v OM Financial Ltd [2021] NZDC 11804. Jarden Securities Ltd was formerly named OM Financial Ltd.

² Jindal v OM Financial Ltd [2020] NZDC 2162.

³ At [14].

⁴ At [16].

⁵ At [18].

⁶ At [19].

⁷ At [20].

• [4] On 29 January 2021, Judge M-E Sharp made an unless order in respect of this payment.⁸ However, on 12 February 2021 Mr Jindal was granted interim legal aid in the proceeding. His lawyer then sought variation of the costs order in reliance on s 45 of the Legal Services Act 2011 (the LSA), which limits the circumstances when a legally aided party can be ordered to pay costs.

Relevant law

• [5] It is helpful at this point to consider the relevant law in relation to costs orders in the District Court and s 45 of the LSA. The District Court Rules 2014, r 5.48 provides that the court may order security for costs where there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the proceeding, and the judge considers the order fit in all the circumstances. This discretion is regarded as being much the same as that found in the equivalent r 5.45 of the High Court Rules 2016, which is viewed as broad and not to be fettered by constructing principles from the facts of previous cases.⁹

• [6] Section 45 of the LSA provides:

(1) If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2) No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

(3) In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

a) any conduct that causes the other party to incur unnecessary cost:

b) any failure to comply with the procedural rules and orders of the court:

c) any misleading or deceitful conduct:

d) any unreasonable pursuit of 1 or more issues on which the aided person fails:

e) any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

f) any other conduct that abuses the processes of the court.

⁸ Jindal v OM Financial Limited CIV-2019-004-000075, 29 January 2021 (Minute).

⁹ AS McLachlan Ltd v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 (CA).

• [7] Relevant here is s 45(2) which severely restricts the occasions when costs awards can be made against legally aided persons.

The amended costs order decision

• [8] It was relevant for Judge Harrison to consider, for the purposes of deciding Mr Jindal’s application, whether the circumstances of the case (insofar as they could be known at that time) might meet the test for when a legally aided person can be ordered to pay costs.¹⁰ On 21 June 2021 the Judge delivered a decision in which he found the “exceptional circumstances test” in s 45 would not be met.¹¹ Once the Judge reached that point, he correctly recognised that he was obliged to follow the usual approach of not ordering costs against a legally aided party.¹² This meant any costs award should not include consideration of steps taken after 12 February 2021, being the date Mr Jindal was granted legal aid.¹³

• [9] In the decision of 21 June 2021 Judge Harrison amended the 12 February 2020 order and directed as follows:

(a) The plaintiff is to pay security for costs incurred by the defendant from the inception of the proceedings until the date on which the interim grant of legal aid was made.¹⁴

(b) The amount to be paid was subject to further submissions from counsel, and assessed on a category 2B basis.¹⁵

(c) The security of $4,000 already paid by Mr Jindal was to be taken into account in assessing the amount yet to be paid.¹⁶

¹⁰ The question of whether an award of costs is in fact made against Mr Jindal despite him being legally aided is one for the trial judge.

¹¹ At [16]–[18].

¹² At [7]–[8]; and see Robert Osborne (ed) McGechan On Procedure (online ed, Thomson Reuters) at [HR45.45.14].

¹³ At present Mr Jindal has been granted interim legal aid. If the grant is subsequently confirmed in a way that makes the grant retrospective as well as prospective that is likely to require a further re-visiting of the security for costs: see Bevan-Smith Reed Publishing (NZ) Ltd CIV 2003-404- 3628 HC Auckland 20 August 2004.

¹⁴ At [13].

¹⁵ At [14].

¹⁶ At [15].

(d) The proceeding was stayed pending finalisation of the amount to be deposited and actual payment.¹⁷

(e) Costs were reserved.¹⁸

• [10] In accordance with the Judge’s directions, counsel for the parties filed a separate memorandum as to the appropriate amount to be paid into Court. Mr Jindal said he should pay $971; the respondent said he should pay $11,987.

• [11] On 26 July 2021, Judge Harrison issued a minute ordering Mr Jindal to deposit

$10,000 with the Court within 10 working days, failing which the proceeding would be struck out.¹⁹ Mr Jindal duly paid the amount.

• [12] Mr Jindal sought reasons for this decision. In a minute dated 14 August 2021, Judge Harrison provided his reasons, as follows:²⁰

R5.48 Provides the court with a wide discretion to order the giving of security for costs. I invited the parties to agree an amount, in my decision of 21.06.2021. They couldn’t. I therefore fixed the amount payable at $10,000 taking into account the submissions of counsel in their memoranda of 7 and 15 July respectively and a likely award of costs in favour of the defendant in the event the plaintiff’s claim fails.

• [13] The appeal followed.

Discussion

• [14] The initial order to pay security of $21,000 was made unopposed on 12 February 2020. The grant of legal aid on 12 February 2021 required Judge Harrison to revisit the quantum of the security he had ordered. The dispute then before the Judge was over the level of reduction of the security, given the constraint s 45 places on awarding costs against legally aided persons. The Judge gave very general reasons for why he set the security quantum at $10,000. It is difficult to understand how he came by this figure.

¹⁷ At [21].

¹⁸ At [22].

¹⁹ Jindal v OM Financial Ltd DC Auckland CIV-2019-004-75 26 July 2021 (Minute).

²⁰ Jindal v OM Financial Ltd DC Auckland CIV-2019-004-75 14 August 2021 (Minute).

• [15] To gain some understanding of why the Judge may have fixed the amended security at $10,000 I consider it helpful to look at the likely award of costs that Mr Jindal may face should his claim fail. Although security for costs orders are not necessarily fixed by reference to likely costs awards, there must be some correspondence between them.²¹ Here, that correspondence can be readily ascertained because the only costs to be secured are those that have been incurred up to the grant of legal aid.

• [16] I was provided with a copy of the respondent’s application for security for costs dated 29 May 2019, which led to the security order made on 12 February 2020. Annexed to the application is a schedule of the anticipated costs calculated at category 2B (Schedule 1). Schedule 1 is relevant to the present task because it is the only occasion on which the respondent separately identifies steps taken before it filed its application for security for costs and steps taken afterwards.²² The first seven steps are identified as having been taken before the security for costs application was commenced. It is not clear to me whether the Judge took these steps into account when he calculated the security for costs sum of $21,000. In the judgment dated 12 February 2020 he does not identify what he bases this sum on other than to say he considered it appropriate to award 50 percent of the total sum calculated, which is not out of the ordinary.²³ Thus, it cannot be assumed that when the Judge fixed the quantum of this security he included provision for costs already incurred.

• [17] It would have been unusual for the Judge to take the preceding seven steps into account because security for costs orders are generally forward looking and, therefore, they are not made to secure costs already incurred. This general approach is discussed in the commentary to McGechan On Procedure and the line of cases cited therein.²⁴ Whenever a Court has departed from the general approach there have been specific

²¹ Oxygen Air Ltd v L G Electronics Pty Ltd [2018] NZHC 2504 at [68].

²² This is relevant because generally security for costs orders cover costs incurred after the making of those orders: see discussion at [17] – [20] herein.

²³ Jindal v OM Financial Ltd [2020] NZDC 2162 at [20]. See Kazhegeldin v Radio New Zealand Ltd [2018] NZHC 3179.

²⁴ McGechan On Procedure, above n 12, at [HR5.45.07] citing Pickard v Ambrose HC Wellington CIV 2003-091-143 13 August 2009 approved in Ambrose v Pickard [2009] NZCA 502; Sisson v IAG New Zealand Ltd [2014] NZHC 616 at [71] and Oxygen Air Ltd v L G Electronics Australia Pty Ltd [2018] NZHC 2504, [2018] NZAR 1699.

reasons for doing so and a reasoned explanation has been given.²⁵ The relevant case law is as follows.

• [18] In Pickard v Ambrose McKenzie J stated that the proper objective of an order for security for costs is to protect the position of the defendant for costs yet to be incurred.²⁶ On appeal this approach was confirmed:²⁷

The costs which have so far been expended are necessarily sunk. The costs of going to trial, while not insubstantial, should be appreciably less than those already incurred. Viewed in this way – that is forward looking, rather than back – the reasonableness of Miss Pickard’s desire to go to trial is not fairly assessed by reference to the very substantial costs already incurred.

In that case the costs already incurred were in excess of $700,000.²⁸

• [19] In Sisson v IAG New Zealand Ltd Associate Judge Osborne assessed quantum for a security for costs order on a “future-looking” basis given there was no good reason to depart from that approach.²⁹

• [20] In White v James Hardie Ltd Whata J decided not to adopt a forward-looking approach to assess quantum.³⁰ However, that was because of the particular circumstances of the case, which involved multiple plaintiffs suing James Hardie Ltd for millions of dollars over an allegedly defective building product in relation to 1,241 properties. At the time the security was fixed the case required James Hardie Ltd to provide extensive and therefore very expensive discovery for which costs had already been incurred. Whata J considered the security should include provision for those sunk costs.

• [21] In Coffey v Walker Associate Judge Paulsen acknowledged that the “Court’s approach to security for costs is generally forward-looking”.³¹ In accordance with White v James Hardie Ltd the Associate Judge chose to depart from the general

²⁵ See White v James Hardie New Zealand Ltd [2019] NZHC 188 at [19]; and Coffey v Walker [2021] NZHC 1073 at [31].

²⁶ Pickard v Ambrose, above n 24, at [9].

²⁷ Ambrose v Pickard, above n 24, at [42(c)].

²⁸ At [29].

²⁹ Sisson v IAG New Zealand Ltd, above n 24, at [71]–[72].

³⁰ White v James Hardie Ltd, above n 25, at [17]–[18].

³¹ Coffey v Walker, above n 25, at [31].

approach, but this was in circumstances where the application for security had promptly followed an unsuccessful application for summary judgment as a defendant. The Associate Judge found that whilst it would have been possible for the defendant to file the security for costs application before the summary judgment application security was not likely to be granted in those circumstances. By leaving the application for security until after the summary judgment was determined the defendant had acted responsibly. That being the case “it would be unfair that no account at all [was] taken of the costs already incurred.”³²

• [22] However, in the present case, on 21 June 2021, when the Judge reduced the security order to $10,000, he expressly stated that the period of cover would run from the commencement of the proceeding in December 2018 until the grant of legal aid on 12 February 2020.³³ No reference to the general approach being forward-looking or whether there were reasons for departing from that approach are mentioned. Nor are the circumstances of this case such that it is obviously apparent why the general approach was not followed here. The way the Judge has expressed himself suggests he has taken the view that because Mr Jindal may be personally liable for costs from the time he commenced the proceeding until he was granted legal aid,³⁴ it follows that the security would cover the same time frame.³⁵ However that is not so, as the case law on fixing security for costs orders shows.

• [23] If the security were to be assessed in accordance with the usual forward-looking approach, the quantum assessment would start from 29 May 2019, that being the date of the respondent’s security for costs application. This would mean that the first seven steps set out in Schedule 1 would be disregarded, which removes a total sum of $10,769 from the itemised costs in Schedule 1. I shall return to this later. As to the balance of the steps itemised in Schedule 1, they are not relevant to the present task and they can therefore be disregarded.³⁶

³² At [32].

³³ Jindal v OM Financial Ltd, above n 1, at [13].

³⁴ See at [8].

³⁵ See at [13].

³⁶ The steps in Schedule 1 that I have treated as irrelevant to this appeal are: (a) anticipated steps covering costs on the first security for costs application, which came to nothing because the Judge did not award the respondent costs on the first security application; and (b) anticipated steps relevant to trial preparation which cannot now be claimed given the grant of legal aid.

• [24] I now turn to the respondent’s 7 July 2021 memorandum costs and the schedule of anticipated costs attached thereto (Schedule 2). This document formed the basis of the respondent’s claim for the amended security order to be fixed at $11,987. Mr Jindal provided me with a copy of this document. The respondent objected. However, given the 7 July 2021 memorandum and the attached schedule were prepared by the respondent to support its argument for the security to be amended to $11,987 I see no reason for not considering this material. It provides some insight into the information that may have influenced the Judge to fix the amended security for costs at $10,000.

• [25] Unlike Schedule 1, Schedule 2 does not expressly separate the costs already incurred from those that were anticipated as of the date of the security for costs application. Although, it is clear from the described items that some of them relate to steps taken before 29 May 2019, which is when the application for security for costs was filed. However, for ease of reference it is best to read Schedule 2 together with Schedule 1 because this readily allows the steps that pre-date 29 May 2019 to be identified.³⁷ When this is done it becomes clear that of the seven steps recorded in Schedule 1 as pre-dating the security for costs application, only six of those steps are also recorded in Schedule 2. Thus, by the time Schedule 2 was prepared the respondent was only seeking to recover costs for six steps taken before the security application. Those steps come to a total of $10,235.³⁸

• [26] I have included in the assessment of steps taken after the security application was made the preparation of a memorandum by the respondent relating to Mr Jindal failing to comply with an unless order and seeking strike out of the proceeding. This memorandum was filed on 12 February 2021, which is the day legal aid was granted to Mr Jindal. The memorandum, of which I have a copy, is detailed and is analogous to a legal submission. Mr Jindal argues that because the memorandum is dated on the day legal aid was granted it should not be treated as a potential recoverable cost item. However, this overlooks the fact that for the memorandum to be completed on that

³⁷ For clarity and to assist with understanding this judgment I have attached Schedule 1 and Schedule 2 to the judgment.

³⁸ The steps already incurred recorded in both Schedule 1 and Schedule 2 are: statement of defence by defendant; answer to interrogatories dated 2 April 2019; answer to interrogatories dated 26 April 2019; answer to interrogatories dated 14 May 2019; list of documents on discovery; production of documents for inspection; in Schedule 1 only there is also recorded an appearance at judicial conference 18 March 2019.

day would require it to have been prepared earlier. The memorandum is not the type of document that could be expected to have been prepared on the day of its completion.

I consider allowance needs to be made for its preparation.³⁹

• [27] The analysis I have carried out of the potential quanta for a security for costs order here leads to the following results. If security is fixed taking account of steps taken from the date the security for costs application was filed (29 May 2019) to the date legal aid was granted (12 February 2021) the total comes to $5,276.50.⁴⁰ If the time frame runs from the commencement of the claim until the date legal aid was granted the total comes to $15,511.50. There are then the disbursements. In 2021 the respondent sought disbursements of $475, which appear to me to be reasonable. When these are added to the mix the higher sum is $15,986.50 and the lower sum is

$5,751.50.

• [28] Next there is the need to credit the $4,000 that Mr Jindal was directed to pay on 22 October 2019. Subtraction from the higher sum reduces it to $11,986.50, whereas, with the lower sum it is reduced to $1,751.50. The direction to pay $4,000 security for costs was made after the application for security was filed. How the credit of this sum is to be applied will also turn on whether a forward-looking approach is taken or not.

• [29] I have found it helpful to carry out an analysis of the potential quanta here based on whether a forward-looking approach is adopted or not. The outcome is vastly different for each.

• [30] This was a civil proceeding in the District Court with a legally aided plaintiff. The fact Mr Jindal was legally aided showed his financial means were limited. If the security were set too high, it could impede his ability to proceed with his case. If the amended security were to be fixed on a forward-looking basis it would be in the vicinity of $1,200 to $1,500. This is because security is not usually fixed at the same sum as the anticipated costs (being $1,751.50 inclusive of disbursements). In this way

³⁹ See discussion at n 44 herein.

⁴⁰ This figure is arrived at by excluding from schedule 2 the five items at $1,780 and the sixth item at $1,335. In schedule 1 the item of $1,335 sought for production of documents for inspection is clearly identified as something that was done before the security application was filed.

a discount is given to reflect litigation risk. On the other hand, a security of $10,000 reflecting the higher sum, which therefore largely protected sunk costs, could be prohibitive for a legally aided person. Thus, in the circumstances of this case, whether to adopt a forward-looking approach or not was a consideration that the Judge was required to address and give reasons for. Particularly, since it was not something that was expressly addressed when the security was first fixed on 12 February 2020. Put shortly, whether to adopt the forward-looking rule or not was a mandatory relevant consideration for this decision.

• [31] Instead, the Judge settled on a significantly higher sum for the security by departing from the general forward-looking approach without identifying why he considered that was appropriate in this case. Whilst the discretion to fix security for costs is broad, like other discretionary authority it should not be exercised in an arbitrary fashion. There needs to be some apparent basis for understanding how the Judge reached the quantum that he fixed. Here there is none.

• [32] Further in his decision of 21 June 2021 the Judge correctly noted that the security of $4,000 that Mr Jindal had already paid was something that “should be taken into account in assessing what further security is required.”⁴¹ However, he then failed to have proper regard to this credit by overlooking the varying effect it could have on the security, depending on whether a forward-looking approach was taken or not.

• [33] The respondent argued at the present appeal hearing, and in response to Mr Jindal’s post hearing memorandum, that fixing a sum for security for costs should not turn on a step by step assessment of the costs it would be likely to receive if Mr Jindal fails in his claim. I agree that in principle fixing an appropriate security sum requires much broader consideration. However, this case is different. Here the steps for which costs can be sought against Mr Jindal are fixed in time given the legal aid grant. It is difficult to see how the identified steps could warrant anything higher than scale 2B costs. Certainly, at the time it sought security the respondent did not suggest costs may be awarded to it on any other basis. Accordingly, the likely scale costs that may be awarded here against Mr Jindal are readily ascertainable.

⁴¹ Jindal v OM Financial Ltd, above n 1, at [15].

• [34] Here there was in principle a choice between two quanta, each vastly different from the other. There was a generally accepted rule that would have guided the Judge to adopt the lower quantum. There were no circumstances to suggest this case warranted departure from the general approach. In such circumstances it was incumbent on the Judge to turn his mind to the question of whether to fix security on a forward looking basis or not. To depart from the general approach without first paying regard to whether such departure was appropriate in this case and how the quantum of the security might be affected was plainly wrong and a failure to take account of a mandatory relevant consideration.

Conclusion

• [35] Since fixing security for costs involves the exercise of a discretion, I have approached the appeal on the basis the test is that set out in May v May.⁴² I am satisfied, for the above reasons, that the Judge has erred in the exercise of his discretion and this has led to him fixing security for costs at too high a sum. This error warrants me looking at the matter afresh on appeal.

• [36] I am satisfied that here there is nothing that warrants departure from the usual approach that security for costs orders are forward-looking and do not protect sunk costs. On this approach the potential costs award (including disbursements) to be protected would be in the vicinity of $5,751.50. I also note that generally security is fixed at something less than the potential sum of costs that may be awarded.⁴³ Here there is an additional factor in the form of the $4,000 that Mr Jindal had earlier paid as security for costs. A forward-looking approach requires this sum to be taken into account before fixing the sum of the amended security. Taking these matters into account and looking at the matter in the round I consider the amended security order

⁴² May v May (1982) 1 NZFLR 165 (CA); and see Kacem v Bashir [2010] NZSC 112, [2011] 21 NZLR 1 at [32].

⁴³ Westpac New Zealand Ltd v Adams [2013] NZHC 3112 at [35]; Sisson v IAG New Zealand Ltd [2014] NZHC 616 at [77]; and Purau Moorings Association Inc v Canterbury Regional Council [2018] NZHC 462 at [48].

should be fixed at $1,200.⁴⁴ This would bring the total security to $5,200⁴⁵ and anything paid beyond that sum should be returned to Mr Jindal.

• [37] Mr Jindal has already paid the security of $10,000 in order to keep the proceeding alive. He is entitled to have the balance of this payment returned to him promptly. The respondent argued that because the sum of $10,000 has already been paid security should not be reduced. I disagree. Mr Jindal should not be required to pay security at a higher quantum than is legally correct. That he has been able to obtain funds to pay the higher sum if anything shows he has the means available to him to pay such sums, which if anything goes to undermine the need for a security order. However, because the appeal was focused on the quantum of the amended security, I have not gone into the broader issues affecting whether any security is required.

• [38] Regarding costs, in the judgment of 21 June 2021 the Judge reserved costs. I consider Mr Jindal has enjoyed substantial success in the appeal against the judgment amending the security for costs order and the orders that followed this judgment. I find, therefore that he should not be liable to the respondent for costs either in the District Court or on appeal.

• [39] As to whether Mr Jindal might be entitled to costs to reflect his success on appeal, he is self-represented. The general rule has always been that self-represented persons are not entitled to costs.⁴⁶ If Mr Jindal wants to be heard on this issue, he has leave to file memoranda on costs with the respondent having a right of reply.

⁴⁴ There is a separate issue as to whether the time frame for assessing when s 45 applies runs from the date legal aid is granted or the date of the application for legal aid. This is because once granted, legal aid funding can be claimed from the time of the application for such aid. There are also requirements on an applicant to inform the opposing party of when legal aid has been granted. Arguably the protection in s 45(2) should be engaged to cover the same time period as the grant of legal aid: see AA v LA [2017] NZHC 646. However, in this case I am not sure of when Mr Jindal applied for legal aid or when he informed the respondent he was applying for legal aid. In a disputed matter the relevant dates would need to be before the Court in evidence. No such evidence was drawn to my attention. However, before Judge Harrison and on appeal there was common acceptance of the date legal aid was granted. Accordingly, I prefer to work from that date as there is a proper factual basis to support it.

⁴⁵ This being the earlier payment of $4,000 plus the $1,200 I have fixed.

⁴⁶ Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA).

Result

• [40] The appeal against the security for costs order of $10,000 is allowed and that order is set aside.

• [41] In its place I make an order for security for costs of $1,200. This security is in addition to the non-disputed payment of $4,000 that Mr Jindal made on 22 October 2019.

• [42] The balance of the security for costs that Mr Jindal has already paid is to be returned to him forthwith.

Duffy J

Schedule 1

Item		Step		Cost
Costs already incurred
2	Statement of defence by defendant			$1,780
9.2	Answer to interrogatories (dated 2 April 2019)			$1,780
9.2	Answer to interrogatories (dated 26 April 2019)			$1,780
9.2	Answer to interrogatories (dated 14 May 2019)			$1,780
9.5	List of documents on discovery			$1,780
9.6	Production of documents for inspection			$1,335
9.9	Appearance at judicial conference (18 March 2019)			$534
9.10	Preparing and filing interlocutory application and supporting affidavits (security for costs)			$712
Anticipated Costs
9.4	Admission of facts (service of notice to admit facts signalled by plaintiff)			$890
9.7	Inspection of documents			$1,780
9.8	Filing and serving memorandum in anticipation of judicial conference			$445
9.9	Appearance at judicial conference			$534
9.12	Preparing written submissions for interlocutory application			$1,780
9.13	Preparation of bundle for hearing			$712
9.14	Appearance at hearing of defended interlocutory application for sole or principal counsel			$890
9.16	Sealing order			$356
16.3	Defendant’s preparation of affidavits or written or oral statements of evidence to be used at hearing			$3,560
16.4	Defendant’s preparation of lists of issues and authorities, selecting documents for common bundle of documents, and all other preparation			$3,560
17.1	Preparation for hearing			$10,680
18.1	Appearance at hearing for sole or principal counsel			$5,340

Schedule 2

2	Statement of defence by defendant	$1,780
9.2	Answer to interrogatories (dated 2 April 2019)	$1,780
9.2	Answer to interrogatories (dated 26 April 2019)	$1,780
9.2	Answer to interrogatories (dated 14 May 2019)	$1,780
9.5	List of documents on discovery	$1,780
9.8	Filing joint memorandum of counsel in advance of case management conference (4 September 2019)	$477.50
*	Filing joint memorandum of counsel in advance of case management conference (3 October 2019)	$477.50
*	Filing second memorandum of counsel requesting adjournment of case management conference (26 November 2019)	$477.50
9.6	Production of documents for inspection	$1,335
9.9	Appearance at judicial conference (March 2020)	$445
9.9	Appearance at judicial conference (December 2020)	$534
*	Filing memorandum of counsel for the defendant requesting order striking out proceeding (16 December 2020)	$477.50
*	Filing memorandum of counsel for the defendant in response to plaintiff’s memorandum dated 26 January 2021 (29 January 2021)	$477.50
**	Filing memorandum of counsel for the defendant opposing plaintiff’s request for extension of time to comply with unless order (12 February 2021)	$1,910

Disbursements
Filing fee for statement of defence	$75
Filing fee for interlocutory application	$250
Sealing fee (interlocutory application)	$50
Sealing fee (judgment dated 12 February 2020)	$50
Sealing fee (judgment dated 21 June 2021)	$50
Sub Total	$15,987
Less $4,000 original security paid	$4,000
Total	$11,967