IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4247 [2015] NZHC 1871
BETWEEN AMERICHIP, INC
Plaintiff
AND
JASON CHARLES DEAN
Defendant
Hearing: On the papers Counsel:
L Theron for Plaintiff
D P H Jones QC for DefendantJudgment:
10 August 2015
JUDGMENT OF KATZ J [Costs]
This judgment was delivered by me on 10 August 2015 at 3:30pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Meredith Connell, Wellington
Winston Wang & Associates, Auckland
Counsel: D P H Jones QC, Auckland
AMERICHIP, INC v DEAN [2015] NZHC 1871 [10 August 2015]
Introduction
[1] The plaintiff, Americhip, Inc (“Americhip”) alleges in these proceedings that
the defendant, Jason Dean, defrauded it of approximately US$10 million between
2003 and 2012. Americhip further alleges that Mr Dean, who is a New Zealander, has used approximately NZ$2 million of those funds to buy a house in Auckland.
[2] Mr Dean applied to stay Americhip’s proceedings against him on the basis that New Zealand is not the appropriate forum for the claims to be heard and determined. Rather, he argued, Americhip should issue proceedings against him in China. I dismissed that application on 14 April 2015.1
[3] Americhip now seeks costs in respect of the stay application, as well as costs in respect of an earlier interlocutory hearing before Ellis J. In respect of the stay application, Mr Dean accepts that scale costs, the filing fee and photocopying costs (together totalling $5,981.50) are properly payable in respect of the stay application. He contests, however, the expert witness fess claimed of $19,830.83. In respect of the earlier interlocutory hearing before Ellis J, in which Mr Dean sought to set aside the proceedings for lack of jurisdiction, he challenges the entirety of the costs claim ($6,080) and says, in essence, that costs should lie where they fall.
Are the expert costs incurred in relation to the stay application properly recoverable?
[4] Americhip seeks to recover a disbursement of $19,830.82 in respect of the costs incurred in obtaining an affidavit on Chinese law by Hu Xiaohong, a lawyer from the Jun He law office in Shanghai.
[5] Mr Dean submitted that the Court should either not allow the entire disbursement, as it is unreasonable, or that the disbursement should be reduced or disallowed as disproportionate in the circumstances of the proceedings. The information provided in the affidavit was said to be “not complex” and did not merit
the level of time spent on it by a senior practitioner.
[6] Rule 14.12 of the High Court Rules sets out the requirements relating to recovery of disbursements. It provides:
(1) In this rule,—
disbursement, in relation to a proceeding,—
(a) means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and
(b) includes—
(i) fees of court for the proceeding:
(ii) expenses of serving documents for the purposes of…
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- Case
- [2015] NZHC 1871
- Decision Date
CaseChat Overview and Summary
The court found that the expert costs incurred by the plaintiff were within the definition of disbursements under Rule 14.12 of the High Court Rules and needed to be approved by the court if they were not within the specified categories. The court had discretion to grant approval if the disbursement was specific to the proceeding, reasonably necessary, and reasonable in amount. The court determined that the expert costs were necessary for the proceeding, considering the nature of the stay application and the necessity of expert evidence on Chinese law. The court also found that the quantum of costs claimed was reasonable, despite the defendant's submissions to the contrary. Regarding the costs of the earlier interlocutory hearing, the court held that the costs were at large and at the discretion of the court, as the Court of Appeal had quashed the High Court costs order but did not remit the matter back for reconsideration of costs. The court concluded that the plaintiff was entitled to costs on a 2B basis.
The court ordered the defendant to pay the plaintiff’s costs and disbursements in the sum of $25,812.33 in respect of the stay application and $6,080 on a 2B basis in respect of the earlier interlocutory hearing.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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