Arranmore Developments Limited v Zhang

[2015] NZHC 3303

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2009-404-005446

[2015] NZHC 3303

BETWEEN

ARRANMORE DEVELOPMENTS LIMITED
Plaintiff/Respondent

AND

QIYUAN ZHANG

Defendant/Applicant

Hearing:

(On the papers)

Counsel:

M J Fisher for Plaintiff/Respondent

H M Lim and M M Moon for Defendant/Applicant

Judgment:

18 December 2015

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 18 December 2015 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Daniel Overton Goulding, Auckland

ARRANMORE DEVELOPMENTS LTD v ZHANG [2015] NZHC 3303 [18 December 2015]

Forest Harrison, Auckland

Copy to:            M J Fisher, Auckland

[1]                  The judgment of 2 October 2015 refers. After dismissing the defendant’s application to set aside a judgment entered in October 2010 the Court ordered costs in the plaintiff’s favour on a 2B basis.

[2]                  The plaintiff now seeks costs on a 2B basis for all steps associated with that application to set aside, including all appearances at call-over and appearances and costs associated with the plaintiff’s application to examine a witness.

[3]                  The defendant submits that the costs for appearances occasioned by the plaintiff’s actions should not be awarded and further, that as the plaintiff withdrew its application for examination prior to the hearing, not only should the plaintiff not have costs in relation to the application but those costs should be awarded in favour of the defendant.

[4]                  The substantive application before the Court was the defendant’s application to set aside the judgment. The plaintiff succeeded entirely in opposing that application. On my review of the file and the earlier appearances on the file in relation to that application I do not consider there to be any basis for disallowing costs to the plaintiff. A number of the appearances related to both the summary judgment application and this application to set aside. Clearly the plaintiff cannot recover costs on both applications when there was one appearance but as this application has been determined the plaintiff is entitled to have costs fixed at this time in relation to the application that was determined in the Court’s judgment of 2 October 2015.

[5]                  Nor do I accept the defendant’s submission in relation to the plaintiff’s application to examine a witness. The application was made in the course of the plaintiff’s response to the defendant’s application to set aside the judgment. It was properly made as the witness initially would not co-operate and file an affidavit to support the plaintiff. After the application to examine the witness was made and notified to him the witness agreed to provide an affidavit. The affidavit was of assistance to the Court and referred to in the course of the judgment, albeit perhaps as part of the obiter reasoning.

[6]                  There is no basis to depart from the general rule that the plaintiff having succeeded on the substantive application, should be entitled to costs for all steps relating to that application including the application contained within it for the examination. It would be artificial to separate out that application for the examination of the witness and to treat it as a separate stand alone application

[7]                  The Registrar is to seal costs in the plaintiff’s favour in the sum of $9,418.50 including disbursements.

Venning J