B & Z Trades Company Limited v Bei

[2024] NZHC 2857

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-918

[2024] NZHC 2857

UNDER

Part 13 of the High Court Rules 2016

IN THE MATTER OF

An action for recovery of land

BETWEEN

B & Z TRADES COMPANY LIMITED

Plaintiff

AND

YONG SHENG BEI, YAN XIAN ZHONG and JORDAN BEI

Defendant

Hearing:

On the papers

Counsel:

E St John / S P Maloney for the Plaintiff First-named Defendant in person

No appearance for Second and Third-named Defendants

Judgment:

2 October 2024

JUDGMENT OF ASSOCIATE JUDGE BRITTAIN

This judgment was delivered by me on 2 October 2024 at 12 midday.

Pursuant to r 11.5 of the High Court Rules.

…………………..

Registrar/Deputy Registrar

Solicitors:

Heritage Law, Auckland

Counsel:

E St John

S P Maloney

B & Z TRADES COMPANY LTD v BEI [2024] NZHC 2857 [2 October 2024]

Introduction

[1]    On 6 June 2024, I granted summary judgment (the judgment) for the plaintiff, B & Z Trades Company Ltd (B & Z), requiring the defendants to provide vacant possession of the property at 59 Galway Street, Onehunga (the property).1

[2]    On 20 June 2024, the first named defendant, Yong Sheng Bei (Yong Sheng), appealed the judgment to the Court of Appeal. Yong Sheng applied for a stay of enforcement of the judgment pending determination of the appeal.

[3]    On 1 July 2024, I ordered an interim stay of enforcement of the judgment pending final determination of Yong Sheng’s application for a stay.2

[4]    On 10 July 2024, I convened a telephone conference of counsel for the purpose of providing directions for the disposal of Yong Sheng’s application for a stay. During that conference, I outlined two possible scenarios for interim relief.

[5]    Subsequently, B & Z by its directors provided undertakings to the Court that it would not, pending determination of the appeal:

(a)rent or sell the property; or

(b)make changes to the layout or configuration of the dwelling.

[6]    On 24 July 2024, I ordered interim relief under r 20.10(2)(c) of the High Court Rules 2016 in favour of Yong Sheng.3 I ordered that, pending determination of the appeal, B&Z shall not:4

(a)dispose of the property;

1      B & Z Trades Company Limited v Bei [2024] NZHC 1345.

2      B & Z Trades Company Limited v Bei HC Auckland CIV-2024-404-918, 1 July 2024 (Minute of Associate Judge Brittain).

3      B & Z Trades Company Limited v Bei [2024] NZHC 2031.

4 At [37].

(b)grant a residential tenancy in respect of the property or otherwise grant any right of possession to any person;

(c)carry out any work to the residential dwelling on the property other than repair of damage or reinstatement following damage;

(d)make any changes to the layout or configuration of the residential dwelling on the property;

on the condition that Yong Sheng pursued the appeal with diligence.

[7]    Yong Sheng has since abandoned the appeal and the interim relief is no longer operative.

[8]    The only outstanding issue between the parties is costs in this Court in respect of B & Z’s application for summary judgment and Yong Sheng’s application for a stay. The issue of costs is determined in this judgment.

Costs on the application for summary judgment

[9]    B & Z was the successful party, and B & Z seeks costs on a 2B basis of $21,510, together with disbursements of $3,500.

[10]   Yong Sheng is now self-represented. He opposes an award of costs based on  a comment that I expressed in my judgment awarding interim relief but otherwise declining the application for a stay:5

My preliminary view is that costs should lie where they fall. Although Yong Sheng has not obtained a stay, he has obtained interim orders in his favour. I consider this to be a case of relatively even mixed success.

[11]   That comment was made in respect of the application for a stay and not in respect of the application for summary judgment. Costs should follow the event on the successful application for summary judgment.

5      B & Z Trades Company Limited v Bei, above n 3, at [40].

[12]   The application was opposed by the first and second-named defendants, and the order for possession was against both. Their liability for costs should be joint and several. No order was made against the third-named defendant who did not participate in the proceeding.

[13]   Yong Sheng questions the costs claimed by B & Z for filing a memorandum of counsel dated 24 April 2024. This was a simple updating memorandum filed by counsel for B & Z, and I agree that an award of costs is unnecessary in respect of that step.

[14]   I also decline B & Z’s application for costs for preparing the application for costs.

[15]   I accept all other claims set out in the schedule attached to the memorandum of counsel for B & Z dated 14 June 2024. Accordingly, B & Z is entitled to 2B costs based on 8.2 days, which results in a costs award of $19,598 together with disbursements of $3,500.

The application for a stay

[16]   As noted above, my preliminary view was that costs should lie where they fall, because Yong Sheng was successful in obtaining interim relief pending determination of his appeal.

[17]   My view has changed, because Yong Sheng has abandoned his appeal to the Court of Appeal. My preliminary view was formed on the basis that the appeal would be pursued with diligence. The application for a stay, which invoked the Court’s jurisdiction to grant interim relief, only arose because of an appeal that has not been pursued. The appropriate starting point is that B & Z should be awarded costs for opposing an unnecessary application for a stay, on a 2B basis.

[18]   B & Z seeks 2B costs of $11,711 based on a total of 4.9 days. This includes two separate claims of 1.5 days each for preparing written submissions. When the submissions are considered in their totality, one allowance of costs based on 1.5 days is appropriate.

[19]   Therefore, I allow 3.4 days in total, which results in an award of costs of $8,126 plus disbursements of $243.

Orders

[20]The first and second-named defendants shall pay the plaintiff’s costs of

$19,598 together with disbursements of $3,500 in respect of the plaintiff’s application for summary judgment. The liability of the first and second-named defendants is joint and several.

[21]   The first-named defendant shall pay the plaintiff’s costs of $8,126 together with disbursements of $243 in respect of Yong Sheng Bei’s application for a stay of enforcement of the summary judgment.

Associate Judge Brittain