Bi v Westcoast Mining Ltd - [2024] NZHC 405

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-418-0003

[2024] NZHC 405

UNDER the Companies Act 1993

IN THE MATTER

of an application for relief under s 174 of the Act

BETWEEN

JIANTAO BI

Plaintiff

AND

WESTCOAST MINING LTD

First Defendant

AND

GOLDEN COAST HOLDING LTD

Second Defendant

AND

CHAO ZHANG

Third Defendant

AND

MINGHOU ZHANG

Fourth Defendant

Counsel:
R A Hearn and P Kaur for Plaintiff

J V Ormsby and M J McKay for Defendants

Judgment:

1 March 2024

(Determined on the papers)

JUDGMENT OF OSBORNE J [COSTS AND DISBURSEMENTS]

JIANTAO BI v WESTCOAST MINING LTD [2024] NZHC 405 [1 March 2024]

Introduction

[1] In this proceeding the Court, following a seven-day hearing, dismissed the plaintiff’s claim and the first and second defendants’ counterclaims and reserved the costs and disbursements of the proceeding (Judgment).1 I directed that costs and disbursements would be determined on the papers based on memoranda, which have now been filed.

[2] Counsel agree the time taken at trial should realistically be allocated as six days for the plaintiff’s claim and one day for the first and second defendants’ counterclaim.

[3] For the plaintiff, Mr Hearn submits costs should not be determined at this stage because the plaintiff is expeditiously pursuing an appeal which, if successful, “could render any costs judgment redundant”. I do not accept that submission and will proceed to determine costs now. To defer the determination of costs pending an appeal is inconsistent with the principle of expeditious determination set out in r 14.2(1)(g) High Court Rules. The successful party is entitled to the prompt determination of costs while matters remain fresh for the trial Judge and counsel. The successful party is then able to recover such costs and disbursements as the Court awarded, in accordance with the general entitlement to make such recovery.2

[4]The proceeding is a Category 2 proceeding.

Defendants’ initial claim

[5] For the defendants, Mr Ormsby identified why, on the established principles, the defendants should have orders in their favour. He then submitted that most steps should appropriately be determined as band B but with some steps as band C. On that basis the defendants claimed $119,868 for costs (representing $130,733 offset by
$10,865 on account of the counterclaim).

[6]The defendants also seek on account of disbursements $111,380.20 of which

$110,940.20 represents expert witnesses’ fees and disbursements.

1 Bi v Westcoast Mining Ltd [2023] NZHC 2736 [Judgment].
2 Walker v Castlereagh Properties Ltd [2015] NZHC 907; [2015] NZAR 944 at [42]–[45].

[7] A table setting out the defendants’ costs and disbursements calculations is attached to this judgment as Schedule A (defendants’ initial schedule).

Plaintiff’s position

[8] For the plaintiff, Mr Hearn accepted the general legal principles invoked by Mr Ormsby. He largely accepted the items and calculations in relation to the defendants’ costs contained in the defendants’ schedule. He challenged some items claimed by the defendants and submitted the plaintiff’s entitlement in relation to the counterclaim was greater than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bi v Westcoast Mining Ltd

Details

AGLC: Bi v Westcoast Mining Ltd [2024] NZHC 405
Case: [2024] NZHC 405
Decision Date: 1 March 2024

CaseChat Overview and Summary

In the case of Bi v Westcoast Mining Ltd, the High Court of New Zealand was tasked with determining the costs and disbursements of a complex proceeding involving multiple parties and significant litigation history. The plaintiff, Jiantao Bi, sought relief under the Companies Act 1993 against the first and second defendants, Westcoast Mining Ltd and Golden Coast Holding Ltd, alleging oppressive and unfairly prejudicial conduct in relation to a gold mining business venture. The defendants counterclaimed for damages, alleging breaches of fiduciary duty and negligence by the plaintiff. The court had to decide on the legal issues surrounding the allocation of costs and disbursements based on the submissions of counsel and the evidence presented during the seven-day hearing.

The court considered the legal principles for determining costs, including the appropriateness of the time taken for each step of the proceeding, and the necessity and reasonableness of the disbursements claimed. The defendants claimed costs of $119,868 and disbursements of $111,380.20, while the plaintiff contested certain items and submitted a revised claim of $112,937. The court meticulously analyzed each item of costs and disbursements, making adjustments based on the submissions and evidence provided. The court found that certain disbursements, such as service fees and partial fees for an expert witness on Chinese business practice, were not necessarily incurred and thus disallowed. Additionally, the court assessed the reasonableness of the expert witness fees, concluding that some were disproportionate to the needs of the proceeding.

The court's reasoning was thorough, considering the complexity of the litigation, the nature of the evidence, and the conduct of the parties. The court ultimately determined that the defendants were entitled to costs and disbursements of $156,769.50, after offsetting the plaintiff's entitlement against that of the defendants. This decision reflected the court's careful consideration of the submissions, the evidence, and the legal principles applicable to the determination of costs in such a complex proceeding.

Orders