Casse v Shih

[2024] NZHC 2050

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-1912

[2024] NZHC 2050

UNDER

Part 19 of the High Court Rules 2016 and ss 6(2) and 19 of the Administration Act 1969

IN THE MATTER OF

The Estate of Yu-Huan Shih

BETWEEN

MELODY HSUAN-CHU CASSE and SHEU-HARN CRYSTAL LIN

Applicants

AND

CHIEN-NAN SHIH

Respondent

On the papers
Counsel:	A McDonald for the applicants D Oh for the respondent
Judgment:	25 July 2024

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 25 July 2024 at 4.00om pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CASSE and LIN v SHIH [2024] NZHC 2050 [25 July 2024]

[1]    In my judgment dated 31 May 2024 I ordered that the respondent pay the applicants’ costs on a 2B basis together with their reasonable disbursements.

[2]    The parties have since filed costs memoranda. Two issues arise for my determination:

(a)Should the applicants’ costs and disbursements in this proceeding (which are agreed to be $14,222.80) be met by the estate rather than by the respondent?

(b)What costs order, if any, should I make in respect of the applicants’ pre- commencement discovery (PCD) application (CIV 2022-404-652) against the respondent?

[3]    As to the first issue, I already determined in my judgment that the respondent should pay costs to the applicants and made an order accordingly. The only possible issue that remained was quantum. It is too late for the respondent to contend (other than by appeal) that the estate, rather than himself, should pay the applicants’ costs in this proceeding. I also note that the respondent’s submissions for the substantive hearing addressed costs. The respondent did not submit that costs should be borne  by the estate.

[4]    I therefore confirm that the respondent is to pay the applicants’ costs and reasonable disbursements in this proceeding. As noted, the parties have agreed that those costs and disbursements total $14,222.80.

[5]    As to the second issue, the applicants’ PCD application was resolved by consent on 15 June 2022. One of the consent orders was that the costs of the PCD application “are reserved to be determined in any subsequent proceeding the applicants may bring”.

[6]    The parties have agreed  $3,925.99 as the quantum of the applicants’ costs   of the PCD application. The applicants seek an order that the respondent pay that

amount. The respondent submits that the costs of the PCD application should lie where they fall, or alternatively that the applicants’ costs should be met by the estate.

[7]    I consider that the respondent should pay the applicants’ costs of the PCD application. The respondent and his then lawyer had refused informal requests from the applicants for the documents. Once the applicants brought the PCD application, the respondent readily consented to it. The documents that the applicants obtained from the PCD application formed a large part of their case in this proceeding, in which they succeeded against the respondent. Both proceedings were contests between parties who competed to be administrators of the estate. I consider that the unsuccessful party, rather than the estate, should bear the cost of the PCD application.

[8]    The respondent says he had to go to some effort and expense to provide the discovery that was ordered. That, however, is not a reason for declining to order that the respondent pay the applicants’ costs of the PCD application.   What is in issue    is whether the applicants should be paid their costs of the application. It may be that the respondent is entitled to be reimbursed from the estate for the expenses that he incurred in complying with the order. That is not a matter that was addressed in the orders made in the PCD application and is not for determination in this proceeding.

[9]    Accordingly, I order that the respondent pay the applicants’ costs of the PCD application, namely $3,925.99.

Campbell J