Cavit v Deng - [2025] NZHC 1756

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3225

[2025] NZHC 1756

BETWEEN
DEBORAH ELIZABETH CAVIT AND HARBOUR TRUSTEE SERVICES (CAVIT) LIMITED

Plaintiffs

AND

QUNHUA DENG

Defendant

Hearing: on the papers

Counsel:

P Daniels and C Crocker for plaintiffs K Sun for defendant

Judgment:

30 June 2025

JUDGMENT OF JOHNSTONE J

(costs)

This judgment was delivered by me on 30 June 2025 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Burton Partners, Auckland Capstone Law, Auckland

CAVIT v DENG [2025] NZHC 1756 [30 June 2025]

[1] By judgment dated 25 February 2025, I granted Ms Cavit and her trustee company an interim injunction, requiring Ms Deng not to undertake construction work at her Parnell property, except to the extent necessary to re-instate walls and buildings to their prior dimensions or with Ms Cavit’s consent.

[2] I did so because the property’s cross-lease to which the property is subject forbids any alteration, addition to or extension of the buildings at that property without Ms Cavit’s consent, which may not be unreasonably withheld. I observed there to be “a fair argument that the cross-lease entitles Ms Cavit simply to forbid any extension of [the] top level” of Ms Deng’s house. Ms Deng had commenced re-construction of the property, intending (amongst other things) to extend the top level. She had obtained a building consent for the work from Auckland Council. But she had not obtained Ms Cavit’s consent, nor activated the arbitral procedure required in the event of dispute under the cross-lease.

[3] I also observed that Ms Cavit appeared entitled to costs. The parties having failed to agree costs, Ms Cavit now seeks costs on an indemnity basis, in the sum of
$140,372.45 plus disbursements of $21,165.47. Ms Deng opposes and says that costs should lie where they fall, or be awarded on a 2B basis.

Ms Cavit’s position

[4]Ms Cavit seeks indemnity costs on the basis that they are:

(a)provided for under the cross-lease; and

(b)justified because Ms Deng pursued groundless claims and behaved “badly or very unreasonably” prior to this proceeding being commenced and while it was on foot.

Principles

[5] The Court’s discretion in costs matters, vested by r 14.1 of the High Court Rules 2016, requires generally to be exercised in accordance with the principles set

out in r 14.2.1 As observed by the Court of Appeal in Water Guard NZ Ltd v Midgen Enterprises Ltd, “the first of those general principles is that the party which fails should pay the costs of the successful party”.2 This “formalis[es] the paramount rule that costs should follow the event.”3

[6] Similarly, the Court may order that a successful party be paid increased costs, or indemnity costs, in circumstances outlined in r 14.6.

[7] Increased costs are awarded where there is a failure of a party to act reasonably during the proceeding.4 Failure to accept an offer of settlement may justify increased costs.5

[8]…

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 Cavit v Deng

Details

AGLC: Cavit v Deng [2025] NZHC 1756
Case: [2025] NZHC 1756
Decision Date: 30 June 2025

CaseChat Overview and Summary

Deborah Elizabeth Cavit and Harbour Trustee Services (Cavit) Limited, the plaintiffs, brought an action against Qunhua Deng, the defendant, concerning a dispute about the defendant's construction work on her Parnell property. The plaintiffs sought an injunction to prevent the defendant from extending the top level of her house without their consent, as required by the cross-lease governing the property. They also sought costs on an indemnity basis. The defendant opposed the application for costs and argued that they should either lie where they fall or be awarded on a standard basis.

The legal issues the court had to decide included whether the cross-lease entitled the plaintiffs to indemnity costs and whether the defendant's conduct during the proceeding justified increased costs. The court examined clauses 2 and 23 of the cross-lease and found that neither provided for indemnity costs related to legal proceedings. The court also considered whether the defendant's conduct, both before and during the proceeding, was sufficiently unreasonable to justify indemnity costs. The court found the defendant's actions during the proceeding were unreasonable but did not amount to flagrant misconduct, thus not warranting indemnity costs. However, the court did find that the defendant's conduct during the proceeding was unreasonable enough to justify increased costs.

In conclusion, the court ordered that the defendant pay the plaintiffs increased costs amounting to 50% of category 2B costs and their disbursements. The court declined to award indemnity costs.

Orders