Chen v General Finance Limited - [2023] NZHC 3258

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000548

[2023] NZHC 3258

BETWEEN
LIYUN CHEN

First Applicant

ROYALL FAMILY TRUST
Second Applicant

AND

GENERAL FINANCE LIMITED

Respondent

Hearing: On the papers

Counsel:

Self-represented Applicants

A Johnson for the Respondent

Judgment:

17 November 2023

JUDGMENT OF GORDON J

This judgment was delivered by me
on 17 November 2023 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Martelli McKegg, Auckland Copy to: the Applicants

CHEN v GENERAL FINANCE LTD [2023] NZHC 3258 [17 November 2023]

[1]This is a decision on costs.

[2] On 31 May 2023, I gave judgment in favour of the respondent, General Finance Ltd (General Finance) against the first and second applicants, Liyun Chen and Royall Family Trust (together, the applicants).1

[3] The applicants sought permission to apply by originating application to set aside notices issued by General Finance under ss 119 and 122 of the Property Law Act 2007 (PLA) until their claim in a separate proceeding (CIV-2023-404-581) was decided.

[4] I determined that it was not in the interests of justice for the applicants to commence their proceeding as an originating application and therefore refused the application.2 I also noted that even if permission had been given for the applicants to commence their proceeding by an originating application, any such application would fail on the merits.3

[5] At the commencement of the hearing on 25 May 2023, I made two non- publication orders by way of a minute prohibiting the publication of certain paragraphs in the applicants’ submissions.4 I accepted that General Finance would face a real risk of serious financial and reputational harm which went well beyond allegations being simply unwelcome and embarrassing.

[6] Mr Johnson appeared for General Finance in relation to the originating application, while Mr Elliot KC and Mr Stewart appeared in relation to the non- publication order.

[7] I reserved costs. In the absence of agreement between the parties on costs General Finance filed a memorandum seeking costs dated 9 November 2023. While this is well beyond the 25 working days provided for in the judgment, I will, nevertheless, consider the application. I extended the period for the applicants’

1 Chen v General Finance Ltd [2023] NZHC 1329.
2 At [56].
3 At [57].
4 Chen v General Finance Ltd HC Auckland CIV-2023-404-548, 25 May 2023.

response but no opposing memorandum has been filed. I will accordingly proceed on the basis of the respondent’s memorandum.

Costs principles

[8] The starting point for the assessment of costs is that all matters with regard to costs are at the discretion of the Court.5 However, this discretion is not an unfettered one and is to be guided by the general principles in rr 14.2 to 14.5 of the High Court Rules 2016 (HCR). A fundamental costs principle is set out in r 14.2(1), which provides that the party who failed with respect to a proceeding should…

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.

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Details

Case: [2023] NZHC 3258
Decision Date: 17 November 2023

CaseChat Overview and Summary

The High Court of New Zealand recently issued a judgment in the case of Chen v General Finance Limited, which involved a dispute regarding costs. Liyun Chen and the Royall Family Trust, the applicants, sought permission to apply to set aside notices issued by General Finance under sections 119 and 122 of the Property Law Act 2007 until their claim in a separate proceeding was decided. The court previously ruled in favor of General Finance, concluding that the applicants' proceeding would fail on the merits and that it was not in the interests of justice for the applicants to commence their proceeding as an originating application. The court also made two non-publication orders prohibiting the publication of certain paragraphs in the applicants' submissions, due to the risk of serious financial and reputational harm to General Finance.

The primary legal issue before the court was whether General Finance was entitled to costs on a 2B basis, as claimed in their memorandum. The court considered the principles governing the assessment of costs, including the general principle that the party who fails in a proceeding should generally pay the costs of the successful party. The court assessed whether there were exceptional reasons to depart from this principle and found none. The court also reviewed the specific steps claimed by General Finance and their alignment with the High Court Rules 2016.

After evaluating the submissions and the schedules provided by General Finance, the court determined that General Finance was indeed entitled to costs on a 2B basis. The court found that the steps claimed were taken and the amounts claimed were in accordance with the High Court Rules. However, the court noted that the amount claimed for the appearance of second counsel was incorrect. The court adjusted the amount to reflect the correct allocation, resulting in a total cost of $16,311.75 for the originating application and non-publication order combined. The court also found the claimed disbursements to be appropriate.

The court ultimately ordered that the applicants were to pay General Finance's costs and disbursements in the total sum of $16,471.75. The judgment provides a detailed breakdown of the costs claimed, demonstrating the court's careful consideration of each element and its adherence to the applicable rules and principles in reaching its decision.

Orders