Chen v Wu - [2021] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-485-614075

[2021] NZHC 308

IN THE MATTER OF the estate of Qinping Ling

BETWEEN

YAMU CHEN

Applicant

AND

SHENG YONG WU

Caveator

Hearing: On the papers

Judgment:

26 February 2021

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 26 February 2021 at 4.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Meredith Connell, Auckland Loo & Co, Auckland

CHEN v WU [2021] NZHC 308 [26 February 2021]

[1] I refer to my judgment of 14 December 2020.1 I held that the applicant, Yamu Chen (“Yamu”), was entitled to obtain the grant of letters of administration of Qinping Ling’s (“Qinping’s”) estate, in priority to Sheng Wong Wu (“Jimmy”). I set aside a caveat lodged by Jimmy and made an order granting letters of administration of Qinping’s estate to Yamu.

[2] I also recorded that Yamu, as the successful party, was entitled to her costs and reasonable disbursements, and directed that memoranda be filed. I have now received those memoranda. Yamu’s counsel has sought leave to file supplementary submissions after receiving Jimmy’s reply. Supplementary submissions are unnecessary and leave is declined.

Submissions

[3] Yamu seeks an award of $109,041.86, being costs calculated on a mixed 2B/2C basis, together with a 50 per cent uplift and disbursements. She argues that increased costs are justified, submitting that Jimmy failed to comply with relevant High Court Rules, pursued or took unnecessary steps, advanced arguments that lacked merit, and failed without reasonable justification to admit facts. It is also submitted that Jimmy failed, without reasonable justification, to accept an offer of settlement.

[4] Jimmy argues that this was estate litigation and that the ordinary approach to costs in civil litigation is displaced. He says that Qinping died intestate, and that both the Ling family and the Wu family had connections to her through adoption or blood. He said that his position was consistent from beginning to end – namely that Qinping was his sister and that there had been no adoption. He says that it was not unreasonable for him to take the position he did and that he had sufficient cause to oppose Yamu’s application to take out letters of administration.

1 Chen v Wu [2020] NZHC 3302.

Analysis

[5] All matters as to costs are at the discretion of the Court.2 There are specific principles which apply in cases of contested wills3 but there are no special principles which apply to costs in probate proceedings.4 The Court is entitled to have regard to all matters connected with or leading up to the litigation. Increased costs can be awarded.

[6] Costs should follow the event. Yamu was the successful party and she is entitled to an award of costs. As I have noted, she seeks costs on a 2B basis together with a 50 per cent uplift.

[7] Where increased costs are sought, a four-step approach…

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 Chen v Wu

Details

AGLC: Chen v Wu [2021] NZHC 308
Case: [2021] NZHC 308
Decision Date: 26 February 2021

CaseChat Overview and Summary

In the case of Chen v Wu, the High Court of New Zealand was tasked with determining the appropriate costs following a successful application for letters of administration of the estate of Qinping Ling. The applicant, Yamu Chen, sought costs on a mixed 2B/2C basis, along with a 50% uplift and disbursements, arguing that the caveator, Sheng Yong Wu, had failed to comply with relevant High Court Rules, pursued unnecessary steps, and advanced arguments without merit. Sheng Yong Wu contended that the ordinary approach to costs in civil litigation should not apply, given the familial and adoption complexities of the case.

The court assessed the matter by first confirming that all costs matters rested within its discretion, and that while there were specific principles for contested wills, there were no special principles for probate proceedings. The court then proceeded to evaluate the steps taken in the litigation, finding that the proceeding was of average complexity, thus falling under category 2 as per rule 14.3 of the High Court Rules. The court accepted Yamu's request for a band C assessment for the preparation of affidavits and the common bundle due to the extensive nature of the evidence. However, it declined to allow for second counsel, finding no necessity for such representation.

The court found that Sheng Yong Wu had indeed failed to comply with certain High Court Rules by including inadmissible hearsay in his affidavits. Additionally, Sheng Yong Wu's arguments lacked merit and he unreasonably failed to admit relevant facts and accept a settlement offer. The court concluded that these factors, among others, justified an increase in costs. Accordingly, the court awarded Yamu Chen an uplift of 50% on her costs, along with the claimed disbursements, resulting in a final order for costs and disbursements totalling $101,871.92.

This case underscores the court's ability to consider various factors in determining the appropriate costs in probate proceedings, including compliance with procedural rules, the merit of arguments presented, and the reasonableness of a party's conduct throughout the litigation.

Orders