Cornwall Park Trust Board Inc v Chen

[2014] NZHC 951

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-000008 [2014] NZHC 951

BETWEEN

THE CORNWALL PARK TRUST

BOARD INC Plaintiff

AND

YONG XIN CHEN Defendant

Hearing:	On the papers.
Counsel:	J G H Hannan and C M Moody for the Plaintiff J A Wickes for the Defendant
Judgment:	8 May 2014

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 8 May 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

THE CORNWALL PARK TRUST BOARD INC v CHEN (Costs) [2014] NZHC 951 [8 May 2014]

[1]      This judgment deals with the issue of costs following my decision1  not to continue freezing orders that had been made on a without notice basis by Keane J, and temporarily extended by Toogood J after hearing from the parties.2

[2]      The defendant seeks costs on a 2B basis up to the time she claims to have made  a  settlement  offer.    She  submits  that  the  plaintiff  acted  unreasonably  in rejecting this offer and therefore indemnity or increased costs should be paid from that time.

[3]      The  plaintiff  contends  that  the  appropriate  course  is  to  decline  costs altogether or  award  costs  for only some of the attendances.   The plaintiff also submits that band A provides a reasonable time allowance for all relevant steps.

[4]      For the reasons that follow, I have come to the conclusion that costs should lie where they fall.

[5]      The plaintiff acted reasonably in seeking a freezing order based on the information then available to it.  There is no suggestion that the plaintiff withheld any relevant information at the time it made the without notice application.   The application was plainly justified as is confirmed by the fact that Keane J granted it.

[6]      Justice Toogood was satisfied that it was appropriate to continue the freezing orders, despite the defendant’s opposition and the affidavits she filed.   This was principally because the defendant had not fully complied with an ancillary order made by Keane J requiring disclosure of assets.   I can see no justification for the defendant to be awarded costs for that hearing in those circumstances.

[7]      The defendant did ultimately succeed in the hearing before me.  However, I consider that the overall justice of the case requires that the costs that she would ordinarily be entitled to for that hearing should be offset by the costs that the plaintiff

could be considered entitled to for the earlier hearing before Toogood J.

1      The Cornwall Park Trust Board Inc v Chen [2014] NZHC 792.

2      The Cornwall Park Trust Board Inc v Chen [2014] NZHC 665.

[8]      The  plaintiff  did  not  act  unreasonably  in  failing  to  accept  a  settlement proposal.   There was no such offer, only a without prejudice indication from the defendant’s solicitor that the defendant “may have no difficulty parking” a specified sum of money in a trust account pending disposal of the proceeding.  The letter did no more than convey a without prejudice indication by the solicitors at a time when they were still awaiting their client’s instructions on the freezing order.  This was not an offer capable of acceptance and has no relevance to the costs issue.

Result

[9]      The defendant’s application for costs is declined.   Costs in relation to the application for the freezing order are to lie where they fall.

M A Gilbert J