Cui v Shuang

[2019] NZHC 2110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-000914

[2019] NZHC 2110

BETWEEN

LIYAN CUI

Appellant

AND

ZHENG SHUANG

First Respondent

JIN CHUAN

Second Respondent

Hearing:	On the papers
Judgment:	27 August 2019

COSTS JUDGMENT OF WYLIE J

This judgment was delivered by me on 27 August 2019 at 10.30 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:

Forest Harrison, Auckland James Donkin, Auckland Ong & Partners, Auckland Samuel Moore, Auckland

CUI v SHUANG & CHUAN COSTS [2019] NZHC 2110 [27 August 2019]

[1]    I refer to my judgment in this matter dated 31 October 2018.1   I declined    Ms Cui’s appeal against a decision given by Judge Harrison in the North Shore District Court on 10 May 20182 and held that the tenancy issues in dispute set out in [20] of my judgment were within the exclusive jurisdiction of the Tenancy Tribunal. I also upheld Judge Harrison’s decision declining Ms Cui’s application for a freezing order.

[2]    I held that the respondents, Ms Shuang and Mr Chuan, were entitled to their reasonable costs and disbursements, and expressed the preliminary view that costs should be fixed on a 2B basis. I put in place a timetable for the filing of memoranda in the event that counsel were unable to agree.

[3]    I have now received a memorandum as to costs on behalf of Ms Shuang and Mr Chuan. They seek costs on a 2B basis in the sum of $13,154.00. The application is resisted by Ms Cui, as she has filed a memorandum in reply.

[4]    There is no particularly adequate explanation for the delay in filing the memoranda. Mr Moore on behalf of Ms Shuang and Mr Chuan simply asserts that a memorandum was prepared for filing, and that it was understood that the same had been filed with the Court. He does not explain why there was such a misunderstanding or who made the mistake. I do note that an apology has been tendered to the Court for the delay.

[5]    The delay is lengthy, and the explanation is unconvincing. Nevertheless, the appellant does not take the point, and there is no obvious prejudice in allowing a belated claim for costs. The respondents were entitled to costs, and Ms Cui does not and cannot deny that.

[6]    Counsel agree that costs should be fixed on a 2B basis. The only issue in dispute is the allowance for preparing written submissions. The rules provide for three days – see Schedule 3, Time Allocation Item 56. Mr Donkin for Ms Cui submits that is excessive, noting that the proceeding was an appeal against the District Court’s decision on an interlocutory application transferring part of the claim to the Tenancy

1      Cui v Shuang [2018] NZHC 2810.

2      Cui v Shuang [2018] NZDC 8656.

Tribunal, and the declining of a freezing order. He accepts that the rules prescribe three days for the preparation of submissions, but argues that the appeal was not in relation to substantive issues, where there was extensive evidence to review. He argues that allowing the respondents to claim costs based on three days preparation would result in an unduly generous costs award.

[7]    I am not persuaded by Mr Donkin’s arguments. There were three matters in issue – first, Mr Cui’s assertion that tenancy matters should not have been remitted to the Tenancy Tribunal, secondly, Judge Harrison’s direction discharging a preservation order which Ms Cui had obtained on an ex-parte basis, and thirdly, Ms Cui’s application for a freezing order over the assets of the respondents should be allowed. There was affidavit evidence which had to be addressed. The Tenancy Tribunal issue was not altogether simple. There were a number of authorities, not all of which were consistent.

[8]    I am not persuaded that it is appropriate to depart from the rules, notwithstanding that costs are in the discretion of the Court. Costs should be predictable, and here the rules, and the accompanying schedule are clear. Mr Cui knew, or should have known, the likely costs she would face if her appeal failed. It is not for her to now seek to deny the application of the relevant rules based only on speculation that the respondents’ lawyer did not take three days to prepare his submissions on the appeal. Mr Moore is clearly aware that scale costs cannot exceed actual costs. He cites the relevant provision. As an officer of the Court he would be expected to disclose his actual costs if they were less than a costs award calculated by reference to the rules. I am not prepared to assume that the respondents are trying to profit from the costs award in their favour.

[9]    Accordingly, I allow costs in the sum of $13,154.00 in favour of the respondents and against the appellant.

Wylie J