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…

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 Cui v Shuang

Details

AGLC: Cui v Shuang [2019] NZHC 2110
Case: [2019] NZHC 2110
Decision Date: 27 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Liyan Cui appealed against a decision by Judge Harrison of the North Shore District Court which dismissed her appeal and declined her application for a freezing order. The appeal concerned the exclusive jurisdiction of the Tenancy Tribunal over tenancy issues. The court held that the respondents, Zheng Shuang and Jin Chuan, were entitled to their reasonable costs and disbursements. The court noted that the delay in filing the memoranda was lengthy and the explanation was unconvincing, but the appellant did not take the point and there was no obvious prejudice in allowing a belated claim for costs.

The legal issues in this case were whether the respondents were entitled to their reasonable costs and disbursements and whether the court should depart from the rules to calculate the costs. The court held that the respondents were entitled to their reasonable costs and disbursements. The only issue in dispute was the allowance for preparing written submissions. The rules provide for three days, but the appellant argued that the appeal was not in relation to substantive issues, where there was extensive evidence to review. The court was not persuaded by the appellant's arguments and held that costs should be predictable, and here the rules, and the accompanying schedule are clear.

The court held that the respondents were entitled to their reasonable costs and disbursements and that the appellant did not and could not deny that. The court was not persuaded that it was appropriate to depart from the rules, notwithstanding that costs are in the discretion of the court. The court held that the appellant knew, or should have known, the likely costs she would face if her appeal failed. The court allowed costs in the sum of $13,154.00 in favour of the respondents and against the appellant.

Orders