Dai v Seto

[2018] NZHC 2314

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2363

[2018] NZHC 2314

BETWEEN

CHUANMING DAI

Plaintiff

AND

WOI GET SETO

First Defendant LI LI

Second Defendant

Hearing:

On the papers

Appearances:

D K Wilson for plaintiff W Seto in person

Li Li in person

Judgment:

4 September 2018

JUDGMENT OF KATZ J

(Costs)

This judgment was delivered by me on 4 September 2018 at 4:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Churton Hart & Divers, Highland Park, Auckland Counsel:  D K Wilson, Barrister, Auckland

Copy to:            Woi Get Seto (First defendant)

Copy to:            Li Li (Second defendant)

DAI v SETO [2018] NZHC 2314 [4 September 2018]

Introduction

[1]    2 August 2018, I delivered judgment in these proceedings. I found for the plaintiff, in the sum of $481,657.86.

[2]    The plaintiff seeks costs on a 2B scale basis, in the sum of $50,175.00. The plaintiff also seeks disbursements in the sum of $13,026.00. The defendants have not filed a costs memorandum in response.

Costs

[3]The plaintiff claims the following costs on a 2B basis:

Item	Particulars	Allocated days
1	Commencement of proceeding	3
11	Filing memorandum for first or subsequent case management conference or mentions hearing (x 2)	0.8
12	Appearance at mentions hearing or callover (x 3)	0.6
20	List of documents on discovery	2.5
21	Inspection of documents	1.5
22	Filing summary judgment application	0.6
30	Preparation of briefs	2.5
31	Preparation of list of issues and common bundle	2.5
33	Preparation for hearing	3.0

34	Appearance at hearing for sole or principal counsel	3.5
Total claimed days: Subtotal (at $2,230 per day)		20.5
		$45,715.00

[4]    The proceedings were of average complexity, requiring counsel of skill and experience considered average in the High Court, and so category 2 is appropriate.1 The amount of time taken for the steps in this proceeding is reasonably assessed as having taken a normal amount of time, justifying band B.2

[5]    The plaintiff’s memorandum included a calculation error. The plaintiffs claimed 22.5 days, with a subtotal of $50,175.00. However, the total claimed days based on the items sought above is only 20.5 days. I therefore proceed on the basis of

20.5 days rather than 22.5 days.

[6]    The only item claimed that is potentially open to challenge is the time allocation for the filing of a summary judgment application. On 28 November 2016, Toogood J granted the plaintiff’s application to withdraw his summary judgment application and directed that the matter proceed as an ordinary claim. The plaintiff made the application to withdraw his summary judgment application after having reviewed the papers filed by the defendants.

[7]    In NZI Bank Ltd v Philpott, the Court of Appeal made the following comments regarding the costs of unsuccessful summary judgment applications:3

As with most questions of costs, they should be approached on broad principles. Whilst a defendant may be regarded as successful in one sense in resisting an application for summary judgment, it is of course not a final determination in the proceeding itself. If ultimately the plaintiff does succeed it seems to us in the general run of cases that the defendant should pay for both proceedings, the Court paying particular attention to the reasons why the plaintiff was unsuccessful in the first case. If those reasons include some question of fault on the part of the plaintiff then it may be appropriate to reduce or even eliminate an entitlement to costs for that part of the proceedings so far

1      High Court Rules 2016, r 14.3(1).

2      High Court Rules 2016, r 14.5(2)(b).

3      NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).

as the plaintiff is concerned. Where, however, the defendant has raised defences which cannot by their nature be resolved at a summary judgment application but ultimately turn out to have no basis, then costs on both sets of proceedings belong to the plaintiff.

[8]    This case, in my view, falls into the latter category. The defendants raised defences that could not be resolved on a summary judgment application. For example, they claimed to have made very significant cash payments to the plaintiff in reduction of the debt that they owed. I ultimately found, however, that the defendants’ claims to have made such payments lacked credibility. In such circumstances, the plaintiff is entitled to the costs of the summary judgment application. If the defendants had not raised defences that were unfounded, the plaintiff would have succeeded in obtaining summary judgment.

[9]I am accordingly satisfied that the claimed costs of $45,715.00 are reasonable.

Disbursements

[10]The plaintiff seeks the following sum for disbursements:

Disbursements	Fees
Filing fee on commencement	$1,350
Filing fee on summary judgment application	$200
Scheduling fee	$1,600
Hearing fee (first two days)	$4,800
Hearing fee (second two days)	$4,800
Process server’s fees	$276
Total:  $13,026.00

[11]   A disbursement must, under r 14.12(2)(c) of the High Court Rules, be reasonably necessary for the conduct of the proceeding. In my view, all of the above disbursements were reasonably necessary for the conduct of the proceeding and are reasonable in amount. (Indeed, all of them, with the exception of the process server’s fees, are verifiable by reference to the High Court Fees Regulations).

Result

[12]   I order that the defendants pay costs to the plaintiff in the sum of $45,715.00, together with disbursements of $13,026.00 (totalling $58,741.00).

Katz J