Deliu v Hong - [2012] NZHC 679

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006349 [2012] NZHC 679

BETWEEN FRANCISC CATALIN DELIU First Plaintiff

ANDAMICUS LAWYERS LIMITED Second Plaintiff

ANDBOON GUNN HONG Defendant

Hearing: On the papers

Judgment: 5 April 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 5 April 2012 at 4:00 pm
pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date……………………….

Solicitors: Amicus Lawyers, P O Box 68559, Newton, Auckland 1145
Fax: (09) 969-1492 – fdeliu@amicuslawyers.co.nz
B G Hong Law, P O Box 233 Shortland Street, Auckland 1140
Fax: (09) 358-5322 – Email: bghong@hotmail.com

Counsel: A Banbrook, P O Box 105870, Auckland 1143
Fax: (09) 377-0762 – Email: tony@tonybanrook.co.nz

DELIU V HONG HC AK CIV-2010-404-006349 [5 April 2012]

[1] In my judgment dated 21 December 2011 I considered applications by the first plaintiff (Mr Deliu) and the second plaintiff (Amicus) in respect of a decision by Associate Judge Bell striking out their proceedings against Mr Hong. Mr Deliu’s application succeeded and he is entitled to costs against Mr Hong on a 2B basis. Amicus’ application failed and Mr Hong is entitled to costs against it on a 2B basis.

[2] In addition to these applications I also heard and dismissed Mr Hong’s cross- application striking out the applications to review. Mr Deliu and Amicus are entitled to costs against Mr Hong on that application.

[3] Finally, I also allowed costs to Mr Hong in respect of his successful opposition to an earlier interim injunction application brought by Mr Deliu, a matter that the Associate Judge was asked to determine but failed to consider.

Costs to Mr Deliu from Mr Hong on the application for review

[4] Mr Deliu has sought costs on a 2B basis, which he calculates at $16,544.00, and of disbursements of $4,131.26.

[5] I am not prepared to order this entire amount. I consider that the following amounts are properly claimable:

(a) $7,886.00 in respect of the strike-out application determined by

Associate Judge Bell;[1]
[1] This reverses Associate Judge Bell’s order that costs lie where they fall as his order striking out Mr
Deliu’s claim has been successfully reviewed: High Court Rules r 14.8(2).

(b) $5,640.00 in respect of the application for review of Associate Judge

Bell’s decision;

(c) $1,128.00 in respect of Mr Deliu’s opposition to Mr Hong’s

application to strike out. I do not, however, allow the claimed

amounts of $1,880.00 under Items 4.14 and 4.15 for the plaintiffs’

preparation and appearance in respect of that application. The grounds for that application were such as to require virtually no additional time or argument over and above the main issues being determined in respect of the application for review.

(d) I allow a claim for disbursements of $4,131.26.

Costs to Mr Hong from Amicus on the application for review

[6] In his memorandum dated 8 December 2011 Mr Hong appears to have proceeded on the basis that whatever costs he might be entitled to would be offset and extinguished…

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 Deliu v Hong

Details

AGLC: Deliu v Hong [2012] NZHC 679
Case: [2012] NZHC 679
Decision Date: 5 April 2012

CaseChat Overview and Summary

In the case of Deliu v Hong, the first plaintiff, Francisc Catalin Deliu, and the second plaintiff, Amicus Lawyers Limited, brought proceedings against the defendant, Boon Gunn Hong. The dispute involved applications to review a decision by Associate Judge Bell to strike out the plaintiffs' claims, as well as a cross-application by Mr Hong to strike out the applications to review. The High Court of New Zealand considered these applications and ruled on the costs associated with the proceedings.

The court had to determine several legal issues, including whether the plaintiffs were entitled to costs against Mr Hong for the successful application to review the decision to strike out their claims. The court also had to assess the costs claimed by Mr Deliu and Amicus Lawyers Limited, and determine whether the costs payable by Amicus to Mr Hong would be offset against the costs payable by Mr Hong to Mr Deliu.

Justice Courtney found that Mr Deliu was entitled to costs against Mr Hong on a 2B basis for the successful application to review the decision to strike out his claims. The court calculated the allowable costs for the strike-out application, the application for review, and the opposition to Mr Hong’s application to strike out. The court also allowed a claim for disbursements. Justice Courtney determined that Amicus Lawyers Limited was liable to pay Mr Hong costs on a 2B basis for the application for review, which were to be paid separately from the costs payable between Mr Hong and Mr Deliu. Additionally, the court allowed Mr Hong costs for Mr Deliu’s unsuccessful injunction application, making an adjustment for the duration of the hearing.

The final orders of the court were that Mr Deliu was entitled to $15,025.26 net from Mr Hong, while Mr Hong was entitled to $5,264 from Amicus Lawyers Limited. Justice Courtney directed that a case management conference be allocated to Associate Judge Bell to determine the next steps in the matter.

Orders