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: [phone] – [email protected]
B G Hong Law, P O Box 233 Shortland Street, Auckland 1140
Fax: [phone] – Email: [email protected]

Counsel:             A Banbrook, P O Box 105870, Auckland 1143

Fax: [phone] – Email: [email protected]

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 by the costs he was liable to pay Mr Deliu.  That is not entirely correct, however, because it is only the costs payable as between Mr Hong and Mr Deliu which are to be offset.[2]    The costs payable by Amicus to Mr Hong will need to be paid separately by that entity.

[2] High Court Rules, r 14.17.

[7]      In  the  absence  of  a  specific  calculation  by  Mr  Hong  I  have  taken  the following calculation  which largely reflects  the  steps  that  were required  by the plaintiffs in respect of their application for review:

Preparing and filing opposition to interlocutory application (excluding summary judgment

application and supporting affidavits  $1,128.00

Responding to amended interlocutory application                $1,128.00

Memorandum for mention  $   752.00

Mention appearance (no appearance for

Mr Hong on that occasion)  Nil

Preparation for review hearing  $   940.00

Appearance at review hearing  $   940.00

Sealing order  $   376.00

Total  $5,264.00

Costs on injunction

[8]      Mr  Hong  has  claimed  $5,640.00  in  respect  of  costs  on  Mr  Deliu’s unsuccessful injunction application.  This includes one day each for preparation and appearance at the hearing.  Mr Deliu resists that aspect of the claim on the basis that the hearing took only half a day.  This is correct.   I therefore make the necessary adjustment and allow $3,760.00 in respect of the injunction application.

Result

[9]      The result is that:

(a)       Mr Deliu is entitled to $15,025.26 net from Mr Hong; (b)      Mr Hong is entitled to $5,264 from Amicus.

[10]     Mr Hong seeks to have me make directions regarding the next step to be taken in this matter.  This, however, is better referred back to Associate Judge Bell for a case management conference and I direct that the Registry allocate such a

conference.

P Courtney J