Deliu v Hong - [2013] NZHC 1934

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-006349 [2013] NZHC 1934

BETWEEN FRANCISC CATALIN DELIU Plaintiff

AND

BOON GUNN HONG Defendant

Submissions in writing:
30 May 2013 (Plaintiff); 21 June 2013 (Defendant);

24 June 2013 (Plaintiff’s reply).
(Determined on the papers)

Appearances:

F C Deliu Plaintiff in Person
B G Hong, Defendant in Person

Judgment:

2 August 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
fixing costs and disbursements

This judgment was delivered by Associate Judge Osborne on 2 August 2013 at , pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

DELIU v HONG [2013] NZHC 1934 [2 August 2013]

Introduction

[1] On 12 April 2013, I delivered two judgments in this proceeding, one in relation to the defendant’s application to strike out the claim and the other in relation to the plaintiff’s application for a strike out order or further particulars.1

[2] The defendant’s strike out application was unsuccessful. The plaintiff’s strike out application was also unsuccessful, but his application for an order as to further and better particulars was successful. Costs were reserved.

[3] On 16 May 2013, following receipt of additional submissions, I gave an interim judgment as to costs.2

[4] By that judgment I ordered:3

(a) The plaintiff was to have the costs of both applications (the plaintiff’s application for strike out and further particulars and the defendant’s application for strike out).

(b) The costs were to be on a 2B basis.

(c) The plaintiff was to have his disbursements under r 14.12 but subject to r 14.12(3) on both applications.

(d)My decision as to the items to be allowed in relation to each application was reserved for further submission by the parties.

[5] I have now received those additional submissions.

1 Deliu v Hong [2013] NZHC 735; Deliu v Hong [2013] NZHC 736.
2 Deliu v Hong [2013] NZHC 1119.
3 At [28].

The big picture

[6] The costs to be determined relate to what were essentially two sets of interlocutory applications. The applications were heard together over one and a half days.

[7] Mr Deliu provides a schedule of items and calculations leading to a submission that Mr Hong should be ordered to pay costs of $48,158 together with disbursements of $2,233.47.

[8] Mr Hong has submitted a calculation which would entitle Mr Deliu to a net costs award of $4,169 plus disbursements of $200. The “net” costs figure is arrived at by a process of deducting items claimed by Mr Hong himself from items which he calculates in Mr Deliu’s favour as follows:

Costs payable to Mr Deliu $8,358

Less sub total set-off of costs for Mr Hong $4,189

Net $4,169

The Court’s approach to costs in this case

[9] The very fact that Mr Deliu considers it appropriate to apply for costs of

$48,158 in relation to two interlocutory applications indicates the extent to which attendances related to these two interlocutory matters have apparently consumed resources. That was already partially apparent to me when I…

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 [2013] NZHC 1934
Case: [2013] NZHC 1934
Decision Date: 2 August 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Francis Catalin Deliu, the plaintiff, pursued a legal claim against Boon Gunn Hong, the defendant. The case involved two interlocutory applications: the plaintiff's application for a strike-out order or further particulars, and the defendant's application to strike out the claim. Both applications were unsuccessful, with the plaintiff's request for further particulars being granted. The court was required to determine the costs and disbursements to be awarded in relation to these interlocutory applications.

The court held that the costs to be determined should reflect the complexity and significance of the proceeding, and should be proportionate to the resources consumed. The plaintiff, a self-represented litigant and practising lawyer, had submitted a costs schedule amounting to $48,158, which the court found to be disproportionate. The court decided to disallow a substantial number of items claimed by the plaintiff, reducing the proposed award drastically. The court arrived at a costs figure of $14,328, considering it to be just on a proportionality basis. The court also allowed the plaintiff's claim for disbursements in the sum of $1,942.15.

The final orders of the court were that the defendant was to pay the plaintiff interlocutory costs of $14,328 and disbursements of $1,942.15. If the costs and disbursements were paid within three working days of the judgment, the sum to be paid by the defendant was reduced by $398, resulting in a total payment of $15,872.15.

Orders