Deliu v Ying

[2017] NZHC 1213

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-000705 [2017] NZHC 1213

BETWEEN

GABRIELA DELIU

First Applicant

FRANCISC CATALIN DELIU Second Applicant

AND

HSIANG FEN YING Respondent

Hearing:	On the papers
Appearances:	D Zhao for First Applicant Second Applicant in person Respondent in person
Judgment:	6 June 2017

COSTS JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie

On 6 June 2017 at 11.30am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:           Jesse & Associates, Auckland

Copies to:           Mr and Mrs Deliu

H Ying

DELIU v YING [2017] NZHC 1213 [6 June 2017]

[1]      I refer to my oral judgment of 27 April 2017.  I made orders in favour of Mr and  Mrs  Deliu,  directing  Land  Information  New  Zealand  to  remove  the  caveat lodged by the respondent, Ms Ying.  I recorded that Mr and Mrs Deliu were entitled to costs, and required the parties to file memoranda.

[2]      The  Delius’  memorandum  has  now  been  received.    They  are  seeking

indemnity costs of $14,100 plus GST.  Mr Deliu seeks disbursements of $1,446.88.

[3]      Ms Ying does not directly address the issue of costs in her memorandum. Rather, she repeats her factual assertions.   She claims that she has not received a costs award made in her favour, and she seeks that I should either dismiss the Delius’ claim for costs, or set off any costs awarded to the Delius, in favour of another costs award, she says, has been made in her favour.  She says that the best option is to “re- open the case due to false affidavit and irregularities”.

Analysis

[4]      While costs awards are in the discretion of the Court, there are a number of principles applicable to the same that generally apply.  In particular, the successful party in any litigation is generally entitled to his or her costs.  The Court can award increased costs in the circumstances set out in r 14.6 of the High Court Rules 2016, and  can  order  a  losing  party  to  pay  indemnity  costs  if  that  party  has  acted vexatiously, frivolously, improperly, or unnecessarily in commencing or continuing the proceeding.

[5]      I accept the submission made by Mr Zhao, on behalf of Mr and Mrs Deliu, that Ms Ying has acted vexatiously and improperly in bringing her proceeding.  I set out the background in my oral judgment.   I will not repeat those observations. Suffice it to say that the dispute between Ms Ying, Mr Deliu’s clients, and Mr Deliu, has been before this Court on a large number of occasions.   Ms Ying has been declared to be in contempt of Court and fined.  Her actions have been criticised by Judges.  There was no possible basis on which Ms Ying could claim to be entitled to lodge a caveat against Mr and Mrs Delius’ personal property.  Her actions in doing so were misconceived.   They appear to have been a “tit-for-tat” reaction to some

perceived slight taken from the fact that Mr Deliu, on behalf of his client, lodged a caveat against a property owned by Ms Ying.

[6]      In addition, Mr Zhao, on behalf of the Delius, wrote to Ms Ying on the day prior to the hearing, offering to withdraw the Delius’ application, provided that the caveat  was  withdrawn  and  the  Delius’ costs  in  the  sum  of  $10,000  were  met. Mr Zhao summarised the law briefly.  No response was forthcoming from Ms Ying to that offer.

[7]      An award of indemnity costs is appropriate.

[8]      Mr Zhao has rendered an invoice to Mr and Mrs Deliu in the sum of $14,100. The actual costs incurred were in excess of that sum, but Mr Zhao had agreed to charge the Delius a flat fee of $14,100 plus GST.  Mr Zhao has supplied a copy of his invoice.   I cannot see that any of the steps taken were inappropriate or unnecessary, or that the rates charged were excessive.  Mr Zhao has also confirmed that the Delius have paid his invoice.   It was also confirmed that there is no side arrangement for the Delius to be repaid.

[9]      Neither Mr nor Mrs Deliu are GST registered in their personal capacities. Any award of costs they receive should include the GST component they have paid to Mr Zhao’s firm.

[10]     Mr Deliu represented himself at the hearing.  He was entitled to appear on his own behalf but he is not entitled to any costs award for his appearance.  Mr Zhao, however, had to attend on behalf of Mrs Deliu.   She had a joint interest in the property,  and  it  is  appropriate to  allow costs  for the appearance on  her behalf. Indeed the bulk of the argument was advanced by Mr Zhao.

[11]     Mr Deliu seeks disbursements totalling $1,446.88.  The disbursements appear to have been properly incurred.   They are for filing fees, for preparing a bundle, scheduling fees, car parking and a sealing fee.  Mr Deliu has produced receipts for these fees.   The only disbursement which I consider inappropriate is a $200 disbursement claimed in respect of filing an interlocutory application to recall the

judgment. That application was unnecessary, and was occasioned because the Delius did not place all appropriate information before me at the outset.  I do not allow that filing fee.

[12]     Accordingly, I make an order for costs against Ms Ying in favour of Mr and

Mrs Deliu in the sum of $16,215.  Disbursements in favour of Mr Deliu are awarded in the sum of $1,246.88.

Wylie J