Ding v Ai - [2020] NZHC 858

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2160

[2020] NZHC 858

UNDER the Land Transfer Act 2017 and the Property (Relationships) Act 1976

IN THE MATTER

of an application to sustain notice of claim of interest 111552636 against record of title NZ98A/889

BETWEEN

TIANPING DING

Applicant

AND

WEI AI

Respondent

Hearing: On the papers

Counsel:

SWM Piggin for the Applicant R Reed for the Respondent

Judgment:

30 April 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 30 April 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr SWM Piggin, Barrister, Auckland
Ms P Zheng (applicant’s instructing solicitor), Northern Legal Ltd, Silverdale Ms R Reed, Prestige Lawyers Ltd, Auckland

DING v AI [2020] NZHC 858 [30 April 2020]

[1] In this proceeding by way of originating application, following the commencement of substantive proceedings by the applicant in the Family Court to determine his claim that a property is relationship property, I made an order, by consent, on 11 February 2020 that his notice of claim not lapse until further order of the Court or of the Family Court.

[2] The applicant sought costs and I directed the filing of memoranda and indicated I would deal with costs on the papers. The applicant seeks 2B costs of $7,170 plus disbursements of $916.

Discussion

[3] Where caveat or notice of claim proceedings are determined on the basis that the caveat/notice of claim not lapse pending the determination of separate substantive proceedings to ascertain the underlying interest, issues can arise as to costs. One argument is that sustaining the caveat is akin to refusing summary judgment or granting an interim order and costs should be reserved to follow determination of the underlying claim. However, the competing argument is that, in relation to interlocutory applications, except for summary judgment, the rules provide for costs generally to be fixed following determination and, in any event, caveat/notice of claim proceedings are discrete proceedings brought by way of originating application which are determined, and costs should be fixed, even though the final order may be subject to the determination of a separate proceeding.

[4] I do not accept the respondent’s submission that costs should lie where they fall or be reserved pending the determination of the Family Court proceeding. Applying the cost rules to this proceeding in a principled way, I consider costs on the originating application should be determined now under the principle in r 14.2(1)(a) of the High Court Rules 2016.1 The originating application is a discrete proceeding in its own right.2 Costs should ordinarily follow the event notwithstanding that in a proceeding of this nature, the caveator need show only an arguable case for the claimed caveatable interest and the underlying claim remains to be determined in a separate

1 Samson v Mourant [2016] NZHC 1119 at [11]-[14].
2 At [16]-[17]; and Official Assignee v Menzies (No…

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 Ding v Ai

Details

AGLC: Ding v Ai [2020] NZHC 858
Case: [2020] NZHC 858
Decision Date: 30 April 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Tianping Ding, the applicant, brought an originating application to sustain a notice of claim of interest against Wei Ai, the respondent, in relation to a property titled NZ98A/889. The application was made following the commencement of substantive proceedings in the Family Court to determine if the property was relationship property. The applicant sought an order to ensure that the notice of claim did not lapse until further order of the court or the Family Court. The case was heard on the papers, with SWM Piggin representing the applicant and R Reed representing the respondent. The court was required to decide on the appropriate costs for the originating application, considering the discrete nature of the application and the effect of the Land Transfer Act 2017 and the Property (Relationships) Act 1976. The court found that the application for sustaining the notice of claim was a distinct proceeding and should be treated as such for the purposes of determining costs. The court rejected the respondent's argument that costs should be reserved pending the outcome of the Family Court proceedings, as it was consistent with the general practice of dealing with costs on interlocutory applications at the time of their determination. The court also found that the respondent's alternative submission that costs should be refused was not supported by the circumstances of the case.

The court concluded that the applicant was entitled to costs on the originating application, awarding 2B costs of $7,170 plus disbursements of $916. The court's reasoning was based on the discrete nature of the originating application, the principle that costs should follow the event, and the general practice of dealing with costs on interlocutory applications at the time of their determination. The respondent's submissions were found to be unpersuasive, as they did not justify a refusal or reduction of costs. The court also noted that the respondent's decision not to fully contest the proceeding resulted in lower costs for the applicant. The court's decision was based on a principled application of the relevant cost rules and the specific circumstances of the case.

Orders