Fuati v Peng - [2020] NZHC 2466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000848

[2020] NZHC 2466

BETWEEN
MUSABAYOU FUATI

First Plaintiff

JUN JIN
Second Plaintiff

AND

YUCHEN PENG

First Defendant

ZUORU JIN

Second Defendant

Hearing: On the papers

Appearances:

Plaintiffs in person

D Zhang for Defendants

Judgment:

22 September 2020

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 22 September 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Amicus Law, Auckland Copy to:
Plaintiffs

FUATI v PENG [2020] NZHC 2466 [22 September 2020]

[1] This file has been referred to me for determination of costs on the substantive proceeding following its discontinuance on 21 July 2020. Costs in relation to earlier judgments dealing with freezing orders and discovery issues (the discovery judgment) have already been fixed.1

[2] Rule 15.23 of the High Court Rules 2016 provides that where a plaintiff discontinues a proceeding the plaintiff must, unless the defendant agrees or the Court orders otherwise, pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[3] The defendants seek costs on a category 2B basis for all steps taken in the proceeding other than an interlocutory application that they filed on 8 July 2020. They say they should receive indemnity or increased costs on that application. They also say the Court should now reverse an order for costs made by Courtney J against the defendants2 following a judgment delivered in the plaintiffs’ favour on 17 August 2018.3

[4] The plaintiffs contend that costs should lie where they fall. They submit they have a strong claim against the defendants and have only discontinued the proceeding because they no longer have the resources to continue it. They also consider it to be grossly unfair that the defendants have been able to meet the costs of their defence using funds belonging to the plaintiffs.

[5] I understand the plaintiffs’ concerns, but I do not consider they amount to a sufficient reason to depart from the principle set out in r 15.23. In particular, it is not possible given the stage at which the plaintiffs discontinued the proceeding to reach any firm conclusion regarding the strength or otherwise of their claims. Subject to the Court’s overriding discretion as to costs the defendants are therefore entitled to costs on steps taken in the substantive proceeding up until the discontinuance.

[6] I consider first the steps for which the defendants seek costs on a category 2B basis.

1      Fuati v Peng [2018] NZHC 3200; Fuati v Peng [2020] 1581; Fuati v Peng [2020] NZHC 2150;
2      Fuati v Peng [2018] NZHC 3200.
3      Fuati v Peng [2018] NZHC 2134.

Steps for which the defendants seek costs on a category 2B basis

The first defendant

[7] I allow all steps claimed in Schedule 1 to the memorandum of counsel for the defendants dated 18 August 2020…

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 Fuati v Peng

Details

AGLC: Fuati v Peng [2020] NZHC 2466
Case: [2020] NZHC 2466
Decision Date: 22 September 2020

CaseChat Overview and Summary

The case of Fuati v Peng is a matter in the High Court of New Zealand, Auckland Registry. The plaintiffs, Musabayou Fuati and Jun Jin, sought to discontinue their proceeding against the defendants, Yuchen Peng and Zuoru Jin. The defendants sought costs on a category 2B basis for all steps taken in the proceeding other than an interlocutory application that they filed on 8 July 2020. They sought indemnity or increased costs for that application and argued the Court should reverse an order for costs made by Courtney J against the defendants following a judgment delivered in the plaintiffs’ favour on 17 August 2018. The plaintiffs argued that costs should lie where they fall and that they had a strong claim against the defendants. They submitted that they had only discontinued the proceeding because they no longer had the resources to continue it.

The Court considered the legal principles set out in Rule 15.23 of the High Court Rules 2016, which provides that where a plaintiff discontinues a proceeding the plaintiff must pay costs to the defendant unless the defendant agrees or the Court orders otherwise. The Court held that it was not possible given the stage at which the plaintiffs discontinued the proceeding to reach any firm conclusion regarding the strength or otherwise of their claims. The Court held that the defendants were therefore entitled to costs on steps taken in the substantive proceeding up until the discontinuance. The Court also held that there was no basis on which to revisit the costs order made by Courtney J on 6 December 2018. The Court declined to award indemnity costs on the defendants' interlocutory application filed on 8 July 2020.

The Court ordered that the defendants were entitled to costs on a category 2B basis for all steps taken in the proceeding other than those to which the Court had already referred. The Court also ordered that the defendants were entitled to disbursements as sought in the memorandum of their counsel dated 18 August 2020.

Orders