Fuati v Peng - [2020] NZHC 2150

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000848

[2020] NZHC 2150

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:

24 August 2020

JUDGMENT OF LANG J

[on costs on successful opposition to continuation of freezing orders]

This judgment was delivered by me on 24 August 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 2150 [24 August 2020]

[1] This judgment fixes the costs payable on the second defendant’s successful opposition to the plaintiffs’ application to continue the freezing orders made in relation to his assets on 23 October 2018.

[2] In a judgment issued on 9 September 2020 I directed that the second defendant was to receive costs on a category 2B basis together with disbursements as fixed by the Registrar.1 I also directed that, if counsel for the second defendant could not reach agreement with the plaintiffs regarding the quantum of those costs, the matter should be considered by the Registrar in the first instance. Leave was reserved to return to the Court should any issues remain outstanding at the end of that process.

[3]The Registrar allowed the second defendant costs and disbursements totalling

$11,455.90. He did not allow costs amounting to $17,180 because he was not satisfied the steps for which those costs were claimed fell within the steps for which Schedule
3 of the High Court Rules 2016 permits costs to be awarded on interlocutory applications. Only a Judge has the power to award costs that do not fall within Schedule 3. The issue has therefore been referred to me for final determination.

[4]I now consider each step for which the Registrar declined to award costs.

Memorandum dated 1 November 2018 filed in support of notice of opposition to application for continuation of freezing orders

[5]The second defendant seeks costs calculated at .4 of a day for this step.

[6] The memorandum advised the Court that the plaintiffs’ application for continuation of the freezing orders was opposed, and that hearing time would be necessary. That fact would have been obvious to the Court from the documents the second defendant filed in opposition to the application. There was therefore no need for counsel to file this memorandum with the documents in opposition. I decline to awards costs in relation to it.

1 Fuati v Peng [2019] NZHC 2254.

Appearance at list hearing on 5 November 2018

[7] Following the hearing on 5 November 2018 Jagose J issued the following minute:

[1] This matter came before me as Duty Judge today, seemingly informally by the respondents’ counsel, Daniel Zhang, to obtain a stay of this Court’s 23 October 2018 order 5.1(d) as being excessive for what was at issue.

[2] No appeal is filed…

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 2150
Case: [2020] NZHC 2150
Decision Date: 24 August 2020

CaseChat Overview and Summary

The High Court of New Zealand considered the costs payable on the successful opposition to the plaintiffs' application to continue the freezing orders made in relation to the second defendant's assets. The plaintiffs had previously been granted freezing orders on the defendants' assets, and they sought to continue these orders. The second defendant opposed this application and successfully argued against the continuation of the freezing orders. The court was required to determine the costs incurred by the second defendant in opposing the application, specifically those that the Registrar had declined to award.

The court examined each step for which the second defendant sought costs, determining whether they were recoverable under Schedule 3 of the High Court Rules 2016. The court found that some of the costs were not recoverable as they did not relate to the interlocutory application or were duplicative of other costs already awarded. However, the court allowed costs for certain steps, such as the affidavit of the second defendant and the preparation of new material for the hearing. The court also awarded costs for the second memorandum filed by the second defendant's counsel, as it responded to the plaintiffs' factual and legal issues.

The court's reasoning was based on the specific provisions of the High Court Rules and the nature of the steps taken in opposing the application. The court emphasised that costs should only be awarded for necessary and reasonable steps taken in relation to the interlocutory application. The court also considered the context and purpose of each step, determining whether it was justified and necessary in the circumstances.

The final orders of the court were that the second defendant was to recover certain costs incurred in opposing the plaintiffs' application to continue the freezing orders. The court allowed costs for the second defendant's affidavit, the preparation of new material for the hearing, and the second memorandum filed by the second defendant's counsel. The court disallowed costs for certain other steps, such as the memorandum filed in support of the notice of opposition and the appearance at the list hearing, as they were either unnecessary or duplicative of other costs already awarded.

Orders