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 or proposed. No grounds are asserted for stay. A case management conference already is scheduled for Wednesday, 7 November 2019. There is nothing for me to do.

[8]    Given the Judge’s comments, I see no basis on which costs should be awarded for this appearance.

Affidavit of Zuoru Jin dated 7 November 2018

[9]    The second defendant seeks costs calculated on the basis of 2.5 days for this item. The Registrar considered it related to a list of documents in the discovery process and that it was not claimable in relation to an interlocutory application.

[10]   The claim does not, however, relate to a list of documents filed as part of the discovery process. Rather, it relates to an affidavit affirmed by the second defendant in compliance with the directions made by the Court on a without notice basis on 23 October 2018. It would have taken a considerable amount of effort to comply with those directions because they required the second defendant to disclose and verify a substantial amount of information about his financial position.

[11]   The affidavit does not strictly relate to the application that the second defendant successfully opposed. The Court nevertheless found there was no justification for continuation of the freezing orders over the second defendant’s assets. Given that fact I consider he should be reimbursed for the costs he incurred in complying with the Court’s initial directions. I therefore allow this item.

Memorandum of submissions for second defendant dated 13 March 2019

[12]   The second defendant seeks costs calculated on the basis of 1.5 days for this item. The Registrar disallowed the claim on the basis that he had already approval the

costs claimed for submissions filed and served on 22 February 2019. The Registrar pointed out that Schedule 3 makes no provision for multiple claims for the same step taken in relation to an interlocutory application.

[13]   This claim needs to be viewed in context. The first set of submissions was filed in anticipation of an original fixture scheduled for 27 February 2019. Toogood J began hearing submissions on that date but then adjourned the fixture on a part-heard basis to 18 March 2019. The adjournment was granted to allow the parties to complete discovery.

[14]   In a minute issued on 27 February 2019 Toogood J directed the parties to file and serve additional submissions prior to the hearing on 18 March 2019. The second defendant complied with these directions by filing and serving further submissions on 13 March 2019. I am therefore satisfied it is appropriate to award the second defendant costs calculated on the basis of 1.5 days for filing and serving the second set of submissions.

Preparation of chronology, second affidavit of Zuoru Jin dated 22 February 2019, sixth affidavit of Yuchen Peng dated 3 March 2019, affidavit of translator Yan (Lydia)

Ding dated 14 March 2019, list of authorities and agreement to common bundle

[15]   Counsel for the second defendant claims two days for these steps, all but one of which were undertaken prior to the resumption of the hearing on 18 March 2019. I am satisfied the second defendant should recover costs for these steps because they relate to the provision of new material for the consideration of the Court when the hearing resumed on 18 March 2019. I therefore allow this item.

Memoranda filed in relation to costs

[16]   Counsel for the second defendant seeks costs calculated at .6 of a day for his memorandum on costs dated 16 August 2019 and at .4 of a day for his reply memorandum filed on 4 September 2019.

[17]   The Registrar disallowed these items on the basis that, in the absence of any specific separate award, a determination as to costs must be treated as part of the orders made on the interlocutory application to which they relate.

[18]   I agree. The Court does not generally award costs on memoranda filed in relation to the issue of costs. Furthermore, the memorandum dated 16 August 2019 was very short and simply set out the steps for which costs were sought. It does not justify any award of costs being made.

[19]   The second memorandum was more substantial because it responded to factual and legal issues raised by the plaintiffs. I am prepared to award costs calculated at

.4 of a day to reflect this step.

Lang J