Fuati v Peng

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-848

[2019] NZHC 2254

BETWEEN
MUSABAYOUFU FUATI

First Plaintiff

JUN JI
Second Plaintiff

AND

YUCHEN PENG

First Defendant

ZUORU JIN

Second Defendant

Hearing: On the papers

Appearances:

N Scampion for Plaintiffs D Zhang for Defendants

Judgment:

9 September 2019

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 9 September 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

FUATI v PENG [2019] NZHC 2254 [9 September 2019]

[1] This proceeding has been referred to me as Duty Judge this week to resolve the issue of costs following delivery of the judgment of Toogood J on 1 August 2019.1 Toogood J has now retired and is unable to deal with that issue.

[2] The second plaintiff seeks an award of costs in his favour as the successful party in the application. The plaintiffs contend that special circumstances in this case mean that costs should be reserved and await the outcome of the trial.

[3] I reject the argument that special reasons exist in the present case to defer the fixing of costs. Toogood J plainly considered that the second defendant was the successful party because of the following paragraph of his judgment:

[52] The rules about payment of costs by one party to another are contained in Part 14 of the High Court Rules 2016. If costs are ordered in this case, they are to be calculated on a Category 2B basis. The general rule that the party that succeeds in a proceeding before the Court is entitled to costs applies.2 In this case, Nick Jin has succeeded.

[4] There is nothing in the Judge’s decision to suggest that costs in relation to the present application should be deferred and fixed following trial. Rather, the usual principles set out in r 14.8 of the High Court Rules 2016 should apply, and costs on the present application should be fixed following determination of the application and become payable now.

[5] The second defendant is therefore entitled to an award of costs on a Category 2B basis against the plaintiffs, together with disbursements as fixed by the Registrar. Should counsel not be able to reach agreement regarding quantum, the dispute should be referred in the first instance to the Registrar (Tony Mortimer) who will provisionally fix quantum. Any dispute remaining after the Registrar has given his decision can be referred to me for final determination.

Lang J

Solicitors:

1 Fuati v Jin [2019] NZHC 1859.
2 High Court Rules 2016, r 14.2(1)(a).

Lucy Chu Lawyers, Auckland Amicus Law, Auckland Counsel:
N Scampion, Barrister, Auckland

CaseChat Overview and Summary

The case of Fuati v Peng involved a dispute between two sets of plaintiffs and defendants in the High Court of New Zealand. The plaintiffs, Musabayo Fuati and Jun Ji, sought costs following a judgment by Toogood J on 1 August 2019. The defendants, Yuchen Peng and Zuoru Jin, opposed the plaintiffs' request for a costs order. The matter was referred to Lang J, the Duty Judge, to address the issue of costs following the original judgment. The second plaintiff, Jun Ji, argued that special circumstances warranted deferring the fixing of costs until the trial's outcome.

The primary legal issue before the court was whether special circumstances existed to justify deferring the fixing of costs. The plaintiffs contended that the unique aspects of the case warranted reserving the costs decision pending the trial's conclusion. The court needed to determine whether the general rule that the prevailing party in an application is entitled to costs should apply or if there were exceptional reasons to defer the costs order.

Lang J rejected the plaintiffs' argument that special circumstances justified deferring the costs decision. The judgment of Toogood J clearly indicated that Zuoru Jin was the successful party in the application, entitling the second defendant to costs under the general rule. The court found nothing in Toogood J's decision suggesting that costs related to the application should be deferred until the trial's outcome. Instead, the usual principles outlined in Rule 14.8 of the High Court Rules 2016 should apply, and costs should be fixed immediately following the determination of the application. Therefore, the second defendant was entitled to an award of costs on a Category 2B basis against the plaintiffs, along with disbursements to be fixed by the Registrar. If the parties could not agree on the quantum of costs, the dispute should first be referred to the Registrar, with any remaining disputes being referred to the Judge for final determination.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the papers
Appearances:	N Scampion for Plaintiffs D Zhang for Defendants
Judgment:	9 September 2019