Fuati v Peng

[2019] NZHC 2254

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