Fuati v Peng

[2018] NZHC 3200

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000848

[2018] NZHC 3200

BETWEEN

MUSABAYOUFU FUATI and JUN JIN

Applicants

AND

YUCHEN PENG

First Respondent

WONDER INTERNATIONAL LIMITED
Second Respondent

ASB BANK LIMITED
Third Respondent (non-party)

ANZ BANK NEW ZEALAND LIMITED
Fourth Respondent (non-party)

BANK OF NEW ZEALAND
Fifth Respondent (non-party)

WESTPAC BANKING CORPORATION

Sixth Respondent (non-party)

Judgment: 6 December 2018

JUDGMENT OF COURTNEY J

[Costs]

This judgment was delivered by Justice Courtney on 6 December 2018 at 3.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

FUATI v PENG & ORS [2018] NZHC 3200 [6 December 2018]

[1]In my decision dated 17 August 2018, I:

(a)granted the application by Mr Fuati and Mr Jin to continue the freezing order previously granted by Moore J;

(b)refused the application by Mr Fuati and Mr Jin to extend the ancillary disclosure order;

(c)refused the application by Mr Fuati and Mr Jin requiring Ms Peng to answer interrogatories;

(d)dismissed the application by Ms Peng and Wonder International Ltd (WIL) to discharge the freezing order;

(e)granted the application by Ms Peng/WIL to vary the disclosure order in part.

[2]                 I invited counsel to address the issue of costs by memoranda. I only received a memorandum from counsel for Mr Fuati and Mr Jin. They seek costs on the basis that they were the successful parties overall and that the issue on which they did not succeed was not the main focus of written submissions. Further, they say there is a basis on which to award increased costs because of the respondent’s unreasonable behaviour.

[3]                 I agree that the main focus of the hearing was whether the freezing order should continue or be discharged and that Mr Fuati and Mr Jin succeeded on that point. I also accept that the terms of the disclosure order, on which Ms Peng succeeded in part, was not a significant aspect of the hearing.

[4]                 The applicants say that increased costs are appropriate because, first, Ms Peng refused an offer to reach reasonable agreement on the terms of the disclosure order so as to avoid a hearing on that aspect and, secondly, other aspects of Ms Peng’s conduct were unreasonable. They say, specifically, that her application to discharge the freezing order was made without notice (albeit on a Pickwick basis), points were taken that had no merit (such as the claim that disclosure of the documents could be resisted

on the basis that it would lead to self-incrimination) and that claims were made that documents should not disclosed because they were commercially sensitive without providing any evidence to support that assertion.

[5]                 In my view, Mr Fuati and Mr Jin are entitled to costs. However, because there were aspects of their applications that did not succeed and of Ms Peng’s applications that did succeed, I decline to increase the costs. The applicants will have costs calculated on a 2B basis in accordance with Schedule 1 attached to counsels’ memorandum, which is $10,035 in costs, together with disbursements totalling $185, a total of $10,220.

P Courtney J