Gan v Wilfred

[2014] NZHC 101

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000442 [2014] NZHC 101

BETWEEN  KAIWAN GAN AND YUZHEN YU Plaintiffs

ANDHARMON LYNN WILFRED First Defendant

ANDCAROLYN RUTH DARE-WILFRED Second Defendant

ANDANGELA MAREE SMALLEY Third Defendant

ANDLA FAMIA NO. 1 LIMITED Fourth Defendant

AND  LA FAMIA NO. 4 LIMITED Fifth Defendant

Hearing:                   7 February 2014 (On the papers) Appearances:  S Caradus for Plaintiffs

H L Wilfred in person for Defendants

Judgment:                10 February 2014

JUDGMENT OF PANCKHURST J RE:  COSTS DECISION

Introduction

[1]      Costs are sought by the successful plaintiff in relation to an application for the discharge of a stay granted pending an appeal to the Court of Appeal against the substantive decision.  For reasons set out in a judgment dated 27 June 2013 I ordered

a discharge of the stay, albeit the appeal to the Court of Appeal was still pending.

GAN YU v WILFRED AND ORS [2014] NZHC 101 [10 February 2014]

[2]      Costs were reserved to enable memoranda to be filed.   These have been received and considered.

The contentions

[3]      Mr Collins, on behalf of the plaintiffs sought category 2B costs in the sum of

$1,194.00, plus disbursements of $50.00.

[4]      Mr Wilfred in a memorandum filed on behalf of the defendants opposed the plaintiffs’ application, but effectively on the basis that an application to the Supreme Court for leave to appeal was pending, in the context of which a stay of judgment and all costs awards, was sought.   By way of explanation I note that prior to the filing  of  costs  memoranda  in  November-December  2013,  the  Court  of Appeal delivered judgment in favour of the plaintiffs.   Hence, the original decision of Chisholm J was upheld and the correctness of my decision to discharge the stay pending appeal did not fall for consideration.

Decision

[5]      I  am  satisfied  that  costs,  and  disbursements  as  claimed  are  appropriate. Mr Wilfred  submitted  that  a  costs  decision  should  await  the  outcome  of  an application to the Supreme Court for leave to appeal in the context of which a further stay of execution was sought.  I am unsure when the leave/stay application is to be heard.

[6]      In any event, proceedings in this Court are now spent.   It is appropriate, therefore, to consider costs at this point.  Should matters change as a result of the Supreme Court hearing is simply beyond this Court’s control.

[7]      For these reasons I grant the plaintiffs’ costs of $1,194 plus disbursements of

$50.00.

Solicitors:

S Caradus, Christchurch