Green Land Investment Limited v Mao

[2020] NZHC 1376

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-606

[2020] NZHC 1376

IN THE MATTER

of s 142 of the Land Transfer Act 2017

AND

IN THE MATTER

of an application for the removal of certain caveats

BETWEEN

GREEN LAND INVESTMENT LIMITED

Applicant

AND

JIAWEN MAO

Respondent

Hearing:	On the papers
Counsel:	G M Illingworth QC and D Liu for the applicant
Judgment:	18 June 2020

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 18 June 2020 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

Grant Illingworth QC, Auckland Heritage Lawyers, Auckland

GREEN LAND INVESTMENT LIMITED v MAO - Costs [2020] NZHC 1376 [18 June 2020]

[1]My 14 May 2020 judgment took the preliminary view:

[A]s the successful party, Green Land is entitled to indemnity costs and disbursements on their application. That is because, from what I presently know of it, Ms Mao’s conduct may meet the requisite level of impropriety …

but reserved costs for subsequent determination, if that was not accepted by the parties or they could not otherwise agree, and set out a timetable for any claim, response and reply.1

[2]        Within that timetable, by memorandum of 25 May 2020, Green Land seeks 3C costs and disbursements amounting to $57,312.46. I comprehend it demurs from pursuit of indemnity costs as the multiplicity of related proceedings, addressed during lockdown in COVID-19’s management in the community without access to “centralised time records”, render its actual and reasonable costs on the application difficult to specify with certainty. But counsel confirms actual costs incurred in this proceeding “would have exceeded $60,000.00”.

[3]        Ms Mao had until 2 June 2020 to respond. On 2 June 2020, Ms Mao filed an application seeking leave to appeal and stay my 14 May 2020 judgment. That application is for call next week. Its pendency is immaterial to my determination of costs. No response to Green Land’s costs memorandum has been filed.

[4]        I need not recite the general principles applicable to the determination of costs, save here – subject to my discretion – they should “reflect the complexity and significance of the proceeding”, “not exceed the costs incurred by the party claiming costs”, and “so far as possible … be predictable and expeditious”.2

[5]        The proceeding to  remove  Ms  Mao’s  caveat  clearly  was  “significant”.3  To Green Land’s considerable credit, orthodox documents were compiled for argument in a compressed 90-minute hearing, from which judgment issued the following day. I would allow that presentation reflected counsel with special skill or experience in the High Court.4 But a comparatively large amount of time for any step

1      Green Land Investment Limited v Mao [2020] NZHC 1000 at [17].

2      High Court Rules 2016, rr 14.1 and 14.2.

3      Green Land Investment Limited v Mao, above n 1, at [4].

4      High Court Rules 2016, r 14.3.

taken in the proceeding is not considered reasonable.5 The steps taken were no more than are expected on such an application, and should not have occupied more than “a normal amount of time”.6 I calculate that time to amount to 7.05 days, instead of the

15.85 days claimed, meaning 3B costs of $24,886.50.

[6]        Given my preliminary view indemnity costs may have been justified, and Green Land’s actual costs would have exceeded any order of scale costs, I have considered (uninvited) if increased costs may be ordered. But neither consideration of itself justifies uplifting scale costs,7 particularly given Green Land’s demur, and the principle scale costs “should not depend on … the costs actually incurred”.8

[7]        Ms Mao’s conduct also does not qualify as any of the specified instances of unnecessary contribution justifying increased costs.9 I do not think it is right to characterise Ms Mao as “pursu[ing] an argument that lacks merit” for the purposes of increased costs,10 when the issue was if she had an arguable case of a caveatable interest in the land.11 An “arguable case” may well encompass one ultimately found to lack merit. And, although increased costs may be ordered for “some other reason”,12 that should not be to enable an order of indemnity costs (or so close as may be achieved on uplift) by stealth.

[8]I therefore order Ms Mao to pay Green Land 3B costs in the amount of

$24,886.50 and disbursements of $1,361.96.

—Jagose J

5      Rules 14.2(c) and 14.5(c).

6      Rule 14.5(2)(b).

7      Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 (CA) at [40].

8      High Court Rules 2016, r 14.2(1)(e).

9      Rule 14.6(3)(b).

10     Rule 14.6(3)(b)(ii).

11     Green Land Investment Limited v Mao, above n 1, at [7].

12     High Court Rules 2016, r 14.6(3)(d).