Han v Xue - [2024] NZHC 1428

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1717

[2024] NZHC 1428

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER

of a declaratory order pursuant to the Declaratory Judgments Act 1908

BETWEEN

WENNING HAN

First Plaintiff

YUNYUE ZHU
Second Plaintiff

AND

JINXING XUE

Defendant

Hearing: On the papers

Appearances:

Mr Wenning Han in person

No appearance by or for Mrs Yunyue Zhu
R J Hollyman KC and J A McMillan for Mr Jinxing Xue

Judgment:

31 May 2024

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 31 May 2024 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

HAN v XUE [2024] NZHC 1428 [31 May 2024]

[1]This judgment deals with costs in respect of:

(a)the unsuccessful interlocutory application by the first plaintiff (Mr Han) dated 18 October 2023, supported by the second plaintiff (Mrs Zhu, Mr Han’s mother-in-law), seeking orders that this proceeding be consolidated and/or heard together with a second proceeding just filed,1 and that the five-day trial commencing on 19 February 2024 be vacated (the consolidation application); and

(b)Mr Han’s further adjournment application in February 2024 and wasted costs in the proceeding.

Background

[2] In this proceeding commenced in 2021,2 the plaintiffs seek declaratory relief under the Declaratory Judgments Act 1908 that a loan agreement, guarantee and mortgage are unenforceable. These documents were executed in 2018 when a development of 13 terraced houses in Remuera (the development) was at risk of being sold by a mortgagee. The defendant (Mr Xue) has counterclaimed seeking payment.

[3]On 29 April 2022, the February 2024 trial date was allocated.

[4] On 18 October 2023, Mr Han commenced the second proceeding comprising claims in deceit, breach of fiduciary duties and knowing assistance against four new defendants in respect of actions relating to the development that preceded the 2018 documentation in issue in this proceeding.

[5] At the hearing of the consolidation application on 6 December 2023, I discussed with counsel the need for an early decision given the February 2024 trial date and I indicated that due to other commitments before the vacation I may need to give a results only judgment. That proved to be the case and on 12 December 2023 I gave my decision dismissing the consolidation application, with reasons to follow.

1 Han v Robertson (CIV-2023-404-2444) filed on 18 October 2023.
2 Under pt 18 of the High Court Rules 2016.

In my reasons judgment dated 2 February 2024, I indicated that Mr Xue was entitled to costs.

[6] In the meantime, both plaintiffs’ lawyers applied to be permitted to cease acting. On 26 January 2024, I made an order declaring that Mr Kirkland and Ms Chan had ceased to be counsel and solicitor on the record respectively for Mrs Zhu. On 1 February 2024, Lang J made orders as sought by Mr Han’s solicitors.

[7] On 12 February 2024, Anderson J minuted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Han v Xue

Details

AGLC: Han v Xue [2024] NZHC 1428
Case: [2024] NZHC 1428
Decision Date: 31 May 2024

CaseChat Overview and Summary

The case Han v Xue involved a dispute over costs in relation to an unsuccessful interlocutory application by Wenning Han, the first plaintiff, seeking consolidation of two proceedings, and a subsequent adjournment application by Han, which led to wasted costs for Jinxing Xue, the defendant. Han and Yunyue Zhu, the second plaintiff and Han's mother-in-law, sought a declaratory order under the Declaratory Judgments Act 1908, arguing that certain financial documents were unenforceable. Xue counterclaimed for payment. The legal issues before the court included whether indemnity or increased costs were warranted for the consolidation application and the subsequent adjournment application, which led to wasted trial preparation costs. The court assessed the conduct of Han, considering whether it was vexatious, frivolous, improper, or unnecessary, and whether it contributed to unnecessary time and expense for Xue. The court found that while Han's conduct warranted increased costs for both the consolidation application and the adjournment leading to wasted trial preparation, the conduct did not meet the high threshold for indemnity costs. The court awarded increased costs at 25% above scale costs, totaling $23,302.50, with Yunyue Zhu liable for one-third of the total costs awarded.

The final orders were that Xue was entitled to $9,709.37 plus disbursements of $1,065 from the plaintiffs in relation to the consolidation application, and $23,302.50 in relation to the adjournment application and wasted trial costs, with Yunyue Zhu liable for one-third of the total costs awarded in relation to the consolidation application.

Orders