Han v Xue - [2023] NZHC 1002

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1717

[2023] NZHC 1002

BETWEEN
WENNING HAN

First Plaintiff

YUNYUE ZHU
Second Plaintiff

AND

JINXING XUE

Defendant

Hearing: On the papers

Appearances:

Patrick J Shanahan-Pinker for the First Plaintiff M G Kirkland for the Second Plaintiff

Andrew Gilchrist for Non-Parties
Paul Dalkie and Lyn Nicholson for Dyer Whitechurch non-party

Judgment:

2 May 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Costs]

This judgment was delivered by me on 2 May 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
K3 Legal Limited (Patrick Shanahan-Pinker/M G Kirkland), Auckland, for the Plaintiffs Douglas M A Burgess, Auckland, for Non-Parties (Ethnik Krasniqi and Stuart Robertson) Dyer Whitechurch (Lyn Nicholson), Auckland, for Non-Party
Copy for:
Andrew Gilchrist, Southern Cross Chambers, Auckland, for Non-Parties (Krasniqi and Robertson) Paul Dalkie, Auckland, for Dyer Whitechurch, Non-Party

HAN v XUE [2023] NZHC 1002 [2 May 2023]

Introduction

[1] On 17 March 2023 by consent the Court granted orders in respect of the first plaintiff’s application for non-party discovery orders against the following parties (Orders):

(a)Abbotts Investment Limited (AIL);

(b)Stuart Douglas Robertson (Mr Robertson);

(c)Dyer Whitechurch (Dyer Whitechurch);

(d)Burcher Law (Burcher Law);

(e) Ethnik Krasniqi (Mr Krasniqi). (together, the Non-Parties)

[2] The first plaintiff’s application was supported by the second plaintiff but was opposed by Dyer Whitechurch, Mr Krasniqi and Mr Robertson (the Opposing Non- Parties).

[3] At [14] of the Orders, the Court directed the parties file submissions on the issue of costs and noted that:

The applicant has been largely successful in obtaining the orders sought in his application. Accordingly, my preliminary view is that the applicant is entitled to costs on a 2B basis together with disbursements. However I direct that counsel for the applicant is to file a memorandum as to costs (not exceeding five pages) within 10 working days of the date of these consent orders. Counsel for the respective third parties are to file any response (not exceeding five pages) within five working days of receipt of counsel for the applicant’s memorandum. Costs will then be determined on the papers.

Procedural history

[4] On 10 June 2022, the first plaintiff filed its application for non-party discovery and this application was limited to seeking documents from Dyer Whitechurch.

[5] On 20 October 2022, the first plaintiff filed an amended application for non- party discovery and this amended application expanded the scope of the application to include all the Non-Parties.

[6] On 2 March 2023, Dyer Whitechurch filed a notice of opposition. This opposition was filed out of time, four working days before the hearing date of 8 March 2023.

[7] On 6 March 2023, Mr Krasniqi and Mr Robertson filed a notice of opposition two days prior to the hearing.

Principles as to costs

[8] Rule 14.2(a) of the High Court Rules 2016 states…

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 [2023] NZHC 1002
Case: [2023] NZHC 1002
Decision Date: 2 May 2023

CaseChat Overview and Summary

The case of Han v Xue involved the first plaintiff, Wenning Han, and the second plaintiff, Yunyue Zhu, suing the defendant, Jinxing Xue. The plaintiffs sought non-party discovery orders against several parties, including Abbotts Investment Limited, Stuart Douglas Robertson, Dyer Whitechurch, Burcher Law, and Ethnik Krasniqi. The plaintiffs' application was supported by the second plaintiff but opposed by Dyer Whitechurch, Krasniqi, and Robertson. The court granted the orders sought by the plaintiffs but directed that the parties file submissions on the issue of costs.

The legal issues the court had to decide were whether the plaintiffs were entitled to costs on a 2B basis together with disbursements and whether the opposing non-parties should bear the costs of the application. The plaintiffs argued that they should be awarded costs as their application was largely successful and the opposing non-parties could have avoided the costs if they had engaged in constructive discussions or filed their opposition in time. The opposing non-parties, on the other hand, argued that they acted reasonably in opposing the application and should not be subject to a costs order.

The court, after considering the submissions of the parties, decided that costs should lie where they fall. The court balanced the rule that the party who fails in respect of an interlocutory application should pay the costs of the party who succeeds against the general principle that the applicant should pay the non-party costs in respect of a non-party discovery order. The court also considered the attempts by the plaintiffs to obtain the information prior to the application, Dyer Whitechurch's reasonable position that the documents it held could not be released without a Court order or authority of one or other of the directors of AIL, and the delays in the applications coming to the attention of Krasniqi and Robertson due to substituted service. The court concluded that the opposing non-parties had acted reasonably and should not be subject to a costs order.

In conclusion, the court ordered that costs should lie where they fall, and no party was entitled to costs against any other party. The plaintiffs' application for non-party discovery orders was successful, but they were not awarded costs against the opposing non-parties. The opposing non-parties were not found to have acted unreasonably or unjustly in opposing the application, and therefore, they were not ordered to pay costs to the plaintiffs.

Orders