Han v Zhu - [2021] NZHC 3514

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1082

[2021] NZHC 3514

UNDER the Contempt of Court Act 2019

BETWEEN

HONGZE HAN

Applicant

AND

LANYING ZHU

Respondent

Hearing: On the papers

Appearances:

K Sun for the Applicant

K Puddle for the Respondent

Judgment:

17 December 2021

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 17 February 2021 at 4 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Capstone Law Limited, Auckland
K3 Legal Limited, Auckland

HAN v ZHU [2021] NZHC 3514 [17 December 2021]

[1] By judgment dated 8 November 2021, I refused an application by the applicant, Hongze Han, for orders under s 16 of the Contempt of Court Act 2016 against the respondent, Lanying Zhu for failure to comply with a Family Court order for sale of a property in Epsom (the property) and distribution of the proceeds (the substantive judgment).1 I reserved costs and noted that Ms Zhu, as the successful party, was prima facie entitled to costs.2

[2] The parties were unable to agree costs and, in accordance with the Court’s directions, have filed separate costs memoranda.3

[3] The crux of the disagreement between the parties is whether Ms Zhu is entitled to indemnity or increased costs, as her counsel Mr Puddle submits, or whether costs should lie where they fall as Mr Sun submits for Mr Zhu.

Background

[4] As set out in the substantive judgment, Mr Han and Ms Zhu married in 1986, and have one daughter.⁴ Their marriage was dissolved in August 2015. During the course of their marriage, Ms Zhu purchased the property as the sole registered proprietor.

[5] In April 2015, Mr Han issued proceedings in the Family Court seeking orders for the division of relationship property (including the property). The sale order in question was made by Judge S J Fleming in the Family Court at Auckland, on 28 February 2017, after the application by Mr Han for orders for the division of relationship property was set down for a formal proof hearing.⁵

[6] It was not until 15 June 2021 that Mr Han commenced proceedings in this Court for orders under s 16 of the Contempt of Court Act 2019. He sought, among other relief, that a warrant be issued for Ms Zhu’s imprisonment to penalise her for failure to comply with the Family Court order and that a fine be imposed payable to Mr Han.

1      Han v Zhu [2021] NZHC 3007.
2 At [44].
3 At [46].
4      See background at [5] – [8].
5      Han v Zhu FC Auckland FAM-2015-004-000407, 28 February 2017.

[7] At the substantive hearing, Mr Sun said that in the four years since the date of the Family Court hearing Ms Zhu had not complied with the sale order, despite repeated requests from Mr Han. However, the Court was unable to accept this argument, on the basis…

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 Zhu

Details

AGLC: Han v Zhu [2021] NZHC 3514
Case: [2021] NZHC 3514
Decision Date: 17 December 2021

CaseChat Overview and Summary

The case of Han v Zhu involved an application by Hongze Han for orders under section 16 of the Contempt of Court Act 2019 against Lanying Zhu for failure to comply with a Family Court order for the sale of a property in Epsom and distribution of the proceeds. The substantive judgment had previously been delivered by Gordon J, who refused the application. The parties then filed separate costs memoranda, as they could not agree on the costs. The crux of the disagreement was whether Zhu was entitled to indemnity or increased costs or whether costs should lie where they fall.

The primary legal issues in the case were whether the costs should lie where they fall, as argued by Han's counsel, or whether Zhu was entitled to indemnity or increased costs, as argued by Zhu's counsel. The court had to determine the appropriate costs in light of the Contempt of Court Act and the principles governing costs in New Zealand.

Gordon J found that costs should not lie where they fall because Zhu, as the successful party, was prima facie entitled to costs. The court further held that indemnity costs were not appropriate as Han had not acted vexatiously, frivolously, improperly, or unnecessarily. However, increased costs were deemed appropriate as Han's application for contempt lacked merit, and he had not taken other steps to enforce the sale order. The court determined a 20% uplift on the scale costs was appropriate, resulting in a total award of $12,242.20 to Zhu against Han.

In conclusion, the court awarded costs of $11,902.20 (representing 2B scale costs of $9,918.50 with a 20% uplift), together with disbursements of $340 to Zhu against Han. The total sum awarded to Zhu against Han was $12,242.20.

Orders