He v Chen

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-3369 [2017] NZHC 2409

BETWEEN
YAO WEI HE

Plaintiff

AND

ZHIXIONG CHEN Defendant

CIV-2016-404-3275

BETWEEN ZHIXIONG CHEN Judgment Creditor

ANDYAO WEI HE Judgment Debtor

On the papers

Appearances:

Plaintiff/Judgment Creditor appearing in person
NR Campbell QC for Defendant/Judgment Creditor

Judgment:

3 October 2017

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 3 October 2017 at 11.00 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

He v Chen [2017] NZHC 2409 [3 October 2017]

[1] On 15 August 2017, I delivered a judgment in which I dismissed two interlocutory applications made by Mr He seeking to set aside a bankruptcy notice under registry number CIV-2016-404-3275 and seeking a freezing order against Mr Chen’s New Zealand assets under Court registry number CIV-2014-404-3369. The procedural background of these proceedings is canvassed at paragraphs [1] – [3]
and [8] – [10] of that judgment.1 For present purposes it is sufficient to say that the

amount claimed in the bankruptcy proceeding was paid into Court pending the hearing of the application to set the notice aside. The freezing order was sought on the assertion that there was a risk that Mr Chen might dispose of his assets and so leave any judgment Mr He obtains unsatisfied.

[2] After the 15 August 2017 judgment, Mr Chen through his counsel Mr Campbell QC sought an order for the release of funds paid into Court, which Mr He opposed. In a Minute dated 6 September 2017, I said that I would defer considering that issue if Mr He filed his notice of appeal against the judgment of
15 August 2015, together with an application for a stay of execution along with an affidavit setting out the grounds, by 5.00pm on 7 September 2017. He did not do so. He filed his notice of appeal against the whole of the judgment and a stay application on 8 September 2017. In a Minute dated 8 September 2017, I said that I would consider Mr He’s application for a stay, despite its lateness, after receiving a timetabled response memorandum on behalf of Mr Chen.

[3] In a Minute (No. 2) dated 14 September 2017, I dismissed Mr He's application for a stay of execution for the reasons which I gave there. I determined that Mr Chen was entitled to costs and set a timetable by which Me He was to file and serve any memorandum in opposition to the application for costs by
28 September 2017. I said that costs would be determined on the papers unless the

Court directed otherwise.

[4] By the timetabled date of 21 September 2017, Mr Campbell QC filed a memorandum seeking costs in the sum of $7,136 and disbursements of $50 being a sealing fee, and served it on Mr He. Mr He has not filed any memorandum in
response and accordingly I have considered the application on its merits.

1 He v Chen [2017] NZHC 1933

[5] I am satisfied that the category 2B costs claimed are properly calculated in accordance with the Schedule and order, therefore, that Mr He shall pay a contribution to Mr Chen's costs in the sum of $7,136 together with disbursements of
$50.

...............................................

Toogood J

CaseChat Overview and Summary

The case of He v Chen involves a dispute between Yao Wei He, the plaintiff and judgment creditor, and Zhixiong Chen, the defendant and judgment debtor. The proceedings stem from a bankruptcy notice and a freezing order application. The plaintiff sought to set aside a bankruptcy notice and obtain a freezing order against the defendant's assets to prevent asset disposal. The court dismissed these applications, and the defendant subsequently sought an order for the release of funds paid into court. The plaintiff opposed this and filed a notice of appeal and a stay application, which was considered despite being late. The court dismissed the stay application and ordered the plaintiff to pay costs. The defendant's counsel submitted a memorandum seeking costs, which the plaintiff did not oppose. The court found the costs properly calculated and ordered the plaintiff to pay the defendant's costs and disbursements.

The legal issues the court had to address involved the procedural correctness of the plaintiff's applications, the merits of the defendant's stay application, and the calculation and appropriateness of the costs sought by the defendant. The court had to consider whether the plaintiff's applications were properly filed and whether they had merit. It also needed to assess the timeliness and grounds of the defendant's stay application. Finally, the court had to determine whether the costs claimed by the defendant were correctly calculated and reasonable.

In its judgment, the court first noted that the plaintiff had failed to comply with the timelines for filing his notice of appeal and stay application. Despite this, the court considered the stay application on its merits and dismissed it. The court found that the plaintiff's applications were not well-founded and that the defendant's assets were at risk of being dissipated. The court then turned to the issue of costs, finding that the defendant's costs were properly calculated and that the plaintiff should pay them. The court ordered the plaintiff to pay the defendant's costs of $7,136 and disbursements of $50.

In summary, the court dismissed the plaintiff's applications and denied his stay application. It found the defendant's costs claim to be properly calculated and ordered the plaintiff to pay those costs and disbursements. This decision reinforces the importance of adhering to procedural requirements and the potential consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

On the papers
Appearances:	Plaintiff/Judgment Creditor appearing in person NR Campbell QC for Defendant/Judgment Creditor
Judgment:	3 October 2017