He v Chen

[2018] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA550/2017
 [2018] NZCA 142

BETWEEN	YAO WEI HE Applicant
AND	ZHIXIONG CHEN Respondent

Court:	French, Cooper and Winkelmann JJ
Counsel:	Applicant in person N R Campbell for Respondent
Judgment: (On the papers)	7 May 2018 at 11.00 am

JUDGMENT OF THE COURT

The applicant is ordered to pay the respondent costs in the sum of $2,676.

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REASONS OF THE COURT

(Given by French J)

1. The respondent seeks costs against the applicant. This follows the latter’s withdrawal of an application he had filed for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005.

2. The respondent who had opposed the application seeks increased costs.  He does so on the grounds that the applicant has acted unreasonably in the conduct of the litigation causing delay and putting the respondent to unnecessary expense.

3. For his part, the applicant says no costs should be payable.  The only reason he withdrew his application was his inability to obtain legal representation.  Nevertheless, the fact remains that he filed an application which he later abandoned on the eve of the hearing, having breached timetabling orders.  There is in our view no reason to displace the ordinary rule that costs should be payable.

4. As to the quantum of those costs, we acknowledge there appear to be grounds for increased costs.  However shortly before the applicant withdrew his application, the respondent’s instructing solicitor advised him that on withdrawal the respondent would be seeking payment of scale costs amounting to $2,676.  There is no evidence of any further work being undertaken by the respondent between the date of that advice (Friday 9 March 2018) and the filing of the notice of abandonment (Tuesday 13 March 2018).

5. In those circumstances we consider that only scale costs should be awarded.  Accordingly the applicant is ordered to pay the respondent costs in the sum of $2,676.

Solicitors:
Glaister Ennor, Auckland for Respondent