Ho v Li

[2017] NZHC 2131

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-0256 [2017] NZHC 2131

BETWEEN

KWOK CHEUNG HO

Plaintiff

AND

SILIN LI

Defendant

Hearing:	On the papers
Judgment:	1 September 2017

JUDGMENT OF KATZ J [Costs]

This judgment was delivered by me on 1 September 2017 at 4:00pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:      Nolan & Lu Lawyers, Hamilton

Copy to:       K C Ho (Plaintiff)

HO v SILIN LI   [2017] NZHC 2131 [1 September 2017]

Introduction

[1]      These proceedings related to allegedly fraudulent behaviour on the part of the defendant.  Their progress was relatively slow, due in part to the overseas plaintiff (who apparently does not speak English) electing to represent himself, some time after proceedings were filed.   The plaintiff subsequently took no steps in the proceedings and failed to participate in required teleconferences, or respond to communications from the Court.

[2]      The  proceedings  were  scheduled  to  proceed  to  trial  on  7 August  2017. Despite repeated notice of timetable orders that had been made, the plaintiff did not file any briefs of evidence.  Even following an extension for those briefs to be filed (by 7 July 2017), no briefs were served.

[3]      The plaintiff did, however, make several informal requests (through various Hong Kong lawyers) for an adjournment of the trial date, pending the outcome of a police investigation into the alleged fraud.   Those requests were declined.   The plaintiff was directed to file a formal application, with supporting evidence, if he wished to pursue an adjournment application.  No formal application was filed, but the plaintiff did file an affidavit (which was non-compliant with the High Court Rules) in support of an adjournment.  It was difficult to discern from that affidavit the precise reasons why an adjournment was sought, but the key reason appeared to be  that  a  police  complaint  made  in  2014  remained  unresolved.    There  was no evidence, however, of any ongoing police investigation.   The defendants’ evidence was that the police file had been closed, following enquiries made by the police in

2014.

[4]      As a result of the plaintiff’s non-compliance with an “unless” order requiring the filing of their briefs of evidence, the proceedings were struck out for want of prosecution on 14 July 2017.

[5]      The  defendant  now  seeks  cost  on  a  2B  basis.    The  categorisation  was confirmed as appropriate at the first case management conference.   Counsel have itemised the defendant’s costs claim and set out the details in table form.   I have

reviewed the various items claimed and am satisfied that they are appropriate and in compliance with the High Court Rules and the general principles on costs.

[6]      I accordingly direct that the plaintiff pay costs to the defendant in the sum of

$35,441.

Katz J