Huang v Luo - [2017] NZHC 3290

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2015-419-000307 [2017] NZHC 3290

BETWEEN
JIANMING HUANG

Plaintiff

AND

LIN LUO
First Defendant

W & L LIMITED Second Defendant

Hearing: On the papers

Judgment:

22 December 2017

JUDGMENT OF WYLIE J [Costs]

This judgment was delivered by Justice Wylie
On 22 December 2017 at 11.30am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: D Zhang, Auckland
Foster & Milroy, Hamilton

HUANG v LUO [2017] NZHC 3290 [22 December 2017]

Introduction

[1] On 6 April 2017, I issued an oral judgment in relation to this matter.1 On 27

November, it was brought to my attention that I had not dealt with costs arising out of that oral judgment, notwithstanding that memoranda had been filed by counsel. For some reason those memoranda had not made their way to me.

[2] I read the memoranda, and called for further information from the plaintiff. That information has now been provided, and the defendants have responded to it.

Background

[3] As I recorded in my oral judgment, Sargisson AJ made an order requiring standard discovery by the parties in July 2016. The defendants complied, in that they filed and served an affidavit of documents by the required date. The plaintiff considered, however, that that affidavit was deficient, and, in December 2016, he filed an application seeking further and better discovery. That application was granted by consent by Edwards J on 2 February 2017, but only against the first defendant – Ms Luo. Ms Luo purported to comply with the application by filing a supplementary affidavit of documents by the due date. Ms Luo did not, however, discover all documents required to be discovered pursuant to the consent order.

[4] The plaintiff then applied for a declaration that the defendants were in contempt, and for an unless order requiring the defendants to discover the balance of the documents which had not been made available.

[5] I heard from counsel. Mr Foster, appearing for Ms Luo, accepted that in various respects the further discovery provided was inadequate, and that Ms Luo had failed to comply with the consent order made by Edwards J.

[6] In the event, I made an order requiring further and better discovery not only by

Ms Luo, but also by the second defendant. As a result of the delays by Ms Luo, the

fixture had to be vacated. I did not, however, find Ms Luo in contempt of Court, for reasons which I set out in my oral judgment.2

Costs application

[7] The plaintiff seeks costs on an indemnity basis, in the sum of $25,883.35 (GST inclusive). In the alternative, it seeks costs on a band C basis, together with an uplift by way of increased costs. The plaintiff provided a copy of the invoice forwarded to him. At my request, Mr Zhang, appearing for the plaintiff, has sought to itemise that invoice, and to explain the various charges made.

[8]…

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 Huang v Luo

Details

AGLC: Huang v Luo [2017] NZHC 3290
Case: [2017] NZHC 3290
Decision Date: 22 December 2017

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, was presented with a case where Jianming Huang sought to hold Lin Luo and W & L Limited in contempt for failing to provide full discovery as required by a court order. The plaintiff, Huang, had initially filed an application for further and better discovery against Luo, which was granted by Edwards J on 2 February 2017. However, Luo did not fully comply with the order, leading Huang to seek a declaration of contempt and an unless order to compel the discovery of the remaining documents. The court found that while Luo had failed to comply with the court's order, she was not in contempt of court, but her failure warranted a further order for discovery. The plaintiff sought costs on an indemnity basis for the legal expenses incurred due to Luo's non-compliance.

The court was required to determine the appropriate basis for awarding costs to Huang. The plaintiff sought indemnity costs, which are awarded when a party has acted vexatiously, frivolously, improperly, or has disobeyed a court order. Huang argued that Luo’s failure to comply with the court’s orders justified indemnity costs. Conversely, the defendants argued that they should only be liable for costs on a lesser scale, as they had not intentionally disobeyed the court’s orders. The court needed to weigh the nature and extent of Luo’s non-compliance against the costs claimed by Huang to decide on the appropriate cost order.

In deciding the matter, Wylie J noted that while Luo had indeed failed to fully comply with the court’s orders, the plaintiff’s request for indemnity costs was excessive. The court found that Luo’s actions, although improper, did not warrant the high costs claimed by Huang. The court calculated a more reasonable amount for costs, considering the nature of the proceedings and the complexity of the matter. Ultimately, Wylie J awarded indemnity costs of $12,500, reflecting a reasonable allocation of actual costs for the work performed, and also allowed the plaintiff’s reasonable disbursements amounting to $784.60. The court did not find it necessary to order costs on a band C basis, nor did it see the need for second counsel in this straightforward matter.

The final orders of the court mandated that Luo and W & L Limited jointly and severally pay $12,500 in costs and $784.60 in disbursements to Huang. This decision reflects the court's approach to balancing the need for enforcing compliance with court orders against the proportionality of the costs awarded.

Orders