Hull v Chung

[2016] NZHC 2899

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002510 [2016] NZHC 2899

IN THE MATTER

of s 55 of the Judicature Act 1908 and

r 17.88 of the High Court Rules

BETWEEN

ARTHUR WARREN HULL Applicant

AND

YUK FONG CHUNG Respondent

Hearing:	On the papers
Appearances:	K Smith for Applicant D Zhang for Respondent
Judgment:	1 December 2016

JUDGMENT NO. 2 OF PALMER J (Costs)

This judgment is delivered by me on 1 December 2016 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Peter C Gilbert, Wellington

Justitia Chambers, Auckland

HULL v CHUNG NO. 2 [2016] NZHC 2899 [1 December 2016]

[1]      In my judgment of 7 October 2016 I awarded costs to the defendant.1    The defendant,  Ms  Chung,  now  seeks  costs  for  several  steps  at  the  2B  rate  plus  a

20 per cent uplift for urgency and for abuse of process by the plaintiff, Mr Hull, in failing to disclose the existence of Family Court proceedings and failure properly to serve the proceedings as directed by Thomas J.   Mr Hull, the plaintiff, denies he acted unreasonably or in abuse of process, submits the costs sought are excessive and leaves the issue of reasonable costs to the court.

[2]      Assuming they do not exceed actual costs, I consider Ms Chung has claimed costs for the steps under the schedule appropriately.  That means the base level of costs are appropriately set at 1.65 days x $2,230 = $3,679.50.

[3]      There  is  no  ground  for  an  uplift  based  on  urgency.   As  I  noted  in  the judgment,2 there may have been an irregularity in service but, if so, it did not prevent Ms Chung’s counsel appearing, successfully.  However, by virtue of r 14.6(3)(d) and the Court of Appeal’s judgment in Bradbury v Westpac Banking Corp, I may order increased costs “where there is a failure by the paying party to act reasonably” in relation to the proceeding.3

[4]      On  6  October  2016  Mr  Hull  applied  for  interim  orders  to  prevent disbursement of the proceeds of a property sale and to arrest and imprison Ms Chung on the eve of her long planned overseas trip, without notice to her.   The interim orders  were granted by Thomas  J  on  6 October.   The arrest  and  imprisonment application was heard and declined by me on 7 October 2016.

[5]      Neither in the application nor supporting affidavit did Mr Hull disclose that, on 18 August 2016, he had brought parallel proceedings in the Family Court for interim orders for the sale proceeds to be deposited in the Family Court on the grounds Ms Chung was a flight risk.   The existence of Family Court proceedings

was adverted to in passing by Mr Smith in submissions on 7 October 2016.

1      Hull v Chung [2016] NZHC 2392 at [31].

2      At [13](a).

3      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27].

[6]      I consider the failure to disclose the existence of the parallel Family Court proceedings in the without notice application was unreasonable in terms r 14.6(3)(d). On that basis I agree to uplift the costs by 20 per cent as sought by Ms Chung to

$4,415.40.

[7]      The interim order granted by Thomas J prevents disbursement of the balance of the sale proceeds without further order of the Court.  It is implicit that the parties have leave to apply to vary or remove that order.

Palmer J