IBuy Property Limited v He - [2023] NZHC 3012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-181

[2023] NZHC 3012

BETWEEN
IBUY PROPERTY LIMITED

Plaintiff

AND

XIAOMING HE

First Defendant

CHUNYUE YE
Second Defendant

SAYED MOHSEN MOSADI
Third Defendant

GT CAR DETAILING LIMITED

Fourth Defendant

Hearing: On the papers

Counsel:

A N Riches for Plaintiff

S D McIntyre and P-Y Liu for Second Defendant

Judgment:

18 December 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Costs)

This judgment was delivered by me on 18 December 2023 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

IBUY PROPERTY LIMITED v HE [2023] NZHC 3012 [18 December 2023]

[1] In a judgment of 11 October 2023, I granted the plaintiff (IBuy) summary judgment against all defendants.1 I ordered the defendants to deliver up possession of a property at 377 Selwyn Street, Christchurch to IBuy. I also awarded IBuy costs against the defendants and directed that if there was disagreement in respect to the quantum of those costs, memoranda were to be filed.2 I have received memoranda for the plaintiffs and the second defendant.

[2] By way of background, IBuy purchased 377 Selwyn Street at auction by the Sheriff pursuant to a sale order. The first defendant (Mr Xiaoming) was the registered owner of the property. Mr Xiaoming refused to vacate the property and IBuy applied for summary judgment against him for possession. Prior to judgment the second defendant (Ms Chunyue) applied to be joined as a defendant, claiming she had been granted a lease of the property by Mr Xiaoming which was binding upon IBuy and that she had subleased the property to Mr Xiaoming and the third and fourth defendants. Ms Chunyue and the third and fourth defendants were joined as defendants. Only Ms Chunyue actively opposed IBuy’s application for summary judgment, although the other defendants remained in possession of the property.

[3] IBuy was successful in obtaining summary judgment. I found that Ms Chunyue’s lease was a sham and a device to ensure that Mr Xiaoming remained in possession of the property as against his creditors. I also rejected arguments she advanced that IBuy had acquired its title to the property by fraud and that she had an in personam claim against IBuy.

[4]There is disagreement about the following issues:

(a)Should IBuy be refused costs because it filed its memorandum on costs late?

(b)Is Ms Chunyue entitled to costs in respect of her application to be joined as a defendant?

1 IBuy Property Ltd v He [2023] NZHC 2847.
2 At [119].

(c)Is IBuy entitled to an uplift on scale costs?

(d)Is Ms Chunyue liable for several service fees?

Should IBuy be refused costs?

[5] IBuy was directed to file its memorandum on costs within 21 days of my judgment, and Ms Chunyue had seven days to reply. IBuy’s memorandum was filed on 10 November 2023, which was 21 working days following the issue of my judgment of 11 October 2023 and was therefore…

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.

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Details

Case: [2023] NZHC 3012
Decision Date: 18 December 2023

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide the amount of costs to be awarded to the plaintiff, IBuy Property Limited, against the various defendants in a case concerning possession of a property located at 377 Selwyn Street, Christchurch. The plaintiff had successfully obtained summary judgment against all defendants, ordering them to deliver up possession of the property and awarding costs against them. The key issues before the court were whether IBuy should be refused costs for filing its memorandum on costs late, whether the second defendant was entitled to costs in respect of her application to be joined as a defendant, whether IBuy was entitled to an uplift on scale costs, and whether the second defendant was liable for several service fees. The court granted an extension of time for the filing of IBuy's memorandum on costs, finding that the delay was insignificant and there was no suggestion of any prejudice to the defendants. The court held that the second defendant was not entitled to costs in respect of her application to be joined as a defendant, as the lease she claimed was a sham and a device to ensure that the first defendant remained in possession of the property as against his creditors. The court awarded IBuy a 50 per cent uplift on scale costs against the second defendant, finding that she had taken an unnecessary step by claiming that the lease was binding on IBuy. Finally, the court held that the second defendant was not liable for service fees relating to service of documents upon other parties.

The court ordered that IBuy was awarded costs and disbursements as follows: against the first defendant in the sum of $9,082.00; against the second defendant in the sum of $21,032.00 for costs plus disbursements of $3,310.00; and against the third and fourth defendants in the sum of $1,434.00. The defendants' liability for IBuy's costs and disbursements was joint and several, but no defendant shall be required to contribute to IBuy's costs in an amount greater than the awards stated above, and IBuy shall not recover any costs or disbursements beyond the total amount awarded against the second defendant.

Orders