Jiang v Huang
[2017] NZHC 2884
•23 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-3074 [2017] NZHC 2884
BETWEEN RUI JIANG
Plaintiff
AND
HUIFEN HUANG Defendant
Hearing: On the papers Counsel:
GSCK Sidnam for plaintiff
AR Gilchrist for defendantJudgment:
23 November 2017
JUDGMENT OF FITZGERALD J [As to costs]
This judgment was delivered by me on 23 November 2017 at 12:30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Grant Sidnam, Auckland
Friedlander & Co, Auckland (P Friedlander)
Jiang v Huang [2017] NZHC 2884 [23 November 2017]
Introduction
[1] In my substantive judgment dated 26 September 2017, I broadly accepted the plaintiff’s claims and rejected the defendant’s counterclaims.1 The background to and my findings on the parties’ respective claims is set out in detail in my substantive judgment, and is not repeated here.
[2] At the conclusion of my judgment, I encouraged the parties to seek to agree on costs, and indicated my preliminary (and non-binding) view that the plaintiff was entitled to costs on a 2B basis.
[3] Unfortunately, the parties have not been able to agree on costs. In short:
(a) The plaintiff seeks costs on a 2B basis, plus an uplift of 20 per cent.
(b)The defendant, in the course of negotiations with the plaintiff, was prepared to accept my preliminary indication of costs on a 2B basis. However, now the issue of costs requires determination, the defendant submits that on a proper analysis of the conduct of the proceeding, it would be appropriate for there to be an award of 2B costs, but subject to a “modest” reduction.
[4] There is also a subsidiary issue as to whether certain disbursements claimed by the plaintiff are properly recoverable.
Submissions – legal costs
[5] The parties are agreed that costs of the proceeding on a 2B basis are
$45,826.50.
[6] In support of his claim to a 20 per cent increase to scale costs, the plaintiff submits the following:
1 Jiang v Huang [2017] NZHC 2340.
(a) Late disclosure by the defendant of certain documentary evidence only a few days before the commencement of the hearing resulted in “additional cost (and stress)”.
(b)The defendant’s counterclaim in relation to RMB 3.1 million lacked merit.
(c) A comparatively large amount of time (when compared to the time allowances under the Rules) was required to prepare submissions and briefs of evidence.
[7] The defendant submits that none of the above matters, either individually or collectively, warrant an increase in scale costs:
(a) Mr Gilchrist for the defendant submits that there was nothing particularly remarkable about the nature of these proceedings, or the time taken in the course of them.
(b)He further submits that the provision of one document shortly before trial as part of the defendant’s ongoing discovery obligations could not and should not have led to substantial extra time.
(c) Mr Gilchrist also notes that some of the plaintiff’s submissions were not accepted, for example on matters concerning the validity (or otherwise) of the 2010 Agreement.
[8] The defendant says that if anything, a reduction in 2B scale costs ought to be ordered. The defendant submits that, while the plaintiff has largely been successful in his claim, he has not been totally successful and there were significant costs incurred by the defendant in respect of those matters on which the plaintiff was unsuccessful. The defendant further submits that there were numerous timetabling breaches by the plaintiff in the lead up to the hearing. The defendant also notes that there were delays in the plaintiff filing and serving its briefs of evidence. Mr Gilchrist submits that timetable adjustments in this regard always “jam” the innocent party and increase its
costs and expenses. On this basis, Mr Gilchrist submits that, pursuant to r 14.7, it would be appropriate to reduce costs on the basis that the plaintiff has contributed unnecessarily to the time and expense of the proceedings, by failing to comply with the Rules or a direction of the Court.
Analysis – legal costs
[9] In my view, an award of costs to the plaintiff on a 2B basis is an appropriate outcome in this case.
[10] I am not satisfied there is any basis for an award of increased costs. In particular, the plaintiff has not pointed to any supporting information or detail as to what additional costs were incurred by him as a result of further discovery of bank documents by the defendant shortly before the trial. Had that discovery been given earlier, the plaintiff would have had to review and deal with the material. Absent any detail as to why costs in this regard were significantly increased as a result of the late disclosure, I am not prepared to uplift costs on this basis.
[11] Similarly, the fact that one of the defendant’s counterclaims lacked merit does not itself justify an uplift. It is inherent in an award of costs to a party that has succeeded in part or wholly in its claims that the opposing party’s corresponding position or claim was ultimately found to be without merit. This is not a case in which I would categorise the bringing of the RMB 3.1 million counterclaim as “hopeless”, in the sense used to justify an increase in costs. And I have not been directed to any pre-trial correspondence where, for example, the plaintiff went through in detail why the claim was unmeritorious and reserved the right to rely on that correspondence in the context of costs.
[12] Further, I do not consider the fact that more time was taken in order to prepare submissions and briefs of evidence justifies an uplift. In my view, these proceedings were not particularly complex or lengthy (the length of trial largely reflecting the need for most of the evidence to be taken via an interpreter). I accept counsel’s submission that the time spent on written submissions and preparing briefs of evidence exceeded the time allocated for these steps under the Rules. However, that will (most) often be the case in commercial litigation. Those are issues more relevant to the level at which
scale costs are set vis-à-vis the actual costs involved in pursuing commercial litigation. The approach suggested by the plaintiff would almost invariably lead to an increase in scale costs in what is otherwise not exceptionally complex or lengthy commercial litigation. This would be at odds with the principle that the determination of costs should be predictable and expeditious.
[13] Nor is there a sound basis for reducing the costs awarded. In my view, where a party has largely been successful in its claims (though not necessarily on every individual submission), the Court should be wary of too readily adopting a “slicing and dicing” approach, to distinguish between successful and unsuccessful submissions and argument for costs purposes. Again, this would undermine the principle that costs are to be predictable. A reduction in costs on this basis would only be appropriate if the Court were satisfied that an unsuccessful cause of action or issue had substantially increased the costs incurred by the opposing party. I am not satisfied that is the case here.
[14] There is accordingly an award of costs in favour of the plaintiff on a 2B basis, in the amount of $45,826.60.
Disbursements – submissions
[15] Two disbursements claimed by the plaintiff are in dispute:
(a) First, the plaintiff’s half share of the fees of the “official” interpreter, who translated the factual evidence during the course of the hearing (the disputed amount being $2,399.20); and
(b)The costs of a second interpreter engaged by the plaintiff to sit with him at the back of the Court (in the sum of $610).
[16] The defendant submits these disbursements ought not to be recoverable on the following basis:
(a) In relation to the cost of the “official” interpreter, while by agreement, the interpreter was used for all witnesses throughout the trial (i.e.
including the defendant and defence witnesses), the defendant should not be disadvantaged by reference to disbursements (or a “further” half share of that disbursement) for translators because the plaintiff ’s witnesses were unable to give evidence in English, and the translator was for the plaintiff’s convenience and assistance. For that reason, it is submitted that the plaintiff’s half share of this cost was not an expense for the purpose of the proceeding, but rather it was an expense to allow non-English speaking witnesses who voluntarily came to a New Zealand court to be able to understand proceedings. It is accordingly submitted that the disbursement is similar to a bus or taxi fare incurred in getting to court.
(b)In relation to the fee of the separate interpreter engaged by the plaintiff, the defendant says this was not reasonably necessary for the conduct of the proceeding (for the purposes of 4 14.12(2)(c)) and was merely for the plaintiff’s own convenience.
Disbursements - analysis
[17] Rule 14.12 of the High Court Rules provides as follows in relation to disbursements:
14.12 Disbursements
(1) In this rule,—
disbursement, in relation to a proceeding,—
(a) means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and
(b) includes—
(i) fees of court for the proceeding:
(ii) expenses of serving documents for the purposes of the proceeding:
(iii) expenses of photocopying documents required by these rules or by a direction of the court:
(iv) expenses of conducting a conference by telephone or video link; but
(c) does not include counsel’s fee.
relevant issue, in relation to a disbursement, means the issue in respect of which the disbursement was paid or incurred.
(2) A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—
(a) of a class that is either—
(i) approved by the court for the purposes of the proceeding; or
(ii) specified in paragraph (b) of subclause (1); and
(b) specific to the conduct of the proceeding; and
(c) reasonably necessary for the conduct of the proceeding;
and
(d) reasonable in amount.
[Emphasis added]
[18] I see no reason why the plaintiff’s share of the cost of the “official” interpreter for this proceeding ought not to be recoverable under this rule. The expense incurred by the plaintiff is an expense paid or incurred for the purposes of the proceeding. Further, the presence of the interpreter was plainly reasonably necessary for the conduct of the proceeding. Notably, all of the factual evidence was given through the interpreter, including that of the defendant and the defendant’s witnesses.
[19] While the parties may have agreed to meet the interpreter’s costs equally (when the invoice was tendered at the end of the trial), it has not been suggested by the defendant that any such agreement was to the exclusion of the plaintiff later claiming his half share as a disbursement, in the event he was successful in the proceeding.
[20] I am not, however, persuaded that the second interpreter’s fees are recoverable by the plaintiff. I do not consider they were “reasonably necessary for the conduct of the proceeding” in the sense required by r 14.12. Having a second interpreter was essentially a matter of personal convenience to the plaintiff.
Result
[21] The defendant is to pay the plaintiff’s costs of this proceeding on a 2B basis of
$45,826.50.
[22] The defendant is to pay the plaintiff’s disbursements set out in the table at page
13 of the plaintiff’s costs memorandum, less the cost of the Danni Ha translation of
$610.
Fitzgerald J
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