Jiang v Huang - [2017] NZHC 2884

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 defendant

Judgment:

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…

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 Jiang v Huang

Details

AGLC: Jiang v Huang [2017] NZHC 2884
Case: [2017] NZHC 2884
Decision Date: 23 November 2017

CaseChat Overview and Summary

The High Court of New Zealand considered the issue of costs in the case of Jiang v Huang. The plaintiff, Rui Jiang, sought costs on a 2B basis, plus an uplift of 20 per cent, while the defendant, Huifen Huang, submitted that there should be an award of 2B costs but subject to a modest reduction. The court was also required to determine whether certain disbursements claimed by the plaintiff were properly recoverable.

The court found that an award of costs to the plaintiff on a 2B basis was appropriate. The plaintiff did not provide any supporting information or detail as to the additional costs incurred due to the late disclosure of documents by the defendant. The court also held that the fact that one of the defendant's counterclaims lacked merit did not justify an uplift in costs. The court further found that the time taken to prepare submissions and briefs of evidence did not warrant an uplift in costs. The court was satisfied that the proceedings were not particularly complex or lengthy and that the time spent on written submissions and preparing briefs of evidence exceeded the time allocated for these steps under the Rules. The court held that there was no sound basis for reducing the costs awarded.

In terms of disbursements, the court found that the plaintiff's half share of the fees of the "official" interpreter was recoverable as it was an expense paid or incurred for the purposes of the proceeding, and the presence of the interpreter was reasonably necessary for the conduct of the proceeding. However, the court held that the costs of the second interpreter engaged by the plaintiff were not recoverable as they were essentially a matter of personal convenience to the plaintiff.

In conclusion, the court ordered that the defendant is to pay the plaintiff's costs of the proceeding on a 2B basis of $45,826.50, and 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.

Orders