Jin v Konishi - [2015] NZHC 2417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1283 [2015] NZHC 2417

UNDER the Declaratory Judgment Act 1908

BETWEEN

RUJING JIN Appellant

AND

YASUKI KONISHI AND MAKIKO KONISHI

Respondents

Hearing: 1 October 2015

Appearances:

Y Lee for the Appellant
D B Hickson for the Respondents

Judgment:

5 October 2015

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 5 October 2015 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors:
Mr Y Lee, Solicitor, Auckland
Mr D B Hickson, Solicitor, Auckland

JIN v KONISHI [2015] NZHC 2417 [5 October 2015]

Introduction and conclusion in essence

[1] This is an appeal against two costs decisions in a civil proceeding in the District Court.1 Both decisions were made on 24 April 2015. The appellant, Ms Jin, was the defendant in the proceeding brought in the District Court by the respondents, Mr and Mrs Konishi.

[2] The costs decisions were made at the conclusion of a long drawn out proceeding, following a hearing on 10 February 2015, nominally for formal proof against Ms Jin. No judgment by way of substantive relief was entered against Ms Jin. I will explain the circumstances in due course.

[3] One of the decisions was on applications for costs of the entire proceeding made both by Ms Jin and by Mr and Mrs Konishi. I will refer to this as “proceeding costs”. Ms Jin’s application was dismissed on the grounds that her defence had been struck out in April 2013. The application by Mr and Mrs Konishi, which was for indemnity costs, was also dismissed. The essence of the reason for their claim being dismissed was, in the Judge’s words, that they had been “the authors of their own misfortune” since May 2011, which was only three months after the claim was commenced.

[4] The second costs decision was an order that Ms Jin pay indemnity costs in a sum of $13,641.75 in respect of an application brought by her in October 2013 to set aside the striking out decision (the indemnity costs decision). Judge Sharp had originally made an order against Ms Jin’s counsel, Mr Lee, but that was set aside on appeal to this Court.2 The High Court referred the matter back to the District Court. Judge Sharp made an order that Ms Jin pay indemnity costs in the same sum that had been awarded against Mr Lee and for the same reasons.

[5] I have concluded that the appeal should be allowed: the award of indemnity costs should be set aside and no alternative order made, and on the proceeding costs
application there should be a modest allowance of costs to the appellant.

1 Konishi v Jin [2015] NZDC 6954; Konishi v Jin [2015] NZDC 6988.
2 Jin v Konishi [2014] NZHC 1150.

[6] The essence of my reasons is that, from the outset, there was no claim by Mr and Mrs Konishi with any merit, but this was offset by defaults by…

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 Jin v Konishi

Details

AGLC: Jin v Konishi [2015] NZHC 2417
Case: [2015] NZHC 2417
Decision Date: 5 October 2015

CaseChat Overview and Summary

In the case of Jin v Konishi, the High Court of New Zealand was tasked with reviewing two costs decisions from the District Court in a civil proceeding between Rujing Jin (the appellant) and Yasuki and Makiko Konishi (the respondents). The appeal concerned the District Court's decisions on indemnity costs and proceeding costs. The appellant's defence had been struck out in April 2013, and she had sought to set aside that decision. The District Court awarded indemnity costs to the respondents in relation to the application to set aside the striking out decision. The appellant also appealed the District Court's refusal to award her proceeding costs. The High Court found that the District Court had erred in ordering the appellant to pay the indemnity costs, as it had failed to weigh the appellant's conduct against the respondents' conduct. The Court also found that the appellant was entitled to a modest award of proceeding costs. Consequently, the appeal was allowed, and the indemnity costs order was quashed. The proceeding costs application was set aside, and an order was made for the respondents to pay the appellant $6,000 in proceeding costs and $5,000 in appeal costs, to be offset against costs owed by the appellant to the respondents.

Orders