Johns v Wu - [2019] NZHC 392

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001781

[2019] NZHC 392

BETWEEN LESLIE ROY JOHNS and LEONIE MARY JOHNS
Plaintiffs

AND

YUNFENG WU and XIAOWEI CHENG

First Defendants

AUCKLAND COUNCIL

Second Defendant

Hearing: On the papers

Appearances:

D M Law for Plaintiffs

E St John for First Defendants
S F Quinn and K Rogers for Second Defendant

Judgment:

8 March 2019

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 8 March 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

JOHNS and v WU and [2019] NZHC 392 [8 March 2019]

[1] On 17 January 2019, Nicholas Davidson J delivered a judgment in which he rejected each of the plaintiffs’ claims against the defendants.1 The parties have been unable to reach agreement regarding the issue of costs and the Court is therefore required to determine that issue.

[2] Nicholas Davidson J has now retired. As a result, it is necessary for another Judge to undertake the task of determining costs. The proceeding has been referred to me for that purpose.

The arguments

[3] All parties accept that the plaintiffs are liable to pay costs because they were the unsuccessful parties in this proceeding. The second defendant is content for costs to be awarded to it on a Category 2B basis together with disbursements as fixed by the Registrar. The plaintiffs take no issue with that.

[4] The first defendants also seek an order for costs on a Category 2B basis together with disbursements as fixed by the Registrar. The disbursements include the costs they incurred in engaging expert witnesses for the trial. In addition, the plaintiffs seek an uplift of 50 per cent to reflect the manner in which they say the plaintiffs approached their obligations as litigants in this proceeding.

[5] The first defendants have calculated that costs in the sum of $63,555 would be payable on a category 2B basis. They claim disbursements in the sum of $7,948.50.

[6] The plaintiffs accept that they should pay costs to the first defendants on a category 2B basis. They resist the first defendants’ application for increased costs.

Procedural background

[7] The proceeding was filed on 3 August 2017. It arose out of a dispute between the plaintiffs and the first defendants, who own neighbouring properties in Manurewa. The plaintiffs took issue with the first defendants building a secondary dwelling on their property. They considered this breached a restrictive covenant registered against

1 Johns v Wu [2019] NZHC 12.

the title to the first defendants’ land. In this proceeding they sought mandatory injunctive relief requiring the first defendants to cease the construction of the secondary dwelling and to remove it from their property.

[8] The application for interim relief came before Muir J on 17 November 2017. By that stage the first defendants had also filed an application for summary judgment. The plaintiffs withdrew their application for…

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 Johns v Wu

Details

AGLC: Johns v Wu [2019] NZHC 392
Case: [2019] NZHC 392
Decision Date: 8 March 2019

CaseChat Overview and Summary

In the case of Johns v Wu, the plaintiffs, Leslie Roy Johns and Leonie Mary Johns, sought to compel the defendants, Yunfeng Wu and Xiaowei Cheng, to cease construction of a secondary dwelling on their property, which the plaintiffs argued breached a restrictive covenant. The Auckland Council was also involved as a second defendant. Following a trial, the plaintiffs' claims were dismissed. The plaintiffs and first defendants could not agree on the issue of costs, leading to the High Court determining the matter.

The court had to decide whether the plaintiffs, as unsuccessful parties, should bear the costs of the proceeding and, if so, whether the first defendants were entitled to increased costs under the relevant rules. The first defendants sought an uplift of 50% for the plaintiffs' conduct during the litigation, including failure to comply with directions, taking unnecessary steps, and ignoring settlement offers. The plaintiffs resisted the uplift but did not dispute that they should pay costs on a category 2B basis.

The court considered the plaintiffs' failure to comply with Court directions and orders, their conduct in taking unnecessary steps, and their failure to respond to settlement offers. The court found that the plaintiffs' casual approach to their obligations as litigants warranted an increase in costs. The court awarded a 100% uplift on costs incurred by the first defendants between 7 February 2018 and the preparation of briefs of evidence, excluding certain steps.

The court ordered the plaintiffs to pay the costs of both defendants on a category 2B basis, including disbursements, with a 100% uplift for the first defendants on specified steps, excluding the preparation of affidavits of documents and inspection of second defendants' documents.

Orders