Keung v Connolly - [2023] NZHC 2858

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-301

[2023] NZHC 2858

BETWEEN
SENG BOU KEUNG (also known as PAUL KEUNG)

Appellant

AND

LEISHA MAUD CONNOLLY

Respondent

Hearing: Determined on the papers

Appearances:

Appellant in person

W J Palmer and L C Elliott for Respondent

Judgment:

11 October 2023

JUDGMENT OF OSBORNE J (COSTS)

This judgment was delivered by me on 11 October 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

KEUNG v CONNOLLY (Costs) [2023] NZHC 2858 [11 October 2023]

Introduction

[1] In June 2022 the respondent (Ms Connolly) obtained summary judgment against the appellant (Mr Keung) and was ordered to pay her $49,000 plus interest.1

[2] The respondent was subsequently ordered to pay to the respondent the costs and disbursements of the District Court proceeding totalling $28,760.75.2

[3] Interest has accrued and will continue to accrue on the judgment debts from 7 October 2022 until the date of deemed payment.3

[4] Mr Keung appealed the summary judgment. He was represented by counsel at the appeal hearing. The appeal was dismissed with costs reserved.4 Gendall J directed that the costs of the appeal would be determined on the basis of memoranda to be filed sequentially.5

Observation of this Court as to costs

[5] Gendall J had heard and determined the appeal in this Court shortly before his Honour’s retirement. Towards the end of the judgment, his Honour recorded:

[53] At this point I need to indicate my view that this is an appeal which had little merit and arguably it should not have been brought. It has simply delayed matters further. Ms Connolly, the respondent, has succeeded in opposing the appeal and obviously is entitled to an award of costs which here might well, in all the circumstances I have outlined above, be considered as appropriately an order for increased costs.

[6] That was the considered view of the Judge who had the advantage of hearing the full arguments on appeal. As the Judge now determining what the appropriate award of costs should be, the view expressed by Gendall J is one which I properly take into account while primarily having regard to the detailed findings set out in the High Court decision.

1      Connolly v Keung [2022] NZDC 8108 [District Court decision].
2      Connolly v Keung [2022] NZDC 14626.
3      Money Claims Act 2016, s 10.
4      Keung v Connolly [2023] NZHC 2381.
5 At [54].

[7] The parties (or their counsel) subsequently filed memoranda as to how costs issues should be addressed. Mr Keung signalled an intention to appeal the High Court decision and stated he wanted a stay of that decision. Ms Connolly asked that costs be determined in any event.

[8] The Court, by Minute dated 18 September 2023, recorded that the appropriate course was for any stay to be considered once costs had been determined. As Ms Connolly had already (on 14 September 2023) filed her…

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 Keung v Connolly

Details

AGLC: Keung v Connolly [2023] NZHC 2858
Case: [2023] NZHC 2858
Decision Date: 11 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Keung v Connolly involved a dispute between Seng Bou Keung (also known as Paul Keung) and Leisha Maud Connolly. Ms Connolly had previously obtained summary judgment against Mr Keung in the District Court, resulting in an award of $49,000 plus interest. Following this, she was also ordered to pay costs and disbursements amounting to $28,760.75. Mr Keung appealed the summary judgment, but the appeal was dismissed, leading to the current determination of costs.

The primary legal issue before the court was whether Ms Connolly was entitled to indemnity costs or merely increased costs for successfully defending the appeal. Ms Connolly argued for indemnity costs, citing the lack of merit in the appeal, the large volume of irrelevant material filed by Mr Keung, and the failure of Mr Keung to respond to settlement offers. In contrast, Mr Keung contended that the costs should not be excessive, given the relatively modest sums involved in the judgment.

The court concluded that the appeal was entirely without merit and likely commenced for ulterior purposes. It found that Ms Connolly's actual costs of $58,505 (excluding GST) were excessive given the nature of the appeal. The court assessed the reasonable costs incurred by Ms Connolly at $48,000 (excluding GST), equating to $55,200 (including GST). The court ordered Mr Keung to pay these costs plus disbursements, totaling $55,250.

In summary, the court ruled in favor of Ms Connolly, ordering Mr Keung to pay her the costs and disbursements of the appeal, amounting to $55,250. This decision underscored the principle that costs should follow the event and highlighted the inappropriateness of the appellant's conduct during the litigation process.

Orders