Kinnon v Hong

[2023] NZHC 1353

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-0030

[2023] NZHC 1353

BETWEEN

DOUGLAS MURRAY KINNON and AVRYL MARGARET KINNON as
trustees of the CEDAR LODGE TRUST Plaintiffs/counterclaim defendants

AND

BOON GUNN HONG

First defendant/counterclaim plaintiff

NOMINEES AND TRUSTEES LIMITED
Second defendant

DOUGLAS MURRAY KINNON
First counterclaim defendant

JAALA FERNANDE DYER

Second counterclaim defendant

Hearing:	On the papers
Appearances:	M C Nicholls for plaintiffs/counterclaim defendants First defendant/counterclaim plaintiff in person
Date of judgment:	1 June 2023

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 1 June 2023 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Martin Nicholls Limited, Kerikeri

Copy to:
B G Hong, Auckland

KINNON v HONG - Costs [2023] NZHC 1353 [1 June 2023]

[1]                 My 5 May 2023 judgment dismissed Mr Hong’s counterclaims and reserved costs.1

[2]The counterclaim defendants seek 2B costs of $27,007 and disbursements of

$2,517.68. I consider 2B costs an appropriate classification of this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step on the application.

[3]Mr Hong challenges the steps claimed by the counterclaim defendants:

(a)on their 20 and 23 February 2023 memoranda as grounded in their “false claim” he had not discovered documents. But the memoranda were focused on Mr Hong’s non-compliance with Sussock AJ’s 6 April 2022 minute. As Venning  J’s  9  March  2023  minute  established, Mr Hong then confirmed he preferred to rely on his affidavit in support of the earlier summary judgment application as evidence for his counterclaim. His Honour accordingly directed Mr Hong was not to file any further evidence. The counterclaim defendants’ memoranda were justified steps taken to achieve that result;

(b)on their preparation of briefs and for hearing at trial to be discounted as “having substantially been dealt with” by Sussock AJ’s 16 December 2022 costs judgment.2 That cannot possibly be the case when the Associate Judge awarded costs only on in relation to Mr Hong’s unsuccessful interlocutory applications for leave to proceed with summary judgment applications, for security for costs and in respect of their successful interlocutory application for further and better particulars. None was a substantive application requiring preparation of briefs or for hearing at trial. Indeed, her Honour records Mr Hong’s view their interlocutory evidence against him was “very basic”;3 and

1      Kinnon v Hong [2023] NZHC 1052 at [29]–[31].

2      Kinnon v Hong [2022] NZHC 3499.

3 At [13].

(c)on their preparation of the common bundle. Mr Hong says the parties prepared their own bundles, and the allowance therefore should be reduced to half. I disagree. In the particular circumstances of this case, in which Mr Hong re-used the nearly 1000-page bundle he compiled for his unsuccessful application for leave to proceed with summary judgment, the successful party is entitled to costs for compiling a more focused bundle compiling the relevant evidence from their perspective.

[4]                 Mr Hong also disputes the scope of disbursements claimed for accommodation, meals and parking across trial’s four-day span incorporating the ANZAC Day public holiday on 25 April 2023. There can be no justifiable objection to, and considerable good sense in, out-of-town counsel remaining in Auckland during the intervening public holiday, including avoiding the expense and inefficiency of intermediate return travel exceeding 400 kms (return travel here claimed below the Inland Revenue Department’s 2022–2023 $0.95/km rate).

[5]                 Accommodation, meals, parking and travel here each are expenses “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”.4 I approve them for the purposes of the proceeding, as specific to and reasonably necessary for its conduct, and reasonable in amount if so claimed and verified.5 I apprehend accommodation, parking and travel are so verified; I have my doubts about “Meals @

$100 per day – 4 days”.

[6]                 I order Mr Hong pay the counterclaim defendants jointly $27,007.00 in 2B costs and disbursements of $2,117.68, and direct the Registrar to exercise the powers of the Court under HCR 14.12(2) in respect of any disbursement claimed and verified in respect of counsel’s meals in Auckland during the period 24–27 April 2023.

—Jagose J

4      High Court Rules 2016, r 14.12(1)(a), definition of “disbursement”.

5      Rule 14.12(2).