Lai v Huang

[2020] NZHC 588

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001535

[2020] NZHC 588

BETWEEN

SOPHIE LAI

First Plaintiff

RICHARD HUANG
Second Plaintiff

GINI HUANG
Third Plaintiff

AND

LIU SHUN-MEI HUANG

First Defendant

CHUN-CHING HUANG

Second Defendant

CHUN-TA HUANG
Third Defendant

LIU SHUN-MEI HUANG and CHUN-CHING HUANG

Fourth Defendants

Hearing:	[On the Papers]
Appearances:	S Lai (Self-represented First Plaintiff) in Person J R Robertson and C Jiang for the Defendants
Judgment:	20 March 2020

JUDGMENT OF EDWARDS J

[re Costs]

This judgment was delivered by me on 20 March 2020 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Deputy Registrar

LAI v HUANG [2020] NZHC 588 [20 March 2020]

[1]                 By judgment dated 30 July 2019, I dismissed all the plaintiffs’ claims.1 I held that the defendants were entitled to costs but, given the family context of the dispute, I strongly urged the parties to confer with a view to agreeing costs.

[2]                 The plaintiffs filed a notice of appeal on 27 August 2019 and indicated they would seek a stay of the High Court judgment and any costs orders pending the determination of the appeal. The parties subsequently filed a joint memorandum seeking leave to revert to the High Court regarding costs after the determination of the plaintiffs’ appeal.

[3]                 The plaintiffs’ appeal has since been deemed abandoned and the parties have not been able to agree costs. The defendants seek costs in the sum of $118,066 plus disbursements in the sum of $39,614.54. The costs have been calculated on a schedule 2B basis.

[4]                 The plaintiffs are no longer legally represented. The first plaintiff, Ms Lai, has filed a memorandum in person raising some of the matters already determined in the substantive judgment and stating that she does not have any ability or money to pay costs. The defendants cast doubt over these assertions – but that is not a matter I am able, or should, determine at this stage.

[5]                 The costs regime in the High Court Rules 2016 is aimed at providing a predictable and certain method of calculating costs. That allows parties to assess their potential exposure to an award of costs prior to commencing a proceeding and at every stage during the course of that proceeding. The primary rule that “costs follow the event”2 means that parties are on notice that if they lose at trial they will need to pay the costs of the other party. In other words, Ms Lai must have known when she commenced her claim that if she lost she would have to pay the defendants’ costs. There is no reason to depart from the primary rule in this case.

[6]                 The assessment of costs on a schedule 2B basis is appropriate. I agree with the defendants that there are grounds that would justify an award of increased costs.

1      Lai v Huang [2019] NZHC 1822.

2      High Court Rules 2016, r 14.2(1)(a).

However, given the family context, the defendants have elected not to seek such an order.

[7]                 The defendants have calculated costs for each step they have taken separately in the proceeding. For example, they each seek costs for filing separate statements of defence and lists of documents. However only one set of costs has been sought in relation to steps that were taken on behalf of all defendants (such as filing of memoranda, appearances at conferences, preparation of briefs of evidence, and attendance at trial).

[8]                 Rule 14.15 of the High Court Rules 2016 governs costs awards in the event of defendants defending separately. That rule provides as follows:

14.15   Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)several defendants defended a proceeding separately; and

(b)it appears to the court that all or some of them could have joined in their defence.

[9]                 The rule suggests that Courts should be cautious about awarding costs in favour of multiple parties, particularly where there is some overlap or community of interest in the litigation position of the parties seeking costs.3

[10]              In this case, all four defendants were represented by the same solicitors and counsel. Although there were separate causes of action pleaded against each defendant separately, there was nevertheless substantial overlap between the defences. There does not appear to be any reason why a single statement of defence, or a single list of documents, on behalf of all the defendants, could not have been filed.

[11]              Accordingly, I am not prepared to allow separate sets of costs for each of those steps.   Instead, one set of costs is allowed for each of those steps, but uplifted by   20 per cent to recognise the additional time incurred and complexity involved in

3      Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [8] citing Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV-2004-3668, 30 March 2005 at [51]

responding on behalf of multiple defendants. By my calculation that amounts to

$79,443.60 in costs.

[12]              For the same reason, only one filing fee should be allowed for the statement of defence and amended statement of defence. I do not consider gown hire is a disbursement connected with the proceeding and I disallow that claim. The remaining disbursements are costs that were reasonably incurred. This results in disbursements totalling the sum of $38,885.54.

Result

[13]              The plaintiffs are ordered to pay the defendants the sum of $79,443.60 in costs and disbursements in the sum of $38,885.54.

Edwards J

Counsel:     J R Robertson, Auckland

Solicitors:    Glaister Ennor, Auckland

Copy To:     S Lai, Auckland