Lai v Huang - [2018] NZHC 322

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1535 [2018] NZHC 322

BETWEEN
SOPHIE LAI also known as SHU-HWA LAI

First Plaintiff

RICHARD HUANG Second Plaintiff

AND

LIU SHUN-MEI HUANG as executrix of the ESTATE OF HSIU-LIN HUANG

First Defendant

CHUN-CHING HUANG Second Defendant

CHUN-TA HUANG Third Defendant

Hearing: On the papers

Counsel:

R Reed and A Manuson for Plaintiffs
J R Robertson and C Jiang for Defendants

Judgment:

5 March 2018

JUDGMENT OF THOMAS J (COSTS)

This judgment was delivered by me on 5 March 2018 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
Prestige Lawyers Limited, Auckland for Plaintiffs
Glaister Ennor, Auckland for Defendants

LAI v HUANG [2018] NZHC 322 [5 March 2018]

Introduction

[1] By my decision dated 25 November 2016,1 I struck out the third and fourth causes of action pleaded in the statement of claim dated 1 July 2016 and ordered security for costs of $10,000 to be paid.

[2] I observed that, having been generally successful, the defendants were entitled to some degree of costs in respect of their application to strike out. I invited submissions if the parties were unable to agree.

[3] The plaintiffs appealed the judgment and the parties agreed to stay costs pending determination of the appeal. The Court of Appeal dismissed the plaintiffs’ appeal in November 2017.2

[4] The defendants seek costs against the plaintiffs in relation to the High Court proceedings. The parties have been unable to agree.

The law

[5] Costs are at the discretion of the Court, qualified by the principles in the High Court Rules 2016.3 The intent of the Rules is to provide reliable and expeditious costs decisions and to do justice to both parties.4 The general principle is that costs follow the event unless particular considerations indicate otherwise.5

Submissions

[6] The parties agree Category 2 is the appropriate categorisation of the proceeding, it being of average complexity requiring counsel of skill and experience
considered average.

1      Lai v Huang [2016] NZHC 2828.
2      Lai v Huang [2017] NZCA 499.
3      High Court Rules 2016, r 14.1(1)–(2); and Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7]–[8].
4      High Court Rules 2016, r 14.2(g).
5      Rule 14.2(1)(a); and Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR
523 at [19].

[7] The parties disagree as to the band, the defendants submitting band C is appropriate, whereas the plaintiffs contend for band B.

[8] The defendants acknowledge that a reduction is appropriate to reflect the defendants’ unsuccessful attempt to strike out the plaintiffs’ claim under the Property (Relationships) Act 1976 (PRA). However, they seek a 50 per cent uplift in respect of the plaintiffs’ claims under the Law Reform (Testamentary Promises) Act 1949 (TPA) and the Family Protection Act 1955 (FPA) given the defendants were successful in their attempt to have those…

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 Lai v Huang

Details

AGLC: Lai v Huang [2018] NZHC 322
Case: [2018] NZHC 322
Decision Date: 5 March 2018

CaseChat Overview and Summary

In Lai v Huang, the High Court of New Zealand was required to determine the appropriate costs to be awarded to the defendants in relation to the proceedings. The plaintiffs, Sophie Lai and Richard Huang, had brought claims against the defendants, Liu Shun-Mei Huang, Chun-Ching Huang, and Chun-Ta Huang, which were partially successful. The court had previously struck out two of the plaintiffs' causes of action, and the defendants sought costs against the plaintiffs for the High Court proceedings. The legal issues before the court were whether costs should be categorised as band B or band C, whether costs should be reduced or increased, and whether the defendants were entitled to costs in relation to costs.

The court determined that the proceeding fell into Category 2, which required counsel of skill and experience considered average. The court agreed with the defendants that band C was appropriate for the filing of the interlocutory application to strike out and the preparation of written submissions, as a comparatively large amount of time was considered reasonable for those steps. However, band B was appropriate for the other steps in the proceeding. The court also found that costs should be reduced by 20 per cent to reflect the defendants' unsuccessful attempt to strike out the plaintiffs' Property (Relationships) Act 1976 (PRA) claim. However, the court rejected the plaintiffs' contention that costs should be reduced by 80 per cent, as the defendants' application to strike out was not an unnecessary step.

In relation to increased costs, the court found that the plaintiffs had contributed unnecessarily to the time and expense of the proceeding by failing to acknowledge that the Testamentary Promises Act 1949 (TPA) and Family Protection Act 1955 (FPA) claims were time barred. As a result, the court awarded a 40 per cent uplift in costs. Finally, the court awarded costs in relation to the preparation of memoranda in support of costs, finding that the plaintiffs had acted unreasonably in opposing the defendants' costs.

The final orders of the court were that costs were to be awarded to the defendants on a 2B basis, except for the steps of filing the interlocutory application to strike out and preparation of written submissions, which were to be awarded on a 2C basis. A 20 per cent reduction of the subtotal was made for the defendants' unsuccessful attempt to strike out the PRA claim, and a 40 per cent uplift on the resulting subtotal was made as increased costs. Additionally, $892.00 was awarded for the costs memorandum.

Orders