Li v Li - [2017] NZHC 2984

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-090 [2017] NZHC 2984

BETWEEN
XING LI

Plaintiff

AND

YUE LI
First Defendant

JING CHEN Second Defendant

YHUA LU
Third Defendant

XIAOAN CHEN Fourth Defendant

CIV-2015-404-3185

BETWEEN PING LUI Plaintiff

AND

YUHUA LU First Defendant

Continued over page…

Hearing: On the papers (Submissions 24 and 30 November 2017)

Appearances:

N J Scampion for the Plaintiffs
WGC Templeton for the Defendants

Judgment:

4 December 2017

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 4 December 2017 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

LI v LI [2017] NZHC 2984 [4 December 2017]

XIAOAN CHEN Second Defendant

JING CHEN Third Defendant

YUE LI
Fourth Defendant

Counsel/Solicitors:
N J Scampion, Barrister, Auckland
WGC Templeton, Barrister, Auckland

[1] On 20 September 2017 I delivered a judgment declining the defendants’ application for an order debarring Ms Royal Reed, solicitor, from acting for the plaintiffs’ in the proceedings.

[2] At the conclusion of the judgment I awarded costs to the defendants on a 2B

basis, inviting memoranda if they could not be settled by agreement.

[3] Extensive memoranda have now been filed. The parties cannot agree on an appropriate 2B calculation and the plaintiffs further seek an uplift on whatever sum is ultimately assessed to be payable.

Preliminary issue

[4] My judgment makes a determination as to costs which the defendants say is final. As the plaintiffs point out, however, r 14.8(2) gives the Court power to vary an order if satisfied that it should not have been made. If the plaintiffs can now satisfy me that the original order was inappropriate I have jurisdiction therefore to reconsider it. In this case one of the grounds on which the application for increased costs proceeds is unreasonable failure to accept an offer without prejudice save as to costs of which I was unaware in making my costs order. If satisfied that the failure was unreasonable then this would be one example of where the r 14.8(2) jurisdiction was appropriately engaged.

[5] I consider the correct approach is therefore to fix costs on a 2B basis and then consider whether the original 2B order or some different order should have been made.

2B costs

[6] The parties are in agreement in respect of the application of steps 23 (filing opposition), 24 (preparation of written submissions) and 26 (appearance at hearing). On a 2B basis the total award for these steps is $6,355.50.

[7] In addition the plaintiffs claim for three memoranda on the basis of 0.4 a day each by analogy with step 11 (filing memoranda for first or subsequent case

management conference or mentions hearing) and 2.5 days for preparation of affidavits.

[8] In respect of interlocutory applications Schedule 3 does not provide specific allocations for memoranda or for affidavit preparation. That being the case, r 14.5 provides that a reasonable time is to be determined…

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.

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Details

Case: [2017] NZHC 2984
Decision Date: 4 December 2017

CaseChat Overview and Summary

Li v Li involves a complex family dispute heard in the High Court of New Zealand. The plaintiffs, Xing Li and Ping Lui, sought costs from multiple defendants, including Yue Li, Jing Chen, Yuhua Lu, Xiaoan Chen, and others. The case revolves around an application made by the defendants to bar a solicitor, Ms Royal Reed, from representing the plaintiffs. The court was tasked with determining whether the defendants' application was justified and, if so, the appropriate costs to be awarded.

The primary legal issue was whether the defendants' application to debar Ms Reed was reasonable and, if not, what costs should be awarded. The court also had to consider whether the plaintiffs' refusal to accept settlement offers without prejudice save as to costs warranted an uplift in the costs awarded. The court had to balance the defendants' right to challenge the solicitor's involvement against the plaintiffs' entitlement to costs and the principles of fairness and proportionality in litigation.

In its judgment, the court first assessed the costs on a 2B basis, which involves a detailed examination of each step in the proceedings. The court agreed with the parties on most steps but differed on the allocation for memoranda and affidavit preparation. After considering the nature of the interlocutory application and the time reasonably required, the court determined that 2B costs amounted to $10,146.50. The court then addressed the issue of whether increased costs were appropriate, taking into account the merit of the defendants' application, the delay in bringing it, and the failure to accept settlement offers. After weighing these factors, the court concluded that an uplift of 20% was warranted, bringing the total costs to $12,175.

In conclusion, the court awarded costs to the plaintiffs, finding that while some aspects of the defendants' application were not justified, others were reasonably pursued. The court recognised the delay in bringing the application and the plaintiffs' reasonable settlement offers, which led to the decision to increase the costs awarded by 20%.

Orders