Li v Yeung - [2024] NZHC 3559

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2473

[2024] NZHC 3559

BETWEEN
KAREN KAYAN LI

First Plaintiff

HUI LING (CATHERINE) KWOK
Second Plaintiff

AND

LAM YEUNG

First Defendant

YUHONG (CATHERINE) GAO

Second Defendant

Hearing: On the papers

Appearances:

A M E Parlane for the Plaintiffs

N J Scampion and J A R Barrow for the First Defendant

Judgment:

27 November 2024

JUDGMENT OF FITZGERALD J

[As to costs on application for leave to appeal]

This judgment was delivered by me on 27 November 2024 at 2.00pm, pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

………………….……………

Solicitors: Parlane Law, Auckland
Tompkins Wake, Auckland

To:N Scampion, Auckland J Barrow, Auckland

LI v YEUNG [2024] NZHC 3559 [27 November 2024]

Introduction

[1] By judgment delivered on 16 October 2024, I determined the plaintiffs’ application for leave to appeal against my decision declining to make an asset preservation order under the Financial Markets Conduct Act 2013.1 I granted the application, a key factor in my decision being that an appeal by the defendants against other aspects of my substantive judgment is already on foot (and has been allocated a hearing date in the Court of Appeal), such that granting leave to appeal would not unnecessarily delay the underlying proceedings.

[2] In granting leave, I noted that the application for leave had been brought following a significant delay, and that much of that delay was unexplained.2 In those circumstances, I gave a preliminary and non-binding view that an appropriate outcome on the application for leave may be that costs lie where they fall.

[3] Despite this, the plaintiffs now seek costs, including on an increased basis. This is said to be an appropriate outcome given the plaintiffs were ultimately successful on their application for leave, and on the basis that a number of offers were made by them to resolve the application, which they say were unreasonably rejected by the first defendant. The plaintiffs also refer to an affidavit filed in opposition to their application for leave, albeit by the second defendant, which contained privileged information which I found had not been the subject of a waiver of privilege.3 The plaintiffs say that dealing with that affidavit complicated and delayed matters further, and led to further costs being incurred by them.

[4] In response, the first defendant says that it was not unreasonable for her to have rejected the offers that are properly before the Court, submitting that some of the offers relied on by the plaintiffs were made on a “without prejudice” basis, and not “without prejudice save as to costs”. Further, she notes that the affidavit filed on behalf of the second defendant which contained privileged information was not filed by her, and therefore costs in relation to that affidavit ought not to be visited upon her. Overall, the first defendant says that, for the same reasons I gave when expressing my

1 Li v Yeung [2024] NZHC…

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 Li v Yeung

Details

AGLC: Li v Yeung [2024] NZHC 3559
Case: [2024] NZHC 3559
Decision Date: 27 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Karen Kaya Li and Hui Ling (Catherine) Kwok, the plaintiffs, filed an application for leave to appeal against the decision of Fitzgerald J declining to make an asset preservation order under the Financial Markets Conduct Act 2013. The defendants in the case were Lam Yeung and Yuhong (Catherine) Gao. The primary issue before the court was the allocation of costs associated with the plaintiffs' successful application for leave to appeal, despite the significant delay and unexplained circumstances surrounding the application.

The court considered several factors, including the plaintiffs' lengthy and unexplained delay in applying for leave, the filing of an affidavit containing privileged information, and the offers made by the plaintiffs to resolve the application, some of which were made without a reservation for costs. The court determined that the plaintiffs had waived privilege in some of the material annexed to the affidavit, and therefore, it was appropriate for some of the material to have been put before the Court. The court also found that not all offers made by the plaintiffs were admissible for costs purposes because some were not made with a reservation for costs.

In reaching its decision, the court concluded that the appropriate outcome was for costs to lie where they fall. The court acknowledged the plaintiffs' success in obtaining leave to appeal but considered the significant delay in applying for leave, the complications arising from the affidavit containing privileged material, and the nature of the offers made by the plaintiffs. The court found that the offers made by the plaintiffs were not unreasonably refused, and therefore, costs should not be awarded against the first defendant.

The court confirmed that the costs on the plaintiffs' application for leave to appeal against the decision declining to grant asset preservation orders are to lie where they fall. This decision reflects the court's consideration of the various factors involved and the significant delay in the plaintiffs' application for leave.

Orders