Liang v Han - [2023] NZHC 3404

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000547

[2023] NZHC 3404

BETWEEN
CHAO LIANG

Applicant

AND

YANGFENG HAN

Respondent

Hearing: On the papers

Appearances:

C Liang in Person

D van Hout / R Selby for the Respondent

Judgment:

29 November 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 29 November 2023 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Russell Legal, Auckland

LIANG v HAN [2023] NZHC 3404 [29 November 2023]

Background

[1] In a judgment delivered on 8 August 2023, I dismissed Chao Liang’s application under s 143 of the Land Transfer Act 2017 for an order that a caveat over a property at Vaughans Road, Auckland, owned by Yangfeng Han, not lapse.1

[2] Mr Han seeks increased or indemnity costs because the caveat was lodged for an improper purpose and with no reasonable cause. Mr Liang opposes an order for costs being made against him.

[3] Mr Liang applied for the judgment to be recalled. In a judgment delivered on 20 September 2023 I dismissed that application.

Legal principles

[4] The Court’s jurisdiction to award increased or indemnity costs is derived from r 14.6 of the High Court Rules 2016. Rule 14.6 provides:

14.6 Increased costs and indemnity costs

[…]

(3) The court may order a party to pay increased costs if—

(a) the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i) failing to comply with these rules or with a direction of the court; or

(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

(iv) failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

1 Liang v Han [2023] NZHC 2070.

(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or

(c) the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or

(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

(4) The court may order a party to pay indemnity costs if—

(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending…

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 Liang v Han

Details

AGLC: Liang v Han [2023] NZHC 3404
Case: [2023] NZHC 3404
Decision Date: 29 November 2023

CaseChat Overview and Summary

The case of Liang v Han involves a dispute between Chao Liang, the applicant, and Yangfeng Han, the respondent, regarding a caveat over a property owned by Mr Han. The proceedings were initially dismissed by the court, and now Mr Han seeks increased or indemnity costs against Mr Liang, claiming the caveat was lodged for an improper purpose and without reasonable cause. Mr Liang opposes the order for costs. The court has already dismissed Mr Liang's application to recall the judgment. The legal issues before the court involve the principles and criteria for awarding increased or indemnity costs under the High Court Rules 2016. The court must determine whether Mr Liang's conduct in lodging the caveat and pursuing the application was vexatious, frivolous, or improper, and whether it justifies an order for indemnity costs. Additionally, the court must consider whether Mr Liang's actions contributed unnecessarily to the time and expense of the proceedings, warranting an order for increased costs.

The court found that Mr Liang's conduct was indeed vexatious, frivolous, and improper, justifying an order for indemnity costs. Mr Liang made unsubstantiated allegations of fraud against Mr Han, his counsel, and LINZ personnel. The court found that the caveat was lodged for an ulterior purpose, namely to secure Mr Han’s property from whom Mr Liang claims damages, which is a misuse of the caveat procedure. The application was deemed a "hopeless case" from the outset. Despite the high costs claimed, the court awarded Mr Han 80% of the claimed indemnity costs, amounting to $67,896.80 plus disbursements of $3,473.54. The court also considered an application to make Jianyue (Paul) Young, who appeared as Mr Liang’s translator, jointly and severally liable for the costs. However, the court found insufficient evidence to establish that Mr Young was the real party to the litigation or that he had a personal interest in the outcome. Thus, the court declined to make a non-party costs order against Mr Young.

In conclusion, the court ordered that Mr Liang pay Mr Han $67,896.80 in costs, plus disbursements of $3,473.54, and that Mr Young is not to have any further involvement in any related proceedings.

Orders