Liu v Cutting - [2021] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001858

[2021] NZHC 1635

BETWEEN
Y (JESSE) LIU

K T (STEVEN) LAU D QIU

Applicants

AND

DEREK EDWIN CUTTING

Respondent

CIV-2019-404-002766

BETWEEN

Y (JESSE) LIU

K T (STEVEN) LAU D QIU

Applicants

AND

DEREK EDWIN CUTTING

Defendant

Hearing: (Determined on the papers)

Counsel:

K T (Steven) Lau – In Person for Applicants G A Keene for Respondent

Judgment:

2 July 2021

JUDGMENT OF GENDALL J

As to Costs

LIU v CUTTING [2021] NZHC 1635 [2 July 2021]

[1] On 7 May 2021 I issued a judgment in these proceedings dismissing an application brought by the applicants to rescind charging orders that had been made in favour of the respondent on 28 October 2020.

[2] At [28] of that 7 May 2021 decision I addressed the question of costs and stated:

[28] As too costs, at the hearing before me no submissions were advanced with respect to this issue. Costs are, therefore, reserved. In the event the parties are unable to settle the issue of costs between themselves then they may file (sequentially) memoranda on costs (five pages maximum) which are to be referred to me and I will make a decision on costs based upon the memoranda filed and all material on the file before me.

[3] Counsel for the respondent Mr Cutting has confirmed that the parties have been unable to resolve the issue of costs between themselves. Both he, on behalf of the respondent, and Mr Lau, on behalf of the applicants, have filed costs memoranda. The respondent, as the successful party in opposing the application brought by the applicants, seeks costs here on a slightly reduced solicitor-client indemnity basis together with disbursements at an all up total of $17,038.00.

[4] The applicants respond through Mr Lau, contending that no order for costs or disbursements is appropriate in this case.

[5] With the exception of a 21 June 2021 memorandum from counsel for the respondent (which, as my minute of 22 June 2021 confirms, I have not considered) I have now had an opportunity to read and carefully consider the relevant material provided in the other memoranda which is before the Court.

[6] In this proceeding, the respondent is Derek Edwin Cutting (Mr Cutting). It is Mr Cutting who, as a party to these proceedings, seeks costs. It is true that the counsel he has instructed throughout to appear on his behalf is Gregory Keene (Mr Keene) and the submissions I have received on behalf of the respondent have been provided by Mr Keene. Nevertheless, it needs to be borne in mind that Mr Keene is not a party to these proceedings, and it is Mr Cutting as respondent who seeks a payment of costs and disbursements now.

[7] So far as costs generally are concerned, r 14.2(1)(a) of the High Court Rules notes the starting point principle is generally that the party who fails with respect to a proceeding…

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 Liu v Cutting

Details

AGLC: Liu v Cutting [2021] NZHC 1635
Case: [2021] NZHC 1635
Decision Date: 2 July 2021

CaseChat Overview and Summary

In Liu v Cutting, the applicants, Liu, Lau, and Qiu, sought to rescind charging orders made in favour of the respondent, Cutting. The applicants argued that the orders were unfair and prejudicial to them. The court dismissed the application to rescind the orders, finding it to be misconceived. The court then proceeded to determine the issue of costs. The respondent sought indemnity costs on a solicitor-client indemnity basis, along with disbursements, totaling $17,038.00. The applicants opposed the costs claim, arguing that no order for costs was appropriate and that the respondent's counsel had been debarred from acting in other litigation. The court found that the applicants' application to rescind the charging orders was misconceived, and that the respondent was entitled to an award of reasonable costs. The court also found that the applicants had acted unnecessarily and improperly in bringing the application, warranting an award of indemnity costs. The court awarded indemnity costs and disbursements to the respondent, totaling $17,038.00, to be paid by the applicants on a joint and several basis.

The court rejected the applicants' arguments opposing the costs claim, finding that there was evidence to support the time spent by the respondent's counsel in opposing the application and that the choice of counsel was a matter for the respondent. The court also noted that the applicants had been warned of the potential costs consequences of their misconceived application. The court found that the quantum of costs claimed by the respondent was reasonable, given the complexity and significance of the proceedings. The court dismissed the applicants' opposition to the costs claim and ordered them to pay the respondent's costs and disbursements in the amount of $17,038.00.

Orders