Liu v Cutting

[2020] NZHC 974

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2766

[2020] NZHC 974

BETWEEN

JESSE LIU, STEVEN LAU and DINAH QIU
Appellants

AND

DEREK EDWIN CUTTING

Respondent

Hearing:

On the papers

Appearances:

Appellants in person

G A Keene for Respondent

Judgment:

13 May 2020

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 13 May 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

G A Keene, Barrister, Auckland

LIU v CUTTING [2020] NZHC 974 [13 May 2020]

[1]  This appeal related to decisions delivered by Judge Hinton in the District Court at Auckland on 26 August and 22 November 2019. In the former, the Judge dismissed the appellants’ application for an order that Mr Grant Collecutt cease to act as counsel for the respondent. In the latter, the Judge dismissed an application by the appellants seeking recall of his substantive judgment dated 17 July 2017 and a subsequent costs decision issued on 9 April 2019.

[2]                 On 11 February 2020 I issued a minute in which I set two interlocutory applications down for hearing on 19 March 2020. These were an application by the respondent seeking an order that the appeals be struck out on the basis that they were an abuse of the Court’s process. The second was an application by the appellants contending that Mr Keene should not be permitted to appear as counsel for the respondent because he is too closely connected with the events giving rise to the appeal.

[3]                 On 6 March 2020 the appellants filed a notice indicating they withdrew their appeals. On 9 March 2020, with the consent of the respondent, Moore J issued a minute making an order that the appeals are to be treated as withdrawn and making directions regarding the filing of submissions in relation to costs. Submissions in relation to costs have now been filed and referred to me as Duty Judge this week.

[4]                 Mr Cutting seeks indemnity costs on all steps taken in the present proceeding on the basis that the appellants have acted vexatiously and in a manner that constitutes an abuse of the Court’s procedure. The appellants oppose any order for costs being made.

Decision

[5]                 The present appeals are not the first occasion on which these parties have been before this Court. They follow earlier proceedings in the District Court that led to an unsuccessful appeal in this Court.1 Subsequent applications to this Court and the Court of Appeal for leave to appeal were unsuccessful.2

1      Liu v Cutting [2018] NZHC 33.

2      Liu v Cutting [2018] NZHC 3130; Liu v Cutting [2019] NZCA 228.

[6]                 I consider rights of appeal existed in relation to the District Court recall and costs decisions because they were separate decisions to those which had been the subject of the earlier proceedings before this Court and the Court of Appeal. For that reason I do not accept the appellants have acted in a vexatious manner or that the appeals were an abuse of the Court’s process. Indemnity costs would not be appropriate for that reason.

[7]                 Once the appellants abandoned their appeals, however, the respondent was the successful party and became entitled to an award of costs in his favour.3 I see no basis for an order for increased costs because both parties conducted the present proceeding in an efficient and expeditious manner.

[8]                 I therefore award the respondent costs on a Category 2B basis against the appellants in relation to all steps taken in the present proceeding together with disbursements as fixed by the Registrar. The amount paid into Court by the appellants by way of security for costs is now to be paid out to the respondent.

Lang J

3      High Court Rules 2016, r 14.2.1(a).