Liu v Cutting - [2018] NZHC 3130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001858

[2018] NZHC 3130

BETWEEN YICHUAN (JESSE) LIU, KIN TO (STEVEN) LAU and DINAH QIU
Applicants

AND

DEREK EDWIN CUTTING

Respondent

Hearing: 20 November 2018

Appearances:

K T Lau in Person and on behalf of Y Liu and D Qiu G Collecutt for the Respondent

Judgment:

30 November 2018

JUDGMENT OF HINTON J [COSTS AND LEAVE TO APPEAL]

This judgment was delivered by me on 30 November 2018 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:
Grant Collecutt, Barrister, Auckland

Party:
Yichuan (Jesse) Liu, K T Lau, D Qiu

LIU v CUTTING [2018] NZHC 3130 [30 November 2018]

[1] This judgment relates to costs and leave to appeal applications arising out of a fee recovery issue between these parties. The litigation has been running for over nine years. The sum involved is very small. The original claim by Mr Cutting was for approximately $15,000 for unpaid legal fees. On 17 July 2017, judgment was granted by Judge Hinton in the District Court for a reduced amount of $10,500, plus costs. On 31 January 2018, that judgment was upheld by me, with costs again awarded to the respondents.1 I have commented before on the long and careful judgment delivered by the District Court Judge.2

[2] Along with submissions on the application for leave to appeal, I have received numerous memoranda as to costs in both this Court and the District Court.

Costs and disbursements

Costs on the appeal

[3] As to costs, I ruled as part of my judgment that the respondent was entitled to costs on the appeal.3

[4] The respondent has provided a schedule of costs on the appeal, calculated on a 2B basis in accordance with the scale, totalling $10,481. The respondent makes no claim for disbursements.

[5] I consider the costs calculation is uncontentious, and I award costs in the sum of $10,481. Mr Lau raises various points of no substance to the determination of costs, including reliance on my reference to the District Court judgment containing some errors.4 This was a reference to some factual inaccuracies raised by the appellants, which had no significance to determination of the appeal.5 I did not find that the District Court Judge had erred on any of the grounds of appeal put to me by the appellants.

1      Liu v Cutting [2018] NZHC 33.
2      At [17] and [68].
3 At [66].
4 At [68].
5      For example, the Judge makes reference (at paragraph [24]) to Mr Keene saying that his hourly rate was shown in an invoice. It seems it was not. But liability was based on a reasonable cost, or quantum merit assessment, in any event.

Costs in the District Court

[6] Costs and disbursements relating to the District Court proceedings, which spanned a period from March 2009 to July 2017, have apparently not yet been fixed. The District Court has…

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 [2018] NZHC 3130
Case: [2018] NZHC 3130
Decision Date: 30 November 2018

CaseChat Overview and Summary

The High Court of New Zealand dealt with the matter of Liu v Cutting, a case involving a protracted dispute over unpaid legal fees between the parties. Derek Edwin Cutting sought approximately $15,000 from the applicants, Yichuan Liu, Kin To Lau, and Dinah Qiu, for fees owed for legal services. The District Court initially granted a judgment in favour of Cutting for $10,500 plus costs, which was upheld by the High Court. The current appeal pertains to the costs and leave to appeal applications arising from this long-standing litigation.

The primary legal issues in this case involved the interpretation of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, specifically rules 3.4, 3.5, and 3.6, and whether they applied to the retainer agreement entered into prior to 1 August 2008. Additionally, the court had to decide whether the appellants had raised any seriously arguable points of law or fact that would warrant leave to appeal to the Court of Appeal.

The court found that the provisions of the 2008 Rules did not apply to retainers entered into before 1 August 2008, as expressly provided in rule 3.10. The appellants' argument that rule 3.6 should impact the analysis was rejected, as it presupposes an obligation to provide information that did not exist. The court also dismissed other points raised by the appellants, such as the omission of certain case law in the judgment, the alleged error in not allowing further cross-examination of a witness, and the reference to errors in the District Court judgment. The court concluded that these points did not constitute seriously arguable questions of law or fact.

In terms of costs, the court awarded costs on the appeal to the respondent in the sum of $10,481. Disbursements to the appellants for an earlier appeal were also allowed, amounting to $1,431.11. All other costs and disbursements related to the District Court proceedings were to be addressed in that court. The application for leave to appeal was dismissed, and the respondent was awarded costs for the unsuccessful application for leave.

Orders