Lun v Kong - [2023] NZHC 2256

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-795

[2023] NZHC 2256

BETWEEN
DAMIN LUN

Plaintiff

AND

YONGCING KONG

Defendant

On the papers: 18 August 2023

Appearances:

J K Goodall KC / LukeSizer / Zar Sinclair for the Plaintiff R E Harrison KC / Anna Cherkashina for the Defendant

Judgment:

21 August 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 21 August 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Buddle Findlay (Luke Sizer / Zar Sinclair), Auckland, for the Plaintiff
Norling Law (Brent Norling / Anna Cherkashina), Auckland, for the Defendant

Counsel:
Jason K Goodall, Auckland, for the Plaintiff
Rodney E Harrison KC, Auckland, for the Defendant

DAMIN LUN v YONGCING KONG [2023] NZHC 2256 [21 August 2023]

Introduction

[1] On 1 June 2023 the Court delivered a judgment granting the plaintiff’s application to set aside the defendant’s protest to jurisdiction (the Judgment).1 In the Judgment, the parties were directed to endeavour to agree costs, and if no agreement was reached, the parties were directed to file memoranda on costs for determination on the papers.

[2] Counsel have conferred and are not agreed on costs. Counsel for the plaintiff filed a memorandum as to costs dated 17 July 2023, and counsel for the defendant filed a reply memorandum dated 31 July 2023. Having reviewed these memoranda, the Court issued a minute dated 15 August 2023 requesting more information from the plaintiff ‘s counsel in relation to the expert witness fee. On 16 August 2023 the plaintiff ‘s counsel filed a response to the Court’s minute.

[3]The areas of dispute between the parties are:

(a)allowance for a second counsel in the plaintiff’s costs;

(b)a disbursement claim for the expert witness fee.

Submissions

Second counsel

[4] In relation to an allowance for a second counsel, the plaintiff’s counsel makes the following submissions:

(a)An allowance for a second counsel is permitted in category 2 cases provided the case has some exceptional feature to justify a second

1 Lun v Kong [2023] NZHC 1370.

counsel allowance. The approach to determining this is always objective, and it is focused on the nature of the proceeding.2

(b)The Court has accepted that an allowance for a second counsel is permitted in category 2 cases as part of the proceeding’s “average” characterisation.3

(c)2B costs for a second counsel is appropriate in this case as it involved a complicated fact matrix, with nuanced issues on the conflict of laws, and was of sufficient complexity that both parties engaged King’s Counsel to present their oral arguments.

[5]Counsel for the defendant submits, in relation to this issue:

(a)The interlocutory hearing did not justify the allowance for a second counsel as, while it was accepted that the hearing involved a complex set of legal principles in relation to conflicts of law, the whole argument on behalf of the plaintiff was presented by the…

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 Lun v Kong

Details

AGLC: Lun v Kong [2023] NZHC 2256
Case: [2023] NZHC 2256
Decision Date: 21 August 2023

CaseChat Overview and Summary

The case of Lun v Kong involves a dispute between Damin Lun, the plaintiff, and Yongcing Kong, the defendant, before the High Court of New Zealand. The primary issue in the case was the costs incurred during the proceedings, specifically focusing on whether a second counsel fee and an expert witness fee were justified. The plaintiff argued for the inclusion of a second counsel fee due to the complexity of the case, which involved intricate conflict of laws issues, and sought reimbursement for an expert witness fee that was deemed necessary for presenting evidence on Chinese laws. The defendant contested both claims, arguing that the complexity of the case did not warrant a second counsel and that the expert witness fee was excessive given the limited use of the expert's affidavit.

The court examined the necessity of a second counsel in light of the case's complexity and the fact that both parties had engaged King's Counsel. It concluded that the case's complexity and the nature of the arguments presented justified the allowance of a second counsel fee. Regarding the expert witness fee, the court found that despite the limited relevance of the expert's evidence to the final judgment, the expert's involvement was reasonable and necessary for the proceedings. The court also ruled that it lacked jurisdiction to consider costs related to a separate proceeding in China, thus dismissing the defendant's request to set off costs from the Chinese proceeding against the costs awarded in the New Zealand case.

In its final orders, the court granted the plaintiff's request for scale 2B costs and disbursements, totaling approximately $21,129.31. The court did not award costs for the preparation of the memorandum on costs, finding that the defendant's opposition, while unreasonable, was not without merit given the contentious nature of the expert witness fee.

Orders