Lung v Liu - [2023] NZHC 669

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1720

[2023] NZHC 669

BETWEEN
JU-TING LUNG

Plaintiff

AND

YU-CHEN LIU

Defendant

Hearing: On the papers

Appearances:

K Sun for the Plaintiff

L Kearns KC and L Wang for the Defendant

Judgment:

29 March 2023

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

[Costs]

This judgment was delivered by me on 29 March 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Capstone Law, Auckland LW Law, Takapuna

LJ Kearns KC, Auckland

LUNG v LIU [2023] NZHC 669 [29 March 2023]

Introduction

[1] In my judgment dated 23 November 2022 I granted the plaintiff’s application to set aside the defendant’s protest to jurisdiction (Judgment).1

[2] I allowed significantly more time than usual for the parties to try to agree costs between themselves as I indicated that although the plaintiff had succeeded in her application, I considered that the plaintiff’s approach may not be the most efficient way to resolve the issues between the parties. On that basis, I indicated that my preliminary view was that costs ought to lie where they fall and asked the parties to confer and only if agreement was not possible to file memoranda.

[3] Unfortunately, agreement has not been reached and memoranda have been filed.

[4] Counsel for the plaintiff submits that as the plaintiff was successful in the application, costs ought to follow the event and that increased costs ought to be awarded on a 2B basis with a 50 per cent uplift. Increased costs are sought as the plaintiff had sent a Calderbank offer prior to the hearing of the application to set aside the protest which the plaintiff submits was more beneficial to the defendant than the final outcome of the application.

[5] The defendant responds that costs ought to lie where they fall, submitting that the plaintiff achieved a pyrrhic victory and that the plaintiff’s “Calderbank offer” was made in response to the defendant’s open offer requesting the plaintiff to withdraw her proceedings in the High Court and to issue relationship property proceedings at the Family Court, which was ultimately the Court’s recommendation to the parties.

Relevant costs principles

[6] Rule 14.1 of the High Court Rules 2016 confirms that “all matters are at the discretion of the court if they relate to costs of a proceeding”. The discretion vested by r 14.1 is wide but must be exercised subject to the general principles in r 14.2. The

1 Lung v Liu [2022] NZHC 3074.

first principle set out in r 14.2(1) is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.

[7]The Court of Appeal has confirmed that:2

Success or failure in this context is better assessed by a realistic appraisal of the end result rather than by focussing on who initiated what step, and the extent to which that step succeeded or…

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 Lung v Liu

Details

AGLC: Lung v Liu [2023] NZHC 669
Case: [2023] NZHC 669
Decision Date: 29 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Lung v Liu involved a dispute between Ju-Ting Lung and Yu-Chen Liu. The plaintiff sought to set aside the defendant's protest to the court's jurisdiction, and the court granted the application in a judgment dated 23 November 2022. The primary issue before the court was the determination of costs in relation to the application to set aside the protest. The plaintiff argued that as they were successful in their application, costs should follow the event and be awarded on a 2B basis with a 50% uplift, as they had made a Calderbank offer prior to the hearing. The defendant contended that costs should lie where they fall, as the plaintiff achieved a pyrrhic victory and their Calderbank offer was made in response to the defendant's open offer to resolve the matter in the Family Court.

The court considered the relevant costs principles as outlined in the High Court Rules 2016. The court noted that the party who fails in a proceeding or an interlocutory application should pay the costs of the party who succeeds, and success or failure should be assessed by a realistic appraisal of the end result rather than by focusing on who initiated what step. The court also considered the remaining principles in the High Court Rules, such as the complexity and significance of the proceeding, the appropriate daily recovery rate, and the predictability and expeditiousness of the determination of costs.

In reaching its decision, the court found that although the plaintiff had succeeded in their application to set aside the protest, their approach may not have been the most efficient way to resolve the issues between the parties. The court held that it would be more efficient for all issues to be properly determined in a relationship property proceeding in the Family Court rather than continuing with the High Court proceeding. The court also considered the Calderbank offer made by the plaintiff but found that it did not change the position on costs as the offer was based on incorrect assumptions and did not account for the unresolved relationship property disputes between the parties.

The court concluded that it was in the interests of justice for costs to lie where they fall, as otherwise parties may be encouraged to take the approach adopted by the plaintiff in this case, complicating rather than simplifying the process for resolving relationship property disputes. Costs in respect of the application by the plaintiff to set aside the defendant's protest to jurisdiction were to lie where they fall. The court directed the parties to discontinue the proceedings and file proceedings in the Family Court.

Orders