MA v Tay - [2013] NZHC 2278

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-008215 [2013] NZHC 2278

BETWEEN TIAN MIN (MAGGIE) MA Plaintiff

ANDTONY MENG HIANG TAY & ORS Defendant

CIV-2012-404-003751

BETWEEN TONY MENG HIANG TAY & ORS Plaintiff

ANDTIAN MIN (MAGGIE) MA Defendant

Hearing: [On the papers] Appearances: P Dale for Ms Ma
A Swan for Mr Tay & Ors

Judgment: 3 September 2013

JUDGMENT OF WOOLFORD [as to costs]

This judgment was delivered by me on Tuesday, 3 September 2013 at 12.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel: A M Swan, Auckland.
P J Dale, Chancery Street Chambers, Auckland.

MA v TAY & ORS [2013] NZHC 2278 [3 September 2013]

[1] On 25 March 2013, I declined Mr Tony Tay’s application in CIV-2011-404-

008215 for an order that Ms Maggie Ma provide security for costs in respect of a three day hearing in May 2013. In the same judgment, I granted Ms Ma’s application to strike out the statement of claim in CIV-2012-404-003751, on the basis that the claim should have been raised in CIV-2011-404-008215.[1]

[1] Ma v Tay [2013] NZHC 573.

[2] Costs are sought by Ms Ma. She seeks indemnity costs, or increased costs, or costs on a 2C basis. Indemnity costs total $29,198 while 2C costs total $33,830. Mr Tay acknowledges that costs on a 2B basis in respect of his unsuccessful application for security for costs are appropriate. He submits that a 2B basis is also appropriate for Ms Ma’s successful application to strike out his statement of claim. He calculates costs on a 2B basis to be $11,641.50.

[3] I bear in mind the commentary in McGechan on Procedure[2] that while it is intended that the r 14.3 categorisation for each proceeding be made in its early stages, the same does not apply to time banding. The appropriate time band for each interlocutory step in the proceeding is fixed by the Judge or Associate Judge who deals with that step, and the banding for the trial Judge is by the trial Judge. The bands may differ at each step. Awarding 2B costs for all steps in a case is unobjectionable, because it reflects an average case requiring a normal amount of time for every step. But otherwise, a blanket assessment for banding is not desirable, nor even possible under the rules. I accept the r 14.3 categorisation of both proceedings as category 2 proceedings, being proceedings of average complexity requiring counsel of skill and experience considered average in the High Court. However, I am of the view that the appropriate time band for Mr Tay’s application for security for costs in CIV 2011-404-008215 is band A, as I consider that a comparatively small amount of time was reasonable.

[2] Andrew Beck and Others McGechan on Procedure (online looseleaf ed, Brookers) at

[HR Pt 14.5.01].

[4] I am also of the view that this is not a case for increased or indemnity costs

on Ms Ma’s application to strike out…

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 MA v Tay

Details

AGLC: MA v Tay [2013] NZHC 2278
Case: [2013] NZHC 2278
Decision Date: 3 September 2013

CaseChat Overview and Summary

The case of MA v TAY & ORS [2013] NZHC 2278 involved two separate actions between Tian Min (Maggie) Ma and Tony Meng Hiang Tay. In the first action, CIV-2011-404-008215, Mr Tay sought an order that Ms Ma provide security for costs in relation to a three-day hearing scheduled for May 2013. In the second action, CIV-2012-404-003751, Mr Tay and others filed a claim against Ms Ma. Ms Ma applied to strike out the claim in the second action, arguing that it should have been raised in the first action. The court was required to determine the appropriate costs for both actions.

The primary legal issue was the appropriate time band for assessing costs for each of the proceedings and whether special costs should be awarded. The court had to decide whether to award costs on a 2B, 2C, or indemnity basis. Mr Tay submitted that a 2B basis was appropriate for both proceedings, while Ms Ma sought indemnity costs for her successful application to strike out the claim. The court considered whether the proceedings were commenced for an ulterior motive or if they were hopeless, as these factors could justify special costs. The court also had to determine the appropriate time band for each interlocutory step in the proceeding, considering that the banding for the trial judge is by the trial judge.

The court found that the appropriate time band for Mr Tay's application for security for costs was band A, as a comparatively small amount of time was reasonable. The court concluded that this was not a case for increased or indemnity costs on Ms Ma's application to strike out the statement of claim. Although the court struck out the statement of claim, it did not find that the proceedings were commenced for an ulterior motive nor were they hopeless. The court awarded costs to Ms Ma on a 2B basis for the steps taken in the second action and a 2C basis for the steps taken in the first action, totaling $16,318.00.

The final orders of the court were that the appropriate costs for Mr Tay's unsuccessful application for security for costs were to be awarded on a 2B basis, and the appropriate costs for Ms Ma's successful application to strike out the statement of claim were also to be awarded on a 2B basis. The total costs awarded to Ms Ma were $16,318.00.

Orders