Mao v Green Land Investment Limited

[2020] NZHC 475

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002701

[2020] NZHC 475

BETWEEN

JIAWEN MAO

Plaintiff

AND

GREEN LAND INVESTMENT LIMITED

Defendant

CANDOR 3 LIMITED

Second Defendant

Hearing:

6 March 2020

Appearances:

O Pelevila for the Plaintiff

D Liu for the First Defendant

Judgment:

11 March 2020

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 11 March 2020 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors / Counsel:

Heritage Law, Auckland JC Legal, Auckland

MAO v GREEN LAND INVESTMENT LTD [2020] NZHC 475 [11 March 2020]

[1]    The plaintiff filed a notice of discontinuance on 28 February 2020 and the proceeding was listed in the Chambers list on Friday 6 March 2020 to deal with the first defendant’s application for costs. This brief judgment relates to that application.

[2]    In terms of r 15.23 of the High Court Rules 2016, the plaintiff must pay costs to the first defendant of and incidental to the proceeding up to and including the discontinuance, unless the Court orders otherwise. The first defendant seeks an uplift in the usual 2B scale costs pursuant to r 14.3(b)(ii). This is on the basis that the claim is said to obviously lack merit.

[3]    Counsel for the plaintiff concedes that the first defendant has a prima facie entitlement to costs. But she submits that the Court should exercise its discretion to refuse costs on the basis that unless the first defendant is agreeable to payments by instalments — which it has declined to agree to — the plaintiff is simply unable to meet an order for costs. She says that if the Court decides to order for costs, despite the plaintiff’s difficulty, then costs should be on a 2B basis.

[4]    I accept the submission of counsel for the first defendant that there is nothing in the submission made on behalf of the plaintiff that would justify a refusal to award costs, and that it is not for the Court to force a compromise on costs.

[5]    The remaining issue is whether costs should be on a 2B basis or whether there should be an uplift on scale of between 25 per cent and 50 per cent as sought. 2B scale costs amount to $6,692 as set out in counsel’s costs memorandum. An uplift of 25 per cent would amount to $8,365; an uplift of 50 per cent would equate to $10,038.

[6]    In support of increased costs, counsel for the first defendant submits the plaintiff’s claim is obviously hopeless. I accept that the plaintiff’s case appears wholly or substantially hopeless — as the first defendant submits, the statement of claim is unintelligible and lacking in reasonable cogency; and it is founded on a misguided attempt to recover fines and reparations imposed on her in relation to her breaches of the Resource Management Act 1991 along with compensation for alleged damage to the capital improvements of the property at 423 Ormiston Road, which she has never owned. Counsel for the first defendant also submits the claim for general damages of

$120,000 for suffering due to construction carried out by the first defendant on its adjoining land is grossly inflated and barred by the provisions of the Accident Compensation Act 2001; and that the claim for exemplary damages of $60,000 for conduct attributed to the first defendant is unsupported by any pleaded basis. These submissions are not challenged by counsel for the plaintiff.

[7]However, I decline to order increased costs, for the following brief reasons:

(a)Rule 14.2(1)(f) provides that an award of costs should not exceed the costs incurred by the party claiming costs. There is nothing before me that indicates what actual costs have been incurred by the first defendant. While I am willing to accept that scale costs do not exceed the actual costs, it would be speculative for me to further assume that scale costs plus increased costs would not exceed the actual costs incurred. Without knowing what actual costs are, there is nothing before me that indicates that the first defendant was put to undue expense or is not reasonably compensated by an award of 2B scale costs.

(b)Further, the first defendant has taken limited steps in the proceeding in the short period from when  it was served  with the proceeding, on   19 December 2019, and 28 February 2020 when the plaintiff’s notice of discontinuance was filed. The first defendant has filed and served a statement of defence and a strike-out application (incorporating an application for security for costs, and a direction that the plaintiff provide initial disclosure) along with a brief supporting affidavit. These documents reflect the first defendant’s assessment that the plaintiff’s claim is “self-evidently” lacking in merit and they are not complex.

(c)A further factor that I ought to take into account is that under the statutory costs regime, so far as possible, the determination of costs should be predictable and expeditious. I do not think it warranted a

delay to the determination of costs by calling for further memoranda on the actual costs incurred.

[8]    In the circumstances I order that the plaintiff is to pay to the defendant       2B costs of $6,692, plus disbursements of $660.

Associate Judge Sargisson