Mao v Hesketh Henry - [2023] NZHC 813

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1055

[2023] NZHC 813

BETWEEN
LIANSEN MAO

Plaintiff

AND

HESKETH HENRY

First Defendant

AND

HYUN BIN KIM

Second Defendant

AND

DUK YOUNG LEE

Third Defendant

Cont:/

Hearing: On the papers

Counsel/ Representation:

No participation in the proceedings by Plaintiff Liansen Mao Plaintiff Jiawen Mao self-represented

F B Barton for Hesketh Henry

R D Butler and A M Cameron for Hyun Bin Kim and Duk Young Lee

K Perry and E Focus-Turk for Ara Kim/Cooper & Co Real Estate Limited

Judgment:

18 April 2023

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 18 April 2023 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Hesketh Henry, Auckland
MacKenzie Elvin Law, Tauranga Heaney & Partners, Auckland

LIANSEN MAO v HESKETH HENRY [2023] NZHC 813 [18 April 2023]

AND CIV-2021-404-1475

BETWEEN

JIAWEN MAO
Plaintiff

AND

HESKETH HENRY

First Defendant

AND

ARA KIM/COOPER & CO REAL ESTATE LIMITED

Second Defendant

AND

HYUN BIN KIM

Third Defendant

AND
DUK YOUNG LEE

Fourth Defendant

Introduction

[1] On 22 August 2022, I issued a judgment striking out all the causes of action brought by the plaintiffs in two related proceedings against four defendants.1

[2] Two defendants to both proceedings Mr Hyun Bin Kim (Kim) and Mr Duk Young Lee (Lee) seek $19,598 in costs and $500 in disbursements.

[3] The first defendant to both proceedings Hesketh Henry seeks indemnity costs and disbursements of $46,066.42.

[4] The second defendant to the second proceeding Ara Kim/Cooper & Co Real Estate Ltd (Kim/Cooper & Co) seeks indemnity costs and disbursements of
$46,385.50.

[5] The plaintiffs say costs should be stayed until another proceeding it has filed has been resolved.

Background

[6] The plaintiffs, Mr Liansen Mao (Liansen) and Ms Jiawen Mao (Jiawen) each brought proceedings against the defendants. Liansen is the father of Jiawen. Their claim has previously been before the Court. The following history explains the background to my decision.

[7] The origin of the dispute is a loan between Jiawen’s company, Yintian Co Ltd (Yintian Ltd) as borrower and Kim and Lee as lenders. The law firm Hesketh Henry was engaged by Kim and Lee to draft the loan agreement. A loan of one million dollars was advanced to Yintian Ltd. The loan was secured by a mortgage over a property at 31 Chester Avenue, Auckland. The loan was personally guaranteed by Jiawen as director of Yintian Ltd.

[8] Yintian Ltd defaulted on loan repayments and the Chester Avenue property was sold by mortgagee sale on 2 February 2018. Kim/Cooper & Co was engaged by

1 Mao v Hesketh Henry [2022] NZHC 2084.

Hesketh Henry to list and sell the property. The mortgagee sale was conducted on the basis that both vendor and purchaser were registered for the purposes of GST, however Yintian Ltd was not in fact GST-registered.

[9] On 3 October 2018, Kim and Lee obtained…

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 Mao v Hesketh Henry

Details

AGLC: Mao v Hesketh Henry [2023] NZHC 813
Case: [2023] NZHC 813
Decision Date: 18 April 2023

CaseChat Overview and Summary

This case concerned an application for costs in proceedings brought by two plaintiffs, Liansen Mao and Jiawen Mao, against four defendants: Hesketh Henry, Hyun Bin Kim, Duk Young Lee, and Kim/Cooper & Co Real Estate Limited. The plaintiffs' claims were struck out by the Court as they were deemed an abuse of process and were substantially the same claims that had been previously dismissed. The defendants applied for costs under the High Court Rules, arguing that the plaintiffs' conduct in bringing and continuing the proceedings was vexatious, improper, and unnecessary. The Court found that the plaintiffs' conduct justified an award of increased or indemnity costs to the defendants. It held that the plaintiffs had failed to accept offers to discontinue the claims without cost consequences and instead pursued arguments that were an abuse of process. The Court awarded indemnity costs to Hesketh Henry in the amount of $46,066.42, increased costs to Kim and Lee in the amount of $19,598.00, and indemnity costs to Kim/Cooper & Co in the amount of $43,150.00. The plaintiffs were ordered to pay these costs jointly and severally, along with any disbursements to be fixed by the Registrar.

Orders