Mo v Yang

[2021] NZHC 2426

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-1927

[2021] NZHC 2426

BETWEEN

QINGHUA MO and YU HUANG

Plaintiffs

AND

ZHE YANG and JACKSON ING WEI LAW

Defendants

CIV 2018-404-2619

BETWEEN

QINGHUA MO and YU HUANG
Plaintiffs

AND

TAMAKI HOMES LIMITED

First Defendant

ZHE YANG and JACKSON ING WEI LAW

Second Defendants

Continued…

Hearing:

On the papers

Counsel:

G D Wiles for Ms Mo and Mr Huang

I M Hutcheson for Mr Yang, Mr Law and Tamaki Homes Ltd

Judgment:

16 September 2021

COSTS JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 16 September 2021 at 10:00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

MO v YANG & Others [2021] NZHC 2426 [16 September 2021]

CIV 2019-404-506

BETWEEN

ZHE YANG and JACKSON ING WEI LAW

Plaintiffs

AND

DH and PM LIMITED

First Defendant

QINGHUA MO and YU HUANG

Second Defendants

CIV 2019-404-997

BETWEEN

QINGHUA MO and YU HUANG
First Plaintiffs

DH and PM LIMITED

Second Plaintiffs

AND

ZHE YANG

First Defendant

YAN YANG

Second Defendant

[1]    Ms Mo and Mr Huang lodged caveats over four properties. The owners of those properties applied to the Registrar-General of Land for the caveats to lapse. In response, Ms Mo and Mr Huang (the applicants) brought an interlocutory application in these proceedings for an order under s 143 of the Land Transfer Act 2017 that the caveats not lapse. A notice of opposition to that application was filed on 9 August 2021 by Tamaki Homes Limited, Zhe Yang and Jackson Ing Wei Law (the respondents).

[2]    On 17 August 2021, at the second call of the application, Mr Wiles advised me that the applicants were withdrawing their application. The only issue that then remained was costs. Counsel have since filed memoranda, which have been referred to me.

[3]    The parties agree that the respondents were the successful parties on the application and are therefore entitled to costs. The dispute is about quantum.

[4]    The respondents seek costs of $7,170 plus disbursements of $110. Costs are claimed for four items in Schedule 3 of the High Court Rules 2016, using band B in each case:

(a)Item 38: filing a notice of opposition and supporting affidavits (time allocation: two days).

(b)Item 10: preparation for first conference (0.4 day).

(c)Item 12: appearance at mentions hearing (0.2 day).

(d)Item 11: preparation of costs memorandum (0.4 day).

[5]    The applicants dispute the claim for item 38. They say they brought an interlocutory application, not an originating application, so item 23 (0.6 day) applies. They also say that the respondents did not file an affidavit in support of their opposition. In response, the respondents say that although the applicants brought an interlocutory application, for costs purposes the application should be treated as if it were an originating application. They accept they did not file an affidavit in support

but say one had been drafted prior to the applicants advising they would be withdrawing the application.

[6]    In my view the application should be treated as an originating application for costs purposes. Rule 19.2(l) requires an application under s 143 to be brought by way of an originating application. In selecting the appropriate cost item from Schedule 3, one should be guided by the substance of the application, not its form. However, allowance should be made for the fact that the application was made in the context of existing proceedings in which there had already been a substantive judgment from Woolford J. The respondents did not have to start from scratch. For that reason, I consider a comparatively small amount of time is reasonable – in other words, band A, for which the allowance is one day.

[7]    The applicants also dispute the claim for item 10. I accept the applicants’ position. Item 10 is an allowance for preparation “for first case management conference (including discussion about discovery)”. There was no such conference in relation to this application. There was merely a mentions hearing on 10 August 2021. The respondents are entitled to costs under item 12 for an appearance at that hearing (which the applicants accept).

[8]    Finally, the applicants dispute the claim for preparation of a costs memorandum. Given the views I have reached above, the parties have shared success on their costs memoranda, and it is not appropriate to make any allowance for them.

[9]Accordingly, the respondents are entitled to costs of $2,868 (1.2 days at

$2,390).

[10]The applicants accepted the respondents’ claim for disbursements.

[11]   The respondents also criticised the applicants for having brought the application, submitting that in light of the substantive judgment in these proceedings there was no proper basis for it. The applicants rejected that criticism. I do not have to resolve that dispute, given that the respondents did not submit there should be any costs uplift for it.

Result

[12]   I order the applicants to pay costs of $2,868 and disbursements of $110 to the respondents.

Campbell J