Nie v Guan
[2021] NZHC 3242
•30 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-384
[2021] NZHC 3242
UNDER the Land Transfer Act 2017 BETWEEN
YUNFEI NIE and JUANJUAN MA
Applicants
AND
SHENSHEN GUAN
Respondent
Hearing: On the papers Counsel:
SWM Piggin for the Applicant
No memorandum for the Respondent
Judgment:
30 November 2021
COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 30 November 2021 at 3.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Northern Legal Ltd, Silverdale SWM Piggin, Barrister, Auckland
Copy to: S Guan
NIE and MA v GUAN (costs) [2021] NZHC 3242 [30 November 2021]
Introduction
[1] Mr Nie and Ms Ma succeeded in their application that Caveat 11530129.1 not lapse and so I held that they were entitled to costs.1
[2] I directed that memoranda could be filed if the parties were unable to agree on quantum. The parties have not been able to agree and a memorandum has been filed on behalf of Mr Nie and Ms Ma seeking costs on a 2B basis.
[3] The applicants’ memorandum records that following judgment counsel proposed to the respondent that costs on a 2B basis be agreed for a total of $14,340 plus disbursements of $797. There was no response from the respondent despite more time being allowed than directed in my judgment. A memorandum was therefore filed on behalf of the applicants.
[4] No memorandum has been filed in response by Ms Guan but sufficient time has been given and so I now determine quantum in the absence of any submissions from Ms Guan.
Discussion
[5] The applicants submit that the respondent’s concessions that she signed the IOU which was the basis for the caveatable interest, and my finding that no further proceedings need to be issued by the applicants, may be grounds to seek increased costs but the applicants are limiting the costs sought to costs on a 2B basis.
[6] I agree that the respondent, Ms Guan, conceded that she signed the IOU which included a statement that she agreed to lodge a caveat against the property. Ms Guan further agreed that there was a debt owing to the applicants and that she was not in a position to pay them. Ms Guan disputed, however, whether there was an agreement to mortgage.
1 Nie and Ma v Guan [2021] NZHC 2058 at [47].
[7] The caveat had been lodged against the property in 2019, two weeks after the IOU was signed. The interest in the property stated in the caveat referred to the IOU being an agreement to mortgage. Ms Guan did not apply to lapse the caveat until 2021. I held therefore that there was a reasonably arguable case that there was an agreement to mortgage.2 Furthermore, even if there was no such agreement, the IOU created an equitable charge over the property which is still a caveatable interest.3
[8]In these circumstances, an award of costs on a 2B basis is appropriate.
[9] I have considered the schedule of costs and disbursements set out by counsel for Mr Nie and Ms Ma attached to the costs memorandum and consider that the costs and disbursements sought are appropriate. The steps include the first call, prior to which counsel for the applicants prepared and filed a joint memorandum (Items 11 and 12 of Schedule 3 of the High Court Rules 2016). There was then a second call required as a result of the respondent’s failure to file a notice of opposition and affidavit in support (Item 11). A further memorandum on behalf of the applicant was necessary to request this further conference to determine next steps (Item 12). The further items claimed are Items 29, 37, 40, 41 and 42 (x2 quarter days).
[10] The disbursements include translator’s fees of $207. The evidence filed included an affidavit filed by the translator attaching translations of WeChat messages between the parties. A copy of the invoice from the translator is attached to the costs memorandum filed by the applicants. This disbursement is appropriately claimed together with the other disbursements for filing and sealing fees.
Result
[11] For the reasons set out above, I therefore award costs to the applicants, Mr Nie and Ms Ma, of $14,340 plus disbursements of $797 for a total of $15,137, payable by the respondent, Ms Guan.
Associate Judge Sussock
2 At [37].
3 At [45].