Regent Trustee Limited v Pang - [2020] NZHC 2855

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1216

[2020] NZHC 2855

BETWEEN
REGENT TRUSTEE LIMITED

Plaintiff

AND

YIFEI PANG

Defendant

Hearing: On the papers

Counsel:

N W Coyle for the Plaintiff AHH Choi for the Defendant

Judgment:

30 October 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 30 October 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr N W Coyle, Keegan Alexander, Auckland Mr AHH Choi, Barrister, Auckland
Mr SCM Waalkens (defendant’s instructing solicitor), Rice Speir, Auckland

REGENT TRUSTEE LTD v PANG [2020] NZHC 2855 [30 October 2020]

[1] Following the plaintiff’s discontinuance of its summary judgment proceeding, the defendant seeks costs for its preparation prior to the discontinuance, which occurred six days before the first call of the application for summary judgment.

[2] Mr Choi, for the defendant, submits that by the time the defendant was served with the notice of discontinuance, the defendant had completed his notice of opposition and his affidavits in support were ready for swearing (but for the confirmation of a couple of details). The notice of opposition and affidavits were due the next day.

[3] The defendant seeks 2B scale costs of $3,824 based on cost item 2 (commencement of defence by defendant) and cost item 23 (filing opposition to interlocutory application). The defendant seeks one day rather than two days in relation to item 2 on the basis that while the defence was ascertained and developed for summary judgment, the statement of defence was not drafted.

[4] The plaintiff says costs should lie where they fall. The plaintiff says that it was a perfectly reasonable commercial decision for the plaintiff to seek orders for specific performance of the sale and purchase agreement. Subsequent to filing the proceeding, the plaintiff elected to cancel the agreement and forfeit the deposit. The plaintiff intends to commence a fresh proceeding and claim damages if the unit is resold at a reduced price. Mr Coyle, for the plaintiff, submits the evidence filed in support of the application for summary judgment shows that the plaintiff has established its claim on the balance of probabilities. While acknowledging that there is a presumption that a plaintiff who discontinues will pay costs and that such costs can be awarded despite the defendant having completed no formal steps, Mr Coyle submits that the presumption is rebutted and costs should lie where they fall given the perceived merits, that the plaintiff acted reasonably by commencing the proceeding and the defendant acted unreasonably in not advising of a defence.

[5] In a reply memorandum, Mr Choi disputes Mr Coyle’s reference to pre-commencement conduct, the alleged prima facie merits and the claimed change in circumstances. This provoked a further memorandum for the plaintiff addressing the factual circumstances of the pre-commencement conduct.

Discussion

[6] On a discontinuance, there is a presumption in favour of awarding costs to a defendant…

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.

Keep reading for free

Create a free CaseChat account to read Regent Trustee Limited v Pang and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 2855
Decision Date: 30 October 2020

CaseChat Overview and Summary

Regent Trustee Limited, acting as trustee for a discretionary family trust, filed a claim against Yifei Pang for specific performance of a sale and purchase agreement for a residential property. Following the plaintiff's discontinuance of its summary judgment proceeding, the defendant sought costs for its preparation prior to the discontinuance, which occurred six days before the first call of the application for summary judgment. The defendant sought 2B scale costs of $3,824 based on cost item 2 (commencement of defence by defendant) and cost item 23 (filing opposition to interlocutory application), arguing that by the time the defendant was served with the notice of discontinuance, the defendant had completed his notice of opposition and his affidavits in support were ready for swearing.

The court considered the legal issues surrounding the presumption in favour of awarding costs to a defendant against whom a proceeding has been discontinued. The court noted that while the presumption may be displaced if there are just and equitable circumstances not to apply it, the court does not lightly allow a plaintiff to displace the presumption. The court also considered the relevance of pre-commencement conduct, which is generally not relevant to costs, and whether the plaintiff had achieved its end by other means or otherwise discontinued for reasons not connected to the merits. The court further considered whether steps taken in the proceeding were reasonable and whether there were any clear cases justifying a departure from the presumption.

The court concluded that the defendant was entitled to costs, but not in the amount sought. The court found that the explanation for the plaintiff's discontinuance was not addressed in evidence and did not displace the presumption. The court also found that costs should only be awarded in respect of the opposition to the application for summary judgment and not in respect of item 2, commencement of defence, given that no statement of defence was prepared. Additionally, the court considered that scale costs in respect of the notice of opposition and affidavits should be reduced by 10 per cent given that the discontinuance occurred before those documents were finalised and filed. The court awarded the defendant costs of $1,290.60.

The final orders of the court were that the defendant is entitled to costs of $1,290.60, to be paid by the plaintiff within 14 days of the date of the judgment.

Orders