Shi v So - [2021] NZHC 879

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001632

[2021] NZHC 879

BETWEEN
YAN SHI (aka MAGGIE SHI)

Applicant

AND

HIN SING SO (aka ESMOND SO)

First Defendant

BIU TAO SO
Second Defendant

BIU TAO SO as the Administrator of the Estate of CHUI WA CHEUNG

Second Defendant

Hearing: (On the papers)

Judgment:

23 April 2021

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 23 April 2021 at 2.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Duggan & Murphy, Auckland

Wilson Harle, Auckland

Counsel: C F L Godinet, Auckland

Copy to: The Applicant

SHI v SO (aka ESMOND SO) [2021] NZHC 879 [23 April 2021]

Introduction

[1] The plaintiff, Ms Shi, brought proceedings, including an application for injunctive relief, against the first defendant. The proceedings were issued in August 2020 and discontinued by Ms Shi on 12 February 2021.

[2] The defendants seek costs, calculated on a 2B basis, together with disbursements, for the steps taken by them in the proceedings prior to the discontinuance. Ms Shi opposes the defendants’ application for costs primarily on the basis that she says she was in receipt of legal aid.

Background to the proceeding

[3] Ms Shi’s proceedings concerned a company known as Tim Tim Company Limited. Ms Shi says the company was established by her and the first defendant, Mr Hin Sing So, in November 2012. Mr So is Ms Shi’s husband although they separated in 2016. Ms Shi says the company was incorporated to purchase some apartments in central Auckland.

[4] Ms Shi said that on incorporation she and Mr So were the sole directors and shareholders in the company, each having equal shares. Since their separation the company and its properties are the subject of a relationship property dispute in the Family Court.

[5] In these proceedings Ms Shi alleged that in December 2016 Mr So unilaterally appointed both his parents, Mr Biu Tao So (Mr So Senior) and Ms Cheung Chui Wa So (his mother) as directors and shareholders of the company which involved most of her shares being transferred to Mr So’s parents without her consent. She further alleged that in February 2020 Mr So unilaterally removed her as a director of the company.

[6]Ms Shi sought:

(a)reinstatement of her as a director;

(b)the retransfer of shares to her; and

(c)removal of Mr So Senior and Mrs So as directors and shareholders.

The same relief was sought by way of injunctive relief.

Procedural background

[7] The matter was first reviewed by Campbell J on 28 September 2020. The Judge issued a minute on 29 September 2020. The Judge directed that Mr and Mrs So Senior each be added as defendants to the proceeding (Ms So had died so the relevant defendant was to be her personal representative). He directed Ms Shi to file and serve an amended statement of claim and an amended interlocutory application including…

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 Shi v So

Details

AGLC: Shi v So [2021] NZHC 879
Case: [2021] NZHC 879
Decision Date: 23 April 2021

CaseChat Overview and Summary

Yan Shi, also known as Maggie Shi, brought proceedings against Hin Sing So, also known as Esmond So, and Biu Tao So, as the administrator of the estate of Chui Wa Cheung. The proceedings were discontinued by Ms Shi on 12 February 2021. The defendants seek costs, calculated on a 2B basis, together with disbursements, for the steps taken by them in the proceedings prior to the discontinuance. Ms Shi opposes the defendants’ application for costs primarily on the basis that she says she was in receipt of legal aid.

The court considered the legal issues regarding the applicability of the Legal Services Act 2011 to the costs incurred by the defendants. The court held that Ms Shi’s interim legal aid grant did not provide her with immunity from costs for the entire proceeding. The court concluded that the immunity under the Act applies only to the costs for which legal aid is provided, not to the costs incurred in the period of time before legal aid had been approved. As Ms Shi did not have a full legal aid grant for the entire proceeding, the defendants were entitled to costs for the steps taken by them prior to the grant of legal aid on 24 November 2020.

The court ordered that Ms Shi is to pay the first defendant costs and disbursements of $6,912.00 and the second defendant costs and disbursements of $9,785.00.

Orders