So v Shi

[2022] NZHC 1329

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000926

[2022] NZHC 1329

BETWEEN

BIU TAO SO

Plaintiff

AND

YAN SHI

First Defendant

HIN SING SO

Second Defendant

Hearing:

on the papers

Counsel:

C P Browne and C J L Martin for Plaintiff

K G Davenport QC and A E Isaacs for First Defendant
No representation by or on behalf of the Second Defendant

Judgment:

9 June 2022

JUDGMENT OF PAUL DAVISON J

[Re: Costs]

This judgment was delivered by me on 9 June 2022 at 10:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Wilson Harle, Auckland Corban Revell, Auckland

SO v SHI COSTS JUDGMENT [2022] NZHC 1329 [9 June 2022]

Introduction

[1]                 On 18 February 2022 I declined the first defendant’s application for an order staying the plaintiff’s claim and granted the plaintiff’s application for summary judgment against the first and second defendants.1

[2]                 I recorded that the plaintiff is entitled to an award of costs on both applications.2 In the absence of agreement between the parties as to costs, I directed the parties to file and serve costs memoranda. The plaintiff has done so. The defendants have not. I will now determine costs on the papers filed by the plaintiff.3

[3]                 The plaintiff seeks costs on a 2B basis for the steps taken in the proceeding prior to judgment plus the costs of sealing the judgment. The plaintiff also seeks costs on a 2A basis for preparation of a costs memorandum owing to the first defendant’s unreasonable refusal of a without prejudice except as to costs settlement offer. The usual disbursements are also sought.

Discussion

[4]                 The plaintiff is entitled to costs in the amount claimed. This includes costs in respect of a joint memorandum filed on 3 August 2021 and for a memorandum dated 11 May 2021 seeking leave to use affidavits in this proceeding that had been filed in a separate proceeding between the same parties.

[5]                 I also allow costs on a 2A basis for preparation of the costs memorandum. The plaintiff made a written offer on 31 March 2022 to settle costs on the basis that the first defendant consented to an order for costs being made against her in the sum of

$16,860.38. This amount was explicitly stated to be 10 per cent less than the quantum calculated by the plaintiff as owing at that time. I consider that to have been a demonstrably reasonable offer in the circumstances. The plaintiff received no response to the offer. He was therefore put to the unnecessary cost of preparing the costs memorandum. He is entitled to recoup that cost.

1      So v Shi [2022] NZHC 214.

2 At [122].

3      As indicated in my minute dated 11 May 2022.

Result

[6]I award costs and disbursements to the defendant on a 2B scale basis totalling

$20,167.75.

Paul Davison J