IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2009
[2018] NZHC 1701
BETWEEN XIGANG TIAN
Plaintiff
AND
KUN ZHANG
Defendant
Hearing: On the papers Counsel:
A Cherkashina for the Plaintiff R Reed for the Defendant
Judgment:
11 July 2018
JUDGMENT OF GORDON J
[As to costs]
This judgment was delivered by me on 11 July 2018 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Norling Law Ltd, Auckland
Prestige Lawyers Ltd, Auckland
TIAN v ZHANG [2018] NZHC 1701 [11 July 2018]
Introduction
[1] On 22 May 2015, Mr Tian filed an application in the Family Court seeking orders:
(a)setting aside an agreement under s 21 of the Property (Relationships)
Act 1976; and
(b)determining the respective shares of the parties in the relationship property.
Mr Tian also sought other related orders.
[2] The proceedings were transferred to this Court and a direction was subsequently made that the substantive trial be split into two stages.
[3] The first stage of the trial, to determine whether the agreement should be set aside, was set down before me for a two-day fixture to commence on 17 July 2017. My minute dated 17 July 2017 records that the trial was unable to proceed largely due to Mr Tian’s procedural failings. I adjourned the hearing and reserved costs until the conclusion of the substantive hearing.
[4] The trial was subsequently set down for a two-day fixture to commence on 23 April 2018.
[5] On 18 April 2018, Mr Tian applied by way of memorandum to vacate the fixture because he was not in a position to proceed.
[6] A formal application to adjourn the hearing was filed on 20 April 2018. In short, the reason given was that his former counsel was not available and he was not advised of the hearing date by his former solicitor.
[7] On 23 April 2018, I granted Mr Tian’s application to adjourn the hearing. My minute of that date includes the following:
[32] However, on the basis of the evidence before me, it appears the present position does not arise from any fault on Mr Tian’s part. Therefore, in my view, the interests of justice weigh in favour of an adjournment. The adjournment is to be a final adjournment (on application by Mr Tian).
[8]As to costs, I stated:
[37] My present view is that Ms Zhang is entitled to costs on the adjournment. Costs would be on a 2B basis. My present view is also that costs should now be awarded to Ms Zhang on the adjournment of the hearing on 17 July 2017. At that time, I reserved costs and stated they could be dealt with when costs were considered after the substantive hearing. However, after this further adjournment application I consider that costs on both should be dealt with together and before the substantive hearing.
[9]The parties could not reach an agreement on costs.
Claim for costs and…
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- AGLC
- Tian v Zhang [2018] NZHC 1701
- Case
- [2018] NZHC 1701
- Decision Date
CaseChat Overview and Summary
The court held that Ms Zhang was entitled to costs of $18,732 against Mr Tian. The court found that some of the claims for costs were excessive and reduced the time allocated for certain steps. The court also disallowed some claims for costs, such as the appearance of second counsel and the filing of the costs memorandum. The court held that a costs order against Mr Tian's former counsel and/or former solicitor was inappropriate as their conduct did not reach the level of seriousness required to justify such an order.
The court made an order that Ms Zhang is entitled to an award of costs of $18,732 against Mr Tian.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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