Tian v Zhang - [2018] NZHC 1701

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…

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 Tian v Zhang

Details

AGLC: Tian v Zhang [2018] NZHC 1701
Case: [2018] NZHC 1701
Decision Date: 11 July 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Tian v Zhang [2018] NZHC 1701, the court was asked to determine the respective shares of the parties in the relationship property and whether an agreement should be set aside. The substantive trial was split into two stages, with the first stage being unable to proceed due to procedural failings by Mr Tian. The second stage was subsequently adjourned due to Mr Tian's inability to proceed. The court was then required to determine the quantum of costs to be awarded to Ms Zhang, as well as whether any costs should be awarded against Mr Tian's former counsel and/or former solicitor.

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