Wen v Qian

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-634

[2022] NZHC 2099

UNDER Land Transfer Act 2017

IN THE MATTER

of an application to remove caveat no. 12044428.1 pursuant to s 142 of the Land Transfer Act 2017

BETWEEN

YU WEN

Applicant

AND

DONG QIAN

Respondent

Hearing: On the papers

Counsel:

T D Rea for applicant

J P Nolen for respondent

Date of judgment:

23 August 2022

Reissued:

26 August 2022

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 23 August 2022 at 1.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………………
Registrar/Deputy Registrar

Counsel/Solicitors:
G P Blanchard QC, Auckland T D Rea, Barrister, Auckland McVeagh Fleming, Auckland K3 Legal, Auckland

WEN v QIAN - Costs [2022] NZHC 2099 [23 August 2022]

[1] Andrew AJ’s 5 July 2022 judgment, declining Mr Wen’s application for removal of a caveat, took the preliminary view Mr Qian accordingly was entitled to 2B costs and disbursements.1

[2] As duty judge, I have Mr Wen’s opposition to that course, contending Mr Qian’s alleged pre-commencement conduct and failure to give proper discovery
— both in the associated substantive proceeding — to be disqualifying.

[3] Irrespective, costs are awarded by reference to the proceeding in which they were incurred.2 Mr Wen does not contest Mr Qian’s calculation of costs.

[4] I therefore award costs in the amount of 2B costs and disbursements in the amount of $13,066.

—Jagose J

1 Wen v Qian [2022] NZHC 1586 at [25].
2 High Court Rules 2016, r 14.2(1)(b).

CaseChat Overview and Summary

The case of Wen v Qian concerns an application to remove a caveat pursuant to section 142 of the Land Transfer Act 2017. The applicant, Yu Wen, sought to have a caveat lodged by the respondent, Dong Qian, removed from a property. The application was heard on the papers, with T D Rea representing the applicant and J P Nolen representing the respondent. The judgment was delivered by Jagose J on 23 August 2022.

The central legal issue before the court was whether the caveat lodged by the respondent should be removed, and consequently, what costs should be awarded to the parties involved. The court had to consider the grounds for the caveat, the conduct of the parties in the associated substantive proceeding, and the rules governing costs in such matters.

In delivering the judgment, Jagose J noted that the earlier judgment by Andrew AJ had declined the applicant's application for the removal of the caveat and indicated that the respondent would be entitled to costs. The applicant opposed this decision, arguing that the respondent's pre-commencement conduct and failure to give proper discovery should disqualify him from receiving costs. However, the court found that costs are awarded based on the proceeding in which they were incurred and that the applicant did not contest the respondent's calculation of costs. Consequently, the court awarded costs to the respondent in the amount of 2B costs and disbursements totaling $13,066.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	Land Transfer Act 2017
IN THE MATTER	of an application to remove caveat no. 12044428.1 pursuant to s 142 of the Land Transfer Act 2017
BETWEEN	YU WEN Applicant
AND	DONG QIAN Respondent

Hearing:	On the papers
Counsel:	T D Rea for applicant J P Nolen for respondent
Date of judgment:	23 August 2022
Reissued:	26 August 2022