Wila Developments (Ormiston) LP v Lu - [2021] NZHC 3350

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-981

[2021] NZHC 3350

IN THE MATTER of an application to sustain caveats 12064040.1 and 12076153.1

BETWEEN

HAO YUAN LU

Applicant

AND

WILA DEVELOPMENTS (ORMISTON) LP

Defendant

CIV-2021-404-2069

AND IN THE MATTER

of an application to remove caveat 12280558.1

BETWEEN

WILA DEVELOPMENTS (ORMISTON) LP

Applicant

AND

HAO YUAN LU

Defendant

Hearing: (on the papers)

Judgment:

8 December 2021

COSTS JUDGMENT OF VENNING J

This judgment was delivered by me on 8 December 2021 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Le Salmon Long, Auckland
Zhang Law Limited, Auckland

Counsel: S Wroe, Auckland

LU v WILA DEVELOPMENTS (ORMISTON) LP [2021] NZHC 3350 [8 December 2021]

[1] This costs decision relates to two caveat proceedings between Mr Lu and Wila Developments (Ormiston) LP (Wila). In the first proceeding CIV-2021-404-981 Associate Judge Bell dismissed an application by Mr Lu to sustain two caveats he had lodged in March 2021 over five properties owned by Wila.1 The Judge indicated that he considered costs should be calculated on a category 2 band B basis for most steps.

[2] In the second proceeding, CIV-2021-404-2069, on 12 November 2021, this Court granted an urgent without notice (Pickwick) application by Wila to remove a third caveat Mr Lu had lodged over the same five properties on the same day Associate Judge Bell’s judgment was delivered and without prior warning to Wila.2

[3] In relation to the first proceeding Wila considers indemnity costs should have been available but seeks increased costs. In the second proceeding Wila seeks indemnity costs.

[4] Ms Wroe has filed submissions on behalf of Mr Lu in response. She submits that on the first proceeding an order for costs on a category 2 basis is appropriate, with most steps falling within band B, but band A should apply to preparation for the first case management conference and preparation of the bundle for the hearing. In relation to the second proceeding Ms Wroe submits there were no exceptional grounds supporting indemnity costs. She submits that category 2 is appropriate but band A should apply for more of the steps in the proceeding since Wila was not coming fresh to the issues in relation to the caveats.

[5] The background to the proceeding is set out in the judgments issued in the first and second proceedings. It is unnecessary to repeat it in this costs judgment.

[6] I do not consider that Mr Lu’s subsequent actions after the issue of Associate Judge Bell’s decision which led to the second proceeding should impact on the costs award in that first proceeding. The Court is guided by Associate Judge Bell’s assessment in relation to costs on that proceeding.

1 Lu v Wila Development (Ormiston) LP [2021] NZHC 2772.
2 Wila Developments (Ormiston) LP v Lu [2021] NZHC 3068.

[7] Wila is to have costs on a category 2, time…

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 Wila Developments (Ormiston) LP v Lu

Details

AGLC: Wila Developments (Ormiston) LP v Lu [2021] NZHC 3350
Case: [2021] NZHC 3350
Decision Date: 8 December 2021

CaseChat Overview and Summary

The High Court was asked to determine the appropriate costs to be awarded in two caveat proceedings between Hao Yuan Lu (Mr Lu) and Wila Developments (Ormiston) LP (Wila). The first proceeding, CIV-2021-404-981, involved an application by Mr Lu to sustain two caveats he lodged over five properties owned by Wila. The second proceeding, CIV-2021-404-2069, involved an application by Wila to remove a third caveat Mr Lu lodged over the same properties. The central legal issues in this costs decision were whether the actions of Mr Lu warranted indemnity costs or an uplift in costs, and if so, to what extent. Wila argued that Mr Lu’s actions in lodging the third caveat were deliberately obstructive and unjustified, warranting indemnity costs under the relevant rules. Conversely, Mr Lu contended that his actions were not egregious enough to warrant such costs and that category 2, band A costs would be more appropriate.

The Court considered the nature of Mr Lu's actions in lodging the third caveat, which he did on the same day the decision adverse to him was delivered in the first proceeding, without prior notice to Wila. The Court found that Mr Lu’s actions were deliberate and unreasonable, as he ignored requests to withdraw the caveat and had no valid basis for lodging it. While the Court did not find Mr Lu’s actions to be sufficiently flagrant to justify indemnity costs, it did find them to warrant an uplift in costs. The Court concluded that Mr Lu’s actions amounted to taking unnecessary steps and pursuing a baseless argument, which led to the need for Wila to take urgent steps to remove the caveat. Consequently, the Court ordered that Mr Lu pay Wila costs on a category 2, time band B basis in the first proceeding, amounting to $11,950 plus disbursements. For the second proceeding, the Court awarded scale costs uplifted by 50 per cent, resulting in a total of $13,416.75 plus disbursements.

Orders