Worldwide Holidays Limited v Wang

[2020] NZHC 1158

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-646

[2020] NZHC 1158

BETWEEN

WORLDWIDE HOLIDAYS LIMITED

Plaintiff

AND

XIAONING WANG

First Defendant

HAIMENG LIN
Second Defendant

LI HEMING
Third Defendant (discontinued)

BU JUN

Fourth Defendant

Hearing:	On the papers
Appearances:	T Allan, G Steyn and T P Kelly for the Plaintiff The Second Defendant in person
Judgment:	29 May 2020

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 29 May 2020 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors / Counsel:

Mr T Allan, Mr G Steyn and Mr T P Kelly, Grove Darlow & Partners, Auckland The second defendant, Ms Haimeng Lin

WORLDWIDE HOLIDAYS LTD v WANG [2020] NZHC 1158 [29 May 2020]

[1]                 Following my judgment dated 5 September 2019,1 Worldwide seeks scale costs of $120,866,2 plus disbursements of $111,652.44, totalling $232,518.44, against the first, second and fourth defendants jointly and severally.

[2]                 The second defendant, Ms Lin, filed a brief memorandum in relation to costs merely seeking an order not to be jointly and severally liable for costs.3

Discussion

[3]                 Worldwide is entitled to scale costs as sought, at band 2B for all steps except inspection of documents, for which band 2C is awarded. Worldwide is also entitled to its disbursements as claimed.

[4]                 The only issue is whether the first, second and fourth defendants should be jointly and severally liable for these costs. Rule 14.14 of the High Court Rules 2016 provides that the liability of each of two or more parties ordered to pay costs is joint and several, unless the Court otherwise directs. Where “the case is out of the ordinary in some significant way, consideration must be given to whether to alter that burden”, for example where a defendant has taken a reduced part in opposing judgment such as by abiding the outcome or admitting the cause of action.4

[5]                 Here, the proceeding involved  causes  of  action  against  first  defendant,  Ms Wang, for breach of fiduciary duty and breach of contract, against Ms Lin for money had and received, and against the fourth defendant, Ms Jun, in contract as guarantor of Ms Wang’s acknowledgement of debt. Ms Jun is Ms Wang’s mother.

[6]                 Ms Wang and Ms Jun did not participate in the trial. Counsel for Ms Wang advised the Court before trial that Ms Wang did not intend to appear at the trial or file evidence and would abide by the ruling of the Court in her absence. Similarly, counsel for Ms Jun advised that she would not be appearing at the trial or filing evidence.

1      Worldwide Holidays Ltd v Wang [2019] NZHC 2218.

2      At band 2B, except band 2C for inspection of documents, of the High Court Rules 2016, schs 2 and 3.

3      Ms Lin did not claim any reduction from scale costs on the basis of financial hardship.

4      Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [24].

[7]Ms Lin defended herself at the trial.

[8]                 Worldwide succeeded on all causes of action against these three defendants. Judgment was entered against Ms Wang and Ms Jun for $1,435,708.95 plus interest under the acknowledgement of debt, against Ms Wang for $1,310, 729 on the other causes of action, and against Ms Lin for $526,768.50 for money had and received, subject to Worldwide’s maximum total recovery of $1,435,708.95.

[9]                 The trial lasted five days. Although the primary claims related to Ms Wang and involved significant and complex misappropriation, her absence and that of     Ms Jun meant that the claims against them proceeded more quickly. The claims against them proceeded by way of formal proof, but they had filed statements of defence. Ms Wang denied misappropriation. They both alleged the acknowledgment of debt was signed under duress. They did not participate in the trial but they did not abide the outcome throughout the proceeding. Also, issues relating to the quantum of misappropriation by Ms Wang took a good deal of time. Overall, the claim against Ms Lin for money had and received consumed approximately 40 to 50 per cent of the trial. This broad apportionment is also reflected in the judgment.

[10]              Balancing these factors, I decline to deviate from  the default position under  r 14.14. I consider the first, second and fourth defendants should be jointly and severally liable for Worldwide’s costs.

Result

[11]              Worldwide is entitled to costs of $120,866, plus disbursements of $111,652.44, totalling $232,518.44, against the first, second and fourth defendants jointly and severally.

Gault J