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…

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.

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Details

Case: [2020] NZHC 1158
Decision Date: 29 May 2020

CaseChat Overview and Summary

In the case of Worldwide Holidays Limited v Wang, the plaintiff, Worldwide Holidays Limited, sought scale costs and disbursements against the first, second, and fourth defendants following a successful judgment. The plaintiff, a New Zealand-based travel agency, pursued claims against the first defendant, Xiaoning Wang, for breach of fiduciary duty and breach of contract, against the second defendant, Haimeng Lin, for money had and received, and against the fourth defendant, Bu Jun, as a guarantor of Wang's acknowledgement of debt. The third defendant, Li Heming, was discontinued from the proceedings.

The court had to determine whether the first, second, and fourth defendants should be held jointly and severally liable for the plaintiff's costs, as per the default position in Rule 14.14 of the High Court Rules 2016. The plaintiff succeeded on all causes of action against the three defendants, with judgments entered against Wang and Jun for $1,435,708.95 plus interest, against Wang for $1,310,729, and against Lin for $526,768.50.

The court noted that Wang and Jun did not participate in the trial, while Lin defended herself. The claims against Wang and Jun proceeded more quickly due to their absence, but they did not abide by the outcome throughout the proceeding. The court found that the claim against Lin for money had and received consumed a significant portion of the trial. The court declined to deviate from the default position, ruling that the first, second, and fourth defendants should be jointly and severally liable for the plaintiff's costs.

The court granted the plaintiff's costs of $120,866, plus disbursements of $111,652.44, totalling $232,518.44, against the first, second, and fourth defendants jointly and severally.

Orders