Wu v Stalix Property Limited

[2022] NZHC 2398

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-283

[2022] NZHC 2398

IN THE MATTER

of an application for recovery of land

BETWEEN

YI HENG WU (also known as Henry Wu) Plaintiff

AND AND

STALIX PROPERTY LIMITED

First Defendant

STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED
Second Defendant

continued…..

Hearing:

4 August 2022

Counsel:

Mr Wu in person (in CIV-2022-409-283)

G Riach for Defendants (in CIV-2022-409-283) G Riach for Plaintiffs (in CIV-2022-409-241) Mr Wu in person (in CIV-2022-409-241)

Judgment:

19 September 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

WU v STALIX PROPERTY LIMITED [2022] NZHC 2398 [19 September 2022]

CIV-2022-409-241

IN THE MATTER

of an application for recovery of land

UNDER

Parts 12 and 13 of the High Court Rules 2016

BETWEEN

AND AND AND AND

STALIX PROPERTY LIMITED and STRESS FREE CHAIRS, DINING AND LOUNGE LIMITED

Plaintiffs

YI HENG WU (also known as Henry Wu) First Defendant

XI CHEN
Second Defendant

ZHOND XIU FAN
Third Defendant

FANG CHUN WU

Fourth Defendant

[1]                   Mr Wu was the owner of a property sold by order of this Court through the Registrar. The sale order was obtained by Mr Wu’s former wife to enforce a judgment in her favour; she has had no involvement in these proceedings.

[2]                   Stalix Property Limited (Stalix) and Stress Free  Chairs,  Dining  and  Lounge Limited (Stress Free Chairs) are the new owners of the property.

[3]                   After the sale of the property was completed by the Registrar of the High Court, Mr Wu and members of his family refused to leave the property. In proceeding CIV-2022-409-241 the new owners sought an order for possession and applied for summary judgment. Following a short hearing on 4 August 2022, I made an order which in practical terms required Mr Wu and his family vacate the property.

[4]                   Mr Riach, counsel for Stalix and Stress Free Chairs, said he wished to apply for costs on an indemnity basis and a memorandum in respect of costs has been filed.

[5]                   The second proceeding was commenced by Mr Wu against Stalix and Stress Free Chairs (CIV-2022-409-283) and sought to overturn the sale process and have the property returned to Mr Wu. In a judgment released on 12 August 2022, I struck out that proceeding on the basis that it did not disclose a reasonably arguable cause of action and as an abuse of process.1 Stalix and Stress Free Chairs have an indefeasible title and are entitled to rely on the Court sale process conducted by the Registrar.

[6]Again, Mr Riach indicated he wished to apply for costs on an indemnity basis.

The costs sought

[7]                   In respect of the order for possession application, actual costs of $2,664 are sought and on the proceeding commenced by Mr Wu, which was struck out, costs of

$2,946 are sought.

[8]                   The costs claimed on the proceeding seeking an order for possession are well below scale costs so I can safely conclude the new owners’ actual costs incurred of

$2,664 are reasonable.

[9]                   In respect of the strike out application, depending on how the scale is applied, the actual costs of $2,946 are either approximately $600 below scale, if Mr Riach’s memorandum of 22 July 2022 is treated as if it were a memorandum for a first conference, or considerably below scale if they are treated as submissions in support of the application to strike out.

[10]Mr Wu has not filed any submissions in respect of costs.

1      Wu v Stalix Property Ltd [2022] NZHC 2005.

[11]               Both Mr Wu’s opposition to the order for possession and his own proceeding were devoid of merit. In this context a hopeless proceeding is one that is totally without merit and bound to fail.2 I am satisfied that threshold is met in relation to both proceedings meaning indemnity costs are appropriate by virtue of r 14.6(4)(a) of the High Court Rules 2016. The amounts claimed for indemnity costs are very reasonable.

[12]               Stalix and Stress Free Chairs are not registered for GST and so are entitled to judgment for the GST inclusive amount which totals $6,451.50 along with disbursements of $500 for the filing fee claimed.

[13]The Stalix and Stress Free invoices include an office expense charge of

$356.60 inclusive of GST which I queried. Mr Riach explained this fee was charged at 6 per cent of the GST exclusive fee to cover incidental expenses such as photocopying, telephone calls et cetera. While this fee is chargeable by virtue of the terms of engagement between Stalix, Stress Free and Harmans Lawyers, I still have to be satisfied the charge is reasonable.3 In the absence of further particulars of the fee, I reduce it to $50 plus GST per file – a total of a further $115.

[14]               The total costs award, including disbursements, across both proceedings is therefore $6,451.50 plus $500 plus $115 being $7,066.50. Judgment is entered against Mr Wu in that sum.

[15]               In respect of the proceeding seeking orders for possession, judgment is entered against each of the other defendants in CIV-2022-409-241 for the costs claim in that proceeding being $2,664.00 plus GST plus $57.50 (half the total office service fees as fixed by me).

2      See Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR14.6.03(d)], citing The Circle.co.nz Ltd v Trends  Publishing International Ltd (in liq and    in rec) [2021] NZCA 235, (2021) 29 PRNZ 766 at [34].

3      High Court Rules 2016, r 14.6(1)(b).

[16]               Accordingly, there is judgment against the remaining defendants in the order for possession proceeding for $3,121.10. This amount is less than scale costs would be and so actual costs are the appropriate sum at which to fix costs.

Associate Judge Lester

Solicitors:

Harmans, Christchurch (for Defendants in both proceedings)

Copy to:

Mr Y H Wu, Christchurch (self-represented Plaintiff in both proceedings)