Xiao v Sun
[2018] NZHC 538
•26 March 2018
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2015-404-2872
[2018] NZHC 538
UNDER the Credit Contracts and Consumer Finance Act 2003 BETWEEN
HANYUE XIAO
Plaintiff
AND
XIUFANG SUN
Defendant
Hearing: On the papers Counsel:
AJB Holmes and L E Mannis for the Plaintiff B OʼCallahan and M Chen for the Defendant R Butler on behalf of Ms Shinkarenko
Judgment:
26 March 2018
JUDGMENT OF GORDON J
[Ms Shinkarenkoʼs costs]
This judgment was delivered by me on 26 March 2018 at 4 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Loo & Koo, Auckland
K3 Legal Limited, Auckland Morrison Mallett, Auckland
Counsel:AJB Holmes, Auckland R Butler, Auckland
XIAO v SUN [2018] NZHC 538 [26 March 2018]
Introduction
[1] Mr Butler, on behalf of Ms Shinkarenko, a witness who was called for Ms Xiao, applies for costs on Ms Shinkarenko’s application to set aside a subpoena duces tecum issued at Ms Sun’s request.
[2]The application is opposed by Ms Sun.
Background
[3] Part of the procedural background is set out in my bench note of 28 July 2017 which I set out in full below:
[1] The plaintiff proposes to call Ye Shinkarenko as a witness. In his opening submissions Mr Holmes noted that Ms Shinkarenko was originally not willing to provide a brief of evidence and was served with a subpoena requiring her attendance at this hearing.
[2] A ‘will say’ statement referring to the affidavit that Ms Shinkarenko swore for the interlocutory hearing in this proceeding was served on the defendant on 31 May 2017.
[3] However, Ms Shinkarenko subsequently agreed to provide a brief of evidence which was served on the defendant on Wednesday 19 July 2017.
[4] Mr O’Callahan for Ms Sun initially indicated that he would object to Ms Shinkarenko being called as a witness. However, when I heard argument on the issue on Friday 28 July 2017, the plaintiff’s [sic]1 position had changed.
[5] Mr O’Callahan noted that the brief goes beyond the evidence in the affidavit. He said while the ‘will say’ statement set out further topics, it did not contain the detail of what Ms Shinkarenko would say on those topics. That detail is now in the brief of evidence. Nevertheless, the defendant does not maintain her objection to Ms Shinkarenko being called as a witness for the plaintiff.
[6] To deal with the situation of the late brief the defendant has obtained subpoenas for the production of documents for Ms Shinkarenko, Mr Pan (the plaintiff’s husband) and the ANZ Bank.
[7] I was given copies of the subpoenas for Ms Shinkarenko and Mr Pan. While they are both dated 21 July 2017 and while each required attendance of the witness at Court with the listed documents on 24 July 2017, Mr O’Callahan advised that the subpoenas were not served on the two witnesses until 27 July 2017.
1 This should read “defendant’s”.
[8] Having said that the defendant did not object to Ms Shinkarenko being called as a witness, Mr O’Callahan appeared to qualify that somewhat by saying that provided the subpoenas “can run their course” then the defendant had no objection to Ms Shinkarenko giving evidence.
[9] Mr Holmes submitted that the documents listed in the subpoena were inappropriately wide. For example, both witnesses are required to bring and produce “All of your bank statements, wherever situate, for the period from 1 November 2014 to date”. This, he said, went beyond the relevant time period.
[10]It seemed to me that there was merit in that submission.
[11] Counsel agreed that they would confer over the weekend in an attempt to resolve the issue as to the extent of the documents to be produced and who would produce them.
[4] The parties did not raise the matter further with the Court. Then, on Friday 4 August 2017, Mr Butler appeared on behalf of Ms Shinkarenko. My minute of 4 August 2017, which is set out in full below, contains the relevant matters from that appearance:
[1]On Friday 4 August 2017 Mr Rowan Butler appeared on behalf of
the plaintiff’s witness Ye Shinkarenko.
[2] The reason for Mr Butler’s appearance was as follows. On 26 July 2017, Ms Shinkarenko was served with a subpoena dated 21 July 2017, issued under r 9.52 by the defendant. The subpoena required Ms Shinkarenko to attend the High Court on 24 July 2017 (two days prior to the date of service) to produce a large number of documents. The subpoena, however, was served on Ms Shinkarenko under cover of a letter dated 26 July 2014, which required her to attend instead on 4 August 2017.
[3] Mr Butler advised that while Ms Shinkarenko intended to attend court in answer to the subpoena, she objected to the number and breadth of documents sought by the defendant. Her grounds of objection, in summary and as set out in Mr Butler’s submissions, included the following:
(a)Many of the documents sought by the defendant have already been discovered in these proceedings (or are in the possession of the parties);
(b)Some of the documents sought appear on their face to be irrelevant to the issue in these proceedings;
(c)Some of the documents sought are no longer in the possession or control of Ms Shinkarenko.
[4] For the reasons set out and further developed in Mr Butler’s submissions and in the supporting affidavit of Ms Shinarkenko, she applied to have the subpoena varied by the Court excusing her from providing the documents sought by the defendant.
[5] The fact that this subpoena had been issued, together with a similar subpoena which had been served on the plaintiff’s husband who is also a witness for the plaintiff, is noted in an earlier bench note dated Friday 28 July 2017.
[6] It is recorded in that bench note that counsel agreed they would confer over the weekend (last weekend) in an attempt to resolve the issue as to the extent of the documents to be produced and who would produce them. I had not heard further from counsel that they had not been able to resolve this issue.
[7] Upon Mr Butler’s appearance, and before hearing from him at any length, I adjourned to enable counsel for both parties and Mr Butler to confer to see if any agreement could be reached.
[8] Upon my return to Court, Mr O’Callahan advised that he had agreed not to pursue production of the witness’s bank statements for the extended period as recorded in the subpoena (some having already been produced). He also accepted that documents provided over the previous weekend by the plaintiff’s solicitor satisfied other categories of documents recorded in the subpoena. He also accepted Ms Shinkarenko’s statement in her affidavit that she no longer had access to communications on either WeChat or via text message, which was a further category of documents sought in the subpoena. He accepted that the subpoena had been effectively responded to.
[9] That being the case, Mr Butler indicated that no order was therefore needed from the Court.
[10] I indicated to Mr Butler that I would consider any application on behalf of Ms Shinkarenko for costs. Any such application should be filed within 10 working days of the date of this minute. Any reply on behalf of the defendant is to be filed and served within a further five working days. Memoranda are not to exceed five pages.
The application
[5] In support of his application, Mr Butler relies on the fact that there were 10 categories of documents. Within those categories, a broad range of material was sought. By way of example, Ms Shinkarenko was prima facie expected to provide: “any and all communications in form” between herself and the parties to these proceedings. Bank statements “wherever situate for the period from 1 November 2014 to date” were also sought.
[6] The solicitors for Ms Xiao, while noting that they did not act for Ms Shinkarenko, wrote to counsel for the defendant on 30 July 2017 setting out the reasons why the subpoena was unnecessary. They included:
(a)Ms Shinkarenko’s bank statements for the relevant period had already
been discovered and were in the common bundle; and
(b)Their understanding that Ms Shinkarenko did not have any records of communications with Ms Xiao regarding advances made by Ms Shinkarenko to Ms Xiao.
[7] As far as the settlement of the claim by Ms Shinkarenko for repayment of the loans she made to Ms Xiao goes, as a ‘pragmatic solution’ the letter enclosed the documents from Ms Xiao’s solicitor’s file (the settlement having been conducted through solicitors).
[8]The letter concluded:
6.However, we cannot see that any wider category of documents could have any relevance to the proceeding. If there is any specific issue which you consider requires other documents to be produced, please advise what that is.
7.Otherwise, we trust this puts this matter at rest and that nothing further is required of Mr Pan or Ms Shinkarenko (other than the provision of Kensington Swan’s relevant trust account records). Please confirm the same by return.
[9] There was no acknowledgment of, or response to, the letter. Mr Butler, while accepting that counsel for Ms Sun would have been engaged in trial between Sunday 30 July 2017 when the letter was sent and the date of the application and supporting affidavit, nevertheless, submits if the letter had been considered and responded to, the application would not have been required.
[10] Ms Shinkarenko accordingly seeks costs. Mr Butler records in his submissions that:
Ms Shinkarenko has been invoiced $3500 for services to date, relating to the subpoena. It is respectfully submitted that a costs award of, say, $2000, would adequately address costs.
[11] He notes by way of comparison that 2B scale costs for a defended interlocutory application of this nature would be approximately $5,200.
[12] In opposition, Mr O’Callahan notes that Ms Shinkarenko’s brief was not served until 19 July 2017 for a trial that began on 24 July 2017. He submits that if the matters raised in the brief had been disclosed earlier, then there would have been an opportunity to pursue discovery.
[13] He further submits that the application to set aside the subpoena was not successful. He says some of the documents were disclosed by Ms Xiao on Sunday 30 July 2017 and that Ms Shinkarenko’s affidavit saying she no longer had other documents (WeChat and text messages) was accepted as a proxy for an appearance in respect of the subpoena. Finally, Mr O’Callahan says that the exception was Ms Shinkarenko’s further bank accounts and this issue was resolved between counsel without Ms Shinkarenko taking any steps in relation to those documents.
Discussion
[14] I accept that it was necessary and appropriate for counsel for Ms Sun to issue a subpoena duces tecum in lieu of discovery, having regard to the late brief of evidence.
[15] However, the subpoena was issued in unnecessarily wide terms. For example, “all of your bank statements, wherever situate for the period from 1 November 2014 to date” covered a period beyond the relevant date.
[16] Further, there was no response to the 30 July 2017 letter. The agreement reached at court on 4 August 2017 between counsel for Ms Shinkarenko and Ms Sun appears to have proceeded in accordance with that letter.
[17] I have some sympathy for counsel for Ms Sun in that he was involved in the trial between 30 July 2017 and 4 August 2017. Nevertheless, a consideration of, and response to, the letter would, it seems, have resulted in a resolution, avoiding the need for the application by Ms Shinkarenko.
[18] I, therefore, consider that Ms Sun should pay costs but not to the extent claimed by Ms Shinkarenko. There is no particular procedure in the High Court Rules for an application to set aside a subpoena. Mr Butler filed a memorandum and
a supporting affidavit of Ms Shinkarenko. Applying as a guide sch 2 of the Rules and using category A, I allow 0.5 days, namely $740.00 (“24. Preparation of written submissions”) and 0.25 days, namely $370.00 (“26. Appearance at hearing of defended application for sole counsel”). The total amount is therefore $1,110.00.
Result
[19]I award costs in favour of Ms Shinkarenko against Ms Sun in the sum of
$1,110.00.
Gordon J
0
0
0