Xiao v Wan

[2024] NZHC 3158

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2928

[2024] NZHC 3158

BETWEEN

KAN XIAO

Appellant

AND

MEI JUN WAN

Respondent

Hearing:

On the papers

Counsel:

MSP Pang for appellant

K J Jenkins for respondent

Date of judgment:

30 October 2024

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 30 October 2024 at 11.30am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:

Integritas Law, Auckland McVeagh Fleming, Auckland

XIAO v WAN – Costs [2024] NZHC 3158 [30 October 2024]

[1]                 My 19 June 2024 judgment,1 dismissing Mr Xiao’s appeal of Judge McHardy’s 17 October 2023 decision and declining him extension of time to appeal Judge Burns’ 20 December 2022 decision,2 stipulated:3

In my preliminary view, from what I presently know, Mr Xiao should pay 2B costs and disbursements to Ms Wan. That is because — given Mr Xiao’s right of appeal against Judge McHardy’s decision, and entitlement to seek an extension of time to appeal against Judge Burns’ decision — I cannot identify his unnecessary contribution to the time or expense of the proceeding, or his actions otherwise qualify for indemnity costs. In other words, the “predictable and expeditious” determination of costs should win out.

If that is not accepted by the parties and they cannot otherwise agree, costs are reserved for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by  Ms Wan within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.

[2]                 In the event, nothing was filed within ten working days of my judgment. Instead, by memorandum dated 10 October 2024, Ms Wan claimed 2B costs calculated at $22,107.50, as she had requested of Mr Xiao on 31 July 2024. Mr Xiao did not respond to her 31 July 2024 request, and only belatedly responded — after registry enquiry — to her 10 October 2024 claim by memorandum dated 24 October 2024.

[3]                 For Mr Xiao, Paul Pang now claims $956 as 2B costs on his response if successful. He disputes categorisation of all steps as ‘B’, inferentially meaning for some steps only “a comparatively small amount of time is considered reasonable”.4 He says Ms Wan is not entitled to claim costs on step 55’s “preparation of Case on Appeal”, as done by Mr Xiao as appellant.

[4]                 Mr Pang disputes there was any 29 May 2024 memorandum for which Ms Wan claims 0.4 of a day. But Venning J’s 30 May 2024 minute records Ms Wan’s steps the previous day to secure Mr Xiao’s compliance, noting prejudice to her “can be addressed … by a costs award”,5 to which her claim relates. And Mr Xiao’s opposition to Ms Wan’s duplicate claim for written submissions disregards they were necessitated

1      Xiao v Wan [2024] NZHC 1624.

2 At [28].

3      At [29]–[30].

4      High Court Rules 2016, r 14.5(2)(a).

5      Xiao v Wan HC Auckland CIV-2023-404-2928, 30 May 2024 (Minute of Venning J) at [5].

by his approach to the appeal(s). The amount of time considered reasonable for submissions’ preparation is not determined by their length. No other reason for their comparatively small amount of time is contended. A normal amount of time applies.

[5]                 Ms Wan is entitled to be paid 2B costs as claimed, omitting step 55.6 As remaining unsuccessful, Mr Xiao’s claim for costs is dismissed.

[6]I order Mr Xiao pay Ms Wan costs in the amount of $19,717.50.

—Jagose J

6      See Perkins v Purea [2010] NZCA 272 at [4]; and QBE Insurance (International) Ltd v Steward Motorsports European Ltd [2014] NZHC 886, (2014) 22 PRNZ 117 at [12]–[13].