Xu v Meng

[2023] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-508

[2023] NZHC 2062

BETWEEN

WEI XU and JUNHUI ZHANG

Plaintiffs

AND

XING MENG and HUIMIN GUAN

Defendants

Counsel:

C L Holland for Plaintiffs

E St John and D Liu for Defendants

Judgment:

(On the papers)

4 August 2023

JUDGMENT OF WOOLFORD J

(Costs Judgment No.2)

This judgment was delivered by me on Friday, 4 August 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Righteous Law (C L Holland), Auckland Heritage Law (D Liu), Auckland

E St John, Auckland

XU v MENG [2023] NZHC 2062 [4 August 2023]

[1]    In my judgment dated 16 December 2022, I declined the plaintiffs’ application for joinder. On 29 March 2023, Mr St John filed a memorandum on behalf of the defendants seeking costs on the plaintiffs’ failed application for joinder. On 8 June 2023, Ms Holland filed a memorandum on behalf of the plaintiffs responding to the defendants’ memorandum seeking costs.

[2]The defendants seek costs on a 2B basis and disbursements as follows:

23	Filing opposition	0.6	$1,434.00
24	Preparation of written submissions	1.5	$3,585.00
29	Sealing order	0.2	$478.00
Total	$5,497.00
Disbursements
Filing fee for notice of opposition	$110.00
Sealing fee	$50.00
Total	$160.00

[3]    The defendants seek a 50 per cent uplift on the above costs under r 14.6(3)(b) on the grounds that the plaintiff:

(a)pursued arguments which lacked merit; and

(b)failed, without reasonable justification, to accept legal argument.

[4]    Failure to satisfy the Court that the jurisdictional threshold for joinder is met does not necessarily mean that the plaintiffs’ arguments lacked merit. As noted by Asher J in Diagnostic Medlab Ltd v Auckland District Health Board,1

Failure, even failure by a considerable margin, does not as a matter of course warrant increased costs. Even where a claim or defence is rejected as clearly unmeritorious, such as in a successful summary judgment or strike out, the practice of the Court is still to award costs on a scale basis, save in unusual circumstances.

1      Diagnostic Medlab Ltd v Auckland District Health Board (No.2) HC Auckland High CIV-2006- 404-4724, 23 October 2009 at [25].

[5]    Furthermore, all parties have a right to litigate and should not be deterred from exercising such rights. Hence the plaintiffs were not acting vexatiously. They were entitled to have their application for joinder heard and determined.

[6]    There is no cause for the Court to depart from the standard scale. Scale costs on a Category 2B basis is the appropriate award. The plaintiffs are to pay the defendants $5,497.00 plus disbursements of $160.00.

Woolford J