Xu v Meng

[2023] NZHC 657

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-508

[2023] NZHC 657

BETWEEN

WEI XU and JUNHUI ZHANG

First Plaintiffs

BANGMAI NEW ZEALAND LIMITED
(previously known as HEALTHKIWI INTERNATIONAL LIMITED)
Second Plaintiff

RMPS INTERNATIONAL LIMITED

Third Plaintiff

TOP WAREHOUSE NZ LIMITED
Fourth Plaintiff

AND

XING MENG and HUIMIN GUAN

First Defendants

ALL BEST LTD

Second Defendant

Hearing:	On the papers
Counsel:	C L Holland for the Plaintiffs S Maloney for the Defendants
Judgment:	29 March 2023

JUDGMENT OF WOOLFORD J

(As to costs)

This judgment was delivered by me on Wednesday, 29 March 2023 at 11:30 am 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 657 [29 March 2023]

[1]                 On 12 October 2022, I issued a judgment granting the defendants’ application to rescind an order for joinder made by Associate Judge Andrew in a minute dated 12 July 2022. The defendants now seek costs on a 2B basis with a 50 per cent uplift. The plaintiffs acknowledge that costs are payable but resist any suggestion that costs should be uplifted.

[2]The following are 2B costs:

22	Filing interlocutory application	0.6 days	$1,434.00
24	Preparation of written submissions	1.5 days	$3,585.00
26	Appearance     at    hearing     of    defended application	0.25 days	$598.00
29	Sealing order	0.2 days	$478.00
$6,095.00
Disbursements
Filing fee interlocutory application	$500.00
Sealing fee judgment dated 10 October 2022	$50.00
$550.00

[3]                 The sole issue is whether costs should be uplifted by 50 per cent or some other percentage for the choice made by the plaintiffs not to follow Lang J’s advice that they should consider consenting to the application. In a minute dated 30 August 2022, Lang J stated:1

Having reviewed the memoranda and the Judge’s minute dated 12 July 2022 I am satisfied the defendants have a strong case for recall of the decision contained in the Associate Judge’s minute. This is because, although the Judge indicated the application to join additional parties would be determined on the papers, he did not provide an opportunity for the defendants to make submissions on the application.

[4]He further stated:2

I see no basis on which the plaintiffs could realistically oppose such an application because it appears to be the most efficient and cost-effective means of dealing with the situation that has arisen.

1 At [2].

2 At [6].

[5]He further stated:3

The plaintiffs should also consider consenting to this application.

[6]The Judge concluded:4

I would be grateful if the parties could now consider whether they are content to proceed along the lines I have suggested. It appears to me to be the simplest way in which to resolve the issue that has arisen.

[7]                 The plaintiffs refused to consent to the application, as was their right. But they did so in the  face of a  clear  warning from  Lang J in a  telephone  conference on  12 September 2022 that they may face increased costs if they persisted with their opposition.

[8]                 The plaintiffs submit that the pathway suggested by Lang J was his opinion and not a direction, decision, or judgment. They also submit I did not find that the plaintiffs’ opposition lacked merit. There was no element of irresponsibility which would warrant an increase.

[9]                 Although I did not specifically find that the plaintiffs’ opposition lacked merit, I did express the view that the issues were not fully argued because the order was made on the papers without the benefit of a hearing or submissions from the defendants. Lang J had earlier described the defendants as having a strong case and invited the plaintiffs to consent to the defendants’ application.

[10]              In those circumstances it can be said that the plaintiffs’ opposition lacked merit as the facts were not in dispute and Lang J had given a frank assessment of the merits. The plaintiffs refused to consent to the application as was their right, but there will be costs consequences.

3 At [7].

4 At [9].

[11]              The 2B costs will be uplifted by 50 per cent. The plaintiffs are to pay the defendants $9,142.50 plus disbursements of $550.00.

Woolford J