Yang v DH and PM Ltd

[2019] NZHC 1206

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000506

[2019] NZHC 1206

BETWEEN

ZHE YANG and JACKSON ING WEI LAW

Plaintiffs

AND

DH and PM LTD First Defendant

QINGHUA MO and YU HUANG

Second Defendants

Hearing:	On the papers
Judgment:	30 May 2019

JUDGMENT OF WYLIE J [COSTS]

This judgment was delivered by Justice Wylie On 30 May 2019 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Solicitors/counsel:

Croftfield Law/I Hutcheson, Auckland DX Law Ltd/G D Wiles, Auckland

YANG v DH and PM LTD [2019] NZHC 1206 [30 May 2019]

[1]    I refer to my judgment of 2 May 2019. I declined the plaintiffs’ application for an interim mandatory injunction in relation to a property at Union Road in Auckland, and, by consent, directed that the balance of the application seeking orders in relation to another property at Taurima Avenue, be adjourned for further hearing on 12 June 2019 at 11.45 am.

[2]    I awarded costs to the defendants as the successful parties in relation to that part of the application as related to the Union Road property. I recorded my preliminary view that costs should be fixed on a 2B basis, and noted that costs would have to be apportioned as between the application in relation to the Union Road property, and the balance of the application in relation to the Taurima Avenue property.

[3]I have now received memoranda.

[4]    The defendants accept that it is appropriate to fix costs on a 2B basis. They dispute my preliminary view that costs should be apportioned. They say that notwithstanding that agreement was reached to split the application into two parts, it is nevertheless appropriate to now award full costs. They claim costs of $6,359 and disbursements of $175.30.

[5]    The plaintiffs do not address my preliminary view that costs should be fixed on a 2B basis. Nor do they dispute the defendants’ calculation of costs undertaken on that basis. Rather, they disagree that full costs should be payable now. They suggest either that costs should be reserved until the disputes between the parties are fully resolved, or, in the alternative, that costs should be apportioned between that part of the application as has been heard and the balance of the application due to be heard on 12 June 2019.

[6]    I agree with the plaintiffs’ submissions that full costs should not payable at this point. The defendants have not succeeded in relation to the claims made in respect of the Taurima Avenue property. Those claims have yet to be heard.

[7]    In my judgment, it is appropriate to apportion scale costs as to 50 per cent in respect of the Union Road property, and 50 per cent in regard to the Taurima Avenue

property. If the Taurima Avenue application is withdrawn or discontinued, then a further costs order can be made. If the application proceeds, and the plaintiffs are unsuccessful, a further award can be made. If the plaintiffs are successful, then they will likely be entitled to costs, which may or may not cancel out the costs order made in favour of the defendants in regard to the Union Street property.

[8]    Accordingly, I order costs in the defendants’ favour, and in relation to that part of the application as related to the Union Road property, in the sum of $3,179.50, together with disbursements of $62.50. I have not allowed for a disbursement claimed for sealing the Union Road judgment. The judgment has not as yet been sealed. If the judgment is later sealed, the disbursement incurred can be dealt with in the final washup.

Wylie J