Ye v Deng - [2017] NZHC 2764

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1022 [2017] NZHC 2764

BETWEEN
YE HUIFANG

Applicant

AND

JIE DENG Respondent

Hearing: On the papers

Counsel:

R Reed for the Applicant
N Woods for the Respondent

Judgment:

10 November 2017

JUDGMENT NO 2 OF PALMER J (Costs)

This judgment is delivered by me on 10 November 2017 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitor:
Prestige Lawyers Limited, Auckland
Rice Craig, Auckland

YE v DENG – NO 2 COSTS [2017] NZHC 2764 [10 November 2017]

Summary

[1] The trial of a proceeding by Ms Jie Deng against Ms Huifang Ye was set down for two weeks from 1 May 2017.1 It was vacated and Ms Ye now seeks an award of wasted and increased costs. I order wasted, but not increased, costs be paid in the amount of $11,596. The fixture was vacated due to Ms Deng not complying with court directions to apply for audio-visual links (AVLs) to China in relation to five witnesses by the deadline required by the Court.

What happened

[2] As outlined in my judgment of 22 February 2017, Ms Deng applied to recall

Ms Ye’s appointment as administrator of the estate of Mr Jun Xie, to whom they were both married at various times.2 In July 2016 the trial was set down for two weeks from
1 May 2017.

Timetabling

[3] Various timetabling directions were issued from July 2016 onwards. On

26 October 2016 I directed “any applications for oral evidence directions, mode of evidence directions are to be made by 17 April 2017”.3 I confirmed that timetable in my judgment of 22 February 2017.4

[4] On 27 March 2017, at a case management teleconference, one of the issues I considered was a notice of general admissibility of hearsay by Ms Deng in relation to a letter by two witnesses Ms Ye sought to cross-examine (Mr Hong Zhang and Mr Zuoping Tong) and a brief of evidence of Ms Wang Liping.5 By memorandum of counsel dated 20 March 2017 counsel for Ms Ye stated “the plaintiff has agreed that Wang Liping shall give evidence via AVL link from China”. I noted in the Minute that
“[a]rrangements are being made for Ms Liping to be cross-examined by AVL”.6 I left

1      In the intituling, Ms Ye uses the Chinese convention of putting her family name first while Ms
Deng does not.
2      Ye v Deng [2017] NZHC 227.
3      Deng v Ye HC Auckland CIV-2016-404-1022, 26 October 2016 (Minute No 3) at [12](c).
4      Ye v Deng, above note 2, at [37].
5      Deng v Ye HC Auckland CIV-2016-404-1022, 27 March 2017 (Minute No 6).
6 At [5].

the question of cross-examination by AVL via an interpreter to be decided by the trial judge in the context of the other evidence. I also noted that “[i]f Ms Deng wishes to adduce the letter in evidence she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ye v Deng

Details

AGLC: Ye v Deng [2017] NZHC 2764
Case: [2017] NZHC 2764
Decision Date: 10 November 2017

CaseChat Overview and Summary

Ye v Deng is a case involving a claim by Ms Jie Deng against Ms Huifang Ye. Ms Deng applied to recall Ms Ye's appointment as the administrator of the estate of Mr Jun Xie. The trial was initially set for two weeks from 1 May 2017 but was vacated due to Ms Deng's failure to comply with court directions to apply for audio-visual links (AVL) to China for five witnesses by the required deadline. Ms Ye sought an award of wasted and increased costs due to the vacated fixture. The legal issues before the court were whether Ms Deng breached any court order and whether an order for wasted and increased costs should be made.

The court found that the direction of 26 October 2016, confirmed on 22 February 2017, required any applications for mode of evidence to be made by 17 April 2017. Ms Ye made three formal applications by the deadline, while Ms Deng did not. Ms Deng's failure to comply with the court's directions led directly to the abandonment of the fixture. The court ordered that Ms Deng pay $11,596 in wasted costs but did not award increased costs, considering the wasted costs proportionately reflected the need to sanction failure to comply with the court's directions.

The final orders of the court were that Ms Deng should pay $11,596 in wasted costs to Ms Ye. This amount included costs related to preparation for and appearance at the pre-trial conference, preparing for the hearing, arranging AVLs for witnesses in China, filing memoranda following the vacated hearing, and submissions on the issues in the judgment.

Orders