Yue v Zhou

[2023] NZHC 2028

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001756

[2023] NZHC 2028

UNDER

the Property (Relationships) Act 1976

BETWEEN

WEIHANG YUE
Appellant

AND

XIN ZHOU

First Respondent

WEN ZHOU

Second Respondent

Hearing:	On the papers
Judgment:	2 August 2023

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Wednesday, 2 August 2023 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Advent Ark Lawyers, Auckland. K3 Legal Ltd, Auckland.

MJ Hodge, Auckland.

YUE v ZHOU [2023] NZHC 2028 [2 August 2023]

The case

[1]    Xin Zhou (Bonnie) and her father, Wen Zhou, successfully defended an appeal by Bonnie’s former husband, Weihang Yue (Tony) concerning relationship property.1 Despite encouragement, the parties have been unable to agree costs, hence this judgment.2

[2]    Unfortunately, the submissions speak past each other, largely because of sequencing. But, Bonnie and Mr Zhou have amended their schedules of costs based on Tony’s submissions. So, some areas of disagreement have fallen away. Bonnie now seeks $18,642 in costs and Mr Zhou, $21,032.

The stay applications

[3]    After the Family Court’s decision, Tony filed an appeal and an application for a stay (the  latter  in  the  Family  Court).  The  respondents  opposed  the  stay.  Judge DA Burns granted the stay on condition Tony pay the judgment sums together with $20,000 as security for costs.3 Tony did not meet the condition. He then sought an order to extend time for the stay. Judge Burns dismissed that application.4

[4]    Tony then filed a stay application in the High Court. On 16 February 2023, Robinson J directed the stay be decided with the appeal. He noted due to impracticalities, little could be done by Bonnie or Mr Zhou to enforce the judgment.

[5]    Bonnie and Mr Zhou seek costs in relation to this sequence. Tony argues he should not have to pay these as in substance, he received the stay he was seeking. This contention does not reflect what happened, as is apparent from Robinson J’s decision:5

For these reasons I do not accept counsel for the appellant’s submission that his appeal rights will be rendered nugatory if the interim stay of execution is not granted before the on-notice stay application is heard together with the substantive appeal on 16 March 2023. Having said that, in order to maintain the status quo without prejudicing the second respondent I would be prepared to entertain an application by the appellant for interim orders that prior to the

1      Yue v Zhou [2023] NZHC 1157.

2      On 14 October 2022, Venning J held this is a category 2 proceeding attracting 2B costs.

3      Zhou v Yue [2022] NZFC 12086.

4      Zhou v Yue [2023] NZFC 398.

5 Minute of Robinson J dated 16 February 2023 at [9].

hearing on 16 March 2023 the second respondent is not to take steps to sell the property or to use it as security other than to fund legal costs incurred (or to be incurred) in the Family Court proceedings or in this appeal. There is presently no application for such orders on foot, I would encourage the parties with the assistance of counsel to reach agreement along those lines.

[6]    Bonnie and Mr Zhou are entitled to the costs of opposing the stay application, with this qualification: their interests were so closely aligned I discount the claims so each receives 75 percent of what they would otherwise be entitled to.

[7]    Bonnie’s schedule of costs claims the appearance at the 14 February hearing as an appearance at mention while Mr Zhou claims it as an appearance at a case management conference. It was in fact a case management conference.

Interim stay application

[8]    Following Robinson J’s decision of 16 February 2023, Tony was still concerned Mr Zhou would sell or dispose of property. On 22 February 2023, Tony filed an interim stay application. Mr Zhou filed a response the next day, attaching an earlier letter proposing a consent position. Robinson J issued a Minute encouraging agreement.6 Agreement was not reached, and on 28 February 2023, a case management conference was held. At it, Robinson J reiterated the parties should reach agreement.7 Agreement was reached later that day, and consent orders sought.

[9]    Mr Zhou claims for his response of 23 February and for preparation for the 28 February conference. Tony says he should not have to pay these costs because ultimately, agreement was reached. Bonnie also claims for her appearance at the conference.

[10]   These events did not concern Bonnie, so I decline her related costs. I also decline Mr Zhou’s costs and hold costs in relation to this sequence lie where they fall. Robinson J’s observations capture my reasoning:8

It is abundantly clear that the parties could and should reach a sensible agreement without continuing to waste time and incur unnecessary costs.

6      Minute of Robinson J dated 24 February 2023.

7      Minute of Robinson J dated 28 February 2023.

8 Minute of Robinson J dated 24 February 2023 at [4].

The appeal

[11]   Tony objects to costs in relation to the respondents’ preparation of a memorandum  in  advance  of  a   case   management   conference   scheduled   for 18 October 2022. He says:

(a)All the parties could have filed a joint memorandum, which would have saved costs.

(b)The respondents’ request for increased security (in their memorandum) was unsuccessful.

(c)Preparation was not necessary as the case management conference was vacated.

(d)The memorandum was joint, but both respondents seek full costs.

[12]   There was no expectation of a joint memorandum on behalf of all parties, and the vacation of the conference does not operate to disentitle costs. But, as the respondents filed jointly, I discount the claims to 75 percent of what each respondent is otherwise entitled to.

[13]   Finally, Tony objects to Mr Zhou claiming costs for second counsel at the appeal, contending this was unnecessary.

[14]   I allow second counsel. The record was voluminous; the case intensely factual; and second counsel communicated with Mr Zhou. Mr Zhou does not speak English.

Result

[15]Tony must pay costs of:

(a)       $16,849.50 to Bonnie.

(b)       $17,566.50 to Mr Zhou.

Permission to bring a second appeal

[16]   Tony has filed an application for permission to bring a second appeal. I make this timetable in anticipation of determining the application on the papers:

(a)Tony is to file his submissions in support of the application on or before

1 September 2023.

(b)The respondents are to file their submissions in opposition on or before

15 September 2023.

(c)No submission may exceed eight pages.

……………………………..

Downs J