Zeng v Cai - [2018] NZHC 3054

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-002012

[2018] NZHC 3054

BETWEEN
JIANQIANG ZENG

Plaintiff

AND

OU CAI

First Defendant

FANG LI
Second Defendant

ALEXANDER YUNXIAN CAI by his

litigation guardian PAUL JOHN DALE Third Defendant

Hearing: On the papers

Judgment:

23 November 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 23 November 2018 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Quinn Law, Auckland.
Neilsons Lawyers Ltd, Auckland. CJR Baird, Auckland.
AV Shinkarenko, Auckland. PJ Dale, Auckland.
EA James, Auckland. Copy to: First Defendant

ZENG v CAI [2018] NZHC 3054 [23 November 2018]

Introduction

[1] Mr Zeng seeks costs, including increased costs and disbursements, against Ms Cai and Ms Li. Mr Zeng was largely successful against them in a case I decided on 28 September 2018.1 Ms Cai and Ms Li did not appear at the hearing. Nor has either filed a costs submission.

[2] Mr Zeng’s young son, Dahai, was represented by a litigation guardian: Ms Grant, and then Mr Dale.2 Ms Grant seeks reimbursement of her costs. Mr Dale was instructed on legal aid. Mr Zeng settled with Dahai during trial.

Scale costs

[3] Mr Zeng’s claim for scale costs is unremarkable, including for second counsel. Scale costs total $86,980.50.

Increased costs?

[4] Mr Zeng seeks increased costs. First, he relies on r 14.6(3)(a) of the High Court Rules 2016:

(3) The court may order a party to pay increased costs if—

(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or

[5] Mr Zeng argues this rule is engaged because many documents were in Chinese, and the extensive briefs of evidence had to be in both English and Chinese. However, r 14.6(3)(a) requires the time to substantially exceed that under band C. Mr Zeng has not sought to justify band C; most items are characterised as band B. In any event, Mr Zeng’s translator’s costs will be provided for; see later.

[6]Second, Mr Zeng relies on r 14.6(3)(b):

(3) The court may order a party to pay increased costs if—

1 Zeng v Cai [2018] NZHC 2548.
2 See Zeng v Cai [2018] NZHC 579.

...

(a)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—

(i)failing to comply with these rules or with a direction of the court; or

(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or

(v)failing, without reasonable justification, to accept an offer of settlement whether in the form…

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 Zeng v Cai

Details

AGLC: Zeng v Cai [2018] NZHC 3054
Case: [2018] NZHC 3054
Decision Date: 23 November 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Jianqiang Zeng sought costs from Ou Cai and Fang Li, who had failed to appear in court or file a costs submission. Zeng was largely successful in his case against them. The court also considered the costs for Zeng's son's litigation guardian, who had been replaced by Paul John Dale. Downs J awarded Zeng scale costs of $86,980.50 and considered whether Zeng was entitled to increased costs. Downs J found that while the defendants' conduct had contributed to unnecessary time and expense, it was not sufficient to warrant a 50% increase on all steps. Downs J instead awarded a 20% uplift on all steps except those claimed on a band C basis. Downs J also considered Zeng's claim for an uplift of 100% for the preparation of briefs of evidence and preparation for trial, finding that scale costs on a band C basis were adequate. Finally, Downs J considered Zeng's claim for disbursements, including hearing and filing fees, translator and interpreter fees, expert witness fees, and printing and photocopying expenses. Downs J found that Zeng was entitled to reimbursement for the court-appointed interpreter and his own translator, as well as the fees for three of the four expert witnesses. Downs J also found that Zeng's photocopying and printing costs were reasonable. Downs J ordered that Cai and Li pay Zeng costs of $97,686.60 and disbursements of $301,215.11, and that Fitzgerald J's costs be paid from a trust established for Zeng's son.
Downs J considered the costs for Zeng's son's former litigation guardian, Fitzgerald J, who had filed a memorandum seeking costs of $17,020. Downs J found that Fitzgerald J's costs should be paid from the trust established for Zeng's son, as her services were necessary, and her fee reasonable.

Orders