Zeng v Cai - [2018] NZHC 2277

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-2012

[2018] NZHC 2277

BETWEEN
JIANQIANG ZENG

Plaintiff

AND

OU CAI

First Defendant

FANG LI
Second Defendant

ALEXANDER YUNXIAN CAI
by his iltgation guardian PAUL JOHN DALE

Third Defendant

On the papers: 30 August 2018

Appearances:

C J R Baird and A Shinkarenko for the Plaintiff First Defendant is self-represented

Second Defendant is not represented S A Grant, amicus

Judgment:

30 August 2018

COSTS JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 30 August 2018 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules.

Solicitors:

…………………………………
Deputy Registrar

Quinn Law (H L Quinn), St Heliers, Auckland, for the Plaintiff
Neilsons Lawyers Ltd (E Telle), Onehunga, Auckland, for the Third Defendant

Copy for:
C J R Baird, Auckland, for the Plaintiff
Ou Cai, Epsom, Auckland (first defendant)
Paul J Dale, Auckland (as litigation guardian for Dahai Cai) Sandra Grant, Auckland (as amicus).

ZENG v CAI [2018] NZHC 2277 [30 August 2018]

[1] Between 19 and 26 September 2016 there was a hearing under r 10.15 of the High Court Rules to decide Ms Cai’s affirmative defence that she had been in a de facto relationship with Mr Zeng. The hearing finished on 26 September 2016, when Ms Cai withdrew her defence. In a minute of 16 December 2016, Hinton J gave formal findings for the hearing. This decision deals with costs for that hearing.

[2] Costs ought to have been decided long ago. The parties should have an explanation for the delay. I set out what has happened, but it is not meant to be a justification or an excuse.

[3] In her minute of 16 December 2016, Hinton J recorded that counsel agreed that costs would be reserved.1 It was later clarified that that did not mean that costs should await the outcome of the final hearing, but only that the parties should have the opportunity to submit on costs.

[4] The proceeding was referred to me for case management. A question arose whether Hinton J should decide costs. She had recused herself from further involvement in the case. In response to one of my minutes dated 8 May 2017, Hinton J advised that she was willing to decide costs if the parties had no objection. Mr Baird did object to Hinton J deciding costs on the separate question hearing. In my minute of 27 June 2017, I indicated that I did not consider Mr Baird’s objection sound.2 I believed that the file would be referred to Hinton J to decide costs, but that apparently did not happen. Memoranda on costs had been filed in June and August 2017. The plaintiff’s memorandum is directed at my deciding costs. Ms Grant’s memorandum is addressed to Hinton J. Ms Cai’s memoranda are addressed to both.

[5] In July this year, the file was brought to me to decide costs. A decision on costs is long…

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 2277
Case: [2018] NZHC 2277
Decision Date: 30 August 2018

CaseChat Overview and Summary

In the case of Zeng v Cai, the plaintiff, Jianqiang Zeng, sought costs from the defendants, Ou Cai, Fang Li, and Alexander Yunxian Cai, in relation to a separate question hearing held between September 19 and 26, 2016, which determined whether Ou Cai had been in a de facto relationship with Zeng. The court was required to decide on the jurisdiction to award costs, whether costs should await the outcome of the substantive proceeding, and the appropriate scale and increased costs, as well as disbursements. The court held that an associate judge has jurisdiction to decide costs in this case, as Ou Cai abandoned her defence. The court also held that costs on the separate question hearing should be decided now, with a stay of execution until ten working days after the end of the substantive hearing. The court found that Zeng's scale costs claim was appropriate, but denied the claim for increased costs. The court also allowed most of Zeng's disbursement claims, with some adjustments. Finally, the court ordered Ou Cai to pay the costs of the separate question hearing, as well as the costs and disbursements of the discovery application, with enforcement stayed until ten working days after the end of the substantive hearing. The court further ordered Ou Cai to pay the Crown the costs of the amicus.

Orders