Zeng v Cai

[2016] NZHC 2879

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002012 [2016] NZHC 2879

BETWEEN

JIAN QIANG ZENG

Plaintiff

AND

OU CAI
First Defendant

AND

FANG LI

Second Defendant

On the papers
Appearances:	CJR Baird for the Plaintiff R Reid and A Manuson for the Defendants
Judgment:	30 November 2016

JUDGMENT OF TOOGOOD J [COSTS]

This judgment was delivered by me on 30 November 2016 at 4.00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Zeng v Cai [2016] NZHC 2879 [30 November 2016]

Introduction

[1]      On 17 March 2016, I delivered a results judgment dismissing an application by the defendants to review interlocutory decisions of an Associate Judge.1   I issued a reasons judgment on 23 March 2016,2 at the conclusion of which I said:

[20]     The application having failed, the plaintiff is entitled to costs on a category 2B scale.   If the parties cannot agree on what costs and disbursements are payable on the application, the plaintiff shall have leave to file and serve a memorandum seeking costs by 22 April 2016.   The defendants shall have until 20 May 2016 to file and serve any reply memorandum.  Costs shall then be determined on the papers unless the Court directs otherwise.

[2]      In  accordance  with  the  timetable for costs  memoranda,  Mr Baird  filed  a memorandum  by  email  on  22 April 2016.    Counsel  for  the  defendants  filed  a memorandum on 20 May 2016.

[3]      It appears that, inadvertently but inexcusably, the costs memoranda were not referred to me for decision as soon as the memorandum on behalf of the defendants was filed.  I have only just received the papers.

[4]      The omission of the Court to deal with the costs matter promptly is regretted and I extend the apologies of the Court to the parties.

Submissions of parties

Plaintiff

[5]      The only issue between the parties is whether the plaintiff should have an uplift of costs by 50 per cent under r 14.6 of the High Court Rules.

[6]      Mr Baird  submits  that  increased  costs  should  be  payable  because  the defendants acted unreasonably in applying, 84 days out of time, to review Associate Judge Bell's interlocutory decisions.   He submits that the plaintiff was completely

successful because the defendants' review application was dismissed as being wholly

1      Zeng v Cai [2016] NZHC 463.

2      Zeng v Cai [2016] NZHC 503.

without merit.  Mr Baird submitted that the defendants were seeking an indulgence which could not possibly be justified in circumstances where:

(a)       There was a very substantial delay in bringing the review application.

(b)There was no reasonable or adequate explanation for the significant delay.

(c)       The review application lacked merit and was very weak.

(d)The plaintiff suffered considerable prejudice and delay in obtaining the ordered discovery and, therefore, in prosecuting his claim, all of which resulted from the defendants' fatally flawed review application.

(e)      The defendants never applied for a stay of the judgment they sought to review meaning that the review application was pointless and could not have succeeded.

(f)      By the review application the defendants were effectively seeking to delay the provision of undoubtedly relevant discovery.

(g)There was no reasonable prospect that the Associate Judge's decision would be held to be wrong.

(h)The review application was merely an attempt by the defendants to avoid or defer payment of a sealed costs order.

Defendants

[7]      In response, counsel for the defendants submit that the application for review of the discovery judgment was based on "the unusual conduct of the counsel for the plaintiff to file a draft amended statement of claim just days before the hearing". Assuming without deciding that there is a factual basis for that submission, it may explain a decision to review the judgment but it does not explain the delay.  I held in

my reasons for judgment that the defendants did not have any justifiable grounds for the lengthy delay in making the application for leave.

[8]      It is also submitted that there was no basis for holding that the defendants had taken any unnecessary step or that the defendants' argument lacked merit.   That submission flies in the face of the reasons for the refusal to allow a review of Associate Judge Bell's decision out of time.   It is irrelevant that the plaintiff's application was not motivated by malice.

Decision

[9]      The position is that the plaintiff was put to unnecessary inconvenience and expense in resisting a meritless application, made hopelessly and inexplicably out of time,  to  review  an  orthodox  decision  of  an Associate  Judge.    If  anything,  the application for a 50 per cent uplift in the scale costs is modest.

[10]     Applying the principles referred to by Mr Baird in his memorandum and adopting the reasons given in his submissions, I order that the defendants shall pay increased costs under r 14.6 in the sum of $8,529.75, together with disbursements of

$265.87.

...................................................

Toogood J