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…

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 [2016] NZHC 2879
Case: [2016] NZHC 2879
Decision Date: 30 November 2016

CaseChat Overview and Summary

In the case of Zeng v Cai, the plaintiff, Jian Qiang Zeng, sought costs from the defendants, Ou Cai and Fang Li, following the dismissal of their application to review interlocutory decisions of an Associate Judge. The case was heard in the High Court of New Zealand, Auckland Registry, with the plaintiff represented by CJR Baird and the defendants by R Reid and A Manuson. The central issue was whether the plaintiff was entitled to an uplift in costs, specifically a 50% increase under rule 14.6 of the High Court Rules.

The court had to determine whether the defendants' application to review the Associate Judge's decisions was unreasonably delayed and meritless, and if so, whether this warranted an increase in costs awarded to the plaintiff. The plaintiff argued that the defendants acted unreasonably by filing their review application 84 days out of time, without a reasonable explanation, and that this resulted in considerable prejudice and delay in the plaintiff's ability to prosecute their claim. The defendants contended that their application was based on the plaintiff's counsel filing a draft amended statement of claim shortly before the hearing, but did not justify the delay in filing the review application.

The court found that the plaintiff was indeed put to unnecessary inconvenience and expense due to the defendants' meritless and inexplicably delayed application. The court acknowledged that the request for a 50% uplift in costs was modest, considering the circumstances. Ultimately, the court ordered the defendants to pay increased costs of $8,529.75, along with disbursements of $265.87.

This case underscores the importance of timely and justifiable applications to review judicial decisions and the potential consequences of delaying such applications without reasonable cause.

Orders