Zhao v He - [2020] NZHC 1048

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1790

[2020] NZHC 1048

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of an appeal against a decision of Judge S J Maude dated 8 August 2019

BETWEEN

CHONGMING ZHAO

Appellant

AND

MU HE

Respondent

On the papers:

Judgment:

19 May 2020

JUDGMENT OF HINTON J

[Re Costs]

This judgment was delivered by me on 19 May 2020 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Alex Ashmore, Barrister, Ponsonby Prestige Lawyers Limited, Auckland

ZHAO v HE [2020] NZHC 1048 [19 May 2020]

[1] On 18 March 2020, I gave judgment in this proceeding determining Mr Zhao’s appeal against a reserved judgment of the Family Court dated 8 August 2019.1

[2] I allowed the appeal in respect of the Family Court Judge’s finding that there was a relationship property asset of “$400,000 received by Mr Zhao”, but otherwise dismissed the appeal.2

[3]As to costs, I expressed the view as follows:

[33] The appellant has had success in bringing this appeal, albeit not on all grounds. Partial success still being success, and the other points having been reasonably pursued and not having unduly prolonged the matter, I consider the appellant is entitled to costs on a 2B basis.

[34] If the parties cannot agree costs on that basis, the appellant is to file and serve a memorandum within three weeks of the date of this judgment, with the respondent to have three weeks to reply. Memoranda are not to exceed four pages in length, exclusive of covering sheets and supporting material such as invoices.

[4]The parties did not reach agreement.

[5] Mr Ashmore, counsel for Mr Zhao, has filed submissions seeking that Mr Zhao be awarded costs on a 2B basis in the amount of $18,044.50, together with disbursements of $2,461.46, for a total award of $20,505.96.

[6] Ms Reed, for the respondent Ms He, opposes on two bases. First she submits that the appellant in effect wrongly claims twice in respect of the first case management conference, because there was “no discussion regarding discovery”, the parties filed a joint memorandum, and attendances were excused. Secondly, she submits that Mr Zhao should receive at most only 20 percent of scale costs.

[7] As to the first point, item 10 of sch 3 relates to “preparation for first case management conference (including discussions about discovery)” and item 11 relates to “filing memorandum for first case management conference”. Item 10 is clearly not limited to discussions about discovery, which discussions would be most unusual on

1 Zhao v He [2020] NZHC 550.
2 At [32].

an appeal. The fact a joint memorandum was filed indicates there was some “discussion” between the parties as to the contents of that memorandum. I consider it appropriate that recovery be permitted in respect of both steps. Items 10 and 11 really address attendances between filing of an appeal…

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 Zhao v He

Details

AGLC: Zhao v He [2020] NZHC 1048
Case: [2020] NZHC 1048
Decision Date: 19 May 2020

CaseChat Overview and Summary

In Zhao v He, the appellant, Chongming Zhao, appealed against a decision of the Family Court concerning a property dispute between the parties. The appeal was heard by Hinton J in the High Court of New Zealand, Auckland Registry. The central issue was whether the Family Court had correctly identified and valued a relationship property asset of $400,000 received by Mr Zhao. The court allowed the appeal in part, but otherwise dismissed it. Following the appeal, the matter of costs was considered, with Mr Zhao seeking costs on a 2B basis, totalling $20,505.96. Ms He opposed the costs application, arguing for a reduction on the basis that the appeal was largely unsuccessful and that the unsuccessful grounds had significantly increased the costs of the proceeding.

Hinton J addressed the principles of cost allocation under the High Court Rules 2016, noting that while a party who fails in a proceeding should pay the costs of the successful party, costs may be reduced if the unsuccessful party’s conduct significantly increased the costs for the opposing party. The judge considered the nature and duration of the appeal, which was relatively short and not as complex as other cases where costs reductions had been ordered. Hinton J found that while the appeal was largely unsuccessful, the additional time spent on the unsuccessful grounds did not significantly increase the respondent's costs to the extent required for a costs reduction under r 14.7(d) of the High Court Rules 2016. The judge concluded that a robust approach to determining costs was appropriate and that the principles of predictability and expediency in cost determinations should be upheld.

Accordingly, Hinton J ordered that Ms He pay Mr Zhao’s costs in the High Court on a 2B basis, totalling $20,505.96. The judge dismissed Ms He's submissions for a reduction in costs, finding that the unsuccessful grounds of appeal were at least arguable and did not significantly increase the costs incurred by Ms He. The decision underscores the importance of a balanced approach to cost allocation, taking into account both the success of the appeal and the overall efficiency and predictability of the costs regime.

Orders