Zhao v Yang

[2013] NZHC 1142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-004239 [2013] NZHC 1142

UNDER  the Companies Act 1993

BETWEEN  JING ZHAO Plaintiff

ANDBIN BIN YANG First Defendant

ANDSUNSHINE QUALITY FOODS LIMITED Second Defendant

Hearing:         17 May 2013

Appearances: D J Powell for plaintiff

K F Quinn for first defendant (seeking leave to withdraw) Judgment: 17 May 2013

(ORAL) JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Henry Feng, PO Box 67059, Mt Eden, Auckland
R Harrison, Harrison Stone, PO Box 6211, Auckland

Counsel:

C T Patterson/D J Powell, PO Box 2886, Auckland

K F Quinn, PO Box 106 446, Auckland

JING ZHAO V BIN BIN YANG HC AK CIV 2011-404-004239 [17 May 2013]

[1]      This matter is before the Court to determine a claim for costs by the plaintiff as a consequence of the first defendant’s failure to attend a judicial settlement conference scheduled to have been held on 13 May 2013.

[2]      On 8 May 2013 counsel for the defendant advised the plaintiff and the Court that the first defendant was unable to attend.  Subsequently she filed a memorandum. The terms of that memorandum suggest that it was an unwillingness, rather than an inability to attend:

(a)      Counsel  had  put  options  before  the  first  defendant  (including attendance by telephone or through an agent) but the first defendant had failed to provide any clear instructions; and

(b)Shortly before counsel prepared her memorandum, the first defendant informed her that none of the options was practicable, although no reasons were given as to why that was so.

[3]      Counsel for the first defendant has confirmed today that she has no further instructions.  She informs me that the first defendant has withdrawn instructions both from her and from her instructing solicitor, and that she sent the first defendant a form for advising change of address for service earlier this week.  I grant her leave to withdraw.  I direct that counsel’s instructing solicitors (Harrison Stone) are to remain solicitors on the record until such time as the first defendant files a formal notice of change of representation and address for service and an affidavit proving service (in New Zealand) on the plaintiff.

[4]      That  leaves  the  question  of  costs  in  respect  of  the  abandoned  judicial settlement conference.   The plaintiff has sought indemnity costs, or alternatively increased costs, on the grounds that the first defendant has ignored or disobeyed a direction  of  the  Court  and  has  acted  unreasonably  in  relation  to  the  judicial settlement conference.  The plaintiff seeks the costs of preparing a memorandum for the conference, preparing a memorandum for this mention, and appearing at this hearing.

[5]      There is insufficient evidence before the Court to make a finding of deliberate refusal to follow a Court order for the purpose of an order for indemnity costs. There was  no  specific  direction  for  the  first  defendant  to  attend  the  settlement conference, although that was expected.  However, I am satisfied that there is a basis for finding that the first defendant ignored the Court’s directions in relation to the settlement conference, and failed to attend the conference without having giving adequate notice in advance to the plaintiff or to the Court.

[6]      The question now for the Court is what level of costs to award.  The plaintiff has provided evidence of the actual costs incurred in preparing the memoranda both for the settlement conference and for today.  The actual costs incurred are less than the costs claimable on a scale 2B basis.  A party is not entitled to an award of costs greater than actually incurred.

[7]      In the circumstances, and although I have found that there is a basis for awarding increased costs, I consider that the appropriate order is to award actual costs incurred for the two memoranda (which will be less than standard costs on a scale 2B basis), plus costs of today’s appearance on a 2B basis.

[8]      The first defendant is to pay the plaintiff costs in the sum of $1,755.  Those costs are payable now.

Associate Judge Abbott