Zheng v Deng - [2021] NZCA 190

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA37/2020
[2021] NZCA 190

BETWEEN	LU ZHENG First Applicant ORIENT CONSTRUCTION LIMITED Second Applicant
AND	DONGLIN DENG First Respondent ORIENT HOMES LIMITED Second Respondent

CA303/2020
BETWEEN	LU ZHENG Appellant
AND	DONGLIN DENG Respondent

Court:	Goddard, Duffy and Nation JJ
Counsel:	D Zhang and E Tie for Applicants J D Turner and L X Huang for Respondents
Judgment: (On the papers)	17 May 2021 at 11.00 am

JUDGMENT OF THE COURT

A The claims for costs referred to at [3] are determined as follows:

(a)The claim for costs items 15 and 17 in respect of the costs appeal is not allowed.
(b)The claim for costs in respect of the application for leave to adduce further evidence is allowed in respect of item 8, but not item 11: a total of 1 day.

B The claims for disbursements referred to at [4] are determined as follows:

(a)The claim for photocopying/printing expenses of $254.90 is allowed.
(b)The claim for postage expenses of $217.55 is allowed.
(c)The claim for expenses incurred in connection with preparation of the paper copy case on appeal is allowed to the extent of $960 plus binding material costs of $345: a total of $1,305.
(d)The claim for gown hire is allowed in respect of one gown: $17.25.

C We make no order as to costs in respect of the application for determination of costs in this Court.

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REASONS OF THE COURT

(Given by Goddard J)

Introduction

Mr Zheng appealed to this Court against two High Court judgments: a substantive judgment determining his claims against the respondents (CA37/2020), and a costs judgment (CA303/2020). His appeal against the substantive judgment was allowed (CA judgment).[1] The proceeding was remitted to the High Court to take an account of the dealings of the partnership that this Court found to exist between Mr Zheng and Mr Deng. This Court also set aside the High Court’s cost orders and ordered that costs in the High Court were to be determined by that Court. Costs in this Court were awarded to Mr Zheng for a standard appeal on a band B basis. This Court did not certify for second counsel.[2] This judgment determines a number of disputes between the parties in relation to costs and disbursements in this Court.[3]

Cost orders sought by Mr Zheng

[1]Zheng v Deng [2020] NZCA 614 [CA judgment].

[2]At [135]–[140].

[3]Zheng v Deng CA37/2020, 25 March 2021.

Mr Zheng seeks orders from this Court that Mr Deng pay him $54,492 in costs and $13,831.65 in disbursements. Mr Deng challenges a number of those costs and disbursements. He submits that he should pay costs of $31,787 and disbursements of $5,315.
Mr Deng disputes the following costs items:
(a)costs for steps taken in the costs appeal after the commencement of the appeal as of right; and
(b)costs for the application seeking leave to adduce further evidence.
Mr Deng disputes the following disbursements:
(a)photocopying/printing expenses: $254.90;
(b)postage…

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 Zheng v Deng

Details

AGLC: Zheng v Deng [2021] NZCA 190
Case: [2021] NZCA 190
Decision Date: 17 May 2021

CaseChat Overview and Summary

In Zheng v Deng, the Court of Appeal of New Zealand considered claims for costs and disbursements arising from an appeal by Lu Zheng against two High Court judgments. The substantive appeal had been allowed, and the costs judgment set aside. The Court addressed Mr Zheng's claims for costs and disbursements, which included items for steps taken in the costs appeal, the application for leave to adduce further evidence, photocopying/printing expenses, postage expenses, expenses for preparing a paper copy of the case on appeal, and gown hire for senior counsel.

The Court found that certain costs claimed by Mr Zheng for steps taken in the costs appeal after the commencement of the appeal as of right were not justified. It held that only one set of costs for preparation and hearing of the appeal was allowable. Regarding the application for leave to adduce further evidence, the Court allowed costs for the commencement of the application but not for preparation for the hearing, finding that adequate time was already allocated within the band B allowance.

As for the disbursements, the Court allowed claims for photocopying/printing expenses and postage expenses, which were adequately verified and reasonable. For the expenses incurred in preparing a paper copy of the case on appeal, the Court determined that while it was reasonable to contract out the work due to the size of the case, the amount claimed was excessive. It allowed a reasonable disbursement of $960 for the preparation of the paper copy and $345 for binding material costs. The Court also allowed the cost of one gown for senior counsel, as it did not certify for second counsel.

The Court concluded that the claims for costs items 15 and 17 in respect of the costs appeal were not allowed. It allowed the claim for costs in respect of the application for leave to adduce further evidence in respect of item 8, amounting to 1 day. Regarding disbursements, the claims for photocopying/printing expenses, postage expenses, and expenses for preparing the paper copy of the case on appeal (to the extent of $960 plus $345 for binding material) were allowed. The claim for the cost of gown hire was allowed in respect of one gown. The Court made no order as to costs in respect of the application for determination of costs in this Court.

Orders