Zheng v Lyndon - [2023] NZHC 3476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-044-1425

[2023] NZHC 3476

BETWEEN
LU ZHENG and HIBISCUS INDEPENDENT TRUSTEES 2008
LIMITED as trustees of the ZHENG FAMILY TRUST

First Plaintiffs

ZHENG LU HOLDINGS LIMITED
Second Plaintiff

AND

DAVID JULIAN RICHARD LYNDON, JENNIFER ROBYN LYNDON and LISA MICHELLE ARCHER

Defendants

Hearing: On the papers

Counsel:

P J Dale KC for the Plaintiffs S J Tee for the Defendants

Judgment:

1 December 2023

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 1 December 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr P J Dale KC, Barrister, Auckland
Mr J M Skinner, Skinners Law, Auckland Mr S J Tee, Morton Tee Ltd, Auckland

ZHENG and HIBISCUS INDEPENDENT TRUSTEES 2008 LTD as trustees of the ZHENG FAMILY TRUST v LYNDON, LYNDON and ARCHER [2023] NZHC 3476 [1 December 2023]

[1] Following my judgment of 27 September 2023,1 the parties have been unable to reach agreement on costs.

Background

[2] The plaintiffs claimed damages in nuisance in relation to a row of poplar trees on the defendants’ driveway which ran along the plaintiffs’ boundary near to the plaintiffs’ commercial greenhouse.

[3]The defendants’ counterclaimed in trespass.

[4] The plaintiffs pleaded loss of profits of approximately $1.1 million but at trial the claimed loss reduced to $712,500 plus interest.

[5] The defendants claimed $78,000 for loss of amenity in the trees due to the trees being cut down, $1,356 for the cost of removal and $50,000 for distress, upset and loss of privacy.

[6] I found that the second plaintiff was entitled to judgment on the claim in nuisance for damages of $45,278 plus interest.

[7]The defendants’ counterclaim was dismissed.

[8] My judgment indicated that while the plaintiffs had succeeded in part, given the reduced damages awarded and in all the circumstances of this unfortunate dispute, I was inclined to make no order as to costs. Of course, at that stage I was unaware of any offers made without prejudice except as to costs.

Costs sought

[9] The defendants seek costs on the basis that they made two written offers without prejudice save as to costs, dated 28 February and 20 April 2023. They also raise other matters. The defendants seek a 30 per cent uplift on 2B costs, totalling
$38,060.75, plus expert costs of $56,165 for steps taken since 28 February 2023 on

1 Zheng v Lyndon [2023] NZHC 2679.

the basis that they became the successful party due to their settlement offer. Alternatively, they seek costs calculated on the same basis since 20 April 2023, totalling $25,632.75, plus expert costs of $15,541.64.

[10] In response, the plaintiffs say they were the successful party and are entitled to costs. The plaintiffs’ costs, calculated on a 2B basis, total $48,766.50 plus disbursements of $163,669.98.

The without prejudice except as to costs offers

[11] On 28 February 2023, the defendants…

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 Lyndon

Details

AGLC: Zheng v Lyndon [2023] NZHC 3476
Case: [2023] NZHC 3476
Decision Date: 1 December 2023

CaseChat Overview and Summary

In Zheng v Lyndon, the High Court of New Zealand was tasked with determining the costs of the proceedings between the plaintiffs, Lu Zheng and Zheng Lu Holdings Limited, and the defendants, David Julian Richard Lyndon, Jennifer Robyn Lyndon, and Lisa Michelle Archer. The dispute originated from claims of nuisance by the plaintiffs regarding a row of poplar trees on the defendants' driveway, which ran along the plaintiffs' boundary near their commercial greenhouse. The defendants counterclaimed for trespass. The Court awarded the second plaintiff damages of $45,278 plus interest for the nuisance claim, while the defendants' counterclaim was dismissed.

The court assessed the costs of the proceedings by considering the general principles of the High Court Rules 2016, which state that the party who fails in a proceeding should pay the costs of the party who succeeds. However, the court also has the discretion to order a party to pay increased costs if the opposing party fails to accept a settlement offer without reasonable justification. The defendants argued that they made two written offers without prejudice save as to costs, dated 28 February and 20 April 2023, and that these offers should be taken into account in determining costs. The plaintiffs, on the other hand, argued that they were the successful party and were therefore entitled to their costs.

The court found that while the defendants' offers may be considered under the High Court Rules 2016, they did not reverse the plaintiffs' prima facie entitlement to costs. The court considered that the plaintiffs did not fail, without reasonable justification, to accept the defendants' offers, particularly the one made on 20 April 2023, which was open for less than a day. The court also noted that the expert evidence provided by both parties was somewhat unsatisfactory and that the overall outcome of the case was within the jurisdiction of the District Court. The court ultimately decided that the plaintiffs were entitled to 2B costs and disbursements for the period up to 20 April 2023, and the defendants were entitled to 2B costs and disbursements thereafter. The court reserved the liberty to apply for the calculation in the unlikely event that it was necessary.

Orders