Zhou v Chi
[2018] NZHC 1912
•31 July 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-1761
[2018] NZHC 1912
BETWEEN XIN ZHOU
Applicant
AND
XIAO RAN CHI
First Respondent
JIAN PING YUE
Second RespondentWEI HUANG YUE
Third Respondent
Hearing: On the papers Counsel:
A Manuson and E H Callister-Baker for the Applicant D Zhang for the Respondent
Judgment:
31 July 2018
COSTS JUDGMENT OF MUIR J
This judgment was delivered by me on Tuesday 31 July 2018 at 10.30 am Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Solicitors:
A Manuson, Prestige Lawyers Limited, Auckland
E H Callister-Baker, Prestige Lawyers Limited, Auckland D Zhang, Amicus Law, Auckland
ZHOU v CHI [2018] NZHC 1912 [31 July 2018]
Introduction
[1] Despite clear indications in my substantive judgment1 as to how costs were to be calculated, the parties continue to argue in respect of discrete allocations.
[2]The outstanding issues can be addressed under the following headings:
1. Application to discharge freezing order
[3] The matter on which I adjudicated was an application to discharge a freezing order which had been granted to Ms Zhou on an originating application without notice.
[4] Both parties’ submissions proceed on a basis that the cost allocation should be made under items 37 and 38 (Originating Application) rather than under item 22 (Filing Interlocutory Application). I accept that as appropriate given that the application to discharge was premised on inadequacies (including allegations of material non-disclosure) in the originating application and so in substance amounted to opposition to it.
[5] Item 38 – Filing Notice of Opposition and Supporting Affidavits for which a two-day allocation is made under Band B recognises allowances for all affidavits filed by the respondents, including the affidavit of Ezra Tie for which separate allowance was sought and the reply affidavit which the respondents chose to file. I disallow the associated claims (x2) and each of 0.4 a day made for the two affidavits.
2. Claim for mention before Downs J on 8 February 2018
[6] The mention was scheduled by Brewer J on 7 December 2017 for the purposes of “review[ing] the matter” and making any necessary adjustments to timetable. At the time his Honour made those orders Ms Zhou intended to pursue an application to debar respondents’ counsel from representing the respondents and his Honour made timetable orders requiring that to be done by 14 December 2017. Mr Zhang says that it was not until 8 February that the applicant confirmed she was no longer pursuing that application but such must have been obvious when it was not filed by the due date
1 Zhou v Chi [2018] NZHC 1298.
in December. Nevertheless, the mention before Downs J was scheduled and allowance for it is appropriate.
3. Claim for memoranda relating to extension of time for reply affidavit
[7] Downs J recorded an agreement by consent that any evidence in reply was to be filed by 9 March 2018. He reserved leave to apply for an extension if required. On 8 March 2018 counsel sought an extension for four weeks and, although no order was made, the affidavit was filed on 4 April 2018 (scanned copy). This was objected to on the basis of delay and that it raised new matters. By Minute dated 17 April 2018 Venning J allowed the affidavit with a further right of reply to the applicant in respect of new evidence.
[8] I do not consider any allocation of costs appropriate to the respondents in respect of the various memoranda which this skirmish generated. The grant of additional time was an indulgence. If they had anticipated delays in receipt of evidence from China, as apparently occurred, a different date for compliance should have been sought before Downs J.
4. Memorandum as to change of representation
[9] Although not the subject of specific submissions by Ms Zhou, I disallow the claim relating to memorandum as to change of representation (0.2 of a day). Such claim (understandably) is not provided for as an item in the Rules.
5. Claim for preparing costs memorandum
[10] I disallow the respondents claim (0.4 of a day) for preparing their costs memorandum. There are a number of matters claimed in the memorandum which I have disallowed. Had the respondents confined themselves to the allowances recognised in Schedule 3 to the Rules, the Court is, in my view, unlikely to have been troubled by this application.
6. Disbursements
[11] In response to an earlier Minute from me the respondents abandon their claim for gown hire ($12).
[12] Their claim for printing and photocopying in the amount of $636.50 is disputed on the grounds that the bundle produced at the hearing was 319 pages only which at a cost of 10 cents per page would total $31.90.
[13] The photocopying charge is not itemised. Clearly this disbursement includes matters other than the agreed bundle, but the charge has the appearance of being excessive and to have likely included all photocopying for all purposes relating to the case. An element of robust justice is required in determination of the claim. I allow 60 per cent for a total disbursement of $381.90.
Result
[14]I allow costs and disbursements of $18,911.27 calculated as follows:
Item Description Date Allocation 11 Memorandum of Counsel for Respondents 9 October 2017 0.4 12 Appearance at mention before Gordon J 12 October 2017 0.2 37/38 Application to discharge freezing order and supporting affidavits 28 November 2017 2.0 11 Memorandum of the respondents re conflict 1 December 2017 0.4 12 Appearance at mention before Brewer J 7 December 2017 0.2 12 Appearance at mention before Downs J 8 February 2018 0.2 40 Submissions for the Respondent 18 May 2018 1.5 41 Preparation of bundle for hearing 17 April 2018 0.6 42 Appearance at hearing before Muir J 24 May 2018 0.75 29 Sealing order 16 June 2018 0.2 (6.45 x $2,230) TOTAL COSTS $14,383.50 Plus Uplift 25% $3,595.87 $17,979.37 Plus Disbursements:
Filing fees $500.00 Photocopying and printing $381.90 Sealing fee $ 50.00
$ 931.90
TOTAL COSTS AND DISBURSEMENTS
$18,911.27
Muir J
0