Zhou v Junwei - [2022] NZHC 2190

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000258

[2022] NZHC 2190

BETWEEN
BINGYAN ZHOU

Plaintiff / Respondent

AND

TANG JUNWEI

First Defendant / Applicant

BU QIAN YU
Second Defendant / Applicant

TANG WENBIN
Third Defendant

HUANG XIANGHUA
Fourth Defendant

BCH INVESTMENTS LIMITED
Fifth Defendant / Applicant

VATAR INVESTMENTS LIMITED
Sixth Defendant / Applicant

NAREA INVESTMENTS LIMITED

Seventh Defendant / Applicant

Hearing: On the papers

Counsel:

K D Puddle for the Respondent H McDermott for the Applicants

Judgment:

31 August 2022

COSTS JUDGMENT OF ASSOCIATE JUDGE GARDINER

ZHOU v TANG [2022] NZHC 2190 [31 August 2022]

This judgment was delivered by me on 31 August 2022 at 12.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

[1] The first, second, fifth, sixth and seventh defendants filed an application for security for costs against the plaintiff. The plaintiff opposed the application. Shortly before the hearing, the parties reached an agreement to settle the application which involved the plaintiff voluntarily paying security for costs in around the amount sought by the defendants. They could not agree a position on costs associated with the application. Accordingly, the hearing was vacated by consent, with the Court to determine costs.

[2] The defendants seek costs from the plaintiff which they describe as wasted costs incurred due to the plaintiff’s inaction. The defendants submit that if the plaintiff had offered to pay security for costs within a reasonable time of the application being filed, rather than on the eve of the hearing, the plaintiff would have avoided the cost of preparing submissions and bundles for the hearing.

[3] The plaintiff says that it was unable to make an offer of settlement earlier because the defendants did not specify the amount of security sought or the means by which the amount was to be put up as security in the interlocutory application. It says it was not until the defendants filed their submissions for the hearing that they specified the sum sought as security for costs.

[4] Additionally, the plaintiff asserts that the application was unnecessary and unmeritorious because, as the defendants were aware, the plaintiff has substantial immovable assets in New Zealand and is not impecunious. The plaintiff says that the Court has made it clear that security will not be ordered from an overseas resident who owns substantial property in New Zealand where the property is of a permanent nature

and not easily removable from the country.1 For these reasons, the plaintiff seeks costs from the defendants on an increased or indemnity basis.

[5] I reject the plaintiff’s application for costs against the defendants and find that the plaintiff must pay the defendants’ costs.

[6] The general principle is that costs follow the event, so the party who fails pays the costs of the party who succeeds.2 This principle applies to the outcome of an interlocutory application as well as whole proceedings (with exceptions, such as an unsuccessful plaintiff summary…

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 Zhou v Junwei

Details

AGLC: Zhou v Junwei [2022] NZHC 2190
Case: [2022] NZHC 2190
Decision Date: 31 August 2022

CaseChat Overview and Summary

Zhou v Junwei is a case where the plaintiff, Bingyan Zhou, opposed an application for security for costs by several defendants. The defendants sought costs from the plaintiff, claiming they incurred wasted costs due to the plaintiff's delay in offering to pay the security for costs. The plaintiff opposed the application, arguing that the defendants did not specify the amount of security sought and that the application was unnecessary due to the plaintiff's substantial immovable assets in New Zealand. The court was required to determine whether the plaintiff should pay the defendants' costs and, if so, the appropriate amount.

The court considered the general principle that costs follow the event, where the unsuccessful party pays the successful party's costs. The court also considered the High Court Rules, which state that if a plaintiff discontinues a proceeding against a defendant, they must pay the defendant's costs up to and including the discontinuance. The court found that the plaintiff's argument about the defendants not specifying the amount of security sought was not persuasive, as it would have been simple to ask for clarification. The court also declined to consider the merits of the application and the plaintiff's defence to it.

The court found that the plaintiff must pay the defendants' costs, amounting to $6,473 in costs and $741.50 in disbursements, for a total of $7,194.50. The court exercised its discretion under r 14.1 of the High Court Rules to make this decision.

The final orders of the court require the plaintiff to pay the first, second, fifth, sixth, and seventh defendants costs of $6,473 and disbursements of $741.50, for a total of $7,194.50. This decision highlights the importance of prompt action in responding to interlocutory applications and the consequences of failing to do so.

Orders