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Lun v Kong [2023] NZHC 2256 (21 August 2023)

Last Updated: 6 September 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-795
[2023] NZHC 2256
BETWEEN
DAMIN LUN
Plaintiff
AND
YONGCING KONG
Defendant
On the papers:
18 August 2023
Appearances:
J K Goodall KC / LukeSizer / Zar Sinclair for the Plaintiff R E Harrison KC / Anna Cherkashina for the Defendant
Judgment:
21 August 2023

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 21 August 2023 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:

Buddle Findlay (Luke Sizer / Zar Sinclair), Auckland, for the Plaintiff

Norling Law (Brent Norling / Anna Cherkashina), Auckland, for the Defendant

Counsel:

Jason K Goodall, Auckland, for the Plaintiff

Rodney E Harrison KC, Auckland, for the Defendant

DAMIN LUN v YONGCING KONG [2023] NZHC 2256 [21 August 2023]

Introduction

(a) allowance for a second counsel in the plaintiff’s costs;

(b) a disbursement claim for the expert witness fee.

Submissions

Second counsel

(a) An allowance for a second counsel is permitted in category 2 cases provided the case has some exceptional feature to justify a second

1 Lun v Kong [2023] NZHC 1370.

counsel allowance. The approach to determining this is always objective, and it is focused on the nature of the proceeding.2

(b) The Court has accepted that an allowance for a second counsel is permitted in category 2 cases as part of the proceeding’s “average” characterisation.3

(c) 2B costs for a second counsel is appropriate in this case as it involved a complicated fact matrix, with nuanced issues on the conflict of laws, and was of sufficient complexity that both parties engaged King’s Counsel to present their oral arguments.

(a) The interlocutory hearing did not justify the allowance for a second counsel as, while it was accepted that the hearing involved a complex set of legal principles in relation to conflicts of law, the whole argument on behalf of the plaintiff was presented by the principal counsel who is a King’s Counsel;

(b) The hearing was light in evidence and there was no examination of witnesses.

Conclusion in respect of second counsel

  1. Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2017] NZHC 1599, citing Andrew Beck Principles of Civil Procedure (3rd ed, Thomson Reuters, Wellington, 2012) at [13.3.5].

3 Khan v New Zealand Muslim Association [2023] NZHC 802 at [27];

Hodder v Creek [2023] NZHC 561 at [37];

CSR Pokeno Ltd v Yes Investment NZ Ltd [2022] NZHC 2378 at [26]; Commissioner of Inland Revenue v Robertson [2018] NZHC 696 at [62]; Northwest Developments Ltd v Zhang [2017] NZHC 1891 at [38].

Expert witness fee

(a) The body of the affidavit produced by JunHe was only slightly over five pages long, the affidavit itself does not deal with the specific facts of this case but provides a general overview of aspects of a Chinese legal proceedings relating to discovery of evidence, the attendance of witnesses in civil proceedings, and statutory limitation periods.

4 High Court Rules 2016, r 14.12(1).

  1. Air New Zealand Ltd v Commissioner of Inland Revenue [2007] NZCA 27; [2007] 2 NZLR 494; (2007) 18 PRNZ 406 (CA) at [47] and [64].
(b) The remainder of the affidavit are exhibits comprised of the expert’s CV and extracts from Chinese legislation (with unofficial translations).

(c) The claimed fee ofNZ$7,447.56 is highly excessive in amount for the volume and the particularity of the evidence that was produced.

Conclusion in respect of expert witness fee

Claim for costs incurred by the defendant in China

6 Judgment at [88].

Costs on costs

Orders

(a) Scale 2B costs: $11,531.75;

(b) Disbursements: $9,597.56.

................................... Associate Judge Taylor


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