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Wang v Lu [2021] NZCA 283 (30 June 2021)

Last Updated: 6 July 2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA556/2020
[2021] NZCA 283



BETWEEN

JIANPING WANG
Appellant


AND

BIN LU
First Respondent

WEIHUA ZHANG
Second Respondent

Court:

Brown, Clifford and Gilbert JJ

Counsel:

G P Blanchard QC and G E Slevin for Appellant
A L Harlowe for Respondents

Judgment:
(On the papers)

30 June 2021 at 10.30 am


JUDGMENT OF THE COURT

  1. The application to correct the judgment under r 8 of the Court of Appeal (Civil) Rules 2005 is declined.
  2. The respondents are to pay the appellant costs on the present application on a band A basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

Analysis

Mr Wang’s High Court proceedings

2021_28300.png

On becoming aware of Mr J Lu’s death Mr Wang commenced proceedings by way of an originating application to have Mr J Lu’s estate administered as an insolvent estate under pt 6 of the Insolvency Act 2006.[3] He did so under the following intitulement:

This proceeding

(a) in their reply consenting to Mr Wang’s fast track application;

(b) on their notices of appearance; and

(c) on the written submissions of Mr Harlowe on their joint behalves.

[11] I do not accept the appellant’s submission that the proceeding does not affect the respondents’ interests and that security for costs is therefore not warranted. Although the respondents accept they will not suffer prejudice from the substantive application, they consider other beneficiaries could. Both respondents opposed the application in the High Court on this basis. They also clearly intend to defend the appeal. They are represented by counsel and a timetable has been set for appellant and respondent submissions.

[12] I am satisfied the respondents have a genuine interest in the proceeding, even if they will not suffer prejudice from it. In my view, they are entitled to security for their costs of defending the appeal like any other respondent, pursuant to r 35.

(Footnotes omitted.)

Wrong intitulement — a slip?

Application for correction of “slip”

(a) He appeared in the High Court “on behalf of the estate” as the personal representative.

(b) Leave for the appeal was granted on the basis that costs would be payable by the estate and not by Mr B Lu personally. The judgment granting leave correctly recorded Mr Lu and Ms Zhang as interested parties.

(c) As a result of Mr Wang’s actions in adopting the allegedly incorrect intitulement, the judgment (of this Court) contains an error, namely the incorrect intituling and a subsequent order that Mr B Lu as respondent pay costs.

(d) The practical effect of the error in the intituling is that Mr B Lu is personally liable for $17,013.09 of Mr Wang’s costs, because of an error by counsel for Mr Wang.

(e) That error should be corrected.

Our assessment

(a) As noted in our decision,[12] Mr Wang commenced his pt 6 application by way of originating application without — as permitted by the High Court Rules 2016 — naming a respondent. At the same time, he applied for orders as to service on Mr B Lu and Ms Zhang.

(b) Mr B Lu and Ms Zhang were duly served and, as noted, they filed notices of opposition and appeared at the hearing of the substantive application to oppose. They also opposed, successfully, the application for the originating application to also be treated as an application for an order that Mr J Lu’s estate be administered under pt 6.

(c) They both participated fully as respondents to the appeal, by opposing leave, filing appearances opposing dispensation of security for costs and making submissions at the substantive hearing.

(d) At the end of that hearing, and as Mr Harlowe correctly observed, counsel agreed the scale rate. That there was no explicit discussion as to quantum and/or liability is unsurprising: quantum is never discussed and unless, due to some aspect of the hearing, the Court or counsel raise the matter, costs follow the event.

(a) The respondents had participated in these proceedings at each stage in opposition to Mr Wang’s applications.

(b) In doing so they have acted as parties and have been accorded the rights of parties.

(c) That was the basis of the award of costs on the appeal in this Court against the respondents, not simply their position as named parties.

Result






Solicitors:
Davidson Legal, Christchurch for Appellant
Couch Harlowe Kovacevich, Auckland for Respondents


[1] Court of Appeal (Civil) Rules 2005, r 8.

[2] Wang v Lu [2020] NZCA 673.

[3] Insolvency Act 2006, s 381.

[4] Re Lu [2020] NZHC 1894 at [19].

[5] At [11].

[6] At [12].

[7] At [14].

[8] Re Wang [2020] NZHC 2415.

[9] Wang v Lu, above n 2.

[10] Re Lu [2021] NZHC 631.

[11] Wang v Lu, above n 2.

[12] Wang v Lu, above n 2, at [8].

[13] Re Lu, above n 10, at [11].


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