Yiyang v Peng [2012] NZHC 901 (4 May 2012)

Last Updated: 9 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-007299 [2012] NZHC 901

BETWEEN LIU YIYANG Appellant

AND ZHENG PENG Respondent

Hearing: (On the papers) Judgment: 4 May 2012

_{[COSTS] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie

On 4 May 2012 at 10.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

Holmes Dangen & Associates Limited: [e-mail]

_{R Reed: [e-mail]}

YIYANG V PENG HC AK CIV 2010-404-007299 [4 May 2012]

[1] Mr Yiyang appealed a decision of Judge GB Hubble given on 11 October

2010 in the District Court at Auckland. On 14 December 2010, Cooper J put in place a timetable order to dispose of the appeal. He also set a hearing date.

[2] Security was paid in accordance with Cooper J's directions. However, the appellant failed to take any further steps.

[3] On 17 March 2011, I made an order requiring the appellant to file and serve his submissions on or before 5.00 pm on Friday, 1 April 2011. The order expressly recorded that if the appellant’s submissions were not filed by that date, that the appeal would be treated as having been abandoned, and that it would be dismissed without further call before the Court.

[4] In the event, the appellant did not file any submissions. Furthermore, his then counsel, Mr Banbrook, sought leave to withdraw. I directed that the appeal should be treated as having been abandoned, and that security for costs paid into the Court should be paid to counsel for the respondent’s trust account.

[5] The respondent has since filed an interlocutory application seeking additional costs in the sum of $12,220. I directed that this interlocutory application and the supporting affidavit should be served on Mr Yiyang.

[6] Service has occurred and an affidavit of service has been filed. No notice of opposition has been filed by or on behalf of Mr Yiyang.

[7] It is appropriate to award costs in favour of the respondent on a 2B basis, but not in the sum sought.

[8] Insofar as I can see from the file, a number of the steps claimed by the respondent either have not or should not have been taken. I award costs in respect of memoranda filed for case management conferences on 10 December 2010, 11 March

2011 and 5 March 2011. Most of the issues raised in the memoranda were dealt with on the papers and no appearances were necessary. The respondent is entitled to costs for appearing at one case management conference on 8 November 2011 when an

appearance was required, and to costs for preparing and filing the interlocutory application seeking costs and the supporting affidavit.

[9] The respondent seeks increased costs. I am satisfied that increased costs are appropriate. The appellant failed to comply with the directions given by the Court. Unnecessary costs were incurred by the respondent as a result. I award increased costs of 50 per cent on the amount otherwise payable.

[10] I make a costs award in favour of the respondent in the sum of $5,922, being costs on a 2B basis, for each of the above steps, with a 50 per cent uplift. The amount already paid to the respondent’s solicitors as noted in [4] above will, of course, have to be deducted from this sum before any attempt is made to enforce this judgment.

[11] There is no claim by the respondent for disbursements, and I make no order in that regard.

Wylie J