Jin v North Shore District Court [2013] NZHC 810 (18 April 2013)

Last Updated: 30 April 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-004905 [2013] NZHC 810

BETWEEN RUJING JIN Applicant

AND NORTH SHORE DISTRICT COURT First Respondent

AND YASUKI KONISHI AND MAKIKO KONISHI Second Respondents

Hearing: (On the papers) Counsel: Y Lee for the Applicant

First Respondent abiding decision of the Court

D B Hickson for the Second Respondent

Judgment: 18 April 2013

_{[COSTS] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie

On 18 April 2013 at 4.00 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:

Y Lee: [e-mail]

North Shore District Court:

D B Hickson: [e-mail]

JIN V NORTH SHORE DISTRICT COURT & ORS HC AK CIV 2012-404-004905 [18 April 2013]

[1] I refer to my reserved judgment dated 19 February 2013. In that judgment, I held that Ms Jin’s application for review failed. Indeed, I recorded my view that it was misconceived from the outset. I recorded that the second respondents, Mr and Mrs Konishi, were entitled to their costs and disbursements, and I invited the parties to file memoranda in that regard.

[2] Memoranda have now been filed.

[3] I should record that Ms Jin has filed a notice of appeal against my judgment. That notice of appeal is dated 18 March 2013. Notwithstanding the filing of the notice of appeal, I am issuing this costs judgment. In my view, it is appropriate to do so, so that both my substantive decision and my judgment in relation to costs can be put before the Court of Appeal.

[4] Mr and Mrs Konishi, through their counsel, Mr Hickson, seek indemnity costs against Ms Jin, together with GST and disbursements. The total amount claimed is $22,262.24. In addition, they seek $3,306.24, GST inclusive, for preparation of the costs memorandum.

[5] Ms Jin, through her counsel, Mr Lee, resists the application for indemnity costs. She argues that an award of indemnity costs is not justified, and complains that the second respondents have not listed the relevant steps contained in Schedule 3 to the High Court Rules, and that therefore, she is not able to respond to how the costs were calculated. Ms Jin accepts that costs should follow the event, but argues that there are unusual circumstances. She submits that the respondents have failed to attend alternative dispute resolution. Further, she argues that the second respondents were not prejudiced by the review. It is also argued that the second respondents have never sought a refund of the deposit from the stakeholder — the real estate agent. She submits that costs should be reserved, as the substantive matter has not as yet been argued.

[6] In my judgment, it is appropriate to award costs now. The judicial review proceedings have been determined, subject to the appeal I have noted above. It is not necessary to set out the steps detailed in Schedule 3 when indemnity costs are

sought, although a failure to do so could cause difficulty if indemnity costs are declined. There are no unusual circumstances relevant to the judicial review proceedings which justify declining an award of costs. The second respondents were clearly prejudiced by the review proceedings. They had to defend them at not insignificant cost. They may not have sought a refund of the deposit from the stakeholder, but this is irrelevant. Indeed, the stakeholder would not normally release monies pending resolution of the dispute between the parties claiming an interest in the funds.

[7] While costs are in the discretion of the Court, they generally follow the event. Ms Jin’s application for review failed in its entirety. Costs are normally calculated by reference to the principles set out in r 14.2. However, the Court has a discretion to order a party to pay indemnity costs pursuant to r 14.6(4). Inter alia, the Court may order a party to pay indemnity costs if that party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding, or a step in a proceeding.

[8] Here, as I indicated in my substantive decision, the proceedings were misconceived from the outset. There was never any reasonably arguable basis for contending that the case management directions made by the various District Court Judges the subject of the application for review were ultra vires.

[9] Further, it seems clear from correspondence which has been made available to me by Mr Hickson, acting for the respondents, that Ms Jin was using the threat of judicial review to try and compel the respondents to attend a judicial settlement conference. That threat in itself was inappropriate, particularly give that Judge Sharp had already expressly directed, by a minute of 14 August 2012, that there was to be no settlement conference, as that matter had already been dealt with previously by another Judge.

[10] Ms Jin proceeded with the application for review in face of protests from the second respondents. Indeed, counsel for the second respondents expressly warned counsel for Ms Jin that should she apply for a review and fail, costs would be sought against her on a full solicitor and client basis. In a further email, counsel for the

second respondents suggested to counsel for Ms Jin that it would be in the interests of both parties, in particular Ms Jin, if her counsel were to take advice on this matter from a senior barrister. Counsel for the second respondents pointed out that the judicial review was doomed to fail, and that it would cause both parties needless expense.

[11] I can only presume that this sage advice was not followed.

[12] There were other deficiencies in the process followed by Ms Jin. Service of the judicial review proceedings was not carried out as required by the High Court Rules. Rather, Ms Jin’s counsel endeavoured to effect service by sending the documents by email to the second respondents’ counsel. Following an exchange of emails, counsel for Ms Jin then communicated directly with the second respondents personally. Again, a suggestion that advice should be obtained from a barrister with experience of civil litigation was proffered. Again, that advice appears to have been ignored.

[13] I am advised by counsel for the second respondents that there were a number of other procedural difficulties in getting the proceedings ready for hearing. It is not necessary for me to recite those difficulties, other than to record that they put the second respondents to additional expense.

[14] There were significant defects in the proceedings even once they were finalised. I have commented on that in my substantive judgment at [8]–[11]. The problems with the pleadings were compounded by affidavits which were woefully inadequate. I have also commented on that in [12], [13] and [14] of my judgment. In addition, the submissions advanced on behalf of the applicant were unhelpful. As I have noted in [15], counsel for Ms Jin advanced a series of generalised propositions, and then reproduced verbatim passages from a textbook on judicial review. There was little or no attempt to marry the facts to the law or even to discuss the affidavits filed. Moreover, the oral submissions were marked by curious changes in position. I was left with the overwhelming impression that review proceedings were simply part of an overall plan to frustrate the District Court proceedings.

[15] It is also a matter of concern that attempts were made during the course of the hearing to review decisions which had not been pleaded, or even made available to me.

[16] There is one other matter of significant concern. When I read the file prior to the hearing, it became clear that Ms Jin was prepared to refund the deposit the subject of the District Court proceedings. Accordingly, I asked to see counsel in chambers, before the review proceeding commenced. Mr Lee confirmed that that was Ms Jin’s position, but that she was not prepared to make any payment towards costs. I suggested to counsel that Ms Jin should simply authorise the return of the deposit and that thereafter, each party should file memoranda as to costs in both this Court and the District Court. Counsel for the second respondents indicated that his clients would be more than happy to proceed on that basis. Counsel for Ms Jin took instructions. I was then told that resolution on that basis was not possible. As a result, the application for review proceeded to a substantive hearing.

[17] In my view, the proceedings were quite unnecessary. They were never going to advance the substantive dispute. Their pursuit was vexatious, frivolous, and improper.

[18] As a consequence of the review proceedings, the respondents have been put to significant cost. The costs were more than would normally be the case because of inadequate proceedings, woeful affidavits and endless and unnecessary arguments about peripheral and petty issues which could and should have been avoided.

[19] For these reasons, in my view, an award of indemnity costs is appropriate.

[20] I have considered the various invoices which have been made available to me by the second respondents’ counsel. Those invoices clearly detail the work carried out, the amount charged, GST, and the disbursements incurred. The amount of time taken by counsel in dealing with the matter is not excessive. Counsel’s time has been charged at $250 per hour plus GST. Given counsel’s experience, that hourly charge out rate is, in my view, modest. Invoices have been made available recording that costs in the sum of $22,262.24, inclusive of GST and disbursements, have been

incurred. I also accept that further costs totalling $3,306.24, GST inclusive, were incurred in preparing the costs memorandum. Counsel has made available his timesheets recording the time taken in relation to this work. There is nothing to suggest that the second respondents are entitled to claim back the GST component of the invoices. They should not be left out of pocket for having to defend these unnecessary proceedings.

[21] Accordingly, I order that the applicant, Ms Jin, is to pay costs and disbursements to the second respondents, in the sum of $25,568.48.

Wylie J