Tang v Collins [2014] NZHC 1605 (9 July 2014)

Last Updated: 11 July 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-345 [2014] NZHC 1605

BETWEEN	HONG KHAM TANG Plaintiff
AND	PAUL NORMAN COLLINS First Defendant HONG KEO TANG AND AMALIA ASAYAS TANG Second Defendants

Hearing:	On the papers
Counsel:	M J Wenley for Plaintiff H M McKee for First Defendant D O'Connor for Second Defendants
Judgment:	9 July 2014

JUDGMENT OF BROWN J [As to Costs]

This judgment was delivered by me on 9 July 2014 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Willis Toomey Robinson Scannell Hardy, Napier 4142

Glaister Ennor, Auckland 1140

Lunn & Associates Ltd, Napier

Counsel: David O’Connor, Napier

TANG v COLLINS [2014] NZHC 1605 [9 July 2014]

[1] In my judgment dated 15 May 2014¹ I found that the defendants had discharged the burden of proving affirmatively that Mr Tang Senior knew and approved the contents of his will. Consequently I dismissed the plaintiff’s application for an order recalling the grant of probate dated 1 April 2009. I gave a direction for the filing of memoranda as to costs and expressed the preliminary view that only one set of costs should be allowed, drawing attention to High Court r 14.15 which provides:

14.15 Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a) several defendants defended a proceeding separately; and

(b) it appears to the court that all or some of them could have joined in their defence

[2] The Court has received the following memoranda on costs:

(a) Memorandum of second defendants dated 22 May 2014; (b) Memorandum of first defendant dated 30 May 2014;

(c) Memorandum of plaintiff dated 11 June 2014;

(d) Memorandum of second defendants in reply dated 16 June 2014; and

(e) Memorandum of first defendant in reply dated 16 June 2014.

[3] The defendants submit that r 14.15 does not apply in the circumstances of this case primarily on the ground that there was a potential conflict of interest between the first defendant and the second defendants. Attention is drawn to the decisions in Jordan v O’Sullivan (No 2),² Apatu v Apatu³ and Re Blue Chip New Zealand Ltd (in liq).⁴ The defendants argue that the case run by the plaintiff,

_{including the contention that the process for taking instructions for and arranging}

¹ _{[2014] NZHC 1011.}

² _{Jordan v O’Sullivan (No 2) HC Wellington CIV-2004-485-2611, 1 May 2009.}

³ _{Apatu v Apatu HC Napier CIV-2007-441-823, 3 November 2011.}

⁴ Re Blue Chip New Zealand Ltd (in liq) HC Auckland CIV-2009-404-1511, 3 May 2011.

execution of the will was “inherently unsatisfactory”, resulted in the interests of the first defendant and second defendants being potentially in conflict. It is also said that the second defendants’ interest in opposing the application was proprietary (in that they stood to lose the benefit of the gift to them under the will) whereas the first defendant’s interest in opposing the application related to his professional integrity in addition to his duties to the beneficiaries. It is submitted that in those circumstances the defendants could not reasonably be expected to join in their defence.

[4] For the plaintiff Mr Wenley emphasises that the scope of the originating application was deliberately narrow and focused on the circumstances of the making of the will. He submits that the response to the application by the second defendants was expansive and went well beyond what was relevant to the issues raised.

[5] He further submits that item 42 in the Schedule 3 analysis should be discounted by 25-50 per cent as the evidence adduced on behalf of the second defendants went well beyond an appropriate response to the application. While the plaintiff accepts that Thong Say Yang was a relevant witness, there is a challenge to the costs associated with the evidence of Nudang Promsombut notwithstanding that she was requested by the plaintiff to attend for cross-examination.

[6] In the light of the submissions made I have reviewed my judgment and considered again the plaintiff’s originating application, and in particular the evidence presented in support of it.

[7] I recognise that there was the potential for a conflict of interest between the first defendant and the second defendants subsequent to the judgment. The fact of a potential as opposed to an actual conflict of interest would not in itself have caused me to conclude that separate representation was necessarily required. However there are two additional features of the case which I consider cause r 14.15 not to apply so as to require only one set of costs.

[8] The first point arises from the challenge to the degree of fluency of Little

Hong in the Laos language which it was agreed was one of the two primary

questions for determination.⁵ That is not a matter on which Mr Collins could provide relevant evidence. On that issue he found himself in the hands of Little Hong and persons able to depose as to Little Hong’s fluency.

[9] Secondly, the materials which were filed by the plaintiff in support of the application went significantly beyond the narrow and focused matters to which Mr Wenley referred. I draw attention, for example, to the following:

(a) The contents of Big Hong’s affirmation of 4 July 2013 which referred to the extant District Court proceeding brought by Big Hong against Little Hong and Amalia and to Big Hong’s attempt to seek recognition of a loan allegedly made by him to the testator;

(b) The materials attached to Big Hong’s affirmation which traversed significant parts of the family history;

(c) The affidavit of Kham Say Vanpraseuth (a sister) relied on in the originating application which deposed to Big Hong’s alleged loan to the testator and to the proposition that in Chinese custom only blood children are named in a will. The latter point was directed to the fact that Little Hong’s wife, Amalia, was a beneficiary. Kham Say Vanpraseuth stated that that gave her reason to doubt that the testator understood his will;

(d) The affirmation of Boun Sou Wong (a sister) relied on in the originating application which not only referred to Big Hong’s money being used to buy the Napier property the subject of the will but also stated that she questioned Little Hong’s “role and honesty in this matter” because she had been told by the testator that his estate would be divided equally among his children upon his death; and

(e) A supplementary brief of evidence of Big Hong which, in addition to addressing the issue of his alleged financial interest in the Napier

⁵ See [38] of judgment.

property the subject of the District Court proceeding, introduced the somewhat inflammatory contentions that the testator did not get on well with his daughter-in-law Amalia, that the testator did not want Little Hong to marry her and that Big Hong did not believe the testator understood that he was giving a benefit to his daughter-in-law under the will.

[10] It was inevitable that such matters would be engaged with by Little Hong (and indeed other family members). They were issues upon which the first defendant could have little, if any, involvement.

[11] It was as a consequence of those matters being raised and responded to that the hearing occupied two full days.

[12] Although my judgment was confined to the two primary issues and, as I recorded in [73], it was unnecessary for me to make a determination on a number of subsidiary issues including those listed at [72], it is my view that, given the way in which the application was presented evidentially, it was appropriate for separate advice to be obtained by the second defendants and for them to be separately represented, particularly given the range of matters on which only they were able to respond. For the same reason I do not consider that there should be a reduction in the allocation of time for the purposes of item 42 of Schedule 3.

[13] Consequently I approve the costs sought by the first defendant on a category

2B basis in the sum of $10,945 with disbursements of $1,467.

[14] In the case of the second defendants I agree with the plaintiff’s contention that item 28 (obtaining judgment on interlocutory application without appearance) is not applicable. Save for that item, I approve the second defendants’ costs on a 2B

_{basis in the sum of $12,537 with disbursements of $3,616.66.}

Brown J