Xiao v Sun [2018] NZHC 1334 (7 June 2018)

Last Updated: 26 June 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2872 [2018] NZHC 1334

UNDER	the Credit Contracts and Consumer Finance Act 2003
UNDER	Part 2, subpart 5 of the Contract and Commercial Law Act 2017
BETWEEN	HANYUE XIAO Plaintiff
AND	XIUFANG SUN Defendant

Hearing:	On the papers
Judgment:	7 June 2018

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 7 June 2018 at 3.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Loo & Koo, Newmarket Auckland Counsel: AJB Holmes, Auckland

XIAO v SUN [2018] NZHC 1334 [7 June 2018]

Introduction

[1] This is an application for costs by the plaintiff, Ms Xiao.

[2] The substantive proceeding was an application by Ms Xiao for relief on the basis that loan agreements between her and the defendant, Ms Sun, were illegal contracts under the Contract and Commercial Law Act 2017 (CCLA) and consumer credit contracts under the Credit Contracts and Consumer Finance Act 2003 (CCCFA) which were both oppressive and entered into by oppressive means.

[3] Ms Xiao and Ms Sun met at the SkyCity Casino where they both gambled. Ms Sun loaned money to Ms Xiao over an 11-month period by way of a series of oral and written loan agreements. A key issue in the proceeding was whether Ms Sun charged Ms Xiao interest.

[4] In my judgment dated 26 March 2018,¹ I found that Ms Sun charged interest on the money loaned to Ms Xiao and of the $800,000 recorded in the loan agreements, an approximate amount of $133,000 was loaned, with the balance of the $800,000 being capitalised interest.

[5] I also held in favour of Ms Xiao that the loan agreements were illegal contracts for the purposes of the CCLA, as they were contrary to the Gambling Act 2003. Ms Xiao had repaid $100,000 of the approximately $133,000 borrowed. That latter figure was based on SkyCity gambling records. In granting relief, I exercised my discretion under s 76 of the CCLA and did not order Ms Xiao to repay any outstanding money borrowed from Ms Sun.

[6] As part of the relief, I also made an order restraining Ms Sun from exercising any powers of enforcement under the loan agreements, including as against an apartment and a house owned by Ms Xiao and her husband.

¹ Xiao v Sun [2018] NZHC 536.

[7] Given that the contracts were illegal contracts, I did not go on and make determinations under the CCCFA.² However, I made factual findings relevant to those claims, which were favourable to Ms Xiao.

[8] It followed from my decision in favour of Ms Xiao that I refused Ms Sun’s counterclaim for $700,000, being the balance of the $800,000 Ms Sun says was loaned (with $100,000 having been repaid by Ms Xiao).

[9] Ms Xiao now seeks costs.

[10] In a memorandum filed on her behalf, Mr Holmes states that Ms Xiao’s solicitors wrote to counsel for Ms Sun seeking agreement on costs, but did not receive a response. Following the filing of Ms Xiao’s memorandum, the Court received an email from the solicitors for Ms Sun advising that they have no instructions on this matter. Under the timetable orders I made for the filing of costs submissions, time has now expired.³

[11] I therefore proceed on the basis of Ms Xiao’s memorandum.

Principles

[12] The general principle is that costs will be awarded to the successful party.⁴

[13] Courts have a wide discretion when determining costs. However, the discretion is qualified by costs rules in the High Court Rules.⁵ The overriding consideration when exercising the discretion is that any award of costs ought to do justice between the parties.⁶

² See Contract and Commercial Law Act 2017, s 82(1).

³ Xiao v Sun, above n 1, at [498].

⁴ High Court Rules, r 14.2(1)(a).

⁵ Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [7].

⁶ Packing In Ltd (in liq) v Chilcott [2003] NZCA 124; (2003) 16 PRNZ 869 (CA) at [5].

Costs claimed

[14] Ms Xiao seeks scale costs totalling $123,653.50 calculated on a category 2B basis. An uplift of 50 per cent of scale is sought in respect of all steps, bringing the total award to $185,480.25.

[15] Disbursements of $201,834.28 are also sought.

Costs by analogy

[16] There are two steps where the time for the step has been applied by analogy (step 36). One step is the filing of a memorandum of issues. The parties filed a joint memorandum of issues on 23 September 2016. That was in response to the Court’s direction on 24 August 2016 that the parties file a joint memorandum setting out the issues in the proceeding as agreed upon, and any additional issues arising for determination.

[17] The second step is the filing of a memorandum regarding non-party discovery. The parties filed a joint memorandum on 20 December 2016. They sought orders by consent for non-party discovery by SkyCity Casino. Those orders were made by Associate Judge Doogue on 2 February 2017.

[18] In relation to these two claims, I agree with the statement by Katz J in

Weaver v HML Nominees Ltd:⁷

[51] The rules envisage, however, that some “steps” in the proceeding may not be covered by Schedule 3. In such circumstances rule 14.5(1)(b) provides for the Court to make an allowance for such costs by analogy with Schedule 3 ...

[19] I consider that step 36 is properly applied by analogy for each of the two steps and that the claim for the two steps is appropriate.

⁷ Weaver v HML Nominees Ltd [2016] NZHC 473.

Other steps

[20] I am satisfied that the other steps set out in the schedule to counsel’s submissions are appropriate and were taken, and I award costs as sought. That schedule has been reproduced as Schedule A to this judgment (but without the sum claimed for an uplift which is referred to separately below).

Increased costs

[21] Ms Xiao seeks increased costs under r 14.6(3)(b)(v) for all steps in the proceeding. An uplift of 50 per cent, namely $61,826.75, is sought on the basis that Ms Sun, without reasonable justification, failed to accept an offer of settlement.

[22] There were two offers of settlement made and each of the two letters is annexed to the submissions. On 7 July 2015, Ms Xiao’s then solicitors wrote to Ms Sun’s solicitors on a without prejudice save as to costs basis. The letter was sent to Ms Sun at a time when Ms Xiao did not have access to any of her SkyCity records or any of Ms Sun’s SkyCity records. The letter estimates that no more than $200,000 principal could have been advanced. As Ms Xiao had already repaid $100,000, the proposed offer of settlement was a one-off payment of $100,000 in full and final settlement, on the basis that Ms Sun immediately withdraw the caveats on Ms Xiao’s properties. That offer was not accepted.

[23] A second letter was sent on 15 June 2017, just over a month before the hearing commenced. It was sent on a similar basis, namely without prejudice save as to costs. At that stage, the estimate was that the principal advanced was between $130,000 and
$200,000 (with $100,000 having been repaid). However, Ms Xiao still made an offer on the basis that the amount she had borrowed was the higher figure of $200,000. She made an offer to settle by a one-off payment of $50,000 in full and final settlement, on the basis that Ms Sun withdraw the caveats on Ms Xiao’s properties and discharge the mortgages registered in Ms Sun’s favour against Ms Xiao’s properties. There was no response to this offer. It expired at 5 pm on 23 June 2017.

[24] Mr Holmes submits that Ms Sun would have been in a better position had she accepted either of the offers, as she would have received a payment from Ms Xiao of
either $50,000 or $100,000 against an estimated outstanding principal of $30,000. As noted in [5] above, in the exercise of my discretion I ordered that Ms Xiao was not required to make any further payment to Ms Sun.

Analysis

[25] Under r 14.6(3)(b)(v), the Court may order a party to pay increased costs if that party failed, without reasonable justification, to accept an offer of settlement. The reasonableness of a party’s rejection of an offer must be assessed at the time the offer was made and declined, not against the subsequent result.⁸ It will depend on the circumstances of the case, including the size and timing of the offer, the reasonable expectations of the party refusing the offer and on the parties’ ability, at the time of the offer, to assess the merits of the case.⁹

[26] Here, the two offers of settlement took the form of Calderbank letters. As Heath J explained in Aldrie Holdings Ltd v Clover Bay Park Ltd:¹⁰

[14] A Calderbank letter is one in which a party to Court proceedings makes an offer to settle on a without prejudice basis, but reserves the right to produce the letter when question of costs are addressed. The procedure encourages a realistic apprisal [sic] of a party's position in litigation. It enables costs to be sought where an offer has been rejected but a less beneficial outcome results for the party declining the offer.

[27] There are specific rules in the High Court Rules which relate to Calderbank
offers. They provide as follows:

14.10 Written offers without prejudice except as to costs

(1) A party to a proceeding may make a written offer to another party at any time that—

(a) is expressly stated to be without prejudice except as to costs; and

(b) relates to an issue in the proceeding.

(2) The fact that the offer has been made must not be communicated to the court until the question of costs is to be decided.

8. Weaver v HML Nominees Ltd, above n 7, at [30]. The Court of Appeal did not comment on these principles in Weaver v Auckland Council [2017] NZCA 330.

⁹ At [30](a)-(i).

¹⁰ Aldrie Holdings Ltd v Clover Bay Park Ltd [2016] NZHC 1482.

14.11 Effect on costs

(1) The effect (if any) that the making of an offer under rule 14.10 has on the question of costs is at the discretion of the court.

(2) Subclauses (3) and (4)—

(a) are subject to subclause (1); and

(b) do not limit rule 14.6 or 14.7; and

(c) apply to an offer made under rule 14.10 by a party to a proceeding (party A) to another party to it (party B).

(3) Party A is entitled to costs on the steps taken in the proceeding after the offer is made, if party A—

(a) offers a sum of money to party B that exceeds the amount of a judgment obtained by party B against party A; or

(b) makes an offer that would have been more beneficial to party B than the judgment obtained by party B against party A.

(4) The offer may be taken into account, if party A makes an offer that—

(a) does not fall within paragraph (a) or (b) of subclause (3); and

(b) is close to the value or benefit of the judgment obtained by party B.

[28] Rule 14.11(3) and (4) capture specific situations where a Calderbank offer is made. They do not apply to the instant case. Nevertheless, as r 14.11(1) makes clear, the effect that the making of an offer under r 14.10 has on the question of costs is at the discretion of the court. Rule 14.11 does not limit my discretion under r 14.6(3)(b)(v).¹¹

[29] I must, therefore, focus on whether the rejection of the offers contained in the two letters was unreasonable, so that I might exercise my discretion to order increased costs. Ultimately, as the Court of Appeal stated in Bluestar Print Group (NZ) Ltd v Mitchell, the “scarce resources of the Courts should not be burdened by litigants who choose to reject reasonable settlement offers, proceed with litigation and then fail to achieve any more than was previously offered”.¹²

¹¹ Rule 14.11(2)(b).

¹² Bluestar Print Group (NZ) Ltd v Mitchell [2010] NZCA 385 at [20].

[30] My starting point must be the terms of the Calderbank letters.¹³

[31] In relation to the first offer, that was sent just over two years before the substantive hearing. As Mr Holmes notes, this letter was sent before the parties had access to the SkyCity records. Those records provided a helpful basis on which to assess whether Ms Xiao’s gambling losses were consistent with her having borrowed the full amount of $800,000. Without those records and the later evidence of the expert forensic accountants, counsel were largely left with the version of events provided by their respective clients and other associated individuals. I therefore do not consider it was unreasonable for Ms Sun to reject the first settlement offer.

[32] At the time of the second settlement offer, I accept that Ms Sun had the ability to assess the merits of the case. The SkyCity records were available. In any event, the Calderbank letter recorded:

9. As you are aware, that amount is difficult to ascertain as there are no records of the advances made. Prestige Lawyers’ [Ms Xiao’s former solicitors] letter of 7 July 2015 indicated the amount was in the vicinity of $200,000, whereas Mr White of Hussey & Co considered it would be in the range of

$130,000. For the purpose of this letter, we are assuming that it is the higher figure of $200,000.

[33] Mr White, a forensic accountant who analysed the SkyCity records, was called at trial on behalf of Ms Xiao. At trial, his opinion, based on the SkyCity records, was that the amount loaned was around $133,000.

[34] The letter stated that Ms Xiao was assuming that the amount was the higher of the two figures recorded in the letter, namely $200,000. She did not have to do that. In that context, Ms Xiao’s settlement offer of $50,000 was more than reasonable. When added to the $100,000 already repaid, it made a total of $150,000 proposed in repayment against the around $133,000 assessed by Mr White as the borrowed amount.

[35] Ms Sun was entitled to take her own view of events. But, objectively, I regard Ms Sun’s rejection of the settlement offer as unreasonable.

¹³ See Aldrie Holdings Ltd v Clover Bay Park Ltd, above n 10, at [30].

[36] Therefore, I award Ms Xiao costs increased by 50 per cent from the date of expiry of the offer contained in the Calderbank letter, namely 23 June 2017 (and not 50 per cent of all costs, as claimed). In other words, for steps 31, 15, 33, 34 and 25. The amount of the uplift is $47,666.25.

Disbursements

[37] Ms Xiao claims a total of $201,834.28 in disbursements in various categories.

[38] Rule 14.12 of the High Court Rules relevantly provides as follows:

14.12 Disbursements

(1) In this rule,—

disbursement, in relation to a proceeding,—

(a) means an expense paid or incurred for the purposes of the proceeding that would ordinarily be charged for separately from legal professional services in a solicitor’s bill of costs; and

(b) includes—

(i) fees of court for the proceeding:

(ii) expenses of serving documents for the purposes of the proceeding:

(iii) expenses of photocopying documents required by these rules or by a direction of the court:

(iv) expenses of conducting a conference by telephone or video link; but

(c) does not include counsel’s fee.

relevant issue, in relation to a disbursement, means the issue in respect of which the disbursement was paid or incurred.

(2) A disbursement must, if claimed and verified, be included in the costs awarded for a proceeding to the extent that it is—

(a) of a class that is either—

(i) approved by the court for the purposes of the proceeding; or

(ii) specified in paragraph (b) of subclause (1); and
(b) specific to the conduct of the proceeding; and

(c) reasonably necessary for the conduct of the proceeding; and

(d) reasonable in amount.

(3) Despite subclause (2), a disbursement may be disallowed or reduced if it is disproportionate in the circumstances of the proceeding.

...

[39] Some of the disbursements sought fall within the categories in r 14.12(1)(b). Others fall outside those categories and accordingly they will need to be approved by the Court under r 14.12(2)(a)(i). The Court has a discretion to grant such approval if the following criteria are met:

(a) The disbursement is specific to the conduct of the proceeding;

(b) The disbursement was reasonably necessary for the conduct of the proceeding; and

(c) The disbursement is reasonable in amount.

[40] I will first consider those costs which fall within r 14.12(1)(b), namely court fees, service of proceedings, service of witness subpoenas and copying/printing.

Court fees

[41] Ms Xiao seeks a total of $50,120.00 made up as follows:

Filing statement of claim	$1,350.00
Amended statement of claim	$110.00
Application to amend statement of claim	$500.00
Second amended statement of claim	$110.00
Scheduling fee	$1,600.00
Hearing fee	$46,400.00
Sealing judgment	$50.00
Total	$50,120.00

[42] I award $50,120.00 for court fees. The fees claimed all fall within r 14.12(1)(b)(i).

Service of proceedings

[43] Ms Xiao claims $92.00 for service of the proceedings and associated documents on Ms Sun at the offices of her solicitors. The claim is supported by an invoice from a service agent.

[44] I award $92.00 for the service of proceedings pursuant to r 14.12(1)(b)(ii).

Service of witness subpoenas

[45] Ms Xiao claims $407.10 for the service of a witness summons on Shang Hong Li and service (including attempted service) on Ye Shinkarenko. This claim is supported by an invoice from a service agent.

[46] I award $407.10 for the cost of service of witness summons pursuant to r 14.12(1)(b)(ii).

[47] Ms Xiao also seeks $240.00 being $120.00 to each of the above two witnesses tendered in cash in accordance with Schedules A to C of the Witnesses and Interpreters Fees Regulations 1974. These regulations no longer have any applicability to civil cases.¹⁴ I will address this claim later in this judgment under r 14.12(2)(a)(i).

Copying and printing

[48] Ms Xiao seeks $6,876.76 for printing/copying for the production of bundles of documents. Those claims are supported by an invoice from Loo & Koo, solicitors for Ms Xiao, totalling $6,009.82 and invoices from Antony Holmes, counsel for Ms Xiao, totalling $866.94.

[49] I award $6,876.76 for printing/copying documents pursuant to r 14.12(1)(b)(iii).

¹⁴ Air New Zealand Ltd v Commerce Commission [2007] NZCA 27, [2007] 2 NZLR 494 at [49].

Expert fees (forensic accountant)

[50] Ms Xiao seeks the sum of $77,777.95 for fees paid to Hussey & Co, chartered accountants. As noted above, Mr White of that firm gave evidence on behalf of Ms Xiao during the trial. These costs need to be approved by the Court under r 14.12(2)(a)(i).

[51] A party is generally entitled to recover the actual fees and expenses of its expert witnesses provided they meet the criteria contained in r 14.12(2).¹⁵ The Court of Appeal has stated:¹⁶

[62] A party can recover in respect of an expert witness only for the time he or she spends giving evidence and the time he or she spends in preparing that evidence. In addition, a party could properly claim for time spent by its expert in critiquing other parties’ experts so as to assist counsel to understand the issues and opposing contentions and to assist counsel in cross- examination. But experts do not draft pleadings and do not write legal submissions. Any claim for time spent on those tasks would not fall within the criteria ...

Was the disbursement specific to the conduct of the proceeding?

[52] A key factual dispute in the proceeding was whether Ms Sun charged interest on amounts loaned to Ms Xiao. Ms Xiao’s position was that interest was deducted from the sums advanced to her and that she received approximately $133,000 in principal. The balance of the documented loan amount of $800,000 represented capitalised interest. Ms Sun denied that interest was charged and said the full loan amount of $800,000 was given to Ms Xiao.

[53] The evidence from Mr White included an analysis of 16 banking accounts, SkyCity gaming records, SkyCity deposit account records and foreign exchange records. Mr White’s evidence was adduced for the purpose of demonstrating that it was not possible for Ms Sun to have loaned the full amount of $800,000 to Ms Xiao.

[54] The expert costs were clearly specific to the conduct of the proceeding.

¹⁵ Air New Zealand Ltd v Commerce Commission, above n 14, at [47].

¹⁶ Air New Zealand Ltd v Commerce Commission, above n 14.

Was the disbursement reasonably necessary for the conduct of the proceeding?

[55] The main evidence for each side was the account given by the parties themselves. Making an assessment of credibility and reliability on the basis of that evidence alone was rendered somewhat difficult because there were very few transactional documents as a result of the way in which the lending was conducted.

[56] Other evidence in the trial was therefore important in assessing whether that other evidence supported the case for either party. The financial analysis of the expert witnesses was amongst that other evidence.

[57] In my view, the attendances by Mr White were reasonably necessary for the conduct of the proceeding.

Is the disbursement reasonable in amount?

[58] Ms Xiao supports her claim by reference to four invoices dated 31 May 2017 ($42,559.20), 31 August 2017 ($19,225.70), 25 September 2017 (6,843.65) and 10 October 2017 ($9,149.40).

[59] There is no supporting analysis of the work undertaken. In this case, the parties proposed, and I ordered, that the expert accountants for each side confer and provide a joint witness statement setting out areas of agreement and disagreement. However, there is no breakdown of the time taken in relation to this or the other various stages of the expert evidence process. Nor is there any independent evidence as to the usual basis on which such firms charge and what is the normal range of hourly charge out rates.

[60] The hourly rates for those involved are apparent from the invoices as follows:

(a) $300 per hour for Mr White (212.5 hours)

(b) $50 per hour for analyst assistance (29.2 hours)

(c) $80 per hour for secretarial assistance (13.7 hours)
[61] There was similarly no explanation as to the work involved in “analyst assistance” or “secretarial assistance”.

[62] Mr White’s 212.5 hours of work resulted in a brief of evidence of 53 pages together with a joint witness statement of 25 pages.

[63] Part of the time claimed appears to have included the time involved in Mr White giving evidence. The Court of Appeal has accepted that an expert witness can recover for the time he or she spends giving evidence.¹⁷ I also take into account the fact that Mr White was present during the evidence of the opposing expert (the evidence of each commencing by way of a “hot tub” process).

[64] Ultimately, I am satisfied that the number of hours claimed in relation to Mr White was reasonable.

[65] As to Mr White’s hourly rate, he gave evidence that he has had extensive experience in the fields of valuation and financial analysis since 1991. He has held his current role as an Associate within the chartered accounting practice of Hussey & Co since 2003. I am similarly satisfied that his hourly rate of $300 was reasonable.

[66] Although there was no explanation of the work done under the category of “analyst assistance” or “secretarial assistance”, I accept it was reasonable for Mr White to delegate tasks to others at a lesser hourly rate, to assist him.

[67] In this case, while further details such as industry norms for charge out rates and a narration of the various steps taken in the process of preparing the expert evidence, together with the time allocated to each step, would have been of assistance, in the end I consider that Ms Xiao has discharged the burden of proof and has satisfied me that the sum claimed for expert witness attendances is reasonable in amount.

[68] I therefore award $77,777.95 for expert witness fees.

¹⁷ Air New Zealand Ltd v Commerce Commission, above n 14, at [62].

Interpreters fees

[69] Both Ms Xiao and Ms Sun are Mandarin speakers. Although they both understand and speak some English, they gave their evidence in the Mandarin language. On the application of Mr O’Callahan, I made oral evidence orders for the two of them. Accordingly, their evidence-in-chief proceeded by direct examination.

[70] Interpreters were also needed for most of the other lay witnesses whose first language was Mandarin. Ms Xiao and Ms Sun shared the cost of the interpreters equally and the half share claimed by Ms Xiao is $14,281.11.

[71] Four interpreters were involved. Their fees were respectively as follows:

(a) $700 per day (including GST);

(b) $900 per day and $500 per half day (when only engaged for a half day) (both exclusive of GST);

(c) $168 per hour for the first hour and $140 per hour for all subsequent hours each day (exclusive of GST); and

(d) $900 total for both a part morning and a full morning (exclusive of GST).

[72] I am satisfied that this disbursement was specific to the conduct of the proceeding and was reasonably necessary for the conduct of the proceeding. Counsel for Ms Xiao has not provided me with any basis to make an assessment as to whether the disbursement is reasonable in amount, such as a reference to industry norms.

[73] There is a loose consistency across the rates referred to in [71](b) to (d) above. The outlier is the $700 amount referred to in [71](a). That particular interpreter had been engaged for the entire proceeding. However, his services were terminated towards the end of the first day as the standard of his interpreting was well below an acceptable level (junior counsel for Ms Sun is a fluent Mandarin speaker and was in a position to assess accuracy). The other three interpreters were brought in at short
notice with two of the three mainly sharing the role. The standard of interpreting appeared to be high. Based on the loose consistency of rates (on what I accept is only a small sample of three) and also on the quality of assistance to the Court, I assess the amount claimed as reasonable.

Translation costs

[74] Ms Xiao seeks the sum of $51,900.24 for the translation of some 16,000 pages of documents for the common bundle, as well as an affidavit and briefs of evidence. The documents were mainly records of WeChat communications between Ms Xiao and Ms Sun. The translations were all provided by one individual and there are seven invoices submitted in support of the claim. Those invoices are on the following dates and contain the following narrations (the amounts are the totals, including GST):

3 December 2015	Translation of WeChat screenshots	$948.75
31 October 2016	Translation of an affidavit and amending it afterwards as requested	$241.50
13 May 2017	Translation of 43 documents (WeChat screenshots) (101,417 words)	$40,820.34
21 May 2017	Translation of XSF1.55 (WeChat screenshots) (973 words)	$391.63
12 June 2017	Translation of two more series of WeChat messages (4,839 words) and translation of Ms Xiao’s brief of evidence (12,964 words)	$7,165.71
18 July 2017	Translation of Shang Hong Li’s affidavit and translation of extra WeChat messages (2,879 words)	$1,412.37
30 July 2017	Translation of further WeChat messages (1,857 words) and attending a meeting at solicitors to sign final affidavit on 12 and 14 July 2017	$919.94

[75] I accept that the disbursement is specific to the conduct of the proceeding. As to whether it was reasonably necessary for the conduct of the proceeding, in the end I placed only limited reliance on the WeChat messages. Also, as with the claim for interpreters, I am in difficulty in assessing whether the disbursement is reasonable
in amount. There is nothing provided in the invoices to assist with assessing the hourly rate.

[76] There was only one individual involved in the translating process. He was the person referred to in [71](d). I have assessed this rate as a Court interpreter as reasonable. But there is no information provided regarding his rate as a translator.

[77] I bear in mind that the claimant bears the onus of proof, on the balance of probabilities. In making my assessment, I adopt a pragmatic approach to ensure justice between the parties. I consider the amount claimed should be reduced by 50 per cent given the limited reliance the Court placed on the WeChat messages and the lack of information regarding hourly rates. I award $25.950.12.

NZLS Library costs

[78] Ms Xiao claims $39.10 for New Zealand Law Society Library costs, supported by two invoices of $19.55 each. One invoice does not refer to the judgment obtained or assistance given. I disallow that claim. The second refers to two cases, only one of which was cited in counsel’s submissions. I therefore allow half the claim in the invoice, namely $9.78.

Courier fees

[79] Courier fees of $100.03 are claimed. There are three supporting invoices from Mr Holmes. There is no explanatory detail, other than the date and that they relate to Ms Xiao. I disallow the claim for couriers.

Witness expenses

[80] I referred to this claim at [47] above. As noted, the Witnesses and Interpreters Fees Regulations are no longer applicable to civil cases.¹⁸ The expenses claimed must be assessed in relation to r 14.2(2)(a)(i).

¹⁸ Air New Zealand Ltd v Commerce Commission, above n 14, at [49].

[81] Ms Xiao claims $240 for witness expenses. There is no further explanatory detail. I disallow this claim.

Conclusion

[82] Ms Xiao is entitled to costs of $171,319.75 and disbursements of $175,514.82, totalling $346,834.57.

[83] I make an order accordingly.








Gordon J

SCHEDULE A – COSTS CALCULATION

Step		Time allocation	Sum
1	Commencement of proceeding by plaintiff	3	$6,690.00
2	Statement of defence to counterclaim	1	$2,230.00
3	Reply to amended statement of defence	0.8	$1,784.00
11	Filing memorandum for CMC 9 August 2016	0.4	$892.00
13	Appearance at CMC 23 August 2016	0.3	$669.00
36	Filing memorandum of issues	0.3	$669.00
20	List of documents on discovery	2.5	$5,575.00
21	Inspection of documents	1.5	$3,345.00
36	Filing memorandum regarding non-party discovery	0.4	$892.00
30	Preparation of briefs	2.5	$5,575.00
31	Preparation of authorities and common bundle	2.5	$5,575.00
15	Preparation for and appearance at pre-trial conference	0.5	$1,115.00
33	Preparation for hearing	3	$6,690.00
34	Appearance at hearing	24.5	$54,635.00
25	Second counsel	12.25	$27,317.50
		Subtotal	$123,653.50