Deng v Ye [2018] NZHC 927 (3 May 2018)

Last Updated: 22 May 2018

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

CIV-2016-404-1022 CIV-2016-404-1005 [2018] NZHC 927

BETWEEN	JIE DENG Plaintiff in 1022 and Defendant in 1005
AND	HUIFANG YE Defendant in 1022 and Plaintiff in 1005
	PUBLIC TRUST Second Defendant in 1005

Hearing:	On the papers
Counsel:	N W Woods for the Plaintiff R Reed for the Defendant
Judgment:	3 May 2018

JUDGMENT OF PALMER J

(Costs of Summary Judgment)

This judgment is delivered by me on 3 May 2018 at 12.30pm pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Counsel/Solicitor:

Prestige Lawyers Limited, Auckland Rice Craig, Auckland

Public Trust, Wellington Brookfields, Auckland

DENG v YE (Costs) [2018] NZHC 927 [3 May 2018]

Judgments

[1] On 22 February 2017, among other things, I declined Ms Jie Deng’s application to strike out, but granted her application to stay, Ms Huifang Ye’s application for return of property from Ms Deng (the 1005 proceeding).¹ I ordered costs to lie where they fell.²

[2] On 12 March 2018, I granted summary judgment to Ms Deng recalling the appointment of Ms Ye as administrator of Mr Jun Xie’s estate in New Zealand (the 1022 proceeding).³ I also granted Ms Ye’s application to order transfer of funds, which Ms Deng did not oppose. I awarded costs on a 2B basis to Ms Deng but reserved leave to the parties to file brief submissions if they could not agree on costs.⁴

Costs submissions

[3] Ms Deng seeks costs and disbursements on an increased or indemnity basis for both the applications for stay of proceedings and summary judgment. She also identifies costs if calculated on a 2B basis. Ms Ye seeks costs awarded to Ms Deng on a 2B basis to be strictly limited to the summary judgment application and hearing. She also seeks costs on her costs memorandum. Counsel squabble about whether a protest to jurisdiction should have been made.

Costs decisions

[4] I do not award costs for the application to stay the 1005 proceeding. I determined the costs of that application on 22 February 2017 and did not invite further applications in that regard. I consider costs in relation to the unopposed transfer of funds in relation to the 1005 proceeding in the 12 March 2018 judgment should lie where they fall. I do not determine other costs in relation to the 1005 application which is, currently, still to be resolved.

¹ Ye v Deng [2017] NZHC 227.

² At [36].

³ Deng v Ye [2018] NZHC 391 at [48].

⁴ At [48](c).

[5] I have already awarded costs of the summary judgment application in the 1022 proceeding to Ms Deng on a 2B basis. For the avoidance of doubt, that includes the application for summary judgment, written submissions on that application, preparation of the bundle, and appearance at that hearing (items 22, 25, 26 and 29 of the applicant’s schedule) and 1.5 days for the written submissions on summary judgment (which is included but not numbered in the schedule).

[6] I agree it is also appropriate for the award to include commencement, case management and other general steps in the proceeding (items 1, 10, 11, 12, 17), including discovery and inspection (items 20 and 21) because the proceeding has now been determined. I do not award costs in relation to briefs of evidence, list of issues and preparation for trial (items 15, 30, 31, and 33) which related to the substantive proceeding, an initial hearing of which has already been the subject of a costs award.⁵

[7] I do not certify for second counsel. I do not award costs on the costs memoranda. The award includes disbursements, but only for items that relate exclusively to the steps for which I have ordered costs are payable. This does not include disbursements related to the substantive proceeding or the 1005 proceeding.

[8] I do not order indemnity or increased costs for the summary judgment application. I had already ordered costs on a 2B basis. The summary judgment application followed vacation of a trial of the substantive proceeding for the same matter and, in the circumstances. I do not consider Ms Ye’s conduct (quite) met the relevant thresholds in r 14.6 of the High Court Rules 2016. I order Ms Ye’s costs of defending this application should be paid personally by her and should not come from the estate of which she was wrongly appointed administrator due to her own failure to alert the Court to relevant information.⁶

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Palmer J

⁵ Ye v Deng [2017] NZHC 2764.

⁶ Deng v Ye, above n 3, at [39].