CHEN v GENERAL FINANCE LTD [2023] NZHC 3258

CHEN v GENERAL FINANCE LTD [2023] NZHC 3258 [17 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-000548[2023] NZHC 3258BETWEEN LIYUN CHENFirst ApplicantROYALL FAMILY TRUSTSecond ApplicantAND GENERAL FINANCE LIMITEDRespondentHearing: On the papersCounsel: Self-represented ApplicantsA Johnson for the RespondentJudgment: 17 November 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 17 November 2023 at 3 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Martelli McKegg, AucklandCopy to: the Applicants[1] This is a decision on costs.[2] On 31 May 2023, I gave judgment in favour of the respondent, General FinanceLtd (General Finance) against the first and second applicants, Liyun Chen and RoyallFamily Trust (together, the applicants).1[3] The applicants sought permission to apply by originating application to setaside notices issued by General Finance under ss 119 and 122 of the Property Law Act2007 (PLA) until their claim in a separate proceeding (CIV-2023-404-581) wasdecided.[4] I determined that it was not in the interests of justice for the applicants tocommence their proceeding as an originating application and therefore refused theapplication.2 I also noted that even if permission had been given for the applicants tocommence their proceeding by an originating application, any such application wouldfail on the merits.3[5] At the commencement of the hearing on 25 May 2023, I made two non-publication orders by way of a minute prohibiting the publication of certain paragraphsin the applicants' submissions.4 I accepted that General Finance would face a real riskof serious financial and reputational harm which went well beyond allegations beingsimply unwelcome and embarrassing.[6] Mr Johnson appeared for General Finance in relation to the originatingapplication, while Mr Elliot KC and Mr Stewart appeared in relation to the non-publication order.[7] I reserved costs. In the absence of agreement between the parties on costsGeneral Finance filed a memorandum seeking costs dated 9 November 2023. Whilethis is well beyond the 25 working days provided for in the judgment, I will,nevertheless, consider the application. I extended the period for the applicants'1 Chen v General Finance Ltd [2023] NZHC 1329.2 At [56].3 At [57].4 Chen v General Finance Ltd HC Auckland CIV-2023-404-548, 25 May 2023.response but no opposing memorandum has been filed. I will accordingly proceed onthe basis of the respondent's memorandum.Costs principles[8] The starting point for the assessment of costs is that all matters with regard tocosts are at the discretion of the Court.5 However, this discretion is not an unfetteredone and is to be guided by the general principles in rr 14.2 to 14.5 of the High CourtRules 2016 (HCR). A fundamental costs principle is set out in r 14.2(1), whichprovides that the party who failed with respect to a proceeding should generally paythe costs of the successful party. The rules are intended to create a framework fordetermining costs in individual cases that is both "predictable and expeditious".6[9] Ultimately, the overriding consideration when exercising a discretion to awardcosts is that any award ought to do justice between the parties.7Respondent submissions[10] General Finance seeks costs on a 2B basis, pursuant to Schedule 2 and 3 of theHCR. It further says that because it is not GST registered and therefore the GST cannotbe recovered by it, GST is included in the total sum sought for the disbursements.[11] General Finance seeks total costs of $16,610.50 and disbursements of $160 asset out in the schedules annexed to this judgment.Assessment[12] The principle that costs follow the event is not displaced in this case. I do notconsider there are exceptional reasons justifying departure from this principle.Therefore, General Finance is entitled to costs on a 2B basis.[13] In relation to the originating application I am satisfied the steps claimed forwere taken and the amounts claimed accord with the schedules in the HCR.5 High Court Rules 2016, r 14.1.6 Rule 14.2(g).7 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].[14] Regarding the non-publication order, the only issue on which I pause is theclaim for second counsel. No guidance is set out in the HCR as to the circumstancesin which such a claim will be allowed. Criteria such as the complexity of theproceedings including the issues involved; the range of evidence; and the number ofwitnesses, depositions and the volume of evidence before the Court, may be taken intoaccount.8[15] However, that is not always the case. In New Conservative v Television NewZealand Ltd Woolford J was of the view that although the proceeding was not lengthyor complex (either legally or factually) second counsel was warranted because of thesignificance and urgency in the proceeding.9[16] In the present case the offending submissions were filed on Friday 19 May2023. An affidavit from the managing director of General Finance was preparedaddressing the impact on General Finance that would follow from publication. Therewere also written legal submissions. I accept the allegations were a significant issuefor General Finance. As well there was a degree of urgency involved as the hearingwas on Thursday 25 May 2023. I therefore propose to allow the claim for secondcounsel.[17] However, the amount claimed is incorrect. General Finance seeks $597.50 fora time allocation of 0.25 days. But item 27 in sch 3 of the HCR provides for 50 percent of the allowance for the appearance for the principal counsel. The claim forprincipal counsel is .25 days. Therefore, the appropriate allocation and amount forsecond counsel is 0.125, or $298.75.[18] The steps in relation to the non-publication order are otherwise in accordancewith the HCR.[19] With the one change in allocation that makes the sub-total for the non-publication order $5,915.25, bringing total costs to $16,311.75.8 Brady v Presbyterian Church of Aotearoa New Zealand [2013] NZHC 2300 at [2].9 New Conservative v Television New Zealand Ltd [2020] NZHC 3096 at [12].[20] The disbursements claimed are appropriate.Result[21] I make an order that the applicants are to pay costs and disbursements toGeneral Finance in the total sum of $16,471.75._____________________________Gordon JANNEXUREOriginating applicationStep Description Band/allocation Amount38 Preparing and filingopposition to originatingapplication and supportingaffidavitsB (2 days) $4,78040 Preparing written submissions B (1.5 days) $3,58541 Preparation of bundle forhearingB (0.6 days) $1,43442 Appearance at hearing forprincipal counsel on 25 Mayby A W JohnsonB (0.25 days) $597.50Sub-total 4.35 $10,396.50Disbursements Cost (inclusive of GST)Filing Fee (Notice of Opposition) $110Total $110Application for non-publication order[22]Step Description Band/allocation Amount22 Filing interlocutoryapplication for non-publication orderB (0.6 days) $1,43424 Preparation of writtensubmissionsB (1.5 days) $3,58526 Appearance at hearing forprincipal counsel on 25May 2023 by C Elliot KCB (0.25 days) $597.5027 Appearance at hearing forsecond counsel on 25May 2023 by R StewartB (0.25 days) $597.50Sub-total 2.6 $6,214Disbursements Cost (inclusive of GST)Filing Fee (Sealed Order of non-publication) $50Total $50Total Costs and Disbursements $16,770.50