XIAO v SUN [2018] NZHC 538

XIAO v SUN [2018] NZHC 538 [26 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-2872[2018] NZHC 538UNDER the Credit Contracts and ConsumerFinance Act 2003BETWEEN HANYUE XIAOPlaintiffAND XIUFANG SUNDefendantHearing: On the papersCounsel: AJB Holmes and L E Mannis for the PlaintiffB OʼCallahan and M Chen for the DefendantR Butler on behalf of Ms ShinkarenkoJudgment: 26 March 2018JUDGMENT OF GORDON J[Ms Shinkarenkoʼs costs]This judgment was delivered by meon 26 March 2018 at 4 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Loo & Koo, AucklandK3 Legal Limited, AucklandMorrison Mallett, AucklandCounsel: AJB Holmes, AucklandR Butler, AucklandIntroduction[1] Mr Butler, on behalf of Ms Shinkarenko, a witness who was called forMs Xiao, applies for costs on Ms Shinkarenko's application to set aside a subpoenaduces tecum issued at Ms Sun's request.[2] The application is opposed by Ms Sun.Background[3] Part of the procedural background is set out in my bench note of 28 July 2017which I set out in full below:[1] The plaintiff proposes to call Ye Shinkarenko as a witness. In hisopening submissions Mr Holmes noted that Ms Shinkarenko was originallynot willing to provide a brief of evidence and was served with a subpoenarequiring her attendance at this hearing.[2] A 'will say' statement referring to the affidavit that Ms Shinkarenkoswore for the interlocutory hearing in this proceeding was served on thedefendant on 31 May 2017.[3] However, Ms Shinkarenko subsequently agreed to provide a brief ofevidence which was served on the defendant on Wednesday 19 July 2017.[4] Mr O'Callahan for Ms Sun initially indicated that he would object toMs Shinkarenko being called as a witness. However, when I heard argumenton the issue on Friday 28 July 2017, the plaintiff's [sic]1 position hadchanged.[5] Mr O'Callahan noted that the brief goes beyond the evidence in theaffidavit. He said while the 'will say' statement set out further topics, it didnot contain the detail of what Ms Shinkarenko would say on those topics.That detail is now in the brief of evidence. Nevertheless, the defendant doesnot maintain her objection to Ms Shinkarenko being called as a witness forthe plaintiff.[6] To deal with the situation of the late brief the defendant has obtainedsubpoenas for the production of documents for Ms Shinkarenko, Mr Pan (theplaintiff's husband) and the ANZ Bank.[7] I was given copies of the subpoenas for Ms Shinkarenko and MrPan. While they are both dated 21 July 2017 and while each requiredattendance of the witness at Court with the listed documents on 24 July2017, Mr O'Callahan advised that the subpoenas were not served on the twowitnesses until 27 July 2017.1 This should read "defendant's".[8] Having said that the defendant did not object to Ms Shinkarenkobeing called as a witness, Mr O'Callahan appeared to qualify that somewhatby saying that provided the subpoenas "can run their course" then thedefendant had no objection to Ms Shinkarenko giving evidence.[9] Mr Holmes submitted that the documents listed in the subpoenawere inappropriately wide. For example, both witnesses are required tobring and produce "All of your bank statements, wherever situate, for theperiod from 1 November 2014 to date". This, he said, went beyond therelevant time period.[10] It seemed to me that there was merit in that submission.[11] Counsel agreed that they would confer over the weekend in anattempt to resolve the issue as to the extent of the documents to be producedand who would produce them.[4] The parties did not raise the matter further with the Court. Then, on Friday4 August 2017, Mr Butler appeared on behalf of Ms Shinkarenko. My minute of4 August 2017, which is set out in full below, contains the relevant matters from thatappearance:[1] On Friday 4 August 2017 Mr Rowan Butler appeared on behalf ofthe plaintiff's witness Ye Shinkarenko.[2] The reason for Mr Butler's appearance was as follows. On 26 July2017, Ms Shinkarenko was served with a subpoena dated 21 July 2017,issued under r 9.52 by the defendant. The subpoena required MsShinkarenko to attend the High Court on 24 July 2017 (two days prior to thedate of service) to produce a large number of documents. The subpoena,however, was served on Ms Shinkarenko under cover of a letter dated 26July 2014, which required her to attend instead on 4 August 2017.[3] Mr Butler advised that while Ms Shinkarenko intended to attendcourt in answer to the subpoena, she objected to the number and breadth ofdocuments sought by the defendant. Her grounds of objection, in summaryand as set out in Mr Butler's submissions, included the following:(a) Many of the documents sought by the defendant havealready been discovered in these proceedings (or are in thepossession of the parties);(b) Some of the documents sought appear on their face to beirrelevant to the issue in these proceedings;(c) Some of the documents sought are no longer in thepossession or control of Ms Shinkarenko.[4] For the reasons set out and further developed in Mr Butler'ssubmissions and in the supporting affidavit of Ms Shinarkenko, she appliedto have the subpoena varied by the Court excusing her from providing thedocuments sought by the defendant.[5] The fact that this subpoena had been issued, together with a similarsubpoena which had been served on the plaintiff's husband who is also awitness for the plaintiff, is noted in an earlier bench note dated Friday 28July 2017.[6] It is recorded in that bench note that counsel agreed they wouldconfer over the weekend (last weekend) in an attempt to resolve the issue asto the extent of the documents to be produced and who would produce them.I had not heard further from counsel that they had not been able to resolvethis issue.[7] Upon Mr Butler's appearance, and before hearing from him at anylength, I adjourned to enable counsel for both parties and Mr Butler to conferto see if any agreement could be reached.[8] Upon my return to Court, Mr O'Callahan advised that he had agreednot to pursue production of the witness's bank statements for the extendedperiod as recorded in the subpoena (some having already been produced).He also accepted that documents provided over the previous weekend by theplaintiff's solicitor satisfied other categories of documents recorded in thesubpoena. He also accepted Ms Shinkarenko's statement in her affidavit thatshe no longer had access to communications on either WeChat or via textmessage, which was a further category of documents sought in the subpoena.He accepted that the subpoena had been effectively responded to.[9] That being the case, Mr Butler indicated that no order was thereforeneeded from the Court.[10] I indicated to Mr Butler that I would consider any application onbehalf of Ms Shinkarenko for costs. Any such application should be filedwithin 10 working days of the date of this minute. Any reply on behalf ofthe defendant is to be filed and served within a further five working days.Memoranda are not to exceed five pages.The application[5] In support of his application, Mr Butler relies on the fact that there were10 categories of documents. Within those categories, a broad range of material wassought. By way of example, Ms Shinkarenko was prima facie expected to provide:"any and all communications in form" between herself and the parties to theseproceedings. Bank statements "wherever situate for the period from 1 November2014 to date" were also sought.[6] The solicitors for Ms Xiao, while noting that they did not act forMs Shinkarenko, wrote to counsel for the defendant on 30 July 2017 setting out thereasons why the subpoena was unnecessary. They included:(a) Ms Shinkarenko's bank statements for the relevant period had alreadybeen discovered and were in the common bundle; and(b) Their understanding that Ms Shinkarenko did not have any records ofcommunications with Ms Xiao regarding advances made byMs Shinkarenko to Ms Xiao.[7] As far as the settlement of the claim by Ms Shinkarenko for repayment of theloans she made to Ms Xiao goes, as a 'pragmatic solution' the letter enclosed thedocuments from Ms Xiao's solicitor's file (the settlement having been conductedthrough solicitors).[8] The letter concluded:6. However, we cannot see that any wider category of documents couldhave any relevance to the proceeding. If there is any specific issuewhich you consider requires other documents to be produced, pleaseadvise what that is.7. Otherwise, we trust this puts this matter at rest and that nothingfurther is required of Mr Pan or Ms Shinkarenko (other than theprovision of Kensington Swan's relevant trust account records).Please confirm the same by return.[9] There was no acknowledgment of, or response to, the letter. Mr Butler, whileaccepting that counsel for Ms Sun would have been engaged in trial between Sunday30 July 2017 when the letter was sent and the date of the application and supportingaffidavit, nevertheless, submits if the letter had been considered and responded to,the application would not have been required.[10] Ms Shinkarenko accordingly seeks costs. Mr Butler records in hissubmissions that:Ms Shinkarenko has been invoiced $3500 for services to date, relating to thesubpoena. It is respectfully submitted that a costs award of, say, $2000,would adequately address costs.[11] He notes by way of comparison that 2B scale costs for a defendedinterlocutory application of this nature would be approximately $5,200.[12] In opposition, Mr O'Callahan notes that Ms Shinkarenko's brief was notserved until 19 July 2017 for a trial that began on 24 July 2017. He submits that ifthe matters raised in the brief had been disclosed earlier, then there would have beenan opportunity to pursue discovery.[13] He further submits that the application to set aside the subpoena was notsuccessful. He says some of the documents were disclosed by Ms Xiao on Sunday30 July 2017 and that Ms Shinkarenko's affidavit saying she no longer had otherdocuments (WeChat and text messages) was accepted as a proxy for an appearancein respect of the subpoena. Finally, Mr O'Callahan says that the exception wasMs Shinkarenko's further bank accounts and this issue was resolved between counselwithout Ms Shinkarenko taking any steps in relation to those documents.Discussion[14] I accept that it was necessary and appropriate for counsel for Ms Sun to issuea subpoena duces tecum in lieu of discovery, having regard to the late brief ofevidence.[15] However, the subpoena was issued in unnecessarily wide terms. Forexample, "all of your bank statements, wherever situate for the period from1 November 2014 to date" covered a period beyond the relevant date.[16] Further, there was no response to the 30 July 2017 letter. The agreementreached at court on 4 August 2017 between counsel for Ms Shinkarenko and Ms Sunappears to have proceeded in accordance with that letter.[17] I have some sympathy for counsel for Ms Sun in that he was involved in thetrial between 30 July 2017 and 4 August 2017. Nevertheless, a consideration of, andresponse to, the letter would, it seems, have resulted in a resolution, avoiding theneed for the application by Ms Shinkarenko.[18] I, therefore, consider that Ms Sun should pay costs but not to the extentclaimed by Ms Shinkarenko. There is no particular procedure in the High CourtRules for an application to set aside a subpoena. Mr Butler filed a memorandum anda supporting affidavit of Ms Shinkarenko. Applying as a guide sch 2 of the Rulesand using category A, I allow 0.5 days, namely $740.00 ("24. Preparation of writtensubmissions") and 0.25 days, namely $370.00 ("26. Appearance at hearing ofdefended application for sole counsel"). The total amount is therefore $1,110.00.Result[19] I award costs in favour of Ms Shinkarenko against Ms Sun in the sum of$1,110.00.___________________________________Gordon J