YIYANG V PENG HC AK CIV 2010-404-007299

YIYANG V PENG HC AK CIV 2010-404-007299 [4 May 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2010-404-007299[2012] NZHC 901BETWEEN LIU YIYANGAppellantAND ZHENG PENGRespondentHearing: (On the papers)Judgment: 4 May 2012[COSTS] JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 4 May 2012 at 10.00 amPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Distribution:Holmes Dangen & Associates Limited: john@hda.co.nzR Reed: royal@prestigelawyers.co.nz[1] Mr Yiyang appealed a decision of Judge GB Hubble given on 11 October 2010 in the District Court at Auckland. On 14 December 2010, Cooper J put in place a timetable order to dispose of the appeal. He also set a hearing date.[2] Security was paid in accordance with Cooper J's directions. However, the appellant failed to take any further steps.[3] On 17 March 2011, I made an order requiring the appellant to file and serve his submissions on or before 5.00 pm on Friday, 1 April 2011. The order expresslyrecorded that if the appellant's submissions were not filed by that date, that theappeal would be treated as having been abandoned, and that it would be dismissed without further call before the Court.[4] In the event, the appellant did not file any submissions. Furthermore, his then counsel, Mr Banbrook, sought leave to withdraw. I directed that the appeal should be treated as having been abandoned, and that security for costs paid into the Court should be paid to counsel for the respondent's trust account.[5] The respondent has since filed an interlocutory application seeking additional costs in the sum of $12,220. I directed that this interlocutory application and the supporting affidavit should be served on Mr Yiyang.[6] Service has occurred and an affidavit of service has been filed. No notice of opposition has been filed by or on behalf of Mr Yiyang.[7] It is appropriate to award costs in favour of the respondent on a 2B basis, but not in the sum sought.[8] Insofar as I can see from the file, a number of the steps claimed by the respondent either have not or should not have been taken. I award costs in respect of memoranda filed for case management conferences on 10 December 2010, 11 March 2011 and 5 March 2011. Most of the issues raised in the memoranda were dealt with on the papers and no appearances were necessary. The respondent is entitled to costs for appearing at one case management conference on 8 November 2011 when anappearance was required, and to costs for preparing and filing the interlocutory application seeking costs and the supporting affidavit.[9] The respondent seeks increased costs. I am satisfied that increased costs are appropriate. The appellant failed to comply with the directions given by the Court. Unnecessary costs were incurred by the respondent as a result. I award increased costs of 50 per cent on the amount otherwise payable.[10] I make a costs award in favour of the respondent in the sum of $5,922, being costs on a 2B basis, for each of the above steps, with a 50 per cent uplift. Theamount already paid to the respondent's solicitors as noted in [4] above will, ofcourse, have to be deducted from this sum before any attempt is made to enforce this judgment.[11] There is no claim by the respondent for disbursements, and I make no order in that regard.______________________ Wylie J