TEMPEST LITIGATION FUNDERS LTD v ZHANG [2022] NZHC 496

TEMPEST LITIGATION FUNDERS LTD v ZHANG [2022] NZHC 496

Although the applicant succeeded in having the formal proof judgment set aside, she had sought the Court's indulgence because her own default (failure to file a defence) caused the formal proof; the plaintiff was entitled to pursue formal proof and the court will not decide disputed issues of standing or counsel conduct at the costs stage; therefore costs should lie where they fall and the applicant's costs application is refused.

Citation
[2022] NZHC 496
Parties
Plaintiff/respondent: Tempest Litigation Funders Ltd; First Defendant: Wen Zen Zhang; Second Defendant: Teng Ma; Third Defendant: Tian Tian; Fourth Defendant: Xiang Zou; Fifth Defendant/applicant: Kelly Yin; Sixth Defendant: Shuang Qin; Seventh Defendant: Seventh Defendant
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 March 2022
Procedural Posture
Civil Proceedings — Application to Set Aside Judgment Obtained by Formal Proof / Costs Application Following Order Setting Aside Formal Proof Judgment
Outcome
Application for costs refused; costs to lie where they fall
Legal Topics
Setting Aside Judgment, Formal Proof, Costs Entitlement, Standing, Deemed Assignment of Lease
Civil Procedure Costs Contract Law Litigation Funding Setting Aside Judgment Formal Proof Costs Entitlement Standing +1 more

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Parties

Tempest Litigation Funders Ltd

Plaintiff/respondent

Wen Zen Zhang

First Defendant

Teng Ma

Second Defendant

Tian Tian

Third Defendant

Xiang Zou

Fourth Defendant

Kelly Yin

Fifth Defendant/applicant

Shuang Qin

Sixth Defendant

Seventh Defendant

Seventh Defendant

Procedural Posture

Civil Proceedings — Application to Set Aside Judgment Obtained by Formal Proof / Costs Application Following Order Setting Aside Formal Proof Judgment

Legal Issues

  1. 1 Whether the successful applicant should be awarded costs after obtaining an order setting aside a formal proof judgment when the application was necessitated by her own default
  2. 2 Whether alleged misconduct or lack of standing by the plaintiff/counsel justifies awarding costs against the plaintiff
  3. 3 Whether it is appropriate to make findings about disputed conduct or standing at the costs stage

Ratio Decidendi

Although the applicant succeeded in having the formal proof judgment set aside, she had sought the Court's indulgence because her own default (failure to file a defence) caused the formal proof; the plaintiff was entitled to pursue formal proof and the court will not decide disputed issues of standing or counsel conduct at the costs stage; therefore costs should lie where they fall and the applicant's costs application is refused.

Court Disposition

Application for costs refused; costs to lie where they fall

Orders

  • The fifth defendant's application for costs is refused; each party to bear their own costs