CHEN v TAWA TRADE FINANCE LTD [2023] NZHC 3254

CHEN v TAWA TRADE FINANCE LTD [2023] NZHC 3254 [17 November 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-000492[2023] NZHC 3254BETWEEN LIYUN CHENFirst ApplicantLC1521319 DEVELOPMENT COLIMITEDSecond ApplicantAND TAWA TRADE FINANCE LIMITEDRespondentHearing: On the papersCounsel: Self-represented ApplicantsD Chisholm and C Pendleton for the RespondentJudgment: 17 November 2023JUDGMENT OF GORDON JThis judgment was delivered by meon 17 November 2023 at 10 am, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Turner Hopkins, AucklandCopy to: the Applicants[1] This is a decision on costs.[2] On 31 May 2023, I gave judgment in favour of the respondent, Tawa TradeFinance Ltd (Tawa), against the first and second applicants, Liyun Chen andLC1521319 Development Co Ltd (together, the applicants).1[3] The applicants sought permission to apply by originating application to setaside a letter of demand and a Property Law Act 2007 (PLA) notice issued by Tawauntil their claim in a separate proceeding (CIV-2023-404-427) was determined. Iconcluded that it was not in the interests of justice for the applicants to commencetheir proceeding as an originating application and therefore refused the application.2 Ialso noted that even if permission had been given for the applicants to commence theirproceeding by an originating application, any such application would fail on themerits.3[4] I reserved costs. In the absence of agreement between the parties Tawa filed amemorandum seeking costs dated 31 July 2023. Ms Chen did not respond within thetime allowed for in my judgment.4 There was a delay in the Registry referring Tawa'scosts memorandum to me. Given that delay I afforded a further opportunity to theapplicants to respond. No response has been received. Accordingly, I proceed todetermine costs on the basis of Tawa's memorandum.Costs principles[5] 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 pay1 Chen v Tawa Trade Finance Ltd [2023] NZHC 1333.2 At [46].3 At [47].4 At [48].5 High Court Rules 2016, r 14.1.the 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[6] Ultimately, the overriding consideration when exercising a discretion to awardcosts is that any award ought to do justice between the parties.7Respondent's submissions[7] Tawa says that the applicants' application for permission to commence theproceeding by originating application was misconceived and caused wasted expense.It says that if the applicants had bona fide considered they had grounds to challengethe PLA notice or otherwise restrain the mortgagee sale, they should have simplyapplied for an injunction in their substantive proceeding.[8] Instead of claiming costs in accordance with its loan and securitydocumentation, Tawa has resolved to seek costs and disbursements on a 2B basis.Therefore, Tawa seeks costs of $9,918.50 as set out in the table annexed to thisjudgment.[9] Tawa also seeks disbursements of $95.65 (excluding GST) to recover the filingfee on its notice of opposition.Assessment[10] 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, Tawa is entitled to an award of costs against the applicants.[11] I am satisfied that: 2B is the appropriate basis for the costs claim; the steps forwhich Tawa seeks costs as set out in the annexed table were taken; and the time soughtfor each step accords with the scale in the HCR.[12] The filing fee for the notice of opposition is also appropriately sought.6 Rule 14.2(g).7 Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].Result[13] I make an order that the applicants are to pay to Tawa costs of $9,918.50 anddisbursements of $95.65 totalling $10,014.15._____________________________Gordon JANNEXURECosts sought by TawaItem Description Band/allocation Amount38 Filing notice of oppositionto originating applicationand supporting affidavitsB (2 days) $4,78039/12 Mention in duty judge liston 20 April 2023B (0.2 days) $47840/241 Preparation of writtensubmissionsB (1.5 days) $3,58526 Hearing on 25 May 2023before Gordon JB (0.25 days) $597.5029 Sealing Judgment or order B (0.2 days) $478Total 4.15 $9,918.501 Counsel referred to both items 40 and 24. They are both provisions for the preparation of writtensubmissions. Item 24 falls under interlocutory applications whereas item 40 falls under originatingapplications. They both have the same allocated number of days.