XIANGTAN COUNTY XINTIAN MICRO MORTGAGE COMPANY LTD v NAREA INVESTMENTS LTD [2021] NZHC 2910

XIANGTAN COUNTY XINTIAN MICRO MORTGAGE COMPANY LTD v NAREA INVESTMENTS LTD[2021] NZHC 2910 [29 October 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-256[2021] NZHC 2910IN THE MATTER of an application to sustain Caveat No.11891412.1BETWEEN XIANGTAN COUNTY XINTIAN MICROMORTGAGE COMPANY LIMITEDApplicantAND NAREA INVESTMENTS LIMITEDRespondentCIV-2021-404-254BETWEEN XIANGTAN COUNTY XINTIAN MICROMORTGAGE COMPANY LIMITEDApplicantAND VATAR INVESTMENTS LIMITEDRespondentHearing: On the papersCounsel: H McDermott for the RespondentsJudgment: 29 October 2021COSTS JUDGMENT OF ASSOCIATE JUDGE SUSSOCKThis judgment was delivered by me on 29 October 2021 at 3.30pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:JC Legal, AucklandRighteous Law, AucklandIntroduction[1] This is an application for the setting of costs in favour of the respondents, NareaInvestments Ltd ("Narea") and Vatar Investments Ltd ("Vatar").Background[2] In my judgment dated 30 July 2021 I found in favour of the respondents, Nareaand Vatar, striking out applications by Xiangtan County Xintian Micro MortgageCompany Ltd ("Xiangtan") that the caveats that they had lodged over Narea andVatar's properties not lapse.[3] I further found that if I had erred in my decision to strike out the applications,Xiangtan's applications that the caveat not lapse would have been dismissed asXiangtan had not established that it had a reasonably arguable case for an interest inVatar and Narea's properties sufficient to support the caveats.[4] As the respondents succeeded I held that Narea and Vatar were entitled to costs.Counsel for the respondents submitted that an uplift of 20 per cent was fair andreasonable on the basis that the applicant, through a related company, already had acaveat lapse on the same factual basis. I determined, however, that the basis for theclaims in these proceedings appeared to be different from the basis for the caveat inthe earlier proceedings.[5] I therefore held that 2B costs were appropriate. I asked the parties to conferon quantum but said that if agreement could not be reached, brief memoranda couldbe filed. I further directed that if memoranda were required to be filed, evidence ofactual costs was to be provided by the respondents as the two proceedings wereessentially mirror proceedings. Rule 14.2(1)(f) of the High Court Rules 2016 providesthat an award of costs should not exceed costs incurred and I was concerned that actualcosts may not exceed scale costs on a 2B basis.[6] Agreement has not been able to be reached and so counsel for the respondentsfiled memoranda for each of the proceedings setting out the total actual costs incurredof $34,100.84. Copies of invoices and receipts are attached to the memoranda toprovide evidence of these amounts.[7] No memorandum has been filed on behalf of the applicant. Thecorrespondence between counsel for the respondents and applicant filed together withthe respondents' memorandum includes an email from counsel for the applicantadvising that she would take instructions. Other than this email there was no responseto the schedule of 2B costs proposed by the respondents. The time by which theapplicant was to file any memorandum in response is well past and so I now considerthe appropriate costs award in the absence of any memorandum on Xiangtan's behalf.Consideration of appropriate award[8] I have considered the 2B costs schedule set out in counsel for the respondents'correspondence and consider that there are two entries that are not claimable:(a) the appearance at the List mention on 23 February 2021 as the Minuteissued following that mention records that there was no appearance;(b) the claim for two days for preparing for the hearing under item 32 inSchedule 3 which is not claimable for these applications.[9] Furthermore, the steps involving hearings can only be claimed once across bothproceedings as there was just one List mention and one hearing in each case. I set outbelow a schedule calculating 2B costs for both proceedings with an extra columnrecording whether the step is claimable in respect of each proceeding (x 2) or just onceacross both.2B Costs Calculation for Both ProceedingsItem Task Claimedonce ortwiceAllocatedDayson 2B basisRate38 Filing note of opposition andsupporting affidavit2 222 Filing an interlocutory applicationfor the strike out of the application2 0.611 Filing memorandum for call in theList on 23.2.20212 0.411 Filing memorandum for call in theList on 8.3.20212 0.412 Appearance at List on 9.3.2021 1 0.211 Filing memorandum for call in theList on 22.3.20212 0.412 Appearance at List on 22.3.2021 1 0.29 Pleading in response to amendedpleading2 0.640 Preparation of written submissions 2 1.541 Preparation of bundles 2 0.642 Appearance at hearing 1 0.529 Sealing judgment 2 0.2Total hours 14.3Daily rate $2,390 x 14.3 $34,177.00 $34,177.00DisbursementsNotice of opposition fee 2 $110.00Interlocutory filing fee 2 $200.00Sealing Order 2 $50.00Translation response to originalclaim1 $2,645.00Translation response to amendedclaim1 $460.00Total Disbursements $3,825.00Total 2B scale costs plus disbursements $38,002.00[10] With the adjustments made, the total on a 2B basis plus disbursements stillexceeds the actual costs incurred. I consider that the appropriate costs award istherefore as proposed in the memorandum filed on behalf of Vatar and Narea, the sumof $17,050.42 for each proceeding, being 50 per cent of the actual costs of $34,100.84incurred.Result[11] I award costs of $17,050.42 in favour of Narea in CIV-2021-404-256 and costsof $17,050.42 in favour of Vatar in CIV-2021-404-254._________________________Associate Judge Sussock