Luo v Shiu

[2022] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-000706

[2022] NZHC 2449

UNDER

Rule 12(3) of the Court of Appeal (Civil) Rules 2005

IN THE MATTER OF

An application to stay execution of judgment pending determination of appeal

BETWEEN

ZHENLIN (ROBERT) LUO

First Plaintiff

KC BROTHERS LIMITED

Second Plaintiff

ANG YIP

Third Plaintiff

MANFEI COMPANY LIMITED
Fourth Plaintiff

AND

XIAOLING (ANNIE) SHIU

First Defendant

R&G PHOENIX LIMITED

Second Defendant

CSR POKENO LIMITED

Third Defendant

Hearing:

On the papers

Appearances:

S Judd for the Plaintiffs/Respondents

D Bigio QC for the Defendants/Applicants

Judgment:

23 September 2022

COSTS JUDGMENT OF TAHANA J

This judgment was delivered by me on 23 September 2022 at 4.00pm. Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

LUO v SHIU and CSR POKENO LIMITED v LUO [costs] [2022] NZHC 2449 [23 September 2022]

CIV 2022-404-000285

UNDER

Section 290 of the Companies Act 1992

IN THE MATTER OF

An application to set aside statutory demands

BETWEEN

CSR POKENO LIMITED

Applicant

AND

ZHENLIN (ROBERT) LUO
First Respondent

MANIFEI COMPANY LIMITED

Second Respondent

Solicitors/Counsel:

Shortland Chambers, Auckland Righteous Law, Auckland Pidgeon Judd, Auckland Kitchener Chambers, Auckland

Introduction

[1]        The respondents (Mr Luo and Manfei Company Ltd) seek costs of an application to stay execution of judgment.

[2]        The applicants (Ms Shiu and CSR Pokeno Ltd) submit that costs should lie where they fell as both parties had a measure of success.

[3]        The respondents indicated that they would consent to a stay of execution pending appeal if the applicants:

(a)paid the full amount of the judgment debt plus interest into Court or into a solicitor’s trust account; and

(b)procured an undertaking from Pokeno West Ltd not to sell a property.

1. The stay application was granted subject to provision of improved security.1

[5]        I determine whether in these circumstances costs should be awarded to the respondents or lie where they fell.

Relevant law

[6]        Rule 14.2(1)(a) of the High Court Rules 2016 provides the general principle that “the party who fails with respect to a proceeding… should pay costs to the party who succeeds.” This is the principle that costs follow the event unless there are exceptional circumstances.2 Costs may be reduced if a party claiming costs has failed in relation to a cause of action or issue which increased the costs of the opposing party.3

[7]        I accept that both parties were partially successful. The respondents were successful in challenging the adequacy of the charging orders and undertaking. The applicants were successful in offering to provide a registered mortgage and pay some funds into their solicitor’s trust account. In these circumstances, I do not consider it

1      Luo v Shiu [2022] NZHC 1707 at [50].

2      Shirley v Wairarapa District Health Board [2006] NZSC 63.

3      High Court Rules 2016, r 14.7(d).

consistent with the general principles in r 14.2 to award costs in favour of either party. Costs should lie where they fell.

Tahana J