Mao v Industrial and Commercial Bank of China (New Zealand) Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1536

[2023] NZHC 1101

BETWEEN
LIANSEN MAO

First Plaintiff

QIUFEN LU
Second Plaintiff

AND

INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LIMITED

Defendant

Hearing: On the papers

Judgment:

10 May 2023

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie On 10 May 2023 at 2.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Buddle Findlay, Auckland

Copy to: L Mao Q Lu

MAO v INDUSTRIAL AND COMMERCIAL BANK OF CHINA (NEW ZEALAND) LTD [2023] NZHC 1101 [10 May 2023]

[1] I refer to my judgment dated 30 March 2023.1 I there declined Mr Mao’s and Ms Lu’s application for leave to continue the proceeding. I noted that the proceeding was at an end and that there was nothing to strike out.

[2] The defendant bank now seeks costs on a 2B basis in the sum of $17,447 and disbursements of $3,226.08.

[3] In my judgment, I recorded that the bank as the successful party was entitled to its reasonable costs and disbursements and indicated my preliminary view that costs should be fixed on a 2B basis.

[4] I remain of that view. The proceeding was of average complexity requiring counsel of average skill and experience in this Court. I have considered the costs claim made by the bank. Insofar as I can glean, it has taken each of the steps itemised in the schedule attached to its submissions and it has claimed at the appropriate daily rate. It claims costs for preparing and filing a strike out application. Those were steps reasonably required in relation to the proceeding. It is appropriate to allow for them. The disbursements claimed have been incurred; the invoice for the translation of Chinese documents has been provided and there is nothing to suggest that the amount claimed is unreasonable.

[5] Mr Mao and Ms Lu have not taken the opportunity to respond with a memorandum in opposition to the bank’s claim for costs and disbursements.

[6] On the materials before me, I am satisfied that an order for costs and disbursements in favour of the bank is appropriate. I award costs of $17,447 to the bank and against Mr Mao and Ms Lu, together with disbursements of $3,226.08. As between Mr Mao and Ms Lu, liability is joint and several.

Wylie J

1 Mao v Industrial and Commercial Bank of China (New Zealand) Ltd [2023] NZHC 673.

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with a case between Liansen Mao and Qiufen Lu, the plaintiffs, and the Industrial and Commercial Bank of China (New Zealand) Limited, the defendant. The plaintiffs had previously sought leave to continue a proceeding which had been declined by the court, leading to the bank now seeking costs on a 2B basis. The bank’s application for costs was made under rule 11.5 of the High Court Rules, and the bank claimed a total of $17,447 in costs and $3,226.08 in disbursements. The bank argued that it was entitled to its reasonable costs and disbursements as the successful party, having followed all the necessary steps in the proceeding.

The court was required to decide whether the bank’s claim for costs and disbursements was reasonable and justified, given that it was the successful party in the proceeding. The plaintiffs had not responded to the bank’s claim, leaving the court to consider the bank’s submissions on their own. The bank had provided a detailed schedule of the costs claimed, which included the preparation and filing of a strike-out application, and the translation of Chinese documents. The court had to determine if these costs and disbursements were necessary, reasonable, and within the appropriate daily rates. Additionally, the court had to assess the reasonableness of the claimed disbursements, particularly the cost of translating the Chinese documents.

The court found that the bank’s claim for costs and disbursements was reasonable. The proceeding was of average complexity, and the bank had taken all the necessary steps to achieve its outcome. The court accepted that the bank’s costs were at the appropriate daily rate and that the claimed disbursements, including the translation of Chinese documents, were reasonable. The court noted that the plaintiffs had not provided any opposition to the bank’s claim, which further supported the reasonableness of the bank’s costs. Consequently, the court awarded the bank $17,447 in costs and $3,226.08 in disbursements, to be paid by the plaintiffs jointly and severally.

The court's final order was that the plaintiffs, Liansen Mao and Qiufen Lu, were to pay the defendant, Industrial and Commercial Bank of China (New Zealand) Limited, $17,447 in costs and $3,226.08 in disbursements. The liability for these costs was joint and several between the plaintiffs. The decision was based on the bank’s successful application for costs under rule 11.5 of the High Court Rules, and the court’s finding that the bank’s costs and disbursements were reasonable and justified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established