Chen v He

[2013] NZHC 3059

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-5671 [2013] NZHC 3059

BETWEEN  ZHIXIONG CHEN Plaintiff

ANDYAO WEI HE Defendant

Hearing:                   4 September 2013

Appearances:           Mr N R Campbell QC for plaintiff

Mr G Judd QC for defendant

(on papers) Judgment:     20 November 2013

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [on Costs]

This judgment was delivered by me on

20.11.13 at 4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CHEN v HE [2013] NZHC 3059 [20 November 2013]

[1]      Following the issue of judgment on this matter on 12 August 2013 counsel have file memoranda on costs.  The following issues arise:

a)       whether Mr Chen Senior and Mr Chen Junior should each have an award of costs reflecting their separate representation at the hearing before me;

b)whether both should be entitled to disbursements for translation of their affidavits;

c)       whether in accordance with authority only two thirds of the costs of the translations ought to be payable by the defendant;

d)       whether there ought to be a stay on any costs award.

Separate costs awards

[2]      Rule 14.15 deals with separate representation and provides as follows:

14.15   Defendants defending separately

The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—

(a)      several defendants defended a proceeding separately; and

(b)      it appears to the court that all or some of them could have joined in their defence.

[3]      I agree that the larger part of the burden for the plaintiffs (that is both the

Chens) was carried by senior counsel representing Mr Zhixiong Chen.

[4]      Although the Chens were not strictly speaking defendants in the proceeding they were respondents to the application for leave to bring a derivative action.   I would accept that the principle set out in rule 14.15 is therefore applicable to them. However I also agree with the conclusion of Venning J in the case of Blue Chip New

Zealand Ltd1  that the general discretion that the Court has in respect to matters of costs applies.2

[5]      As  the  Judge  decided  in  the  Blue  Chip  case,  I  conclude  that  in  the circumstances of this case rather than disallowing costs to Mr Chen Jr in their entirety, there ought to be a reduction.  The reduction will be by 50%.

Separate translations

[6]      Both of the Chens had documents translated.   There is no dispute that the translations were reasonably undertaken.   It is suggested that only one translation rather than two ought to have been used.   No authority is advanced for that proposition.  Nor is there any logical basis upon which the Court could reduce the amounts of the disbursements for translators’ expenses.   Reduction of costs could only be undertaken if the Court was satisfied that only one translation was necessary and would have affected a substantial reduction in cost when compared with using two translations.

[7]      The Court has no knowledge of the way in which translators charge.  It is not inconceivable that translations are invoiced by the page.  I do not accept the submission made for the defendant concerning this issue.

Reduction of translator’s costs to 2/3

[8]      There is no rule of which I am aware that requires interpreters/translators expenses to be claimable only to the extent of two thirds.

[9]      In the case of Yang v Chen3  the cost of translation services for translating a witness’s brief from Mandarin to English were fully recoverable.  The case that the defendant relies upon Ming Shan Holdings is not an authority for allowing only two thirds of translation costs.4    That decision was made in the context of deciding an appropriate amount to be paid into Court for security for costs and was not a final

costs order.

1 Blue Chip New Zealand Ltd (in Liq) HC Auckland CIV-2009-404-1511, 3 May 2011.

2 At [19].
3 Yang v Chen (No 6) HC Auckland CIV 2000 404 1751, 20 December 2011

4 Ming Shan Holdings Ltd v Tai Yuan Ma HC Auckland CIV-2000-404-1597, 23 November 2006.

[10]     I direct that the costs of the translator are to be paid in full as disbursements in the proceeding.

Stay of proceedings in respect of costs orders

[11]     I agree with the submission for the Chens that an application for stay of proceedings has not been made and that therefore there is no ground for staying the

orders that were made with regard to costs.

J.P. Doogue

Associate Judge