Han v Xue

[2025] NZHC 1383

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1717

[2025] NZHC 1383

UNDER

Part 18 of the High Court Rules 2016

IN THE MATTER

of a declaratory order pursuant to the Declaratory Judgments Act 1908

BETWEEN

WENNING HAN

First Plaintiff

YUNYUE ZHU
Second Plaintiff

AND

JINXING XUE

Defendant

Hearing:

On the papers

Counsel:

R O Parmenter for the First Plaintiff

No appearance by or for the Second Plaintiff J A McMillan for the Defendant

Judgment:

29 May 2025

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 29 May 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr R O Parmenter, Barrister, Auckland
Mr R Hollyman KC (counsel for the Defendant), Barrister, Auckland

Mr J A McMillan and Ms S M Singh, Dentons Kensington Swan, Auckland Copy to:

Ms T Chan (second plaintiff’s instructing solicitor), Teresa Chan Law Ltd, Dunedin

HAN v XUE [2025] NZHC 1383 [29 May 2025]

[1]                 Following the judgment of Moore J dated 17 December 2024 concerning an unsuccessful housing development venture,1 and the Judge’s retirement, the issue of costs has been referred to me for determination on the papers.

[2]                 The result of the proceeding, including as to costs, was set out at the conclusion of Moore J’s judgment:

Result

[141]These findings lead to the following orders:

(a)The claims of Mr Han and Ms Zhu are dismissed.

(b)Orders in terms of paragraphs 72, 79, 82 and 89 of the amended statement of defence dated 19 June 2023 are granted, namely:

(i)against Mr Han for:

•payment of the principal sum of $3.5 million (on a joint and several basis with Ms Zhu);

•interest in accordance with s 9 of the Interest on Money Claims Act 2016, from the due date for payment (being 16 October 2020) until the date of payment; and

•costs.

(ii)Against Ms Zhu for:

•payment of the principal sum of $3.5 million (on a joint and several basis with Mr Han);

•interest in accordance with s 9 of the Interest on Money Claims Act 2016 from the due date for payment (being 16 October 2020) until the date of payment;

•a declaration that Mr Xue may exercise his rights in respect of the property as mortgage under s 119(2) of the Property Law Act 2007; and

•costs and disbursements on a solicitor/basis, pursuant to cl 4.1 of the Guarantee.

1      Han v Xue [2024] NZHC 1872.

Costs

[142]    Mr Xue, as the successful party, is entitled to costs. I direct that the parties are to consult with a view to agreeing on costs. If no agreement is reached, the parties are to file memoranda not exceeding three pages in length (excluding appendices) within 20 working days of this release date of this judgment. The question of costs will then be determined on the papers by another Judge.

[3]                 Mr Han and Mr Xue have reached agreement in respect of scale costs and jointly apply to the Court for consent orders that Mr Han pay scale costs of $50,309.50 and disbursements in the sum of $24,546.20.

[4]                 In relation to costs and disbursements against Mrs Zhu on a solicitor/client basis, Mr Xue seeks legal costs and disbursements from the commencement of enforcement attempts against Mr Han and Mrs Zhu up to the date of judgment, totalling $778,139.22. He acknowledges that should Mr Han make payment of the costs and disbursements ordered by consent, Mr Xue will reduce the amount sought accordingly (to $703,283.52). An  affidavit  in  support  from  Ms  Singh  of  Dentons Kensington Swan, Mr Xue’s solicitors, verifies the costs incurred.

[5]                 In the memorandum, counsel for Mr Xue submits that all these costs relate to the enforcement of the loan agreement and deed of guarantee and indemnity and that they are reasonable in all the circumstances. Counsel notes that the circumstances include multiple changes of counsel on the part of the plaintiffs and a late adjournment of the first trial fixture scheduled.2

[6]                 Mrs Zhu has taken no steps in the proceeding and did not respond in relation to costs.

[7]                 I have reviewed the memorandum of counsel as to costs and the affidavit of Ms Singh. The affidavit exhibits the invoices of Dentons and senior counsel. Although Dentons’ invoices are addressed to companies rather than Mr Xue personally, I accept these invoices relate to the proceeding and the fees invoiced totalling $613,685.52 excluding GST are treated as Mr Xue’s costs. I consider that Mr Xue is entitled to the costs and disbursements sought.

2      See Han v Xue [2023] NZHC 3645; Han v Xue [2024] NZHC 64; and Han v Xue [2024] NZHC 1428.

Result

[8]I make the following orders:

(a)By consent, Mr Han is to pay Mr Xue scale costs of $50,309.50 and disbursements of $24,546.20; and

(b)Mrs Zhu is to pay Mr Xue solicitor/client costs and disbursements totalling $778,139.22 provided that this sum is to be reduced by the amount of any payment by Mr Han under [8](a) above.

Gault J