IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1731 [2025] NZHC 2929
IN THE MATTER OF a breach of contract BETWEEN
DEAN HU
Plaintiff/First Counterclaim Defendant
AND
MENDER CONSTRUCTION LIMITED
First Defendant
TAO MA
Second DefendantSEVENTEENTH CONSTRUCTION COMPANY LTD
Third Defendant
WEIDA LIN
Fourth Defendant
Hearing: On the papers Appearances:
S Jeffs for the Plaintiff
S O McAnally/M L A Chong for the First and Second Defendants Z Chen/Y Chen for the Third and Fourth Defendants
Judgment:
6 October 2025
JUDGMENT OF GARDINER J
[Costs]
This judgment was delivered by me on 6 October 2025 at 11.30 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
HU v MENDER CONSTRUCTION LTD [2025] NZHC 2929 [6 October 2025]
Introduction
[1]On 17 June 2025, I gave judgment finding:
(a)the first defendant, Mender Construction Ltd (Mender), liable for defective building work in breach of the implied statutory warranties in the Building Act 2004;
(b)the second defendant, Tao Ma, liable for damage that resulted from the tasks he performed as a digger operator; and
(c)the fourth defendant, Weida Lin, liable in nuisance.
[2] Mr Hu now seeks 2B costs against each defendant, apart from the third defendant Seventeenth Construction Ltd (Seventeenth), against whom his claim did not succeed. The defendants oppose the making of a costs order.
Costs and disbursements claimed
[3] Mr Hu seeks that the first, second and fourth defendants be jointly and severally liable to pay costs of $70,027 and disbursements of $29,681.83.
[4] Mr Hu accepts that not all causes of action were successful, and the amounts awarded were less than those sought in the pleadings. However, as noted by the Court of Appeal in Weaver v Auckland Council, partial success is still success for the purpose of costs.1 A conservative approach has been taken to assessing costs, with not every procedural step claimed. This reflects the partial nature of Mr Hu’s success and the fact that he recovered less than he sought.
[5]The disbursements claimed include:2
(a)$1,350 for the filing fee;
(b)$1,600 for the scheduling fee;
1 Weaver v Auckland Council [2017] NZCA 330 at [26].
2 All costs claimed are GST inclusive.
(c)$16,640 for a hearing fee;
(d)$8,482.86 for translation costs; and
(e)$1,415.97 for printing fees of the common bundle.
[6] Mr Jeffs submits the translation costs were necessary for Mr Hu’s brief of evidence as well as his oral evidence at trial.
First and second defendants’ position
Joint and several liability
[7] For the defendants, Mr McAnally submits that it is inappropriate to make one costs order in relation to all defendants. It is accepted that, in relation to the retaining wall, the defendants were found liable for the same damage. However, this was pursuant to different duties in relation to different aspects of the work. Otherwise, the first and second defendants bore no liability for the foundation work, the nuisance or trespass claim and loan recovery claim. As the Court of…
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- Hu v Mender Construction Limited [2025] NZHC 2929
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- [2025] NZHC 2929
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CaseChat Overview and Summary
The court found that Mr Hu's success was nominal, given that he succeeded on only two out of his multiple claims. The court ordered that costs lie where they fall between Mr Hu and the first, second, and fourth defendants. The third defendant, Seventeenth Construction Company Ltd, was entirely successful and was awarded its costs. The court concluded that the significant costs incurred by the defendants in defending largely misconceived claims warranted the costs to lie where they fell. The court also ordered that Seventeenth Construction Company Ltd be awarded its costs, with a deduction for the damages awarded to the plaintiff.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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