Hu v Mender Construction Limited

[2025] NZHC 2929

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 Defendant

SEVENTEENTH 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 Appeal found in Smith v Dooley, joint and several liability would not be appropriate where, while there is one proceeding, there is no commonality of issues or relationship between the defendants and the different claims made against each of them.3 The preferred approach would be to identify the individual costs and then divided the shared costs between the defendants.4

[8]                 Mr McAnally accepts that certain costs are particular to the first and second defendants: statement in reply to Mender and Mr Ma and inspection of documents from Mender and Mr Ma. Otherwise, the common costs should be severally apportioned between the two groups of defendants with 70 per cent to the first and second defendants and 30 per cent to the fourth defendant. Mr McAnally’s memorandum then sets out a table which proposes the allocation of $46,820.10 to the first defendant.

3      Smith v Dooley [2013] NZCA 428.

4      See Winkelmann J’s dissenting opinion in Narayan v Arranmore Developments Ltd [2011] NZCA 681, (2011) 13 NZCPR 123 at [79].

Reduced costs

[9]                 Mr McAnally further submits a reduction to costs would be appropriate to reflect the plaintiff’s limited success.

[10]             Against Mr Ma, Mr McAnally submits that no costs should be ordered against him as Mr Hu had only nominal success.

[11]             In terms of the first defendant, Mr  McAnally  submits  that  a reduction  of 80 per cent should be made as the plaintiff took steps to grossly exacerbate the cost of the proceeding:

(a)Not only was the pleaded claim only reduced by around two-thirds to one of $541,638 on the last day of the trial, most (but not all) of that abandoned claim pertained to “delay costs” of $1,016,070 which claim aggravated the volume of discovery and evidence as well as the time required to cross-examine Mr Hu only to establish what he must be taken to have known.

(b)The most time-consuming aspect of the proceeding was in relation to costs arising from the breaches of the resource consent. Mr Hu’s claim to recover the prosecution costs were misconceived from the outset by amounted to a large amount of the documentary evidence and accounted for an undue amount of hearing time. Further, the claim for the costs incurred to applying for a new resource consent and complying with its new conditions was misconceived, and yet heavily impacted the required discovery and oral evidence.

(c)Mr Ma should not have been joined as a party to the proceeding as could be seen from the nominal success of the claims specifically against him. Further, these claims disproportionately increased the costs of the proceeding.

(d)There should also be regard to the fact that Mr Hu was largely at fault for the losses he suffered, which was not reflected in the claims he made against the defendants.

[12]This would mean that the costs payable by the first defendant is $9,364.

Disbursements

[13]Mr McAnally challenges specific items Mr Hu claims as disbursements:

(a)The first and second defendants can have no liability for the filing fee paid for the defence to the counterclaim of the third and fourth defendants.

(b)The first defendant (only) should be liable for no more than 70 per cent of the filing fee for the statement of claim, the scheduling fee, and the hearing fee (being $2,100).

(c)The claim against the first and second defendants should have occupied no more than three days, and the hearing fee should be reduced to

$9,360 (being 4.5 half-days at a rate of $2,080).5

(d)There should be no allowance for translation services because the need for these was grossly aggravated by the extent of evidence produced on issues on which Mr Hu failed, as well as his refusal to give direct answers.

(e)It is further submitted that no allowance should be made for printing the common bundle. Most of the documents copied in that bundle were necessitated by claims that ultimately failed.

[14]             Accordingly, Mr Hu should only be entitled to disbursement of $11,460 against the first and second defendants.

5      High Court Fees Regulations 2013, fees table, item 20 (prior to amendment on 1 July 2025).

Third and fourth defendant’s position

[15]             Ms Chen submits that the third and fourth defendants’ position accords with the first and second defendants regarding a single order as to costs. Ms Chen cites to Ware v Reid, where this Court applies the Court of Appeal’s approach.6

[16]             Ms Chen further submits that the third and fourth defendants should be regarded as substantially successful and thus entitled to costs. Seventeenth was entirely successful in defending the plaintiff’s claim against it. Further, only $3,405 of the $1,507,000 claimed against Mr Lin was upheld (or less than 0.3 per cent). Application of the ordinary costs principles would entitle them to costs.

[17]             Ms Chen calculates 2B scale costs for both defendants at $61,206, although it is acknowledged that a deduction of $3,405 is appropriate considering Mr Lin’s minimal liability. Accordingly, the third and fourth defendants are entitled to

$59,474.25 in costs and $1,673.25 for disbursements (onsite interpretation services).

Analysis

[18]             I thank counsel for their careful submissions. However, in the circumstances, I am minded to order that costs lie where they fall as between Mr Hu and the first, second and fourth defendants. I acknowledge that Mr Hu was the successful party. However, this cannot be regarded as more than nominal success.

[19]             Of the causes of action Mr Hu advanced, I found in his favour on only on two, and even then, on a qualified basis:

(a)Mr Hu succeeded in proving that Mender breached implied statutory warranties requiring the work on the retaining wall to be carried out according to the plans and specifications. However, Mr Hu failed in proving Mr Ma, Seventeenth or Mr Lin were similarly liable. Further, I found that Mender was only liable for one-third of the costs resulting from its breach of the implied statutory warranties as this could be regarded as only one possible cause of the failure of the retaining wall.

6      Ware v Reid [2019] NZHC 1706.

The award was also reduced to reflect Mr Hu’s contribution to the wall’s failure.

(b)Mr Hu failed in his claim against Mr Ma for breach of a duty of care in relation to the retaining wall.

(c)Mr Hu succeeded in proving a nuisance claim against Mr Lin for dumping earth on his property. However, he did so by a slim margin. And the amount he was able to recover reflects that nominal success (being $3,450 of the claimed $48,357.50).

(d)Mr Hu partially succeeded in proving that Mender breached implied statutory warranties in relation to the lower slope earthworks. However, he largely failed in proving that Mender’s breach caused his losses.

(e)Mr Hu failed in his claim against Mr Ma for breach of duty of care in relation to the lower slope earthworks, except for the minor issue of the accident involving the digger.

(f)Mr Hu failed in his claim against Mr Lin in relation to the alleged loan.

[20]             Framing the analysis of success in a different way, the difference between the original claim and the damages awarded is stark. In the statement of claim, Mr Hu sought to recover $2,979,500 against the defendants. On closing, Mr Hu reduced his claim to $619,995.96 in view of the evidence adduced at trial. I found judgment in favour of Mr  Hu  in  the  amount  of  $79,909.55.  This  represents  approximately 13 per cent of the amended claim, which already was a considerable reduction from the amount initially sought.

[21]             Any measure of success enjoyed by Mr Hu is already reflected in the damages awarded. Further, taking into account the significant costs to which the defendants were put in defending a largely misconceived claim, it is only appropriate here to order that costs (and disbursements) lie where they fall.

[22]             Seventeenth was entirely successful in defending Mr Hu’s claim against it. Accordingly, it is entitled to its costs. I note that Seventeenth also claims a disbursement for interpretation services which was necessary for the conduct of the trial.

[23]             Ms Chen proposes a deduction of $3,405 considering Mr Lin’s liability. This sum relates to an award of damages which is dealt with separately from a costs award. An order for costs in favour of Seventeenth is not appropriately adjusted against damages payable by Mr Lin to the plaintiff.

Result

[24]             In relation to the first, second and fourth defendants, I order costs (and disbursements) to lie where they fall.

[25]             In relation to the third defendant, I order that Mr Hu pay its costs of $30,472.50 and disbursements of $1,673.50.

Gardiner J

Solicitors:

Psalms Law Office, Auckland Bankside Chambers, Auckland Croftfield Law, Auckland Righteous Law Ltd, Auckland