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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hu v Mender Construction Limited

Details

AGLC: Hu v Mender Construction Limited [2025] NZHC 2929
Case: [2025] NZHC 2929
Decision Date: 6 October 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Dean Hu sought costs against Mender Construction Ltd, Tao Ma, Seventeenth Construction Company Ltd, and Weida Lin. The case revolved around a breach of contract involving defective building work, damage caused by a digger operator, and a nuisance claim. The court had to decide the appropriate allocation of costs among the defendants given the partial success of the plaintiff. Mr Hu sought costs of $70,027 and disbursements of $29,681.83. The first and second defendants argued against joint and several liability, proposing a division of costs based on the nature of the claims against each defendant. They also sought a reduction in costs due to the plaintiff's limited success and the exacerbation of costs by the plaintiff. The third and fourth defendants argued that costs should lie where they fell, as they were substantially successful in defending against the plaintiff's claims.

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