Shao v Moral

[2025] NZHC 1671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3101 [2025] NZHC 1671

IN THE MATTER             of an appeal from a decision of the

Family Court

BETWEEN  YE SHAO

Appellant

AND  JAYANTI MORAL

Respondent

Hearing:                   On the papers Appearances:  Appellant in person

G C Jenkin for respondent Date of judgment:                24 June 2025

JUDGMENT OF JAGOSE J

[Costs]

This judgment was delivered by me on 24 June 2025 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel:
G C Jenkin, Barrister, Auckland

Copy to:
Appellant

SHAO v MORAL – Costs [2025] NZHC 1671 [24 June 2025]

[1]    My 13 May 2025 judgment—dismissing Mr Shao’s appeal against a Family Court decision, requiring he discover documents and answer interrogatories in a Family Protection Act proceeding brought by Mr Moral—expressed a preliminary view “Mr Shao should pay Mr Moral 2B costs” in terms of the High Court Rules 2016,1 but reserved them for determination on memoranda to be filed if the parties disagreed.2

[2]    The parties disagreed. Mr Moral claimed 2B costs in the sum of $17,208 and disbursements of $286. Mr Shao has responded on a number of grounds for their reduction and payment from the estate. Mr Moral has not replied.

[3]    Mr Shao seeks to exclude costs on opposed interlocutory applications, on the basis r 14.8 of the High Court Rules 2016 requires such, “unless there are special reasons to the contrary, … must be fixed in accordance with these rules when the application is determined”. There effectively were three such applications: Mr Shao’s applications to join his wife as an appellant and two for leave to adduce particular documents in evidence. The former was declined and the latter two—either “not seriously oppose[d]” by Mr Moral or accepted by him to have “some limited probative value”—granted.3 The issue of costs was not raised on either application or opposition. The Judge did not address them; it is open to me to do so.4 Given their mixed result, I will allow costs only for one of the two applications claimed, meaning a reduction of

$1,434 in costs and $143 in disbursements.

[4]    Citing E v Chief Executive of the Ministry of Social Development,5 Mr Shao contends the usual rule, an unsuccessful party contribute to the legal expenses of the successful party,6 may give way in circumstances of an unsuccessful appeal’s reasonableness. Even so, Mr Shao’s unsuccessful appeal was not reasonable: he had “no legitimate objection to the Judge’s tailored discovery order on grounds of scale or

1      Shao v Moral [2025] NZHC 1132 at [31].

2 At [32].

3      Shao v Moral HC Auckland CIV-2024-404-3101, 26 March 2025 (Minute of Robinson J) at [6] and [8]–[11].

4      Taylor v Asteron Life Ltd [2020] NZCA 354, [2021] 2 NZLR 561 at [174].

5      E v Chief Executive of the Ministry of Social Development [2007] NZCA 453.

6      High Court Rules 2016, r 14.2(1)(a).

privacy”;7 “new evidence cannot now be relied on to dispute the Judge’s exercise of his discretion”;8 and his objections to the interrogatories were “mistaken”.9

[5]    Mr Shao seeks reduced costs on account of contended failures by Mr Moral as contributing unnecessarily to Mr Shao’s time or expense of the proceeding or a step in it.10 Again, Mr Shao misunderstands: here, the “time or expense of the proceeding” is a reference to that incurred by Mr Moral, not Mr Shao. Although Mr Shao alleges  Mr Moral “refused to admit clear facts”, there is no evidence Mr Shao sought to administer any notice to Mr Moral to admit facts, which is the reference in the rule.

[6]    Finally, Mr Shao proposes costs instead be recovered from the estate, as has been the longstanding (but not invariable) ultimate practice in Family Proceedings Act 1980 litigation, “reflecting the special character of proceedings under s 4 FPA and the proper discharge of a testator’s moral duty to family members”.11 But there is an increasing trend toward costs following the event in such proceedings as with any other.12 Costs being borne by the estate may only is appropriate when executors have acted responsibly on the issue of proper discharge of a deceased’s moral duty to qualifying beneficiaries, as the trend away from the longstanding practice illustrates. That is not Mr Shao’s case.

[7]    If Mr Shao is to be liable for costs, he says such would cause his family “severe hardship” and suggests his liability instead should be a charge against his entitlement under the will. While that might be an option, Mr Shao’s contended impecuniosity characteristically is carefully phrased as his ‘lacking means or authority’ to pay costs from his own funds without his co-trustees’ consent, and I do not see why Mr Moral’s interest should have to defer to those co-trustees enabling Mr Shao’s payment.

7      Shao v Moral, above n 1, at [22].

8 At [25].

9 At [28].

10     High Court Rules, r 14.7(f).

11     Wightman v Public Trust [2015] NZHC 1091 at [18].

12     AP v Lucas [2021] NZHC 2949 at [25].

[8]    Mr Shao is to pay Mr Moral 2B costs in the sum of $15,774 plus disbursements of $143.

—Jagose J