Tan v Tan

[2025] NZHC 1752

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-873

[2025] NZHC 1752

BETWEEN

BAOSHAN TAN

Plaintiff

AND

WILLIAM (YUANHUI) TAN

Defendant

Hearing:	On the papers
Appearances:	K Morrison and KL Chiu for the Plaintiff T Ashley for the Defendant
Judgment:	1 July 2025

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

(Costs)

This judgment was delivered by me on 1 July 2025 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland Forrest Harrison, Auckland

TAN v TAN [2025] NZHC 1752 [1 July 2025]

Introduction

[1]         The defendant seeks costs on a 2B and 2C basis and that they are fixed now following my decision declining the plaintiff's application for recognition and enforcement of a foreign judgment by way of summary judgment (Judgment).1

[2]        In the Judgment I indicated a preliminary view that the plaintiff perhaps ought to have reconsidered his position in respect of the summary judgment application following the filing of the defendant’s amended notice of opposition and affidavits in support and that costs may therefore be payable from that date.

[3]        I directed the parties to confer to see whether costs could be agreed and, if not, to file memoranda. Counsel for the defendant records that attempts to confer were not responded to on behalf of the plaintiff. The defendant has therefore filed a memorandum asking that costs are fixed now as set out above.

[4]        A memorandum has been filed in response on behalf of the plaintiff submitting that costs ought to be reserved in the usual way for unsuccessful summary judgment pending the outcome of the substantive hearing. If the Court disagrees, the plaintiff submits only 2B costs are appropriate.

Relevant principles

[5]        The starting point in any costs decision is that costs are at the discretion of the Court.2 This discretion is to be exercised in accordance with the principles in r 14.2 including that generally the party who fails with respect to a proceeding or interlocutory application ought to pay costs to the party who succeeds.3

[6]        Rule 14.8(3) provides that costs on summary judgment applications are not required to be fixed when the application is determined, unlike costs on other interlocutory applications. The reason for this exception is to encourage the use of the summary judgment procedure to efficiently resolve proceedings. It also recognises

1      Tan v Tan [2024] NZHC 3370.

2      High Court Rules 2016, r 14.1.

3      Rule 14.2(1)(a).

that it may be difficult to determine who should pay costs until the litigation is completed,4 and that even an unsuccessful application may ultimately prove beneficial to the parties in efficiently resolving the dispute.5

[7]        However, the courts have recognised on a number of occasions that it may be appropriate to depart from this approach in particular cases.

[8]        In Mason v Dodd, Katz J fixed costs immediately after finding that the negligence claims in that case were unsuitable for summary judgment “by a very…