Tan v Tan
[2025] NZHC 1752
•1 July 2025
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 wide margin”.6
[9] Katz J held that exceptional circumstances were not necessary in order to justify determining costs immediately rather than after trial, commenting that “[w]here it should have been clear to the plaintiff that there was an arguable defence, costs will generally be fixed immediately”.7
[10] Similarly in Srinagar Limited v Horowhenua District Council, the Court rejected an argument that costs should be reserved, holding that costs should be fixed as there were legal and factual issues which made the case unsuitable for summary judgment and so the application should never have been brought.8
[11] The defendant contends in this case that summary judgment should never have been brought and seeks costs for all steps. As can be inferred from my preliminary view set out in the Judgment, I did not at that stage consider that it should have been obvious prior to filing the summary judgment application that there was an arguable defence. My view remains the same. I do not accept that the plaintiff acted unreasonably in bringing the summary judgment application or that it should have been clear to the plaintiff that there was an arguable defence until possibly when the notice of opposition was amended to include the allegation of fraud and affidavits were filed in support of that.
4 NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA) at 405.
5 Srinagar Limited v Horowhenua District Council [2022] NZHC 1094 at [7].
6 Mason v Dodd [2020] NZHC 2005 at [2] and [11].
7 At [10].
8 At [10].
[12] For costs to be fixed now in respect of the steps after the filing of the amended notice of opposition and affidavits, I will need to find that it should have been clear to the plaintiff at that stage that there was an arguable defence so that continuing with summary judgment was not appropriate.
Should the plaintiff have withdrawn the summary judgment application following the filing of the amended notice of opposition and affidavits in support?
[13] The plaintiff submits that nothing in this case justifies departure from the usual course of reserving costs on summary judgment applications and that the ultimate decision on the substantive issues will only be known at trial. There will then be no issue of costs needing to be revisited following the final disposal of this proceeding.
[14] Counsel for the plaintiff refers to Pawson v Claridge9 and Yingling v Gifford,10 both, as here, involving declined summary judgment applications to recognise foreign judgments where the defendants raised the defence of fraud. Associate Judge Sargisson reserved costs in both cases.
[15] The fact that a defence of fraud is raised clearly does not automatically mean a plaintiff ought to discontinue its summary judgment application. But I am satisfied in the particular circumstances of this case that it ought to have been obvious to the plaintiff that summary judgment was not appropriate at least when preparing the affidavit in reply prior to the preparation of submissions and the hearing. The application ought therefore to have been withdrawn at that stage.
[16] In Pawson v Claridge, Associate Judge Sargisson referred to Owens Bank Ltd v Etoile Commerciale where the Privy Council held:11
… Where allegations of fraud have been made and determined abroad, summary judgment or striking out in subsequent proceedings are appropriate remedies in the absence of plausible evidence disclosing at least a prima facie case of fraud. No strict rule can be laid down; in every case the court must decide whether justice requires the further investigation of alleged fraud or requires that the plaintiff, having obtained a foreign judgment, shall no longer be frustrated in enforcing that judgment.
9 Pawson v Claridge HC Auckland CIV-2009-404-4367, 25 June 2010.
10 Yingling v Gifford [2018] NZHC 53.
11 Pawson v Claridge, above n 9, at [95] referring to Owens Bank Ltd v Etoile Commerciale [1995] 1 WLR 44 at 51.
[17] This case clearly falls into the former category, that further investigation is required, and this ought to have been obvious to the plaintiff.
[18] In his affidavit in reply, as set out in the Judgment, the plaintiff largely set out what was said in the Chinese proceedings on his behalf rather than directly addressing the allegation of fraud.12
[19] In addition, the plaintiff relied on the fact that the defendant's lawyer could have cross examined him when the transcript in the Chinese proceedings showed that only one question was allowed in cross examination before the hearing was ended and without further time allocated.13
[20] Furthermore, the plaintiff failed to include a copy of a key document on which he relied, a loan acknowledgement slip, despite knowing that the defendant was not present at the relevant hearing and the defendant recording in his affidavit that he did not have access to copies of the documents from the Chinese proceedings either from his lawyers or the Court.14 There was no reason given by the plaintiff as to why a copy of the loan acknowledgement slip was not included in the evidence.
[21] If the plaintiff wished to continue with the summary judgment application and avoid falling into the first category referred to in Owens Bank Ltd v Etoile Commerciale, that further investigation was required, then the plaintiff ought to have directly addressed the allegation of fraud and provided a copy of the loan acknowledgement slip. That should have been obvious to the plaintiff.
[22] Costs for the preparation of submissions and attendance at the hearing are therefore awarded to the defendant now.
What is the appropriate quantum?
[23] The defendant claims costs for the preparation of submissions on a 2C basis as the plaintiff filed an extensive volume of documents and the process of taking
12 Judgment at [49
13 Judgment at [28] to [39].
14 Judgment at [30] - [31].
instructions and briefing the defendant was much more time consuming with the oral narrative spanning well over a decade, the lack of documents to rely on and the language barrier which required an interpreter at client conferences (doubling the time required for every discussion) and translation of affidavits.
[24] Counsel submits that the preparation of submissions for the summary judgment hearing was also unusually time consuming in large part due to the applicant's bundle numbering over 1000 pages and containing a number of documents in Chinese with no proper index, meaning every page needed to be read closely.
[25] The plaintiff submits if costs are awarded, it should be on a 2B rather than 2C basis for the following reasons. First the plaintiff submits that a language barrier is a common element in proceedings involving clients who do not speak English fluently and will be more common in cases seeking recognition of a foreign judgment in a foreign language. Counsel submits that in the changing demographic of New Zealand, this is becoming a more common occurrence and is not in itself a basis for seeking more costs. In any event, the plaintiff submits the defendant’s instructing solicitors are able to communicate in Mandarin with the defendant.
[26] Second, the plaintiff submits that the defendant was a party in the Chinese proceedings and the case was familiar to the defendant so the defendant would have been able to provide clear and concise instructions without necessitating excessive costs.
[27] Third, the plaintiff submits most of the documents in the bundle related to documents from the foreign proceeding and were included as a matter of record and should therefore have been well-known to the defendant.
[28] Fourth, the plaintiff says he also went to considerable effort and cost to translate the documents from the foreign proceeding through two affidavits of translators, with the need to do so arising because of matters raised in opposition. Given the plaintiff’s position was that these were all defences that had been raised and dismissed by the two courts in China, the only way to show this in the plaintiff’s submission was to refer to documents from the foreign proceeding.
[29] Whether band B or C is appropriate depends upon whether a normal amount of time would be considered reasonable or a comparatively large amount of time for the particular step would be considered reasonable.
[30] The only steps for which I consider costs ought to be awarded are for the preparation of submissions and the hearing itself so the length of the defendant’s affidavits is not relevant. Furthermore, costs for the hearing itself just depend on the length of the hearing and are the same for Band B and C.
[31] In the circumstances of this case, I agree with the defendant's submission that a comparatively large amount of time for the preparation of submissions would be considered reasonable, as the bundle was over 1,000 pages and the material included in the affidavits was very time consuming to manage, both because the factual background was extended and complex but also because the translations of the transcripts of the hearings before the Chinese Courts were difficult to follow. I therefore award costs on a 2C basis for the preparation of submissions.
[32] The defendant also seeks costs for the preparation of the costs memorandum as counsel for the plaintiff did not engage in conferring in respect of costs as directed. Counsel for the plaintiff does not respond to this in their memorandum and so I presume that this is accepted. As a result, I consider it appropriate to award 2B costs for the costs memorandum.
[33] I therefore award costs on a 2C basis for the preparation of the written submissions, an allowance of 3 days, and 2B costs for the hearing of 0.5 of a day and for the preparation of the cost memorandum, 0.4 of a day. The total is therefore 3.9 days at a daily rate of $2,390 which equals $9,321.00.
Disbursements
[34] The defendant seeks disbursements covering the filing fee, the translation services for the affidavit filed and for the time of a legal executive for interpreting at meetings and translation services. I allow disbursements for the filing fee ($110) and translation services ($725.02), but not the time of the legal executive, for which $1,500 is claimed. I accept that without the legal executive's skills, a third party interpreter
may have had to be engaged but I am not satisfied that the time can be fairly separated out as proposed and that an award can therefore be justified.
Result
[35] The plaintiff is to pay costs to the defendant on a combined 2B and 2C basis in the amount of $9,321.00 plus disbursements of $835.02 for a total of $10,156.02.
Associate Judge Sussock
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