Xu v Meng - [2024] NZHC 804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-508

[2024] NZHC 804

BETWEEN
WEI XU and JUNHUI ZHANG

Plaintiffs

AND

XING MENG and HUIMIN GUAN

Defendants

Hearing: On the papers

Counsel:

Z Chen for the Plaintiffs

E St John and D Liu for the Defendants

Judgment:

15 April 2024

JUDGMENT OF WOOLFORD J

(As to costs)

This judgment was delivered by me on Monday, 15 April 2024 at 2:15 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors: Righteous Law (Z Chen), Auckland
Heritage Law (D Liu), Auckland

Counsel: E St John, Auckland

XU v MENG [2024] NZHC 804 [15 April 2024]

Introduction

[1] On 18 December 2023, I delivered a judgment finding for the defendants in their counterclaim for the return of the $200,000 deposit paid to the plaintiffs for the purchase of the Browns Bay property.1

[2] Following my minute dated 23 February 2024,2 in which I directed the parties to confer regarding the issue of costs, the parties have reached agreement except for:

(a)interpreter's fee;

(b)reserved costs following the judgment of Anderson J on the discovery applications;

(c)allowance for second counsel; and

(d)costs on costs.

Translator’s fee

[3] The defendants engaged an interpreter to assist the second defendant to give evidence at trial. They now claim a disbursement of $2,350.20, supported by an invoice.

[4] It is the plaintiffs’ position that the interpreter’s fee should not be allowed. The plaintiffs take issue with the defendants claiming that second counsel acted as an interpreter, while also claiming the costs of an interpreter for 1.5 days. This includes a half-day on 20 November 2023 and a full day on 21 November 2023. The plaintiffs further submit that the second defendant completed her evidence on the morning of 21 November 2023. There was therefore no requirement for an interpreter from
2.15 pm to 5 pm on that day. Essentially, the plaintiffs consider this disbursement as double-dipping.

1 Xu v Meng [2023] NZHC 1899.
2 Xu v Meng HC Auckland CIV-2021-404-508, 23 February 2024.

[5] There is no dispute that an interpreter was necessary for trial. The hearing was set down for two days and the defendants are entitled to claim for the costs associated with hiring an interpreter for this period. Whether the interpreter was fully engaged over the trial period is a matter of fact which this Court is not in a position to determine. Further, no authority is advanced for the reduction of the disbursement. A reduction may only be applied where the Court is satisfied that the claim is for unnecessary costs.3 That is not the finding here. I direct that the costs of the interpreter are to be paid in full as a disbursement in the proceeding.

Reserved costs on discovery applications

[6] In a judgment dated 19 October 2023, Anderson J ordered both parties to make further discovery according to the terms of the plaintiffs’ application and the…

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 Xu v Meng

Details

AGLC: Xu v Meng [2024] NZHC 804
Case: [2024] NZHC 804
Decision Date: 15 April 2024

CaseChat Overview and Summary

In Xu v Meng, the plaintiffs, Wei Xu and Junhui Zhang, sought to recover a deposit paid to the defendants, Xing Meng and Huimin Guan, for the purchase of a property in Browns Bay. The defendants counterclaimed for the return of the deposit, arguing that the plaintiffs had breached the contract. Following a judgment in favour of the defendants on the counterclaim, the parties were directed to confer on the issue of costs. The matters remaining unresolved were the interpreter’s fee, reserved costs following a judgment on discovery applications, the allowance for second counsel, and costs on costs.

The defendants claimed a disbursement of $2,350.20 for an interpreter, which the plaintiffs contested, arguing that it amounted to double-dipping. The Court found that the necessity of the interpreter for the trial period was undisputed and no authority supported a reduction in the fee. The Court ordered the plaintiffs to pay the full interpreter’s fee. Regarding the reserved costs on discovery applications, the Court ruled that since both parties had partial success, costs were to lie where they fell. The allowance for second counsel was granted, considering the importance of counsel’s fluency in Mandarin for Mr Xu. Lastly, the Court found that costs on costs were unnecessary given the varied success of the parties.

The final orders were that the plaintiffs were to pay the interpreter’s fee as a disbursement and the defendants’ reasonable costs for second counsel.

Orders