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 defendants’ cross-application.4 Both parties had a measure of success in their application, and I consider the positions evenly matched.

[7]                 Accordingly, I order that costs lie where they fall with respect to the discovery proceeding.

Second counsel

[8]                   There is no general rule for the allowance of second counsel costs in category 2 cases. The issue is best assessed by consideration of whether the circumstances of the hearing justify the costs sought.5

[9]                 I accept the claim for second counsel under step 35. I recognise the utility of second counsel with respect to Mr Xu, who did not speak English well, because of counsel’s fluency in Mandarin. It does not then follow that allowance for second counsel goes to the interpreter’s fee — second counsel performed an important role in interpreting instructions to senior counsel, a separate function than that for which the interpreter was hired.

3      Chen v He [2021] NZHC 3059 at [6].

4      Xu v Meng [2023] NZHC 2915.

5      Hall’s Group Ltd v Rowe [2018] NZHC 3302 at [18].

Costs on costs

[10]             I do not find that the circumstances of the present case are such that an order for costs on costs is necessary. As set out above, parties have had varied success with respect to their claims on this application. I am therefore of the view costs on costs are unnecessary.

Orders

[11]             The plaintiffs are ordered to pay the interpreter’s fee as a disbursement and defendants’ reasonable costs for second counsel.

Woolford J