Adams v Watcher

[2021] NZHC 432

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments. The parties’ names have been altered to allow for publications in law reports.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2020-443-000042

[2021] NZHC 432

BETWEEN

ADAMS

Appellant

AND

WATCHER

Respondent

Hearing:

1 March 2021

Appearances:

Appellant in person

C Gelston for the Respondent

Judgment:

9 March 2021

JUDGMENT OF COOKE J

[1]    Mr Adams appeals from a judgment of the Family Court in which he was ordered to pay Ms Watcher the amount of $29,903.46 in indemnity costs.1 The underlying proceedings concerns disputes between them as to the care of their two children under the Care of Children Act 2004 (the “Act”). They separated in December 2016. The decision of the Family Court awarding Ms Watcher costs on an indemnity basis followed two substantive judgments of the Court, one dated 3 June 2020,2 and the second dated 7 August 2020.3 At the end of the judgment of 7 August

1      Watcher v Adams [2020] NZFC 8417. These are not the parties’ real names.

2      Watcher v Adams [2020] NZFC 3495.

3      Watcher v Adams [2020] NZFC 5927.

ADAMS v WATCHER [2021] NZHC 432 [9 March 2021]

2020 the Judge indicated that he would consider written submissions as to costs, and after submissions were received on 5 October 2020 he issued the indemnity costs orders.

[2]    Mr Adams represented himself on this appeal. I earlier gave his (newly instructed) counsel leave to withdraw as counsel, although prior to that time counsel had filed written submissions which I have taken into account. His withdrawal as counsel is consistent with a pattern that has arisen with respect to Mr Adams, who has had three previous counsel. He has had periods representing himself as a consequence.

Background and decision under appeal

[3]    I will not address the full background to the proceedings in the Family Court, which involve some complexity. It is set out in comprehensive terms in the judgment of 7 August 2020.

[4]    The disputes between Mr Adams and Ms Watcher have concerned the care and contact arrangements in relation to their children. Ms Watcher first made an application for a Parenting Order in New Plymouth in June 2018. In March 2019, a consent memorandum was signed setting out interim care and contact arrangements, although Mr Adams declined to allow that agreement to be converted into a Court Order. In October 2019, Ms Watcher applied without notice for a Temporary Protection Order and an Interim Parenting Order. Mr Adams defended the Interim Parenting Order, but not the Temporary Protection Order. The Protection Order was made final on 30 January 2020.

[5]    In February 2020, Mr Adams then applied to discharge the Protection Order. This led to the first substantive hearing before the Judge on 21 May and the judgment of 3 June 2020. Interim Parenting Orders were made which involved Ms Watcher having care, but included supervised contact by Mr Adams with his children. It was anticipated that the matter would then go to a full hearing in July. At the end of this judgment the Judge stated:4

4      Watcher v Adams, above n 2.

[55] Mr [Adams] has been placed on clear notice by  Ms  [Watcher]’s counsel that costs will be in issue at the conclusion of the hearing in July. I asked Mr [Adams] to take note of the above comments and, with that in mind, to carefully consider his position. My hope is that he will have a normal relationship with his children as soon as possible. He must do some work in the meantime to achieve that however and I note the report writer’s advice that he have counselling. If he wishes to explore that avenue, then he should start by asking the children’s lawyer what she recommends in that regard.

[6]    Immediately following that judgment Mr Adams made three separate applications to discharge the Interim Parenting Order, to discharge the Final Protection Order, and a without notice application to vary the Interim Protection Order.

[7]    Prior to the substantive hearing in July, Mr Adams instructed new counsel. On the eve of the hearing between 20-22 July Mr Adams’s new counsel advised that the application to discharge the Protection Order was withdrawn and that Mr Adams no longer sought day-to-day care. As the hearing proceeded over three days, however, it became apparent that Mr Adams was not fully committed to this position.

[8]    It was this hearing that gave rise to the judgment of 7 August 2020 in which the Judge recorded he would receive memoranda as to costs. The Judge ordered that the children should be in the day-to-day care of Ms Watcher, and that Mr Adams would be allowed to have supervised contact with the children on detailed terms and conditions that the Judge set out. The Judge also specified what Mr Adams would need to do if he were to be allowed to have unsupervised contact to his children. I return to the details of that below.

[9]    In the costs decision under appeal, after setting out the relevant principles the Judge recorded Mr Adams’s reaction to the 3 June 2020 decision, the three applications he then filed, and his withdrawal of those applications on the morning of the July hearing. He set out counsel’s submissions, including the submission for Ms Watcher that she had conducted herself with a high degree of dignity and integrity in the proceedings. The Judge recorded that he agreed with that assessment. He then held:5

[23]    As set out in the judgments that have already been given in this proceeding, there have been opportunities for Mr [Adams] to step back from intemperate behaviour, to step back from making the situation worse and opportunities for him to achieve an outcome on far more favourable terms than

5      Watcher v Adams, above n 1.

he has at present. I refer in particular to the agreement that was reached between the parties and the children’s lawyer, but which Mr [Adams] refused to allow to be turned into an order and which he subsequently breached.

[24]   Mr [Adams] has made unrealistic applications, he had taken unrealistic positions, submissions that he has filed himself have been lengthy and for the most part irrelevant and he has continued all of this in the face of a clear warning that if he continued on this path he would be ordered to pay costs.

[25]   I find that rules 14.6.4 (a) and (b) apply, for the reasons set out above. I find that Mr [Adams] has acted improperly. I find that he has unnecessarily commenced and continued proceedings. He has breached an agreement reached with Ms [Adams]. Indemnity costs are justified.

Approach on appeal

[10]   Under s 143(4) of the Act, there is a right of appeal to the High Court. Appeals proceed by way of rehearing which requires the Court to consider whether the lower Court’s decision is correct.6 But as Ms Gelston submitted for Ms Watcher, the present case involves an appeal from a discretion exercised by the Family Court Judge, and it accordingly proceeds on the basis set out by the Supreme Court in Kacem v Bashir.7 Here, the Court said:8

[32] But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.

[11]   As Ms Gelston submits, it is plain that the question of costs involves a discretion exercised by the Family Court. Section 142 of the Act provides that the Court may make any order as to costs as it thinks fit. Rule 207 of the Family Court

6      Austin, Nichols & Co. Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

7      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

8      At [32], footnotes omitted.

Rules 2002 provides that “the Court has [a] discretion to determine the costs” of any proceeding or a step in the proceeding or matters incidental to it. The rule also provides that in exercising that discretion the court “may apply” any or all of the listed cost rules from the District Court Rules 2014 so far as applicable and with all necessary modifications. I accordingly accept Ms Gelston’s submission that this Court should only interfere with the costs award of the Family Court Judge on the limited grounds that apply in relation to appeals from discretionary decisions.

[12]   The thrust of the written submissions filed in support of Mr Adams’s approach was that the Family Court Judge had not properly taken into account the principles in relation to costs, particularly when the decisions involved the care of children under the Act. It was plainly a very difficult case, but the approach taken by the Family Court was inconsistent with the desirability of Mr Adams being fully engaged in the proceeding and it was likely to have an adverse effect.

[13]   Ms Gelston submitted that this was a straight forward costs decision, and that the way that Mr Adams had conducted himself, including after warnings had been expressly given to him, meant that the costs award was appropriate, and certainly not one that should be set aside by the High Court on appeal.

Costs in the Family Court

[14]   In R v S, a full Court of the High Court considered the relevant principles in relation to costs in the Family Court in care of children matters.9 Heath J, in a judgment with which Priestley J agreed, said:10

[63]   In my view, it is wrong in principle to make an adverse order for costs against a parent who advances a genuine and responsible argument in what he or she regards as the best interests of the child. If costs orders are made in those circumstances they may operate as a disincentive for such arguments to be put to the Court. As the Family Court, in guardianship proceedings, exercises an inquisitorial jurisdiction it is important that all relevant arguments be put before the Court. As to the nature of the inquisitorial jurisdiction, I refer to P v K at 815-818 per Priestley J. In particular, I draw attention to the authorities collected in paras [148] and [149] at 815 - 816.

9      R v S [2004] NZFLR 207.

10     At [63]-[65] and [72].

[64]  Further, I am of the view that, particularly in a case where the Judge does not appear to have made any determinations of credibility as between the parents and where the case might properly be said to be finely balanced, it is wrong, as a matter of principle, for costs automatically to follow the event in such proceedings. In this particular case, I note that the Judge did not refer expressly to the concession made by Mr R before the hearing which removed the need to spend much energy and resources on issues involving the child's involvement in Mr R's religion. That is a factor which ought to have been taken into account on the question of costs in this case, but was not.

[65]   In making those observations I do not intend to inhibit the Family Court in the exercise of its undoubted discretion (under s 27B of the Act) to award costs against an unsuccessful party in guardianship proceedings where the party has unreasonably prolonged litigation or otherwise conducted himself or herself in a manner which has brought greater costs on another party or has caused detriment to the welfare of the child. In each case a balance must be struck.

[15]   Similarly, in H v A11 Panckhurst J assessed the relevant principles in relation to an appeal concerning a guardianship decision. After reviewing relevant High Court and Family Court decisions, he said:

[17] To summarise, I consider that a number of points can be made. Section 27B confers an unfettered discretion, but one to be exercised on a reasoned and principled basis. In custody and access appeals to this Court costs do not necessarily follow the event. This follows in part from s 23 of the Act, whereby the welfare of children is “the first and paramount consideration”. Where, for example, on the break up of a marriage parties genuinely seek the assistance of the Court in resolving issues affecting their children, and do so in the interests of such children, then a costs award may be inappropriate. Where, by contrast, one or both parties unnecessarily prolong litigation, contrary to the interests of the children involved, then costs may well be awarded. If an award is made the same matters as affect and inform costs decisions generally will need to be considered, as well as the impact which making an order may genuinely have upon the welfare of children who are the subject of the proceeding. Such impact may be an economic one, or an emotional one (in terms of the likely influence upon the attitude of the parent concerned), or both.

[16]   Subsequently the Court of Appeal addressed what was said to be an inconsistency in the authorities in relation to the costs award on appeal of such cases to the High Court. In that case the High Court had taken an apparently different approach from that suggested in R v S and H v A.12 The Court of Appeal said:

[26]   We did not hear full argument on these decisions and so the following remarks are preliminary only. In our view, the starting point must be section 4(1) of the CCA. This provides that the welfare and best interests of the child

11     H v A (2002) 22 FRNZ 447.

12     Hawthorne v Cox [2008] NZCA 146.

must be the first and paramount consideration both in the administration of the CCA, including any proceedings under the Act, and in any other proceedings involving the guardianship of, day-to-day care of or contact with the child. The High Court Rules, as subordinate legislation, have to be interpreted in accordance with that principle.

[27]   Our preliminary view is that this favours the approach to costs outlined in H v A where the welfare of the child is the overriding and paramount consideration (as required by s 4 of the CCA). However, it seems to us that the conflict between the two decisions may be more apparent than real. Although Cooper J would start with the High Court Rules, he did acknowledge that the welfare and best interests of the child may well legitimately override the normal rules as to costs.

[28]    We would also accept, as pointed out by Cooper J, that different considerations might arise on appeal than in the lower court. While parents should not be discouraged from raising all genuine and responsible arguments they believe to be in the best interests of the child in the lower court, the same might not apply on appeal given that litigation and uncertainty will be prolonged – see E v C [1995] 3 NZLR 310 at 314 (CA).

[17]   I would add to the observations in these cases that some care needs to be exercised when assessing whether a party to a care of children matter has behaved unreasonably. Care of children matters inevitably involve issues that are highly emotional for the participants. The parties can also come from varied backgrounds, with different capabilities to manage what can become highly charged issues. Unnecessary legal expenditure may have been incurred by the party seeking costs, and their interests are obviously relevant. But some latitude may need to be given for parties who have behaved unreasonably by objective standards. It is important that they remain engaged in the proceedings and that they not perceive that the system is against them when they are dealing with the difficult personal matters they are confronted with. That does not mean that costs should not be awarded when the conduct of a party has been unreasonable. It simply means that the issue needs to be approached with some care.

Did the Family Court appropriately apply the principles?

[18]   For the reasons set out below, I have concluded that the Family Court did not appropriately apply the principles when making the orders here, and notwithstanding that this is an appeal in exercise of discretion the appeal ought to be allowed and substitute orders made.

[19]   The Judge appropriately set out a summary of the guiding principles arising from the authorities I have referred to. He did so by referring to a passage in Brookers on Family Law,13 and he also referred to a decision in the Family Court in A v A which cited the earlier High Court authorities and which set out relevant considerations.14 There were, however, three inter-related errors of principle in the approach the Judge then adopted.

[20]   First, none of the above authorities have addressed costs on an indemnity basis. They were all concerned whether scale costs should be awarded. Ms Gelston indicated that she was not aware of decisions analysing the award of costs on an indemnity basis, whilst pointing out that the circumstances of the present case involved highly unreasonable behaviour on Mr Adams’s behalf. In addressing indemnity costs, the Judge referred to the general approach applicable to civil proceedings set out by the Court of Appeal in Paper Reclaim Limited v Aotearoa International Limited.15 He also appropriately referred to r14.6 of the District Court Rules that deals with increased and indemnity costs, which is one of the Rules expressly applicable by virtue of r207 of the Family Court Rules. However there was no analysis directed to the different awards that are potentially involved when one party in a Care of Children Act matter has behaved unreasonably.

[21]   The exercise of the discretion in such a situation involves a series of steps. First, consistently with the authorities referred to above, a Court can conclude that notwithstanding the concern that parents should be able to bring the issues they have about the care of children to court without costs consequences flowing, an award of costs on a normal basis may be appropriate. That is the first award that might be considered when there has been unreasonable behaviour. Second, the Court can consider that because the conduct of the party is particularly unreasonable, the circumstances may warrant an increase in scale costs in the manner contemplated by r14.6. Finally, there will be circumstances where even that award is insufficient and an award of indemnity costs is appropriate. Here the Judge conducted no analysis of these alternatives and proceeded straight to an award of indemnity costs.

13     Nosra Lynch and Others Brookers on Family Law-Child Law (online loose-leaf (ed), Thomson Reuters (at [CC142.04].

14     A v A [1999] NZFLR 447 (FC) at p452.

15     Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188 (CA).

[22]   Secondly, the Judge did not consider whether any increased award should apply only with respect to particular steps in the proceeding. There is reference to steps in a proceeding in both r14.6 of the District Court Rules16 and r207 of the Family Court Rules.17 When the Court considers uplifting costs, it is appropriate to do so by reference to particular steps taken in the proceeding which involve the conduct justifying an uplift. That approach was summarised by the Court of Appeal in Holdfast NZ Ltd v Selleys Pty Ltd where the Court suggested that a series of steps be taken to assess whether increased costs are appropriate.18 That may not be needed when a party makes an unjustified application such that all the steps associated with the application may be subject to the increased award – such as the disclosure application in NR v MR and the stay application in Broadspectrum (New Zealand) Ltd. 19 But here the Judge sought to award costs for the whole proceedings to date, which involved a number of different applications and hearings over a period of time. There were also particular issues relating to particular steps – the warning given to Mr Adams about costs was in the judgment of 3 June 2020, and then would only likely have been relevant to the steps taken thereafter. The Family Court Judge here painted with much broader brush strokes. It is plain that there is a discretion in relation to costs in the Family Court. But it is nevertheless important to apply the discretion with care in light of the relevant principles.

[23]   Thirdly, the award of the Family Court involves awarding Ms Watcher an amount covering all her legal expenditure. Ms Gelston explained in her submissions to the Judge that the $29,903.46 involved all her legal fees from 2 September 2019 until the date of the submission, together with all her costs between 18 June 2018 until 18 July 2019 when counsel was associated with a different provider of legal services. But a question arises whether some of that expenditure would not be associated with steps in the proceeding or matters incidental to them covered by the costs rules. That does not appear to have been considered by the Judge. For example, a question arises whether the legal services would have included consultations between lawyer and

16     District Court Rules, r14.6 (2).

17     Family Court Rules 2002, r207(1)(b) refer to costs either being for the whole of the proceeding or any step in the proceeding.

18     Holdfast NZ Ltd v Selleys Pty Ltd (2005) 17 PRNZ 897 at [43]-[48].

19     NR v MR 2014 [NZCA] 623, (2014) 22PRNZ 636; Broadspectrum (New Zealand) Ltd v Nathan

[2017] NZCA 434 at [18].

client, and advice provided. Indeed when explaining the legal expenditure involved to the Family Court, counsel went on to say that Ms Watcher had also had to file relationship property proceedings. There does not appear to have been any assessment by the Judge whether the total legal expenditure included expenditure associated with the relationship property matters. It follows from the above that the Family Court Judge not only painted with a broad brush, but that he may have gone over the margins when doing so.

[24]   It is also relevant that the Judge did not know what the scale costs award involved in the proceedings might entail. A calculation was not provided to him for the purposes of the costs decision. Ms Gelston has subsequently provided me with a calculation. As she submitted her calculation might suggest that scale costs for the entire proceeding to date could exceed the indemnity costs award that was made. 20 This is explicable because of the responsible way in which she has adjusted her fee in light of the challenges Ms Watcher has faced with the case. By itself this reveals why there may have been the need for greater analysis before proceeding straight to an award on an indemnity basis involving Ms Watcher’s entire legal expenditure.

[25]   Given those three related errors, I do not think the costs award can stand. The outcome of these orders is effectively to say that Mr Adams had no legitimate reason to ask the Family Court to address the care of children matters that he wanted to raise at any stage. It is apparent that Mr Adams has taken unreasonable stances during the course of this proceeding and caused Ms Watcher unnecessary legal expense as a consequence. But I have difficulty with the suggestion that he had no legitimate reason to ask for the Court to address the matters at all. That seems to me to cut across the reasons why a conventional approach to costs should not be applied, and the need for particularity when it comes to increased and indemnity costs awards.

[26]   I accept the findings of the Family Court Judge that Mr Adams has engaged in unreasonable behaviour during the course of proceedings.  That is apparent from the

20 I note that the calculation provided uses the allowances for a “full trial” in steps 16-18.3 of the District Court Rules for the hearing. The High Court Rules adopts separate time allocations for the hearing of originating applications steps 37-43, Schedule 3, High Court Rules 2016. There are also separate steps for an “affidavit hearing” steps 30-32. Both involve more modest time allocations.  Under steps 37-43, 2 days would be allowed for filing the application and evidence,

1.5 days for preparation, and then the time of the hearing would be allowed for a category B matter.

chronology of events. That is particularly so following the warning he was given in the 3 June 2020 judgment as reflected in the three applications he subsequently filed. But that may not justify an award going back to 18 June 2018. With the assistance of his counsel, he also pulled back from arguing all the matters in July 2020 and concentrated on the question of supervised access, although this was only apparent on the eve of the hearing. His evidence suggested he was still inclined to revert to his previous stance. But I do not accept that he was not permitted to ask the Court to address both the interim care arrangements or the final care arrangements. I acknowledge he declined to allow the matters that had been agreed in a consent memorandum to be formulated in an order, but it may well be he was entitled to ask the Court to address these issues notwithstanding that initial agreement.

[27]   Even the hearing in July 2020 had utility. The Court’s judgment of 7 August included additional matters that had arisen since the earlier judgment. In particular at [71]-[75] the Court explained in careful terms what Mr Adams needed to do for his access to the children to be unsupervised. This involving him undertaking counselling, and the subsequent approval of the psychologist following the work with the counsellor. I am informed by Mr Adams and by Ms Gelston on behalf of Ms Watcher, that Mr Adams has engaged in that counselling, and there is a report from the counsellor and the psychologist which will now inform a further hearing of the Court as to whether the access can be unsupervised.21 So even that hearing was beneficial in identifying the way forward in what are very difficult circumstances given Mr Adams’s difficulties in acting reasonably.

[28]   It may well be in the best interests of the children that Mr Adams be involved in their lives provided that he can avoid drawing them into the disputes that he still has with Ms Watcher. It is important that Mr Adams continue to be engaged in the process, including by taking the steps that were set out for him in the August judgment. He has personal limitations that affect his ability to deal with these proceedings. Those limitations are ultimately adverse to him as well as Ms Watcher. Awarding costs against him on an indemnity basis for all of Ms Watcher’s legal expenses is not consistent with the need to continue to work with him to secure the best outcome.

21     Watcher v Adams, above n 3.

What should happen?

[29] It follows from the above that in my view the appeal should be allowed. I accordingly consider the orders this Court should make given my conclusion that the Family Court made errors in principle in making the indemnity costs award. I consider the discretion contained in r207 of the Family Court Rules in light of the provisions in the District Court concerning costs and increased indemnity costs and the principles explained in the authorities at [14]-[17] above.

[30]   It seems to me that Mr Adams was entitled to have a hearing of the Court to assess the interim care arrangements, and also entitled to ask the Court to consider what the final care arrangements should be. It seems to me that there is no clear reason to depart from the normal principal that costs should lie where they fall through to the hearing on 20 May.

[31]   After that point the position is different because of Mr Adams’s unreasonable conduct. In particular, the three applications that he filed involved unreasonable steps and put Ms Watcher to unnecessary legal expenditure. The withdrawal of those additional matters only at the last moment further reflect the unreasonable conduct causing that expense. It is also apparent that in his evidence Mr Adams continued to raise those matters notwithstanding that they had been withdrawn. That is presumably one of the reasons why the hearing went for three days.

[32]   On the other hand, the hearing was appropriate to decide what the final orders should be. It also had utility in setting out the path forward for the children to have access to their father without supervision. In other words, for the reasons I have already explained it had benefits in terms of making progress and promoting the best interests of the children.

[33]   In light of those considerations it seems to me that Ms Watcher should be awarded half the scale costs set out in Ms Gelston’s calculation associated with that hearing. That is an award of $12,892.50. That award might be regarded to be on the higher side given the level of the claim for the preparation for the hearing in particular. Adopting the “full trial” analogy involves six days being allowed for preparation in addition to the four and a half days for preparing affidavits and other matters for the

“trial”.22 But I am prepared to use the higher time allocations for the purpose of making the award, particularly given the extent of the preparation that would have been involved given the three applications that had been filed.

[34]   Accordingly I allow the appeal, set aside the costs award of $29,903.46 and replace it with a costs award of $12,892.50.

Costs on this appeal

[35]   I have not heard from the parties on the issue of costs on this appeal. It may assist if I give some preliminary indications.

[36]   Mr Adams is likely entitled to a costs award on this appeal. Such an award would involve following the approach recommended by the Court of Appeal in Hawthorne v Cox, recognising that this is an appeal concerning a costs award rather than an appeal directly concerning the merits of any care of children issues.23

[37]   Mr Adams appeared for himself on his appeal, but that was only after his counsel had prepared and filed the appeal and prepared, filed and served written submissions in support. That would seem to me to suggest that there should be an allowance on a 2B basis for filing the appeal under step 52 (one day) – and on a 2A basis for preparing written submissions under step 56 (one day). That would involve an award of 2 days at $2,390 per day, or $4,780. I do not know if there were relevant filing fees.

[38]   Mr Adams and counsel for Ms Watcher may file memoranda (no more than 3 pages) addressed to costs on this appeal within 5 working days for my consideration.

Cooke J

Solicitors:

Cara Gelston, New Plymouth, for Respondent Copy to: Mr Adams

22     See n 20 above.

23     Hawthorne v Cox above n 12.