Baker v Baker

[2025] NZHC 1969

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-101

[2025] NZHC 1969

BETWEEN

JOHN JACKSON BAKER

Plaintiff

AND

ANNA BAKER

First Defendant

SUMIT DESIGN DEVELOPMENTS LIMITED

Second Defendant

Hearing:

(On the papers)

Counsel:

T J Mackenzie for Plaintiff

A C Baker – self-represented First Defendant

Judgment:

17 July 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

BAKER v BAKER [2025] NZHC 1969 [17 July 2025]

[1]                On 16 April 2025, the first defendant filed a discontinuance of her counterclaim. I recorded in a Minute of 16 June 2025 that the discontinuance triggered r 15.23 of the High Court Rules 2016 (the Rules).1

[2]Rule 15.23 provides:

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

[3]                Mr Mackenzie, counsel for Mr Baker (the counterclaim defendant), seeks costs pursuant to r 15.23. He has calculated costs on a 2B basis at $5,736, being for the commencement of the defence and the notice seeking particulars. Mr Mackenzie notes there is no specific step in the sch 3 time allocations of the Rules for requesting particulars, but as required by r 14.5(1)(b), Mr Mackenzie has adopted an appropriate scale item by analogy — in this case, the rule relating to interrogatories. I agree the allowance  for  interrogatories  is  an  appropriate  one  to  use  for  the  purposes  of  r 14.5(1)(b).

[4]                Accordingly, and subject to Ms Baker’s submissions, Mr Mackenzie’s calculation in respect of costs is correct.

[5]                Ms Baker, in her memorandum of 7 July 2025, says she discontinued her counterclaim in order to file a more complete and structured new claim under CIV-2025-425-40. She says that decision was made in good faith with the intention of streamlining the litigation. Ms Baker says she was not fully aware of the costs consequences under r 15.23 and acted without legal counsel.

[6]                Ms Baker says that she discontinued her counterclaim not to abandon her rights, but rather to consolidate legal matters more cleanly in a new proceeding. She

1      Baker v Baker HC Invercargill CIV-2021-425-101, 16 June 2025 at [2].

says a costs order under r 15.23 would be unjust in the circumstances. The closing paragraph of Ms Baker’s memorandum reads that Ms Baker:

… respectfully requests that the discontinuance of her counterclaim in CIV-2021-425-000101 be set aside, and that her claims be reinstated in full so that the matter may be determined on the merits.

Jurisdiction to withdraw a discontinuance

[7]                The High Court has an inherent jurisdiction to set aside a discontinuance.2 In Ben View Farms Ltd v GE Capital Returnable Packaging Systems Ltd, a mentally ill barrister acting entirely without instructions withdrew an appeal. This Court held that in those circumstances, it would exercise its inherent jurisdiction to safeguard the integrity of its processes and to avoid miscarriages of justice. The Court held that it would normally be a miscarriage of justice if without fault on the part of a litigant,    a party has been significantly prejudiced by some incompetent or unauthorised act or omission attributable to the mental disability of counsel.3

[8]                This Court’s inherent jurisdiction to allow a discontinuance to be withdrawn was also recognised in RG Developments Ltd v Maclennan Realty Ltd.4 The Court noted that in order to allow the withdrawal of a discontinuance, the Court will have to be satisfied that not to do so would amount to an abuse of process. This could include matters such as the coercion of a plaintiff, irrational behaviour by counsel or fraud.5 However, the Court added “it could not arise in a situation where the discontinuance had been filed as a result of a tactical or technical error”.6

[9]                More recently, Hinton  J in  Jin v Konishi, dealt with the abandonment of      a notice of appeal and whether such abandonment could be withdrawn.7 Her Honour noted that to justify withdrawing a notice of abandonment the appellant would, in her

2      Ben View Farms Ltd v GE Capital Returnable Packaging Systems Ltd [2002] 1 NZLR 698 (HC) at [8].

3 At [8].

4      RG  Developments  Ltd  v   Maclennan   Realty   Ltd   HC   Auckland   CIV-2003-404-003260, 18 March 2005.

5 At [56].

6      Kapadia v Axiom Rolle PRP Valuations Services Ltd [2007] ERNZ 579 (EmpC) at [25].

7      Jin v Konishi [2016] NZHC 2675.

view, have to establish something akin to mistake or fraud, not just misapprehension. Her Honour said:8

The latter is too easy to allege and it would undermine the Court process, if notices which on their face are conclusive, could be too readily withdrawn.

[10]            It is clear that in this case, from what Ms Baker says in her memorandum, that she discontinued her counterclaims as a result of a misapprehension, or a tactical or technical error. These are not grounds to permit the withdrawal of a discontinuance.

[11]            Having determined that it is not open to Ms Baker to withdraw her discontinuance, I now need to determine whether Ms Baker has established any basis for the Court to depart from the presumption in r 15.23 of the Rules that costs are payable. The effect of r 15.23 is that a defendant, including a counterclaim defendant, has the advantage of a presumption that they are entitled to costs even where there has been no unreasonableness by the party who has discontinued. The rule is intended to give a certain and predictable outcome upon a discontinuance.

[12]            Generally, in considering whether it is just and equitable that the presumption in r 15.23 should not apply, the Court does not consider the merits of the parties’ respective cases, unless they are so obvious that they should influence the costs outcome. That is not the case here.

[13]            Ms Baker says that she discontinued her counterclaim to bring her counterclaim in a separate proceeding. That motivation is not grounds to not apply the presumption. So much is clear from r 15.24 of the Rules which provides:

A plaintiff who discontinues a proceeding (proceeding A) against a defendant may not commence another proceeding (proceeding B) against the defendant if proceeding B arises out of facts that are the same or substantially the same as those relating to proceeding A, unless the plaintiff has paid any costs ordered to be paid to the defendant under rule 15.23 relating to proceeding A.

[14]                 The existence of r 15.24 is a strong indication that discontinuing with an intention to pursue the discontinued claim in some other context, is not a basis for avoiding the presumption.

8 At [25].

[15]            Accordingly, I find that Ms Baker is to pay costs to Mr John Baker on her discontinuance in the sum of $5,736.00. Mr Mackenzie advises no disbursements are claimed.

Associate Judge Lester

Solicitors:

McVeagh Fleming, Auckland (for Plaintiff) Rennie Cox, Auckland (for Defendants)

Copy to counsel:
T J Mackenzie, Barrister, Christchurch (for Plaintiff)