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Barker v Barker

Barker v Barker

Case [2025] NZHC 2624 11 September 2025

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000695

[2025] NZHC 2624

BETWEEN
RYAN BARKER

Appellant

AND

ALICE BARKER

Respondent

Hearing: On the papers

Appearances:

V Crawshaw KC and S Wilson for the Appellant

JWA Johnson (VMR), A G Needham and A Brown (VMR) for the Respondent

Judgment:

11 September 2025

COSTS JUDGMENT OF HARVEY J

This judgment is delivered by me on 11 September 2025 at 4 PM pursuant to r 11.5 of the High Court Rules

……………………………… Deputy Registrar

Solicitors:
Treadwell Gordon, Whanganui (A Brown)

Counsel:
Vivienne Crawshaw KC, Auckland JWA Johnson, Barrister, Auckland A G Needham, Barrister, Auckland

BARKER v BARKER [2025] NZHC 2624 [11 September 2025]

Introduction1

[1] On 3 March 2025, the Family Court held that Ryan Barker’s 3.5 million ordinary shares in [Company] are relationship property and ordered the transfer of half of those shares to his former wife, Alice Barker.2 Mr Barker’s appeal against that decision is scheduled for 1 October 2025. The respondent applied to strike out the notice of appeal, claiming it did not disclose any reasonable grounds and was frivolous, vexatious and an abuse of process. The appellant opposed the application on the basis it was meritless and sought to pre-emptively determine issues that will be before the Court at the substantive hearing.

[2] On 4 July 2025, the respondent’s strike-out application regarding four of the five grounds of appeal was dismissed.3 The second ground of appeal was struck out on the basis that directors’ duties were not technically engaged, and that relevant considerations about the “best interests of the company” could be addressed under the third and fourth grounds of appeal. The respondent’s application was granted on that limited basis only.4

[3] The appellant seeks costs and submits that, notwithstanding the respondent’s limited success, he is overall the successful party. The respondent argues that costs should lie where they fall or, alternatively, be reserved until the outcome of the appeal.

Legal principles

[4] Costs awards are discretionary and are guided by the principles in r 14.2.5 The unsuccessful party should generally pay the successful party’s costs and the determination of costs should be “both predictable and expeditious”.6 The overall objective is to achieve an outcome that “best meets the interests of justice in the given case in accordance with any applicable costs rules and consistent with established principles.”7

1      Pseudonyms are used for the parties in this judgment.
2      [Barker] v [Barker] [2025] NZFC 1815.
3      Barker v Barker [2025] NZHC 1817 at [44].
4      At [23]–[25] and [44].
5      See High Court Rules 2016, rr 14.1 and 14.2.
6      Rule 14.2(1)(a) and (g).
7      Kinney v Pardington [2021] NZCA 174 at [1].

Submissions for the respondent

[5] Mr Johnson for the respondent submitted the respondent had some success: the second ground of appeal was struck out and the respondent was granted leave to bring a cross-appeal out of time. Counsel contended the former had…

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 Barker v Barker

Details

AGLC: Barker v Barker [2025] NZHC 2624
Case: [2025] NZHC 2624
Decision Date: 11 September 2025

CaseChat Overview and Summary

In Barker v Barker, the appellant, Ryan Barker, sought costs from the respondent, Alice Barker, after a partial success in defending an appeal against a Family Court decision. The Family Court had previously ordered that half of Ryan's shares in a company be transferred to Alice as relationship property. Ryan's appeal against this decision was scheduled for October 2025, but Alice applied to strike out four of the five grounds of appeal. The Court dismissed the application regarding four of the grounds, but struck out the second ground, which pertained to directors' duties. The appellant argued that despite Alice's partial success, he was overall the successful party and sought costs accordingly.

The court had to determine whether Alice's partial success in striking out one ground of appeal warranted her bearing any of the costs. The court considered the principles governing costs awards, which are discretionary and should be predictable, expeditious, and in accordance with the interests of justice. The court examined the two differing approaches to defining success for costs purposes: the absolute approach, where success on limited terms is still success, and the broader approach, which assesses success based on an overall factual assessment. The court found the latter approach more suitable in this case, as the appeal was not entirely struck out, and Ryan successfully defended four out of five grounds of appeal.

In reaching its decision, the court considered the overall result of the strike-out application, the positions of the parties, and the key issues in contest. The court found that despite Alice's partial success in striking out one ground of appeal, Ryan was overall the successful party, as the application sought to strike out the appeal in its entirety and failed to establish that the appeal was frivolous, vexatious, or an abuse of process. The court awarded Ryan 80% of his claimed costs, or $5,449.20, as a reduction for Alice's partial success. The court did not reserve the fixing of costs pending the outcome of the appeal, as it did not consider there would be grounds for Alice to seek increased costs if the substantive appeal was unsuccessful.

The final order of the court was that Alice must pay Ryan $5,449.20 in costs on a 2B basis. The court's decision was based on the overall success of Ryan in defending the appeal and the partial success of Alice in striking out one ground of appeal, which warranted a reduction in the costs awarded to Ryan. The court's approach to determining success for costs purposes was guided by the principles of predictability, expeditiousness, and the interests of justice.

Orders