Barker v Barker

[2025] NZHC 2624

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 a material impact as the second ground of appeal would have required submissions focused on directors’ duties in addition to arguments under the third and fourth grounds of appeal. Mr Johnson argued it is irrelevant that the strike-out application did not specifically seek “partial” strike-out, as the Court has discretion to strike out portions of the proceedings under r 15.1. Moreover, counsel submitted the application was not brought without merit.

[6]    Counsel contended the respondent’s partial success would justify them seeking costs against the appellant, albeit on a reduced basis.8 However, taking a realistic view in the circumstances, Mr Johnson argued the most appropriate outcome would be for costs to lie where they fall.

Discussion

[7]    There appear to be two streams of authority when defining success for the purposes of costs.9 Cases like Water Guard NZ Ltd v Midgen Enterprises Ltd, Weaver v Auckland Council and Minister of Education v James Hardie New Zealand represent a more absolute approach where “success on more limited terms is still success.”10 In contrast, cases like Packing In Ltd (in liq) v Chilcott and Middeldorp v Avondale Jockey Club Inc reflect a broader appraisal where success is “determined by reference to the factual assessment as to who the successful party was on an overall basis”.11

[8]    In the present case, I consider the latter approach is most suitable. The strike-out application, unlike Weaver or Water Guard, did not involve the payment of

8      Citing Weaver v Auckland Council [2017] NZCA 330; Water Guard NZ Ltd v Midgen Enterprises Ltd [2017] NZCA 36; and Minister of Education v James Hardie New Zealand [2018] NZHC 1732.

9      David Bullock and Tim Mullins The Law of Costs in New Zealand (LexisNexis, Wellington, 2022) at [2.2]

10 Weaver v Auckland Council, above n 8, at [26].

11   Middeldorp v Avondale Jockey Club Inc [2021] NZSC 117 [Middeldorp SC] at [17]; Middeldorp v Avondale Jockey Club Inc [2021] NZCA 238 [Middeldorp CA]; and Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA).

damages.12 Moreover, the appeal was not struck out in its entirety. When dissected into the five grounds of appeal, the appellant was successful in defending four of these grounds and in demonstrating, overall, that the appeal was neither frivolous, vexatious or an abuse of process. There are similarities with Middeldorp where the respondent successfully defended two of the three causes of action. In appropriate cases, such as those not involving damages, adopting a realistic approach brings important benefits. It avoids unduly preferring the applicant’ successes as opposed to those of the respondent and constrains encouraging excessive or unreasonable applications.13

[9]    For these reasons, I adopt the approach in Middeldorp which requires success to be determined by reference to the factual assessment as to who the successful party was overall.14 This involves a comprehensive review of what the application sought to achieve, the positions of the parties, the key issues in contest and the overall result.15

[10]   Considering these factors, I agree with Ms Crawshaw KC that the appellant is overall the successful party. The application clearly sought to strike out the appeal in its entirety, although striking out portions of the appeal was also, eventually, sought in the alternative. While the second ground of appeal was then struck out, the application failed in relation to the other four grounds and did not establish that the appeal overall was frivolous, vexatious or an abuse of process. I also note the respondent’s application for leave to cross-appeal out of time was unopposed.

[11]   However, despite finding the appellant to be the overall successful party, I acknowledge the respondent has had partial success. The respondent succeeded in striking out one out of five of the grounds of appeal and I accept Mr Johnson’s submission that this materially narrowed the scope of the appeal. This warrants a reduction in the costs awarded to the appellant. It also demonstrates the appellant  has unnecessarily contributed to the time and expense of these proceedings by

12 See Middeldorp CA, above n 11, at [21]–[22] and Bullock and Mullins, above n 9, at [2.5]. Notably, the decision in Minister of Education v James Hardie New Zealand, above n 8, at [29] also seemingly relies on an analogy with damages despite not, itself, granting damages.

13 See Bullock and Mullins, above n 9, at [2.5].

14 Middeldorp SC, above n 11, at [17].

15 Howard v Howard [2023] NZHC 3432 at [8] citing Young v Tower Insurance Ltd [2017] NZHC  482 at [12]–[13], Lawrence v Glynbrook 2001 Ltd [2015] NZHC 1005 at [8] and Karaka v Ngai Tai Ki Tamaki Tribal Trust [2014] NZHC 603 at [23].

pursuing the second ground of appeal even though it was not reasonably arguable.16 In which case, I consider a reduction of 20 per cent is appropriate: this reflects the respondent’s success in striking out one of the five grounds of appeal. The result is an award of 80 per cent of the appellant’s claimed costs (or $5,449.20). I consider this outcome best meets the interests of justice in this case in accordance with the applicable costs rules and consistent with established principles.

[12]   For completeness, I do not agree that costs should be reserved pending the outcome of the appeal. Given my findings above, I do not consider there would be grounds for the respondent to seek increased costs on this application if the substantive appeal is unsuccessful.17 Similarly, r 14.8(3) does not on its face apply to strike-out applications.18 There are no special reasons not to fix costs on this application.19

Decision

[13]The respondent must pay the appellant $5,449.20 in costs on a 2B basis.

Harvey J

16     High Court Rules 2016, r 14.7(f)(ii).

17     See Chapman v Badon Ltd [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].

18     Craig v Stiekema [2018] NZHC 2389 at [17].

19     High Court Rules 2016, r 14.8(1).