Birchfield v Birchfield - [2025] NZHC 1928

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2024-418-5

[2025] NZHC 1928

UNDER the Property Law Act 2007

BETWEEN

EVAN RAYMOND BIRCHFIELD and GARY PAUL BIRCHFIELD

Plaintiffs

AND

ALLAN JOHN BIRCHFIELD

First Defendant

BIRCHFIELD COAL MINES LIMITED

Second Defendant

Hearing: (On the papers)

Counsel:

R J Hollyman KC and G K Riach for Plaintiffs

P A Cowey, J J Taylor and L J Peez for First Defendant C L Webber for Second Defendant

Judgment:

15 July 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Costs)

BIRCHFIELD v BIRCHFIELD [2025] NZHC 1928 [15 July 2025]

[1] That a Judicial Settlement Conference (JSC) is confidential does not create immunity for costs where a party’s conduct, attitude and/or lack of engagement warrants an award of costs.

[2] I do not need to disclose what was discussed at the JSC to consider whether Mr Allan Birchfield’s (Mr Birchfield) conduct at and his approach to, the JSC warrants an award of costs. That consideration is not related to the merits of the parties’ position, or whether Mr Birchfield will ultimately be successful in defending this proceeding. A JSC is aimed at trying to avoid a hearing. Attendees are expected to, with the benefit of their legal teams, assess their litigation risk, the costs of litigation, the desirability of avoiding delay and of having some input into shaping an acceptable outcome rather than leaving the matter to a hearing.

[3] The parties attending a JSC know that they will have to move from their pre-JSC position. Indeed, in the significant number of JSC’s I have chaired, I have yet to have a JSC settle on the basis of a party’s pre-existing position. A party going into a JSC knows that their pre-JSC position is not acceptable to the other side, that is why the matter had not settled. Being prepared to at least explore alternatives other than one’s pre-JSC position is required and is inherent in the JSC process. In other words, that is what the party in consenting to attend a JSC agrees to do. A person who is not prepared to budge from their pre-JSC position, who is not prepared to make counter-offers or explore alternative means of settlement that could not be achieved by either party at a hearing, is wasting the other party’s time. There may be an exception for a party who attends on the basis they will not be making an offer or amending an existing offer. If that is the case, the other party knows what to expect at the JSC and attends on that basis. The lawyers know that until a settlement is signed, there is no deal. Because the JSC is without prejudice and confidential, possible solutions can be explored without risk. For that reason, there is no reasonable basis for a party attending a JSC to refuse to make a counter-offer during the course of a day.

[4] However, that is what Mr Birchfield’s position…

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 Birchfield v Birchfield

Details

AGLC: Birchfield v Birchfield [2025] NZHC 1928
Case: [2025] NZHC 1928
Decision Date: 15 July 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs, Evan Raymond Birchfield and Gary Paul Birchfield, filed a proceeding against Allan John Birchfield and Birchfield Coal Mines Limited, seeking to resolve disputes over jointly owned property. The primary issues in the case revolved around whether Allan Birchfield's conduct during a Judicial Settlement Conference (JSC) warranted an award of costs and the extent to which the confidentiality of JSC discussions impacted such an award. The plaintiffs argued that Allan Birchfield's refusal to engage in the JSC process in good faith, specifically his failure to make a counter-offer and his abandonment of the conference, warranted costs. Allan Birchfield contended that there was no authority for such an award, even if a party fully prepared for the JSC but decided further participation was fruitless.

The court examined whether the confidentiality of JSC discussions precluded an award of costs for conduct during the conference. It found that the confidentiality of JSC discussions did not create immunity for costs if a party's conduct warranted such an award. The court noted that the purpose of a JSC is to encourage parties to explore possible solutions and avoid a hearing. Allan Birchfield's refusal to budge from his pre-JSC position and his failure to engage in meaningful negotiations at the JSC were deemed unreasonable and in bad faith. The court concluded that it had jurisdiction to award costs in such circumstances and that Allan Birchfield's conduct warranted a wasted costs order. The court awarded one-third of the plaintiffs' preparation costs and the full costs of attendance at the JSC to both the plaintiffs and the second defendant, totaling $14,092.61 plus GST.

The final orders of the court required Allan Birchfield to pay the plaintiffs and the second defendant the awarded costs. The decision underscored the importance of parties engaging in good faith during JSCs, highlighting that failure to do so could result in significant costs consequences.

Orders