Bradshaw v Barry

[2025] NZHC 3229

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-441-011

[2025] NZHC 3229

UNDER

the Family Protection Act 1955 and the Administration Act 1969

IN THE MATTER OF

The estate of BRIEN NIKORA BARRY

BETWEEN

LESLEIGH KAREN BRADSHAW and ANNE MARIE DOROTHY BARRY

Plaintiffs

AND

DOROTHY ELAINE BARRY

Defendant

Hearing:

On the papers

Counsel:

D M Kerr for Plaintiffs

E V R Stannard for Defendant

Judgment:

29 October 2025

JUDGMENT OF CHURCHMAN J

[Costs]

Background

[1]    On 6 November 2024 I issued a judgment for the plaintiffs in these proceedings.1

[2]    The plaintiffs each obtained awards against  the  defendant  under  the Family Protection Act 1955.

1      Bradshaw v Barry [2024] NZHC 3287.

BRADSHAW and BARRY v BARRY [2025] NZHC 3229 [29 October 2025]

[3]    The defendant appealed and was partly successful on her appeal. The Court of Appeal reduced the award to one of the plaintiffs and did not grant the other plaintiff any award.2

[4]    The Court of Appeal remitted the question of costs in the High Court for determination in this Court. The parties have been unable to settle costs between themselves and both parties have filed memoranda.

Defendant’s submissions

[5]    The defendant submits that she should be regarded as the successful party in the High Court and seeks costs in the sum of $25,932.56.

[6]    Beyond asserting that the defendant was successful in the High Court, counsel’s submissions do not explain how the fact that the Court of Appeal upheld the claim for one of the plaintiffs could equate to complete success for the defendant in the High Court.

Plaintiff’s submissions

[7]    The plaintiffs oppose the defendant’s costs application. Counsel point to the fact that the Court of Appeal had found that the defendant had breached her moral duty to one of the plaintiffs must be regarded as that plaintiff having succeeded in her Family Protection Act claim.

[8]    Counsel notes that the plaintiff simply sought further provision from the estate and not a specific sum and that the Court granted her further provision.

[9]    The  plaintiffs  refer  to  the  defendant’s  conduct  in  relation   to   a   Judicial Settlement Conference in March 2024 when one of the plaintiff’s had flown from Australia to attend but the defendant left and did not return, refusing to return for a reconvened conference.

2      Barry v Bradshaw and Barry [2025] NZCA 335.

[10]   Counsel also notes that the defendant refused to provide documents that had been requested and agreed, necessitating an application for further discovery.

[11]   Counsel also notes that the defendant had falsely claimed that the plaintiffs were not the deceased’s biological children, and this put the plaintiffs to unreasonable additional costs.

Analysis

[12]   The approach taken by the Court of Appeal is that the plaintiff’s claims were essentially advanced on a joint basis and that justified one costs award against the plaintiffs in the Court of Appeal. The same approach is appropriate in this Court.

[13]   In my minute of 30 September 2025, I indicated a preliminary view that an appropriate outcome given the success of one of the plaintiffs and the lack of success of the other would be to let costs lie where they fell.

[14]   Having reviewed the submissions of counsel I still remain of that view. The fundamental principles of costs are set out in pt 14 of the High Court Rules 2016 (HCR). The primary principle is that the unsuccessful party should pay costs.

[15]In this case one plaintiff was successful and one was not.

[16]   In the present case, the successful plaintiff would be entitled to an enhanced order for costs in respect of the unreasonable manner in which the defendant conducted the case in the High Court as detailed in [10] and [11] above. The award of costs in favour of that the plaintiff would exceed the award of costs that the defendant would be entitled to against the unsuccessful plaintiff.

[17]   Treating the plaintiff’s claims as one, by netting them off against the other, therefore effectively favours the defendant.

Outcome

[18]For the reasons set out above, costs will lie where they fall.

Churchman J

Solicitors:

Willis Legal, Napier for Defendant