Denning v Roberts

[2025] NZHC 362

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-397 CIV-2023-409-398

CIV-2023-409-399 [2025] NZHC 362

BETWEEN

DENNING

Appellant

AND

ROBERTS

Respondent

Hearing:

On the papers

Counsel:

Appellant in person

C E Finn for Respondent

Judgment:

28 February 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

(Costs)

This judgment was delivered by me on 28 February 2025 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

DENNING v ROBERTS [2025] NZHC 362 [28 February 2025]

[1]                 The appellant filed three appeals from decisions of the Family Court which for case management purposes were progressed together. In a judgment of 9 December 2024, Eaton J ordered that the appellant provide security for costs.1 The appellant did not provide the security for costs as ordered and by memorandum dated 25 December 2024 (received by the Court on 6 January 2025) she withdrew the appeals. I issued a minute on 27 January 2025, noting that the appeals were withdrawn and also directing that if the respondent sought costs memoranda were to be filed.

[2]                 The respondent has applied for costs in respect to the appeals by memorandum of 17 February 2025, to which the appellant has responded by memorandum of      24 February 2025.

[3]                 The respondent claims costs on the basis that he was the successful party in the proceeding. He also refers to Eaton J’s judgment, where Eaton J stated that the appellant had not persuaded him she had arguable cases on appeal. The respondent refers to other matters that he says justify the making of an award of costs to which I do not need to refer. The respondent has sought costs on a 1B basis and has provided a schedule of amounts sought, totalling $4,293.

[4]                 In a very brief memorandum the appellant opposes costs on the basis that it is not appropriate or reasonable to make such an order. She submits the appeals did have merit and the Court should not have ordered her to pay security. I understand it is her position that it was her inability to provide security which resulted in her withdrawing the appeals. She also refers to matters raised in her 25 December 2024 memorandum.

[5]                 The usual rule is that a successful party is entitled to costs.2 However, in my view the position is governed by r 15.23 of the High Court Rules 2016 which requires a discontinuing party to pay costs up to the discontinuance unless the other party agrees or the Court orders otherwise. There is no such agreement here, nor are there circumstances that would make it unjust that the appellant pay costs.

1      Denning v Roberts [2024] NZHC 3734 at [59].

2      High Court Rules 2016, r 14.2(1)(a).

[6]                 However, there are several issues with the amounts claimed by the respondent as follows:

(a)Although the memorandum claims 1B scale costs, the schedule attached to it has been calculated on a 1A basis. As that is beneficial to the appellant, I will proceed on the basis of the amounts claimed.

(b)There is a claim for the commencement of the appeal (step 52) when an allowance should be sought for commencement of response to appeal (step 53).

(c)I do not believe that a claim for costs can be made in respect to a judgment without appearance (step 28).

[7]                 Making adjustments for these matters (all of which favour the appellant), the amount claimed is $3,498 and it is appropriate to make an award to the respondent in that sum.

Result

[8]                 The respondent is awarded costs against the appellant in respect of the three appeals in the amount of $3,498.

O G Paulsen Associate Judge

Solicitors:
Layburn Hodgins, Christchurch

Copy to:
The appellant