EA v RC - [2025] NZHC 1989

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000581 [2025] NZHC 1989

BETWEEN
EA

Appellant

AND

RC

Respondent

Hearing: On the papers

Counsel:

J T Parry for Appellant

S P Bryers for Respondent

Judgment:

18 July 2025

JUDGMENT OF ANDREW J

[Costs]

This judgment was delivered by Justice Andrew on 18 July 2025 at 2 pm, pursuant to
r 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: ………………………..

EA v RC [2025] NZHC 1989 [18 July 2025]

Introduction

[1] These appeal proceedings were referred to me as Duty Judge following Robinson J’s direction that no further steps would be taken in the appeal, other than to deal with costs.1

[2]This is my judgment on costs.

Background

[3] The overall proceedings between the parties have been ongoing for over a decade. However, the immediate matter arose from an appeal by EA against orders of Judge A A Sinclair in the North Shore District Court on 16 February 2024.2 Judge Sinclair’s minute recorded that RC had confirmed that the proceedings before the Court were the overarching proceedings, commenced in 2012. The minute also recorded that a second proceeding for the purpose of stopping time running under the Limitation Act 2010 would be discontinued when RC was satisfied or received confirmation that EA would not appeal a decision of Becroft J dismissing appeals against decisions on procedural matters3 or seek to have the 2012 proceeding struck out. The minute also made timetabling orders for a discovery hearing and ordered the removal of a Calderbank letter from the Court file.

[4] On 29 February 2024, EA appealed the orders made in Judge Sinclair’s minute. As the respondent notes, the grounds of appeal are difficult to follow. However, it appears that EA sought to argue that the District Court did not have jurisdiction to hear the respondent’s claim and, in any event, the Court should have determined the issue of jurisdiction before setting the application for discovery down for hearing.

[5] On 22 April 2024, Lang J set the appeal down for hearing on 3 September 2024 and specifically noted that the allocation of the fixture should not be interpreted as an indication that the discovery hearing in the District Court, set down for 21 May 2024, should be adjourned.4

1      EA v RC HC Auckland CIV-2024-404-581, 2 April 2025 (Minute of Robinson J).
2      [RC] v EA DC North Shore CIV-2012-044-491, 16 February 2024 (Minute of Judge Sinclair).
3      EA v [RC] [2023] NZHC 3370.
4      EA v RC HC Auckland CIV-2024-404-581, 22 April 2024 (Minute of Lang J) at [3].

[6] The discovery hearing proceeded before Judge K G Davenport KC as scheduled and she delivered her judgment on 28 May 2024, granting the order sought for discovery.5

[7] On 26 July 2024, Gault J issued a minute adjourning the appeal, noting that matters relating to the appeal were awaiting determination in the District Court.6

[8] The substantive hearing of…

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.

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Details

Case: [2025] NZHC 1989
Decision Date: 18 July 2025

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, considered the matter of EA v RC in relation to an appeal brought by EA against orders made by Judge A A Sinclair in the North Shore District Court. The appeal proceedings were ongoing for over a decade, with the latest appeal arising from Judge Sinclair’s minute dated 16 February 2024. EA appealed the orders, arguing that the District Court lacked jurisdiction and that the issue of jurisdiction should have been determined before setting the discovery hearing. The appeal was set down for hearing but was subsequently adjourned pending the outcome of other proceedings. Despite the appeal being rendered moot by subsequent District Court judgments, EA did not withdraw the appeal, leading to RC's application for the appeal to be struck out and for costs.

The court was required to determine the appropriate allocation of costs between the parties, particularly whether the appeal was misconceived and if there were any grounds for increasing the costs awarded to RC. The primary issue was whether the appeal was abandoned, and if so, under what circumstances. The court also needed to decide if increased costs were warranted under the High Court Rules.

The court found that the appeal was misconceived and rendered moot by the District Court judgments, but it was not formally withdrawn or struck out. Instead, the appeal was abandoned when EA stated that the appeal had fallen away and the court was functus officio save as to costs. The court held that costs should be awarded to RC under Rule 15.23 of the High Court Rules, which governs costs on discontinuance. RC was entitled to costs on a 2B basis, but the court found no justification for increased costs up to 2 December 2024 when the appeal was rendered moot. However, for the period following this date, the court found that EA’s failure to withdraw the appeal was unreasonable, warranting an increase of 50 per cent on the costs incurred after this date. The court awarded RC a total of $11,106 in costs and disbursements.

The court ordered that EA is to pay RC's costs and disbursements in the total sum of $11,106.

Orders