EA v RC
[2025] NZHC 1989
•18 July 2025
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 the overarching proceedings took place in November 2024, with Judge N R Dawson delivering his judgment in favour of RC on 2 December 2024.7
[9] On 28 February 2025, RC filed a memorandum in this Court, advising the Court of Judge Dawson’s decision and stating their position that this rendered the appeal moot, meaning it should be withdrawn. RC also said that proposals had been put to EA in respect of withdrawal and costs, but no agreement had been reached, nor had EA withdrawn the appeal. The memorandum gave notice that, if the appeal was not discontinued by 6 March 2025, RC would apply to have it struck out. The application for strike out and costs was subsequently filed on 13 March 2025.
[10] The appellant filed a memorandum in reply on 17 March 2025, stating that RC’s application was not “necessary or appropriate” and that “The appeal fell away upon the respondent abandoning the cause of action at stake and the Court is functus officio save as to costs.” RC replied by memorandum on 18 March 2025, noting that EA’s memorandum was a concession that her appeal was at an end and submitting that the application for strike out be granted.
[11] Justice Robinson’s minute of 2 April 2025 recorded that “For reasons upon which the parties may disagree, no further steps are to be taken in respect of this appeal other than to deal with costs.”8
5 [RC] v EA [2024] NZDC 11936.
6 EA v RC HC Auckland CIV-2024-404-581, 26 July 2024 (Minute of Gault J).
7 [RC] v EA [2024] NZDC 27492.
8 Minute of Robinson J, above n 1, at [1].
Submissions
[12] The parties have filed extensive submissions that complicate what should be a straightforward issue. Both parties contend they are entitled to costs on a 2B basis with a 50 per cent uplift, plus disbursements.
[13] The appellant submits the respondent should bear all costs because the respondent “abandoned the cause of action giving rise to the appeal” (the respondent removed estoppel arguments from its statement of claim, which removed the need for the Court to determine the Limitation Act defence advanced by the appellant. The Limitation Act defence still, however, applied to the first cause of action).
[14]The respondent seeks costs for the following reasons:
(a)the appeal was misconceived and had no chance of success;
(b)the grounds on which the appeal was based have already been heard and determined against the appellant;
(c)in any event, the appeal could not succeed after the issues on which the appeal was based were determined against the appellant by the District Court;
(d)the appellant’s ongoing failure or refusal to discontinue the appeal was vexatious and put the respondent to unnecessary cost and expense; and
(e)the appellant is guilty of conduct akin to contempt of Court.
Analysis and decision
[15] While the circumstances surrounding the appeal are complicated, the appeal itself was straightforward and, in my view, misconceived (even if the appeal initially had any merit, it was soon rendered moot by judgments of the District Court. See above at [6] and [8]). However, there is some complexity around how the appeal came to an end.
[16] In the absence of any formal order granting the respondent’s strike-out application, I am of the view that the application was not granted. There does not appear to be any contention by either party to the contrary.
[17] There was no formal withdrawal of the appeal — the appellant refers only to the appeal falling away (which they say is the fault of the respondent). In my view, and in the absence of withdrawal or strike out, the only way this appeal has come to an end is by abandonment of the appeal. Rule 20.12(2) of the High Court Rules 2016 provides:
The appeal is taken to have been dismissed, subject to the respondent’s right to apply for an order as to costs, if the appellant signs, files, and serves on every other party a statement to the effect that the appellant abandons the appeal.
[18] While this appears fairly prescriptive as to what form abandonment of an appeal must take, the statement triggering abandonment need only be “to the effect” that the appellant abandons the appeal.9 Rule 20.12 does not prescribe anything regarding the cause of abandonment; only that a statement to the effect that the appellant abandons the appeal must be signed, filed and served.
[19] I find the following statement in the appellant’s memorandum dated 17 March 2025 has that effect:
The appeal fell away upon the respondent abandoning the cause of action at stake and the Court is functus officio save as to costs.
[20] The appellant essentially repeated this statement in her memorandum of 15 April 2025, which noted that the “appeal fell away”. While these statements were accompanied by an accusation that the falling away of the appeal arose from the respondent abandoning a cause of action in the District Court, I consider the statements themselves have the effect of abandoning the appeal.
9 See Jin v Konishi [2016] NZHC 2675 at [17].
[21] It is reasonably settled that costs on abandonment can be decided on the same principles as costs on discontinuance,10 which are provided for under r 15.23 of the High Court Rules. Rule 15.23 provides:
Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.
[22] As EA has abandoned the appeal, costs must be awarded to RC. I consider costs on a 2B basis to be reasonable.
[23] RC seeks an increase of 50 per cent on costs. They say this is justified pursuant to r 14.6(3)(b) or (d) for the reasons given at [14(a)–(d)] above.
[24] Increased costs may be ordered where the party against which costs have been ordered failed to act reasonably.11 A specific basis for increased costs must be identified and grounded in the Rules. As Fitzgerald J has observed, there must be “detailed or significant analysis of why the other party’s conduct appropriately falls within [the] relatively limited circumstances in which increased … costs are appropriate”.12
[25] As mentioned, RC seeks increased costs pursuant to r 14.6(3)(b) or (d). Those subsections relevantly provide:
(3) The court may order a party to pay increased costs if—
(b) the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
…
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
…
(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
10 See for example: Clark v Smith [2019] NZHC 1782.
11 Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [27].
12 Minister of Education v James Hardie New Zealand [2018] NZHC 2960 at [7].
[26] I do not consider increased costs are justified for the steps taken up to 2 December 2024. While the appeal had little to commend it up to that point, it was not wholly without merit. However, following Judge Dawson’s decision, the appeal was rendered entirely moot and should have been withdrawn. Had that been done when requested by the respondent, there would have been no need for the strike-out application. For those reasons, I order an increase of 50 per cent on the respondent’s costs incurred after 2 December 2024.
[27]The costs sought by the respondent are as follows:
Cost item Allocation Amount 53. Commencement of response to appeal 0.5 $1,195 54/10. Preparation for first case management conf. 0.4 $956 54/11. Filing memorandum for case management conf. 0.4 $956 54/11. Filing memorandum for case management conf. 0.4 $956 54/11. Filing memorandum for case management conf. 0.4 $956 54/22. Filing interlocutory application 0.6 $1,434 54/11. Filing memorandum for case management conf. 0.4 $956 54/12. Appearance at mentions hearing or callover 0.2 $478 29. Sealing judgment 0.2 $478 Total $8,365
[28] An increase of 50 per cent to the latter five steps (being those taken after 2 December 2024) amounts to $2,151. In total, I award costs of $10,516 to the respondent. I also award the $590 sought in disbursements.
Result
[29] I order that the appellant is to pay the respondent’s costs and disbursements in the total sum of $11,106 (costs of $10,516 and disbursements of $590).
Andrew J
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