Green v Brown - [2025] NZHC 2394

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TO COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980 THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000242

[2025] NZHC 2394

BETWEEN
[GREEN]

Appellant

AND

[BROWN]

Respondent

Hearing: On the papers

Appearances:

B Hayes for the Appellant

B Westenra for the Respondent

Judgment:

21 August 2025

JUDGMENT OF WALKER J

[Costs]

This judgment was delivered by me on 21 August 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Counsel/Solicitors:

B Hayes, Barrister, Hamilton
Wills Westenra Limited, Whangārei

[GREEN] v [BROWN] [2025] NZHC 2394 [21 August 2025]

[1] This cost judgment follows delivery of this Court’s judgment on 9 July 2025, dismissing the appeal of a Parenting Order decision made by the Family Court under s 48 of the Care of Children Act (COCA).1 Both the appellant and respondent (not Ms Brown but a family member of Ms Brown) in that matter received Legal Aid. No costs are sought in respect to that appeal.2

[2] Costs are sought, however, in respect of the related appeal against the Family Court judgment of 27 July 2023, declining Ms Green’s application for a Protection Order against Ms Brown.3 That appeal was abandoned and Ms Brown now seeks costs against Ms Green, in respect of the steps taken in that appeal.

Background

[3] Ms Green filed notice of appeal against the Protection Order decision of the Family Court dated 27 July 2023. She applied to adduce further evidence on appeal and subsequently amended her notice of appeal. Ms Brown was granted leave to file evidence. On 4 November 2024, Ms Green abandoned that appeal. Costs were reserved.

[4] I subsequently issued a minute determining that costs would be decided once the Parenting Order appeal had been dealt with.4 For reasons explained in that judgment, that appeal was delayed.

[5] Ms Green is in receipt of Legal Aid although the commencement date for the grant of legal aid is not clear. Ms Brown is not legally aided. She has incurred legal fees of $5,500 inclusive of GST to defend the proceedings. She contends that the financial burden on her was unnecessary because Ms Green’s claims lacked any foundation. She argues that it is appropriate that an order for costs be made against Ms Green which also specifies the amount that she would have been ordered to pay if s 45 of the Legal Services Act 2011 had not affected her liability. Ms Brown maintains

1      [Green] v [Blue] [2025] NZHC 1872.
2      For clarification purposes, the respondent in the Parenting Order appeal was a different person than the respondent in the Protection Order appeal which is the subject of present costs application.
3      The fictionalised names in this judgment are…

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 Green v Brown

Details

AGLC: Green v Brown [2025] NZHC 2394
Case: [2025] NZHC 2394
Decision Date: 21 August 2025

CaseChat Overview and Summary

The High Court was asked to determine whether costs should be awarded against Ms Green, the appellant, for the unsuccessful appeal she brought against the Family Court's decision to decline her application for a Protection Order against Ms Brown. Both parties had received Legal Aid at some point in the proceedings, although the commencement date of Ms Green's Legal Aid was unclear. Ms Brown sought costs of $5,500, arguing that Ms Green's claims were unfounded and that she had incurred a financial burden as a result. Ms Green, on the other hand, argued that she was unable to pay costs due to her financial situation and that an award of costs would not be in the best interests of the child.

The court considered the statutory framework governing costs in civil proceedings, particularly the Legal Services Act 2011, which limits the liability of an aided person for costs. The court noted that the exceptional circumstances required for an award of costs against a legally aided person are non-exhaustive and are directed at improper or unreasonable conduct on the part of the aided person. The court also considered the different statutory frameworks applying in respect of the Family Violence Act 2018 and the Care of Children Act, and the different principles governing costs awards in the Family Court and in appeals to the High Court.

The court concluded that there were exceptional circumstances justifying an award of costs against Ms Green in respect of the discontinued appeal, but that taking into account the best interests of the child and Ms Green's financial situation, no order for costs should be made against her. The court considered the consolidation of the two different appeals to avoid duplication of costs and the steps taken in opposition to Ms Green's application for leave to file further evidence on appeal. The court would have awarded category 1A costs of $2,703 if s 45 of the Legal Services Act 2011 had not affected Ms Green's liability.

In conclusion, the court made no order for costs against Ms Green. The court's decision was based on a consideration of all the circumstances, including the means of the parties and the best interests of the child. The court's approach to costs in family law proceedings, particularly in the context of appeals, reflects the importance of considering the broader social and ethical implications of legal costs in such cases.

Orders