Hair v Cook

[2024] NZHC 1865

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001919

[2024] NZHC 1865

BETWEEN

IAN MUIR HAIR

Appellant

AND

ANNA JENNIE COOK

Respondent

On the papers
Counsel:	W G C Templeton and R M N Marsich for Appellant D Chambers for Respondent
Judgment:	10 July 2024

JUDGMENT OF ANDERSON J

[Costs]

This judgment was delivered by me on 10 July 2024 at 3.00 pm. pursuant to r 11.5 of the High Court Rules 2016.

.…………………………..

Registrar/Deputy Registrar

Solicitors:

Dyer Whitechurch, Auckland Mackie & Co, Auckland

HAIR v COOK [2024] NZHC 1865 [10 July 2024]

[1]        Mr Hair appealed a decision of Judge S J Maude of 4 August 2023 ordering him to pay interim spousal maintenance to Ms Cook at a level of $6,580 per week, inclusive of his current child support and rental payments.1

[2]        I varied the interim maintenance amount to $6,000 per week in light of certain errors I concluded had been made which led to a different perspective on what is a just award. I otherwise dismissed Mr Hair’s appeal.2 In a separate judgment  I refused  Mr Hair’s application for leave to appeal and dealt with the costs of that application.3 This judgment addresses costs of the substantive appeal.

[3]        On an appeal the Court may make any order it considers just including an order as to costs.4 The detailed costs rules are equally applicable to appeals.5 Mr Hair seeks costs on a 2B basis on the basis that he is the successful party and also having regard to an offer he made to Ms Cook in November 2023. To the contrary, Ms Cook contends that she is the successful party. She seeks costs on a 2B basis, although submits that increased costs of 50 per cent are merited.

Who was the successful party?

[4]        Part 14 of the High Court Rules 2016 addresses costs generally, with the discretion of the Court confirmed at r 14.1. Among the applicable general principles relevant to exercising that discretion is that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds.6

[5]        Where parties contest who is successful, a common-sense approach is to be taken, with realistic consideration given to the end results and the party who wins principal contests of law and facts.7 If the Court determines that the parties had equal measures of success and failure, costs may lie where they fall.8

1      Cook v Hair [2023] NZFC 8246 at [47].

2      Hair v Cook [2024] NZHC 347.

3      Hair v Cook [2024] NZHC 1657.

4      High Court Rules 2016, r 20.19(1)(c).

5      Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786 (HC) at [7].

6      High Court Rules, r 14.2(1)(a).

7      Kilduff v Tower Insurance Ltd [2018] NZHC 2021 at [13] citing Lawrence v Glynbrook 2001 Ltd

[2015] NZHC 1005 at [8].

8      Sipka Holdings Ltd v Merj Holdings Ltd [2015] NZHC 2662 at [11]; and Asphalt Supply Co Ltd v Cole John Ltd [2021] NZHC 1567 at [7(b)].

[6]        In the appeal, Mr Hair contended that the $6,580 per week interim maintenance was excessive and “should be set aside”. The submissions did not make clear precisely what order was sought.

[7]        Mr Hair says he is the successful party on the basis that the Court identified errors that reduced the maintenance the Family Court ordered by $15,080 for the six-month period to which the order related. Relative to the amount that Mr Hair was paying in maintenance in any event, the shortfall maintenance ordered by the Judge was $115,000. In my view, a reduction in the award by $15,080 is not relevantly a “win”. Another way of considering quantum is to compare the substituted order ($6,580 down to $6,000 per week) with the $3,000 per week Mr Hair had offered at the hearing in the Family Court. Again, the reduction is hardly a “win”. As much is also demonstrated by Mr Hair seeking leave to appeal.

[8]        Mr Hair’s key proposition on the appeal was that the Judge erred in his conclusion that Mr Hair “could lay his hands” on the maintenance sums through access to the Trust funds. Mr Hair failed in this contention. While I identified errors made by the Judge, evidence filed by Mr Hair gave ex post facto support for the Judge’s hypothesis that Mr Hair could access the capital of the Trust for the specific period in question and had in fact done so in the six-month period to which the order related.9

[9]In my view, Ms Cook is the successful party and is entitled to costs.

Relevance of offer

[10]      Mr Hair refers to an offer made on 1 November 2023, at around the time appeal submissions were filed as supporting his entitlement to costs. This was in the nature of an offer to “transfer” two cars to Ms Cook (one of which was a car owned by a subsidiary of the principal trust that she was using as her own and one that I understand was owned by Mr Hair but in Ms Cook’s possession which she says is not roadworthy).

[11]      I accept Ms Cook’s submission that the relevant offer does not have status in the nature of a Calderbank offer for the purpose of considering the incidence or

9      Hair v Cook, above n 2, at [42].

quantum of costs on the appeal. In its (somewhat imprecise) terms, it was couched as an interim settlement of the substantive proceedings.

Quantum of costs

[12]      Ms Cook asserts she should receive increased costs under  r  14.6  of  the High Court Rules. This is on the basis that Mr Hair failed to comply with the interim maintenance order, despite all of Andrew J, Muir J and me making the point that the appeal did not operate as a stay.10 That conduct does not go to increasing costs of the proceeding or a step in it.

[13]      I make an order of costs on a 2B basis on the appeal in favour of Ms Cook. The annexure to Ms Cook’s submissions sets out the costs claimed.

[14]      The costs sought include costs of preparing the case on appeal, which Mr Hair was directed to file as appellant (and is a step he also claimed in his costs submission). I provisionally disallow costs for this step but reserve leave for Ms Cook to explain why it is these are claimed by her should I be incorrect in my assumption that this was prepared by the appellant. I otherwise order the quantum  of  costs  as  sought  by  Ms Cook.

Anderson J

10     Hair v Cook [2023] NZHC 3606 per Andrew J; Hair v Cook HC Auckland CIV-2023-404-2375, 14 November 2023 (Minute No 3 of Muir J); and Cook v Hair, above n 2, at [4].