Hair v Cook - [2024] NZHC 1865

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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…

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 Hair v Cook

Details

AGLC: Hair v Cook [2024] NZHC 1865
Case: [2024] NZHC 1865
Decision Date: 10 July 2024

CaseChat Overview and Summary

In the case of Hair v Cook, Ian Muir Hair, the appellant, sought to appeal a decision made by Judge S J Maude of 4 August 2023, which ordered him to pay interim spousal maintenance to Anna Jennie Cook at a level of $6,580 per week, inclusive of his current child support and rental payments. The High Court of New Zealand, Auckland Registry, presided over by Anderson J, varied the interim maintenance amount to $6,000 per week, acknowledging errors in the original decision but otherwise dismissing Mr Hair’s appeal. The court subsequently addressed the costs of the substantive appeal. Mr Hair sought costs on a 2B basis, asserting that he was the successful party and considering an offer he made to Ms Cook in November 2023. Ms Cook contended that she was the successful party and sought increased costs of 50 per cent under r 14.6 of the High Court Rules 2016, arguing that Mr Hair failed to comply with the interim maintenance order.

The court considered the general principles applicable to exercising the discretion of the court in awarding costs, emphasizing that the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. The court assessed the end results and the principal contests of law and facts, determining that Ms Cook was the successful party. Mr Hair’s argument that he was successful because of the reduction in maintenance payments was rejected, as the court found the reduction was not a significant "win." Additionally, Mr Hair's key contention that the Judge erred in concluding he could access Trust funds for maintenance was also dismissed. The court accepted that Ms Cook was the successful party and entitled to costs.

Regarding the offer made by Mr Hair, the court found it did not have the status of a Calderbank offer and therefore did not impact the consideration of the incidence or quantum of costs on the appeal. The court ordered costs on a 2B basis in favour of Ms Cook, provisionally disallowing certain costs claimed for preparing the case on appeal but reserving leave for Ms Cook to explain why these costs were claimed. The court otherwise ordered the quantum of costs as sought by Ms Cook.

Orders