Halpin v Darlow

[2025] NZHC 96

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-428

[2025] NZHC 96

UNDER

Part 27 and Rule 27.34 of the High Court Rules

IN THE MATTER OF

the Estate of BARBARA STAFFORD MORRIS

BETWEEN

SALLY-ANNE STAFFORD HALPIN DAVID CHISTOPHER STAFFORD

MORRIS and
TIMOTHY HARRY STAFFORD MORRIS
Plaintiffs

AND

CHRISTOPHER ROBERT DARLOW and

DAVID ROBERT APPLEBY as Executors of the Estate of Barbara Stafford Morris

First Defendants

RICHARD JOHN STAFFORD MORRIS

Second Defendant

On the papers

7 February 2024

Appearances:

Jack Cundy for the Plaintiffs

Peter Napier for the Second Defendant

Judgment:

7 February 2025

COSTS JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 7 February 2025 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules

Solicitors:

Jack Cundy, Auckland, for the Plaintiffs

………………………….

Registrar/Deputy Registrar

K3 Legal (Peter Napier), Auckland, for the Second Defendant

Counsel:

David P H Jones KC, Auckland, for the Plaintiffs

HALPIN v DARLOW [2025] NZHC 96 [7 February 2025]

[1]                 By judgment issued by the Court on 12 November 2024 the Court dismissed the second defendant’s application for leave to appeal (the Judgment).1 At [29](b) of the Judgment costs were reserved.

[2]                 Mr Cundy, for the plaintiffs, filed a memorandum dated 18 November 2024 and a memorandum dated 27 November 2024. Mr Napier, for the second defendant, filed memoranda dated 21 November 2024 and 27 November 2024.

Plaintiffs’ position

[3]                 The plaintiffs are seeking an order for costs against the second defendant in respect of the second defendant’s unsuccessful  application  for  leave  to  appeal.  Mr Cundy proposes that the reservation of costs in [29](b) of the Judgment was not intended to reserve costs for the trial Judge, but rather reserve costs for submissions by the parties following the Judgment.

[4]                 Mr Cundy submits that unless there are special reasons to the contrary, costs on the proposed interlocutory application must be fixed in accordance with r 14.8(1) of the High Court Rules 2016 when the application is determined and become payable when they are fixed. He submits there are no special reasons why the costs of the second defendant’s unsuccessful application should not be fixed and paid now.

[5]The plaintiffs assess their costs at $6,682.50.

The second defendant’s position

[6]                 Mr Napier, for the second defendant, takes the position that [29](b) of the Judgment constitutes an order in respect of costs and accordingly the issue of costs cannot be revisited as sought by the plaintiffs. He submits the Court is functus officio in relation to the application for leave to appeal, including the issue of costs on that application.

1      Halpin v Darlow and Morris [2024] NZHC 3352.

[7]                 Mr Napier submits that if the second defendant is wrong on that point and the costs decision can be revisited, then in any event the decision to reserve costs was reasonable and should not be varied. He submits there are special reasons for deferring fixing costs pursuant to r 14.8, being:

(a)the second defendant’s strike-out application, which was the subject of the leave application, is inherently linked to the merits of the plaintiffs’ claim, such that the usual reasoning for fixing costs at an interlocutory stage does not apply;

(b)the second defendant may seek a reduction or uplift in costs following determination of the plaintiffs’ substantive claim for reasons which are based, in part, on matters concerning the plaintiffs’ statement of claim which were raised in the strike-out application, making it appropriate that all costs be dealt with at the trial stage;

(c)it has not been suggested there would be any particular prejudice to the plaintiffs if costs were not fixed and paid at this stage of the proceeding.

[8]                 Mr Napier submits that if an award is made then the costs should not include an award for the costs of plaintiffs’ memorandum on costs.

Plaintiffs’ response

[9]In response, Mr Cundy submits:

(a)the assertion by the second defendant that the Court is functus officio in relation to the issue of costs is wrong. It has not yet determined the costs and is entitled to do so;

(b)the “special reasons” put forward by the second defendant for deferring the fixing of costs are wrong as:

(i)the Court awarded costs in respect of the second defendant’s unsuccessful strike-out application and there was no reason why

his subsequent unsuccessful application for leave to appeal should be treated in any differently;

(ii)neither the strike-out application nor the application for leave to appeal are “inherently linked to the merits of the plaintiffs’ claim”. Both applications were determined against the second defendant on their own merits;

(iii)it is immaterial that either party might wish to seek the Court to depart from scale costs when it comes time to determine costs on the substantive claim;

(c)prejudice to the plaintiffs of costs being deferred is that they will be denied reimbursement at this stage of costs which they are entitled to under the Rules. In the absence of special reasons to the contrary, the Court is required to fix costs now;

(d)the plaintiffs should be entitled to the costs of the memorandum relating to costs as the opposition by the second defendant to fixing costs was not reasonable.

Result

[10]              The question of costs was not addressed at the hearing of the leave to appeal application by either of the parties. The Court always retains a discretion under r 14 to fix costs.

[11]              I am satisfied from Mr Cundy’s submissions that there are no special reasons to defer the fixing of costs in respect of the second defendant’s unsuccessful interlocutory application for leave to appeal and to the extent the reservation of costs at [29](b) of the Judgment can be interpreted as an order determining costs, then for the purposes of r 14.8(2), I am satisfied that order should not have been made and is reversed.

[12]              As to Mr Cundy’s claim for costs of his memorandum as to costs, I have disallowed this on the basis that the original determination in relation to costs in [29](b) of the Judgment was not clear, and accordingly Mr Napier’s issues with fixing costs now were not unreasonable.

Order

[13]              I order that the second defendant is to pay the plaintiffs’ costs of $5,726.50 (being the amount sought after deducting the allowance for the plaintiffs’ memorandum as to costs) together with any disbursements.

…………………………….. Associate Judge Taylor