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…

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 Halpin v Darlow

Details

AGLC: Halpin v Darlow [2025] NZHC 96
Case: [2025] NZHC 96
Decision Date: 7 February 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiffs Sally-Anne Stafford Halpin, David Christopher Stafford Morris, and Timothy Harry Stafford Morris, as heirs of the deceased Barbara Stafford Morris, were involved in a dispute concerning the estate of the deceased. The first and second defendants were Christopher Robert Darlow and David Robert Appleby as executors of the estate and Richard John Stafford Morris, respectively. The plaintiffs sought an order for costs against the second defendant regarding his unsuccessful application for leave to appeal. The second defendant argued that the reservation of costs in the prior judgment constituted an order, and thus, the issue of costs could not be revisited.

The legal issues before the court were whether the reservation of costs in the prior judgment constituted an order and, if not, whether there were special reasons to defer fixing costs in respect of the second defendant's unsuccessful interlocutory application for leave to appeal. The court also considered whether the plaintiffs were entitled to the costs of their memorandum relating to costs.

The court found that the reservation of costs in the prior judgment did not constitute an order, and there were no special reasons to defer fixing costs in respect of the second defendant's unsuccessful interlocutory application for leave to appeal. The court determined that the reservation could be interpreted as an order determining costs, but for the purposes of r 14.8(2), that order should not have been made and was reversed. However, the court disallowed the plaintiffs' claim for the costs of their memorandum as to costs, as the original determination in relation to costs in the prior judgment was not clear, and the second defendant's issues with fixing costs were not unreasonable.

Accordingly, the court ordered that the second defendant was to pay the plaintiffs' costs of $5,726.50, together with any disbursements, after deducting the allowance for the plaintiffs' memorandum as to costs.

Orders