Hong v Smith - [2025] NZHC 770

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2524

[2025] NZHC 770

UNDER the High Court Rules 2016

IN THE MATTER

of an appeal from a decision of the Family Court at Manukau

BETWEEN

LUCY HONG

Appellant

AND

SPENCER SMITH

Respondent

Hearing: 18 March 2025

Appearances:

K Koo and S Lye for Appellant S Gallagher for Respondent

Judgment:

3 April 2025

Reissued:

9 April 2025

JUDGMENT OF BECROFT J

This judgment was delivered by me on 3 April 2025 at 2pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors/Counsel:
Koo Telle Lawyers, Auckland Righteous Law, Auckland

HONG v SMITH [2025] NZHC 770 [3 April 2025]

What this case is all about

[1] Ms Lucy Hong1 appeals against Judge Goodwin’s refusal to grant her costs in respect of a substantive hearing in the Manukau Family Court.2 In the substantive hearing, she obtained a protection order, but not an occupation order or ancillary furniture order, against her then husband Mr Spencer Smith.3

[2] She argues, in brief, that Judge Goodwin wrongly exercised his discretion not to award her costs and was at fault in his decision-making process.

What led up to the costs decision?

Temporary orders obtained

[3] On 20 February 2020, just before the Covid-19 lockdown, Ms Hong was granted orders under the Family Violence Act 2018 (Act), on a without notice basis, as follows:

(a)a temporary protection order (TPO) which included her father as a protected person;

(b)a temporary occupation order for a Howick address (the House); and

(c)a temporary ancillary furniture order at the same address.

[4] Mr Smith filed a notice of intention to appear and an objection to attend an appropriate programme.

[5] Soon after, he filed an interlocutory application for variation of the TPO to allow for the collection of his personal items from the House. The application was resolved in his favour. Costs were reserved.

[6] A substantive hearing, to determine if the orders would be made final, was eventually set down for April 2024.

1      The names of the appellant and respondent have been anonymized in this judgment with the use of fictious names.
2      [Hong] v [Smith] [2024] NZFC.
3      [Hong] v [Smith] [2024] NZFC.

Settlement offers

[7] On 4 March 2024, shortly before the hearing, Ms Hong’s lawyers wrote to Mr Smith’s lawyers, amongst other things, making a final offer to resolve the family violence claim upon the following conditions:

(a)Mr Smith provides no contact undertakings to Ms Hong upon standard terms of a protection order; and

(b)Ms Hong withdraws her application to make the interim protection order final with no issue as to costs.

[8] Ms Hong’s lawyers noted that they expected actual costs for the hearing would be approximately $80,000 plus GST.…

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 Hong v Smith

Details

AGLC: Hong v Smith [2025] NZHC 770
Case: [2025] NZHC 770
Decision Date: 3 April 2025

CaseChat Overview and Summary

Lucy Hong appealed against the Family Court's refusal to grant her costs in respect of a substantive hearing concerning her former husband, Spencer Smith. In the substantive hearing, Hong obtained a protection order but not an occupation order or an ancillary furniture order against Smith. She argued that Judge Goodwin wrongly exercised his discretion in not awarding her costs and that he made errors in his decision-making process.

The substantive hearing resulted in Judge Goodwin concluding that violence had been established by Hong, and he found Smith had acted in a psychologically and physically abusive way. However, on some allegations of violence and economic abuse, Judge Goodwin made no findings or discounted Hong's allegations. Judge Goodwin concluded that a protection order was necessary for Hong's protection, but he was not satisfied that she needed an occupation order for the House. He ordered that the temporary occupation order and temporary ancillary furniture order be discharged.

The Family Court awarded costs to Smith for his April 2020 application to vary the temporary ancillary furniture order. In respect of the substantive proceedings, Hong relied on the 4 March letter as a Calderbank letter as part of her application for increased or indemnity costs. Judge Goodwin considered the Calderbank letter lacked clarity on the issue of occupation and concluded that costs should lie where they fell.

Hong's counsel submitted that the Judge erred in his consideration of the Calderbank letter, but the court disagreed. The court found that the Judge was entitled to conclude that the Calderbank letter left the practicalities of occupation unresolved and that it was a perfectly legitimate reason for his discretionary decision declining to take the offer into account for costs purposes.

Hong's counsel also submitted that the Judge erred in declining to make any award of costs. The court found that the Judge was required to take into account the principles of the Family Violence Act, but he did not explicitly do so. However, the court found that the decision could not be demonstrated to have been necessarily different if those objects and purposes had been explicitly applied. The court also found that the Judge was not plainly wrong in deciding the outcome of the proceeding was neutral.

The appeal was dismissed, and Judge Goodwin's costs orders must stand. The court concluded that costs should lie where they fall, given the long history of the case, the clear emotions still at play, the good faith of Hong's arguments, and the need for finality.

Orders