Hooper v Thackwell

[2025] NZHC 1667

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-88

[2025] NZHC 1667

BETWEEN

KAREN LEE HOOPER

Plaintiff

AND

DARRYL RONALD THACKWELL

Defendant

Hearing:	On the papers
Appearances:	B A J Taylor for the Plaintiff (via VMR) No appearance for the Defendant
Judgment:	23 June 2025

JUDGMENT OF HARLAND J

(as to costs)

Introduction

[1]    This judgment determines an application for costs by the plaintiff following on from my substantive judgment of 26 March 2025.1 The proceeding was determined by way of formal proof. It comprised a claim by the plaintiff (Karen) against the defendant (her brother Darryl) in relation to the estate of their late mother (Enid Thackwell).

[2]    I found that a forgiveness of debt given by Enid in favour of Darryl on 3 November 2014 was obtained by his undue influence over her and by unconscionable dealing.2 I made a declaration that Darryl was to pay to the estate a sum of $305,000

1      Hooper v Thackwell [2025] NZHC 648.

2      At [122](a)–(b).

HOOPER v THACKWELL [2025] NZHC 1667 [23 June 2025]

plus interest on that amount from 9 October 2014 to the date of repayment.3 I set aside Enid’s last Will dated 9 October 2014.4 I also made an order that Enid’s estate could immediately lodge a charging order against any real estate owned by Darryl to secure payment of the above amount and costs.5

[3]Karen now seeks costs against Darryl.

[4]    In my judgment, I directed counsel for Karen to file memoranda as to costs within 10 working days of the judgment being issued.6 This memorandum was received by the Registry on 28 March 2025. Karen submits that the proceeding is appropriately categorised as 2B for all but three steps which she says are better categorised as 2A. On this basis, Karen has provided the Court with a schedule of costs claimed which total $39,554.50 and disbursements in the sum of $3,848.25.

[5]    I had also directed that Darryl file and serve any memorandum in reply no later than 10 working days thereafter. Darryl has not filed any memorandum.

Analysis

[6]    All matters as to costs are at the discretion of the court; however, it is well established that costs should follow the event.7 There is no reason to depart from that principle in this case where Karen was the successful party.

[7]    Category 2 proceedings are of average complexity, requiring counsel with skill and experience considered ‘average’ in the High Court.8 I agree with Karen’s categorisation of these proceedings. The issues engaged were not notably narrow, nor were they especially factually intricate and no new or novel points of law were engaged.

3      At [122](c)–(d).

4      At [122](f)–(g).

5      At [122](h). I also reserved leave for Enid’s estate to seek, in the alternative to interest, an account of profits made by Darryl arising from the deed of acknowledgement of debt.

6 At [123].

7      High Court Rules 14.1 and 14.2.1(a).

8      Rule 14.3.

[8]    As for time bands, Band B is appropriate where "a normal amount of time is considered reasonable".9 All but three steps should be categorised as Band B according to Karen’s schedule. The steps Karen submitted should instead be assessed as Band A were preparation of written submissions (updating submissions) and filing first memoranda (seeking formal proof and extension of time for filing evidence). Band A is appropriate where “a comparatively small amount of time is considered reasonable”.10

[9]    I agree with Karen’s assessment of reasonable time for the steps contained in her schedule. It was responsible of Karen to make the concessions about two of the claims for written submissions being assessed as 2A, and I agree with this assessment.

[10]   As for the disbursements, a claimed and verified disbursement must be included in the costs awarded for a proceeding if it is of a class approved by the court for the purposes of the proceedings, specific to the conduct of the proceedings, reasonably necessary for the conduct of the proceedings and reasonable in amount.11 By reference to this rule, the disbursements claimed by Karen are appropriate but I require invoices in order to meet the requirement that invoices be verified. The Registrar may deal with this once the invoices are provided for the service disbursement and LINZ title search fees.12 The Registrar can easily check the remaining disbursements for court fees.

[11]   Subject to the matters relating to disbursements being resolved, Karen’s schedule of costs and disbursements is in order.

Result

[12]   I award Karen costs in the amount of $39,554.50 and disbursements as verified by the Registrar not exceeding $3,848.25.

9      Rule 14.5(2)(b).

10     Rule 14.5(2)(a).

11     Rule 14.12(2).

12 East v Medical Assurance Society New Zealand Ltd [2017] NZHC 2802 at [38]-[39].

[13]   As indicated in my substantive judgment, the estate is entitled to deduct from any amount otherwise payable to Darryl by the estate any amount outstanding for costs and disbursements.13

Harland J

Solicitors:

Wilkinson Rodgers Lawyers, Dunedin.

Copy to:

D R Thackwell, Defendant.

13     Hooper v Thackwell, above n 1 at [123].