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…

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 Hooper v Thackwell

Details

AGLC: Hooper v Thackwell [2025] NZHC 1667
Case: [2025] NZHC 1667
Decision Date: 23 June 2025

CaseChat Overview and Summary

The High Court of New Zealand, Invercargill Registry, heard an application for costs from the plaintiff, Karen Lee Hooper, against the defendant, Darryl Ronald Thackwell. The case originated from a substantive claim related to the estate of their late mother, Enid Thackwell, who passed away on 9 October 2014. Karen sought a declaration that a debt forgiveness deed executed by Enid in favor of Darryl on 3 November 2014 was obtained through undue influence and unconscionable dealing. The court agreed with Karen's assertion, setting aside Enid’s last Will dated 9 October 2014, and ordered Darryl to repay $305,000 to the estate with interest from 9 October 2014, along with costs and disbursements.

The central legal issue in the case was whether the debt forgiveness deed was validly executed and whether Darryl had unduly influenced Enid. The court determined that the deed was indeed obtained through undue influence and unconscionable conduct, leading to the disqualification of the deed. The secondary issue was the appropriate categorisation and cost allocation for the proceedings. Karen sought costs and disbursements amounting to $39,554.50 and $3,848.25, respectively, arguing that the majority of the proceedings should be categorised as Category 2B, with specific steps assessed as Category 2A. Darryl did not file any memorandum in response to Karen's application for costs.

The court agreed with Karen's categorisation of the proceedings as Category 2, noting that they were of average complexity. The court also found Karen's time band assessments to be reasonable, except for the preparation of written submissions and the filing of the first memoranda, which were categorised as Band A. The court accepted Karen's disbursements as appropriate but required verification of invoices. Upon resolution of the invoice verification, the court awarded Karen the costs and disbursements claimed, subject to the estate's right to deduct these amounts from any outstanding payments to Darryl.

Orders