Kruger v Mason - [2025] NZHC 2740

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2025-463-19

[2025] NZHC 2740

BETWEEN
TAMATI KRUGER, PATRICK McGARVEY, NGATAI RANGIHAU, MERE McLEAN and RUREHE TAYLOR

as trustees of TŪHOE – TE URU TAUMATUA TRUST, the governance entity for Ngāi Tūhoe, Taneatua

First Plaintiff

TŪHOE TRUST CUSTODIAN TRUSTEE COMPANY LIMITED

Second Plaintiff

AND

DONNA MASON

First Defendant

RITCHIE CONTRACTING LIMITED
Second Defendant

Continued …

Hearing: On the papers

Appearances:

MRG van Alphen Fyfe and B McKinnon for the Plaintiffs D M Fraundorfer for the Second and Third Defendants

Judgment:

19 September 2025

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 19 September 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

KRUGER v MASON [2025] NZHC 2740 [19 September 2025]

Continued …

AND
ALAN MAURICE RITCHIE

Third Defendant

PERSONS UNKNOWN
Fourth Defendants - DISCONTINUED

TANIA MIHINUI
Fifth Defendant

MOTUTERE HAULAGE LIMITED

Sixth Defendant

STORM LOGGING LIMITED

Seventh Defendant

[1] Following orders ultimately made by consent on 21 May 2025 discharging a freezing order on the application of the second and third defendants (the Ritchie parties) and addressing use of funds in the trust account of their solicitors, Bush Forbes, I urged counsel to confer and seek to agree on costs, and made directions if Court determination of costs was necessary.1

[2]The parties have been unable to agree on costs.

[3] In their memorandum of counsel,2 the Ritchie parties seek 2B costs plus a 20 per cent uplift due to the plaintiffs’ conduct, plus disbursements of $71.36.
The total sought was calculated to be $7,725.56.3

[4] The plaintiffs oppose an award of costs, submitting that costs should be dealt with in the case, that is, reserved, or alternatively should lie where they fall on the basis that neither party enjoyed complete success.

Applicable principles

[5] The applicable costs principles are well settled. One general principle is that costs follow the event, including on interlocutory applications.4 Partial success or success on more limited terms is still success.5

[6] Another general principle is that costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required,6 that is, applying the scale in the High Court Rules 2016. So far as possible the determination of costs should be predictable and expeditious.7

1      Kruger v Mason HC Rotorua CIV-2025-463-19, minute dated 21 May 2025 at [6] and [7].
2      Memorandum of counsel dated 12 June 2025. The memorandum addressed other matters, but this judgment addresses only costs.
3      The memorandum applied a daily rate of $2,230 whereas the current 2B daily rate is $2,390. Thus, the total claimed for 2.95 days, including 20% uplift and disbursements would be $8,531.96.
4      High Court Rules 2016, r 14.2(1)(a).
5      Phillips v Heremaia [2025] NZCA 394 at [28] and n 29; citing Weaver v Auckland Council [2017] NZCA 330, [2017] 24 PRNZ 379 at [26]. Partial failure can…

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 Kruger v Mason

Details

AGLC: Kruger v Mason [2025] NZHC 2740
Case: [2025] NZHC 2740
Decision Date: 19 September 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kruger v Mason involved the Tūhoe – Te Uru Taumatua Trust and its trustees, who are the plaintiffs, against Donna Mason and others, who are the defendants. The primary dispute revolves around the management of trust funds and the discharge of a freezing order that was initially placed on the defendants' accounts. The court was tasked with determining the appropriate costs associated with the defendants' successful application to discharge the freezing order. The Ritchie parties, the second and third defendants, sought 2B costs plus a 20% uplift and disbursements, totaling $7,725.56. In contrast, the plaintiffs argued that costs should either be reserved for determination in the main case or lie where they fall, given neither party achieved complete success.

The court's reasoning focused on established principles of costs in interlocutory applications. It noted that while costs generally follow the event, partial success or success on more limited terms still qualifies as success. Additionally, the court highlighted the importance of predictability and expeditiousness in determining costs. The Ritchie parties' application was largely successful, and the plaintiffs' insistence on retaining the freezing order, rather than seeking varied or further preservation orders, was deemed unnecessary. However, the court found that the hearing of the application was not entirely necessary as counsel had agreed on discharging the freezing order but disagreed on the terms of a replacement order. Therefore, while the plaintiffs bore more than their fair share of responsibility for the unnecessary hearing, the court did not find the lack of merit to be obvious and incontrovertible, thus declining to award increased costs. Instead, the court decided to reduce the Ritchie parties' costs by one-third, to $4,700.33, and ordered the plaintiffs to pay these costs along with disbursements of $4,771.69.

Orders