Neal v Neal - [2025] NZHC 474

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1294

[2025] NZHC 474

BETWEEN
VANESSA ROSEMARY NEAL

Plaintiff

AND

COLIN ASHLEY NEAL

First Respondent

COLIN ASHLEY NEAL and POLAR
CAPITAL TRUSTEES LIMITED as trustees of the COLIN NEAL FAMILY TRUST

Second Respondents

Hearing: On the papers

Appearances:

J McCartney KC, J Cox and S Round for Applicant V Crawshaw KC and S Caradus for First Respondent

A S Ross KC and T Castle for Second and Third Respondents I Rosic and Z Brentnall for Fourth Respondent

Judgment:

11 March 2025

COSTS JUDGMENT OF HARVEY J

This judgment is delivered by me on 11 March 2025 at 4.00 pm pursuant to r 11.5 of the High Court Rules

……………………………… Deputy Registrar

Counsel/Solicitors:
J McCartney KC, Auckland Rennie Cox, Auckland
V Crawshaw KC, Auckland Duncan Cotterill, Christchurch A Ross KC, Auckland
Burley Castle Hawkins, Lawyers, Tauranga Gilbert Walker, Auckland

NEAL v NEAL [2025] NZHC 474 [11 March 2025]

Introduction

[1] On 15 August 2024, judgment was issued on the plaintiff’s application for directions on purported breaches of consent orders to settle proceedings between parties.1 The plaintiff claimed the defendants were in breach of their obligation to provide financial accounts from the Colin Neal Family Trust according to the terms of the consent order. The application was declined but the defendants were ordered to confirm the completion date for the final accounts. This was done by a memorandum dated 29 August 2024.

[2] Counsel were invited to submit costs memoranda by 30 August 2024.2 The plaintiff filed submissions on 5 September 2024 and on 19 September 2024 filed a reply memorandum to the second defendants’ 12 September 2024 memorandum. The plaintiff seeks costs on a 2B basis, and disbursements, totalling $24,362.98. The second defendants seek indemnity costs on a solicitor-client basis, seeking $42,372.50. They also seek costs on a 2B basis, totalling $8,723.50.

[3] On 19 December 2024, I declined the plaintiff’s 11 September 2024 application for leave to appeal my substantive judgment. Counsel were invited to exchange costs memoranda by 10 February 2025.3 The plaintiff contended that costs on the leave application should lie where they fall. Alternatively, the plaintiff seeks costs on a 2B basis, totalling $4,154. The second defendants seek costs on a 2B basis as they successfully opposed the plaintiff’s application for leave. They seek a total of $5,162.

Legal principles

[4] It is trite that costs awards are at the discretion of the Court, which is guided by the general principles in rr 14.2 to 14.5 of the High Court Rules 2016.4 Rule 14.2(1) provides that the unsuccessful party should generally pay the costs of the prevailing party. The rules are intended to create a framework for determining costs in individual

1      Neal v Neal [2024] NZHC 2297.
2 At [46].
3      Neal v Neal [2024] NZHC 3953.
4      High Court Rules 2016, r 14.1.

cases that is both “predictable and expeditious”.5 The overriding consideration is that…

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.

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Details

Case: [2025] NZHC 474
Decision Date: 11 March 2025

CaseChat Overview and Summary

In the case of Neal v Neal, the plaintiff, Vanessa Rosemary Neal, sought financial accounts from the Colin Neal Family Trust in accordance with consent orders. The case was heard on the papers, with counsel for both parties submitting various memoranda. The plaintiff sought costs on a 2B basis and disbursements, while the second defendants sought indemnity costs and costs on a 2B basis. The court previously declined the plaintiff's application for leave to appeal the substantive judgment, and both parties submitted costs memoranda regarding the leave application.

The primary legal issue addressed in this case was the appropriate basis and quantum of costs to be awarded. The court noted that costs awards are at the discretion of the court and are guided by general principles. The court considered whether the plaintiff's conduct warranted an award of indemnity costs, which are reserved for egregious conduct, and ultimately decided against it. However, the court found that the plaintiff's conduct was unreasonable and warranted an increase in costs on a 2B basis.

The court declined to award indemnity costs to the second defendants, finding that the plaintiff's conduct, while unreasonable, did not meet the high threshold for such an award. However, the court did find that an increase in costs on a 2B basis was warranted due to the plaintiff's unreasonable conduct in the proceedings. The court awarded the second defendants $10,904.37 on the substantive application and $5,162 on the leave application, totaling $16,066.37.

The final orders of the court were that the plaintiff is to pay the second defendants $16,066.37, comprising $10,904.37 on the substantive application and $5,162 on the leave application. The court's decision highlights the importance of adhering to the principles guiding costs awards and the high threshold for indemnity costs, while also recognising the need to hold parties accountable for unreasonable conduct that increases the costs of litigation.

Orders