Roberts v Stephens
[2025] NZHC 2902
•2 October 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2025-409-292
[2025] NZHC 2902
BETWEEN CHRISTOPHER ANDREW ROBERTS
Plaintiff
AND
TARINA MARIE STEPHENS
Defendant
Hearing: On the papers Counsel:
Plaintiff in person
O D Peers for Defendant
Judgment:
2 October 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN (COSTS)
This judgment was delivered by me on 2 October 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
ROBERTS v STEPHENS [2025] NZHC 2902 [2 October 2025]
[1] In a judgment of 29 August 2025 I dismissed Mr Roberts’ application for summary judgment against Ms Stephens.1 I reserved costs and directed the filing of submissions with costs to be decided on the papers.2 Submissions for both parties have now been received.
The parties’ submissions
Ms Stephens
[2] Ms Stephens was the successful party. She seeks costs in an amount of $19,359 plus disbursements, representing part 2B and part 2C scale costs. Ms Stephens accepts that costs upon a plaintiff’s unsuccessful application for summary judgment are usually reserved but argues that practise may be departed from where an application for summary judgment was brought improperly or irresponsibly, for example where the plaintiff knows there is a question of fact that can only be decided at trial.3 Ms Stephens argues there are several reasons why costs should be awarded in this case.
[3] First, it is said Mr Roberts failed to adduce evidence essential to his claim against Ms Stephens, despite being placed on notice by her lawyers of the need for this evidence to be provided shortly after the action was commenced. The absence of that evidence and its significance was referred to in my judgment.4
[4] Second, it is said Mr Roberts was put on notice at an early stage that there were a number of defences being raised to the claim and it was irresponsible for him to maintain his application despite being on notice of those defences, which ultimately were accepted by the Court.
[5] Third, it is said that there were procedural irregularities in the manner in which Mr Roberts brought the claim. These included a reference to a fictitious case authority, failure to comply with timetable directions, and maintaining factual arguments which
1 Roberts v Stephens [2025] NZHC 2498.
2 At [50].
3 Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd [2016] NZHC 1244 at [9].
4 Roberts v Stephens, above n 1, at [35]–[37].
were unsupported by the evidence and lacked credibility. In this latter regard it is said that Mr Roberts’ assertion that Ms Stephens had received consideration for the provision of a guarantee was both illogical and untenable on the evidence.
[6] Fourth, it is submitted that Mr Roberts presented his case on a basis that mischaracterised Ms Stephens’ grounds of defence in that he focused on establishing that the lender had not orally agreed to release Ms Stephens from the liability of the guarantee when that was not the basis upon which she advanced her defence. It is said that Mr Roberts failed to engage with Ms Stephens’ opposition to the claim and the evidence she gave, resulting in the application being pursued when it should never have been taken to a hearing.
Mr Roberts
[7] Mr Roberts argues that costs should not be awarded on an unsuccessful application for summary judgment except in exceptional circumstances which, he says, do not exist here. He submits it would be premature to award costs when the substantive issues remain for determination at trial, and costs should therefore either be reserved or, alternatively, if they are to be awarded be costs in the cause.
[8] Mr Roberts argues the application for summary judgment was neither speculative nor misconceived but properly brought and there was an arguable basis for summary judgment. He submits that while the Court ultimately found that arguable defences had been raised, there has been no determination on the strength of those defences.
[9] Mr Roberts then submits that the Court should take into account that he made formal offers to settle with Ms Stephens, with each offer being more favourable to Ms Stephens than the relief he seeks at trial. It is said Ms Stephens’ refusal to engage constructively with those offers has unnecessarily prolonged the proceeding.
[10] Mr Roberts also contends he complied with all procedural directions and filed materials in accordance with the High Court Rules 2016, but that to the extent that was not the case there were only minor irregularities. He says that as the Court has held
Ms Stephens had an arguable defence it has accepted the summary judgment application was properly arguable and not frivolous or abusive.
Analysis
[11] Under r 14.8(1) of the High Court Rules, costs on opposed interlocutory applications are to be fixed when the application is determined unless there are special reasons to the contrary. The rule does not apply, however, to applications for summary judgment.5
[12] Where a plaintiff unsuccessfully seeks summary judgment the Court generally reserves costs until the final result of the case is known.6 This has been justified on the basis it encourages the use of the summary judgment procedure in appropriate cases and recognises, first, that it may be difficult to determine who should pay costs until the litigation has been completed and, second, that even an unsuccessful application may ultimately prove beneficial to the parties in efficiently resolving the dispute.
[13] However, it has also been held that those considerations may not justify reserving costs where a plaintiff’s application was commenced erroneously, unreasonably, or in circumstances where the plaintiff knew or ought to have known that summary judgment would not be granted or was an experiment.7
[14]In NZI Bank Ltd v Philpott, the Court of Appeal said:8
There will be other cases where the plaintiff has embarked on summary judgment proceedings erroneously in the sense that the rules do not allow the summary judgment procedure, or in the certain knowledge that there is a bona fide question of fact or law which can be determined only after a trial. In those circumstances the Court should be able in its discretion to deprive the plaintiff of costs in those unsuccessful and abortive proceedings and award costs to the defendant.
5 High Court Rules 2016, r 14.8(3).
6 NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).
7 Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Ltd, above n 3; Vision Aluminium Ltd v McLaughlan HC Christchurch CP 123/90, 8 June 1990.
8 NZI Bank Ltd v Philpott, above n 6, at 405.
[15] As an example of the application of these principles, in Mason v Dodd the plaintiff sought summary judgment against his former accountant alleging negligent advice had been given about setting up a family trust and transferring assets to it.9 Katz J dismissed the application as unsuitable for summary judgment by a wide margin and awarded costs against the plaintiff. In the costs judgment, Katz J said:10
[11] As noted above, I found Mr Mason’s causes of action to be unsuitable for summary determination, by a wide margin. Amongst other things, Mr Mason provided no expert evidence as to the usual or accepted professional standards applying to accountants involved in the establishment of trusts at the relevant times. Further, there are causation issues that will need to be addressed at trial. It is currently not clear whether Mr Mason has suffered any loss. This will also need to be the subject of evidence and submission at trial. Finally, it appears to be strongly arguable that at least three of the four causes of action are statute barred.
[12] It is rare for claims in negligence to be suitable for summary judgment and this case was no exception. It should have been apparent from the outset that this proceeding was not suitable for summary determination. It is therefore appropriate to fix costs now, rather than after trial.
[16] In this case Mr Roberts is self-represented. I take the view that some latitude can be extended to a person in his position who faces the challenging task of identifying, understanding and applying the rules and procedures of the Court. For that reason, the fact that Mr Roberts did not strictly comply with the Court’s directions and attempted to file submissions and additional evidence without leave would not in the circumstances of this case lead me to depart from the usual approach to reserve costs. However, the Court must also recognise that Mr Roberts is not incurring legal costs but Ms Stephens has appropriately instructed a lawyer to assist her and has incurred very substantial costs, and the amount of those costs has been unnecessarily increased by the manner in which Mr Roberts advanced his case.
[17] In my view, Mr Roberts should pay costs as the application for summary judgment could not succeed, and having been made it should have been withdrawn when, after Ms Stephens had been served, her lawyers wrote to Mr Roberts explaining why the case was unsuitable for summary judgment and inviting him to withdraw it.
9 Mason v Dodd [2020] NZHC 1508.
10 Mason v Dodd [2020] NZHC 2005.
[18] The application could not succeed because Mr Roberts had not disclosed all relevant information and documents concerning the basis upon which the guarantee was said to have been assigned to him to establish that Ms Stephens had no arguable defence to the claim. Despite Ms Stephens’ lawyers requesting that information, Mr Roberts did not provide it and maintained the application which was inevitably unsuccessful.
[19] The application could also not succeed in circumstances where Ms Stephens had raised factual disputes as to the circumstances under which the document said to be her guarantee had been signed which could not be resolved on such an application.
[20] There was also a Supreme Court decision in Brougham v Regan, of which Mr Roberts was apparently aware as he included it in his bundle of authorities, which was a clear impediment to Mr Roberts’ claim.11 There is also merit in the submission made for Ms Stephens that Mr Roberts simply failed to engage with Ms Stephens’ opposition or her evidence. It follows that I do not accept Mr Roberts’ submission that the application was not speculative nor misconceived.
[21] I also do not consider that the offers that Mr Roberts says were made to Ms Stephens have any bearing on the issue of costs. The offers are not before me, but it appears they required Ms Stephens to accept liability and pay at least the principal sum claimed and costs. Mr Roberts has not established that Ms Stephens has any liability to him, and she has satisfied the Court that her position no such liability exists is arguable. It was not unreasonable for her to reject such offers, nor did she unnecessarily prolong the proceeding in doing so.
[22] As to the quantum of costs claimed, Ms Stephens has sought a combination of 2B and 2C costs. While I accept that Ms Stephens’ defence was thorough, I do not consider that a comparatively large amount of time was required in respect to any step in the proceeding.12 In my view, it is appropriate to apply band B for all steps in the proceeding except in relation to the filing of memoranda which were brief and in respect of which band A should apply. I also do not make any allowance for step 36
11 Brougham v Regan [2020] NZSC 118, [2020] 1 NZLR 315.
12 High Court Rules 2016, r 14.5(2).
which does not apply to an interlocutory application. I have calculated costs accordingly.
Result
[23] Ms Stephens is awarded costs on the dismissal of Mr Roberts’ summary judgment application in the sum of $8,604 along with disbursements of $215.
O G Paulsen Associate Judge
Solicitors:
Buddle Findlay, Christchurch
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