Smith v Black - [2025] NZHC 2753

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000210

[2025] NZHC 2753

BETWEEN
SARAH SMITH

Applicant

AND

JENNIFER BLACK

Respondent

Hearing: 15 September 2025 (via Teleconference at 9.00 am)

Counsel:

Applicant in person

Judgment:

19 September 2025

JUDGMENT OF LA HOOD J

(Application for stay of enforcement of costs pending determination of application for leave to appeal))

[1] Ms Smith has applied to the Court of Appeal for leave to appeal my decision of 28 November 2024 dismissing her appeal against the District Court’s decision striking out her claim of defamation against Ms Black (the substantive judgment).1 She has also applied to the Court of Appeal for leave to appeal my judgment of 5 February 2025 awarding costs against her on that appeal (the costs judgment).2

1 Smith v Black [2024] NZHC 3598 [Substantive judgment]. I have adopted fictitious names to protect the identity of the child.
2 Smith v Black [2025] NZHC 76 [Costs judgment].

SMITH v BLACK [2025] NZHC 2753 [19 September 2025]

[2] In a judgment dated 9 June 2025, I declined Ms Smith’s application for leave to appeal the substantive judgment.3 In a judgment dated 29 August 2025, I declined Ms Smith’s application for leave to appeal the costs judgment.4

[3] In an application dated 7 July 2025, Ms Smith applies to stay enforcement of the costs judgment pending her application for leave to appeal to the Court of Appeal under r 12 of the Court of Appeal (Civil) Rules 2005. Although the application is dated 7 July 2025, it was only brought to my attention on 22 August 2025 as it was only processed by the High Court Registry on 28 August 2025 due to some confusion about the Court of Appeal process.5

[4] On 1 September 2025, I directed that a teleconference be convened to consider directions for the expeditious determination of the application. The teleconference occurred on 15 September 2025 at 9.00 am.

[5] Ms Black set out her position in a memorandum of counsel dated 8 September 2025. She notes that she continues to incur costs responding to the applicant’s frivolous litigation. She considers there is nothing to be gained by engaging with the stay application as any stay would not materially affect her position, because when the Court of Appeal declines the meritless application for leave to appeal,6 any stay in the High Court will come to an end. To avoid further costs, Ms Black is neutral on the application, will not file a notice of opposition or submissions and sought the Court’s leave to be excused from attending the teleconference. However, Ms Black made the following observations:

(a)the onus to satisfy the Court that a stay should be granted lies with Ms Smith;

3 Smith v Black [2025] NZHC…

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 Smith v Black

Details

AGLC: Smith v Black [2025] NZHC 2753
Case: [2025] NZHC 2753
Decision Date: 19 September 2025

CaseChat Overview and Summary

Sarah Smith has applied to the High Court of New Zealand, Wellington Registry, for a stay of enforcement of costs pending the determination of her application for leave to appeal. The application relates to the dismissal of her appeal against the District Court’s decision to strike out her defamation claim against Jennifer Black, and the subsequent awarding of costs against her on that appeal. Smith has already been denied leave to appeal both the substantive judgment and the costs judgment by the High Court.

The primary legal issue before the court was whether to grant Smith’s application for a stay of enforcement of the costs judgment, pending the determination of her application for leave to appeal. Smith argued that it would be unfair to require her to pay costs if her appeal were to be successful, as this would render any subsequent appeal meaningless. Black, on the other hand, argued that an appeal does not automatically stay enforcement of a judgment and that any stay would only result in her incurring further costs without any tangible benefit.

The court considered the factors relevant to granting a stay, including the likelihood of the appeal succeeding, the potential injury to the respondent if a stay were granted, and the overall balance of competing interests. It was noted that Smith had not provided any evidence of financial or other hardship that would result from paying costs pending the appeal, and that Black would need to repay any wrongly received costs if the appeal were to succeed. The court concluded that Smith had not demonstrated sufficient grounds to warrant a stay, as her application for leave to appeal was considered without merit. The court therefore declined Smith’s application for a stay of enforcement of costs.

Orders