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 1493 [Leave to appeal substantive judgment].

4      Smith v Black [2025] NZHC 2507 [Leave to appeal costs judgment].

5 Leave to appeal costs judgment, above n 4, at [3].

6      Ms Black notes that Ellis J has directed that Ms Smith’s application for leave to appeal will be determined by two Judges in the Court of Appeal once Ms Smith’s review of decisions of the Deputy Registrar (rejecting aspects of her leave application) has been determined.

(b)an appeal does not operate as a stay of enforcement of a judgment and costs should be properly paid pending determination of the application in the Court of Appeal; and

(c)if Ms Smith’s goal is to avoid incurring further costs, she should consider withdrawing her proceedings rather than filing more proceedings.

[6]                  As requested, I excused the attendance of counsel for Ms Black at the teleconference.

[7]                  Ms Smith attended the teleconference and confirmed that she did not want to make any further oral submissions and was content for the Court to determine her stay application on the material filed. Her submissions are contained in her application dated 7 July 2025 and a memorandum dated 12 September 2025. In essence, Ms Smith submits that her application for leave to appeal has substantial merit as her defamation claim should not have been struck out. She submits that enforcing a judgment tainted by significant errors before the Court of Appeal has addressed the issues would be unfair and unreasonable, as it would in effect amount to acceptance of the judgment and render any subsequent appeal meaningless.

Decision

[8]                  An application for stay pending appeal under r 12(3) requires the Court to balance the competing rights of the party who has the benefit of the judgment against the need to preserve the appellant’s position. Factors to be taken into account include whether the appeal may be rendered nugatory, whether the successful party will be injuriously affected by the stay, any novelty or public interest in the proceeding, the apparent strength of the appeal, and the overall balance of competing interests.7

[9]                  The stay of enforcement in this case only relates to the payment of costs as there is no other aspect of the decision that can be enforced (the judgment simply confirms that Ms Smith’s claim must be struck out). Ms Smith’s position is essentially

7      Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [CR12.01(1)].

that it would be unfair to be required to pay costs only to have the position reversed should she succeed on her application for leave to appeal and subsequent appeal.

[10]              Ms Smith has not satisfied me that a stay should be granted. I consider her application for leave to appeal is without merit for the reasons set out in my previous judgments. Ms Smith has not provided any evidence of financial or other hardship that might be caused by being required to pay costs pending determination of her application for leave to appeal. If she succeeds in having any aspects of the costs awarded against her reversed by the Court of Appeal, Ms Black will have to repay any costs wrongly received through enforcement action. Although the respondent takes a neutral position, she is continuing to incur costs in responding to Ms Smith’s meritless litigation. In these circumstances, I consider Ms Black should not be prevented from taking enforcement action to recover costs pending determination of the application for leave to appeal.

[11]I therefore decline Ms Smith’s application for a stay.

La Hood J

Solicitors:
Wotton Kearney, Wellington for Respondent