Smith v Black

[2025] NZHC 76

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 76

IN THE MATTER

of an appeal of Reserved Decision of Judge B Davidson

BETWEEN

SARAH SMITH

Appellant

AND

JENNIFER BLACK

Respondent

Hearing:

(On the Papers)

Counsel:

Appellant in person

E C Copeland and I R Black for Respondent

Judgment:

5 February 2025

JUDGMENT OF LA HOOD J

(Costs)

[1]                 In a judgment dated 28 November 2024, I dismissed the appellant’s appeal and directed the filing of memoranda as to costs.1

[2]                 The respondent’s memorandum dated 11 December 2024 seeks costs on a 2B basis totalling $15,296. It also seeks that the security for costs ordered by the Court of $9,560 be released to the respondent, and that the appellant be ordered to pay the respondent the balance of the costs ($5,736).

1      Smith v Black [2024] NZHC 3598.

SMITH v BLACK [2025] NZHC 76 [5 February 2025]

[3]                 In a memorandum dated 7 January 2025, the appellant opposes an award of costs essentially on the grounds that they are unreasonable. Perhaps unsurprisingly given the conduct of the litigation to date, the memorandum generally does not engage with established costs principles.

[4]                 I agree with the respondent that this is a case where nothing displaces the principle that the party who fails with respect to a proceeding should pay the costs to the party who succeeds.2 I also accept the respondent’s submission that 2B is the appropriate basis upon which costs should be awarded.3 The proceedings were of average complexity requiring counsel of average skill and experience.4

[5]                 However, the appellant points out that the respondent’s schedule of 2B costs includes a claim for preparation of the case on appeal when in fact the appellant prepared the case on appeal. I therefore disallow the claim for this item ($2,390).

Conclusion

[6]                 I therefore award 2B costs in the sum of $12,906. I order that the $9,560 in security for costs is to be released to the respondent and that the appellant is to pay the respondent the balance of the costs order, being $3,346.

La Hood J

Solicitors:

Wotton Kearney, Wellington for Respondent

2      High Court Rules 2014, r 14.2(1)(a).

3      Rules 14.2(1)(b) and (c).

4      Rule 14.2(1).