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Strickland v Skachill

Strickland v Skachill

Case [2025] NZHC 3541 20 November 2025

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1028

[2025] NZHC 3541

BETWEEN
JOHN STEPHEN STICKLAND

Plaintiff

AND

LONNAE JANE SKACHILL

Defendant

Hearing: On the papers

Counsel:

P Napier for the Plaintiff

K L Maclean for the Defendant

Judgment:

20 November 2025

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 20 November 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr P Napier, K3 Legal, Auckland
Ms K L Maclean, D’arcy Thomson Law, Christchurch

STICKLAND v SKACHILL [2025] NZHC 3541 [20 November 2025]

[1] On 24 July 2025, the plaintiff discontinued an application for summary judgment seeking payment for the defendant’s purchase of shares, but the parties could not agree on costs.

[2] The defendant seeks increased costs with an uplift of 25 per cent on 2B scale costs totalling $8,365 plus a court filing fee disbursement of $1,755.

[3]The plaintiff submits that costs should be reserved in the usual way, citing

NZI Bank Ltd v Philpott.1 The plaintiff also seeks $200 for his memorandum on costs.

Applicable principles

[4] As an exception to the general rule that costs on an opposed interlocutory application should be fixed when the application is determined,2 on an unsuccessful application for summary judgment in many cases the best course will be to reserve the question of costs until the litigation is determined.3 The risk of a large order for costs would act as a deterrent to plaintiffs using the accelerated summary judgment procedure.4 However, an order can be made against the plaintiff at the summary judgment stage, at least in exceptional cases involving abuses of the summary judgment procedure.5

[5] The presumption in r 15.23 of the High Court Rules 2016, applying to costs on discontinuance of a proceeding, does not apply to discontinuance of a summary judgment application under r 12.15, just as it does not apply to withdrawal of other interlocutory applications. In appropriate cases, costs may be ordered against an applicant following withdrawal of an interlocutory application but, as on a discontinuance, the Court will not undertake a review of the merits of the application unless they are immediately apparent.

1      NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).
2      High Court Rules 2016, r 14.8.
3      NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA) at 405.
4      At 406.
5      At 406-407.

[6] When fixing costs, one general costs principle is that costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required,6 that is, applying the scale in the High Court Rules. So far as possible the determination of costs should be predictable and expeditious.7 As an exception to the predictability of scale costs, r 14.6 provides for increased (or indemnity) costs in prescribed circumstances. Rule 14.6(3) relevantly provides:

…

(b) the party opposing costs has contributed unnecessarily to the…

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 Strickland v Skachill

Details

AGLC: Strickland v Skachill [2025] NZHC 3541
Case: [2025] NZHC 3541
Decision Date: 20 November 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of Strickland v Skachill involved a dispute between the plaintiff, John Stephen Strickland, and the defendant, Lonnæ Jane Skachill. The plaintiff had initially filed an application for summary judgment seeking payment for the purchase of shares by the defendant. However, the plaintiff subsequently discontinued the application, and the parties could not agree on the costs associated with the discontinued proceedings. The defendant sought increased costs, including an uplift of 25 per cent on 2B scale costs amounting to $8,365, and a disbursement of $1,755 for a court filing fee. The plaintiff argued that costs should be reserved according to the principles set out in NZI Bank Ltd v Philpott and sought an additional $200 for a memorandum on costs.

The primary legal issue the court had to decide was whether the defendant was entitled to increased costs for the discontinued summary judgment application. The court considered the principles governing costs on discontinuance of an interlocutory application and whether there were circumstances warranting an award of increased costs under rule 14.6 of the High Court Rules 2016. The court also examined whether the plaintiff's discontinuance of the summary judgment application justified an award of increased costs at that stage or if costs should be reserved until the conclusion of the litigation.

The court found that, while the defendant had argued that the summary judgment application was an abuse of process and that the plaintiff had unreasonably refused to accept a discontinuance offer, these arguments were not sufficiently compelling to warrant an immediate award of increased costs. The court held that the plaintiff's discontinuance applied only to the summary judgment application, not the entire proceeding, and that costs could be reserved and addressed at the conclusion of the litigation. The court further noted that the defendant's offer to accept scale costs without prejudice except as to costs did not affect the assessment, and it was not unreasonable for the plaintiff to decline that offer given the uncertainty of the outcome. The court declined to award the plaintiff costs for its costs memorandum, emphasizing the general reluctance to award costs on costs except in exceptional circumstances.

In conclusion, the court reserved costs on the discontinued summary judgment application, finding that the circumstances did not justify an immediate award of increased costs. The court's decision underscores the principle that costs on discontinuance of an interlocutory application are often reserved until the conclusion of the litigation, unless exceptional circumstances warrant an immediate determination.

Orders