Strickland v Skachill

[2025] NZHC 3541

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 time or expense of the proceeding or step in it by—

…

(ii) taking or pursuing an unnecessary step or  an argument  that lacks merit; or

…

(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding;

…

(d) some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.

[7]                 As the Court of Appeal said in Bradbury v Westpac Banking Corp in the context of r 14.6(3)(b)(ii), increased costs may be ordered where there is failure by the paying party to act reasonably.8 Rule 14.6(3)(d) also requires specific circumstances overcoming the principle that the determination of costs should be predictable and expeditious.

[8]                 The onus is on an applicant for increased costs to persuade the Court that such an award is justified.9 Further, in a case where the trial or interlocutory application is

6      High Court Rules, r 14.2(1)(c).

7      Rule 14.2(1)(g).

8      Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27](b).

9      Phillips v Heremaia [2025] NZCA 394 at [16]; citing SPAK (1996) Ltd v LeRoy [2022] NZCA 564, (2022) 23 NZCPR 769 at [189]; and Corrick v Silich [2018] NZCA 221, [2018] NZCCLR 21 at [14].

not completed, increased costs may only be awarded where the lack of merit is both obvious and incontrovertible.10

Discussion

[9]The defendant seeks costs now on the basis that:

(a)there was never a prospect of success with the summary judgment application – on the basis that the summary judgment proceedings were filed and served after the defendant had filed and served substantive proceedings seeking to set aside the share sale and purchase agreement,11 and after the defendant’s solicitor had written to the plaintiff’s solicitor (on 14 May 2025) expressing the view that summary judgment proceedings were inappropriate and unsustainable given the prior proceedings on foot;

(b)the plaintiff refused to accept the defendant’s offer of discontinuance with no issue as to costs; and

(c)this application being discontinued requires costs to be determined and fixed, failing which the defendant will lose the opportunity to seek costs, as the summary judgment proceeding is at an end.

[10]             Ms Maclean, for the defendant, submitted that the pursuit of the summary judgment application was an abuse of process as the plaintiff was on notice as to the substantive proceeding and, therefore, was also on notice as to the defence to his application for summary judgment.

[11]             She also submitted the Court has discretion to award wasted costs in circumstances where it is appropriate to compensate the party who is not at fault for those costs, citing Birchfield v Birchfield.12

10     N-Tech Ltd v Abooth Ltd [2012] NZHC 1167 at [108] (in relation to a trial rather than interlocutory application); Kruger v Mason [2025] NZHC 2740 at [11].

11     Skachill v Simplify my Home Ltd HC Auckland CIV-2025-404-923.

12     Birchfield v Birchfield [2025] NZHC 1928.

[12]             The defendant’s proceeding was filed and served first but counsel’s memoranda differ as to when the plaintiff became aware of the grounds of opposition to summary judgment. In circumstances where the application for summary judgment was discontinued rather than determined, and on the limited information referred to in the costs memoranda, I am not prepared to determine that the summary judgment application was an abuse of process so as to fix costs now – let alone award increased costs – rather than reserve costs. Whether costs should ultimately be awarded in respect of the summary judgment steps taken is a separate issue, for another day. The defendant’s concern that, in the absence of costs of being fixed, it has no ability for costs to be revisited, is misconceived. The plaintiff’s discontinuance applied to the application for summary judgment (under r 12.15), not the plaintiff’s entire proceeding. Indeed, the two proceedings are being case managed together. If costs are reserved, they can be addressed at the conclusion of  the  proceeding  as the Court of Appeal envisaged in NZI Bank Ltd v Philpott.13

[13]             The  defendant’s  offer  of  discontinuance  with  no  issue  as  to  costs  on  14 May 2025 does not affect this assessment. Nor does the defendant’s without prejudice except as to costs offer to accept scale costs dated 21 July 2025 (just days before the discontinuance). It was not unreasonable for the plaintiff to decline to accept that offer, at least on the basis that costs should be reserved.

[14]             Nor is this an appropriate case for an award of wasted costs. Birchfield was a very different case.

[15]             I decline to award the plaintiff costs in respect of its costs memorandum. While the Court has power to award costs on costs, it is generally reluctant to do so.14 Here, the defendants’ costs application was premature, but the costs they seek may ultimately be awarded, and despite the warning on 22 July 2025 that costs on costs

13     NZI Bank Ltd v Philpott [1990] 2 NZLR 403 (CA).

14   See for example Jeffreys v Morgenstern [2013] NZHC 1361 at [40]; Barry Park Investments Ltd v Body Corporate Number 95388 [2016] NZHC 1527 at [25]; Epsom Woods Ltd v Waitakere Farms Ltd [2020] NZHC 3137 at [4]; Norrie v Crown Range Holdings Ltd [2022] NZHC 898 at [28]; DGL Manufacturing Ltd v Simmonds [2022] NZHC 1434 at [18]; Legler v Formannoij [2022] NZHC 1804 at [12]; Neal  v  Neal  [2022]  NZHC  2625  at  [33];  and  Maniapoto  v  Te Nehenehenui Trust [2023] NZHC 1663 at [9](e).

would be sought, it would not be appropriate in the circumstances of this case to encourage claims for costs on costs.

Result

[16]Costs on the discontinued summary judgment application are reserved.

Gault J