Tracey v Tracey

[2025] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2023-488-90

[2025] NZHC 1251

IN THE MATTER

of an appeal of a decision made pursuant to section 21J of the Property (Relationships) Act 1976

BETWEEN

DAVID REGINALD TRACEY

Appellant

AND

CAROL RAE TRACEY

Respondent

Judgment

(on the papers):

21 May 2025

COSTS JUDGMENT OF ROBINSON J

This judgment was delivered by me on 21 May 2025 at 11:00 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Henderson Reeves, Whangārei Just Law, Kerikeri

TRACEY v TRACEY [2025] NZHC 1251 [21 May 2025]

Background

[1]                 Mr and Mrs Tracey’s substantive dispute concerns the division of their relationship property. Proceedings are underway in the Family Court to resolve that dispute. As a preliminary matter, the Family Court set aside an agreement they entered into 14 years into their 29-year relationship, pursuant to which (amongst other things) assets accrued during their relationship would be split 95:5 in favour of Mr Tracey.1 The Family Court proceedings were essentially stayed pending Mr Tracey’s appeal of that decision.

[2]                 I dismissed Mr Tracey’s appeal.2 I held that Mrs Tracey is entitled to costs.3 I directed the parties to file memoranda if they could not agree, which they do not.

[3]                 Mrs Tracey seeks costs of $19,585.18 calculated on a 2B basis, together with disbursements of $226.18, as set out in Ms Kennedy’s memorandum of 10 February 2025.

[4]                 In his memorandum dated 19 February 2025 Mr Tracey, without the assistance of counsel, objected strongly to costs being awarded against him. This was essentially on the basis that he considers the judgment to be wrong and falsely reasoned in many respects.

[5]                 On 13 March 2025, with leave, Mr Henderson filed a further memorandum on behalf of Mr Tracey. He submits that the Court should exercise its discretion to reserve costs pending resolution of the substantive proceedings.4 Mr Henderson refers me to the Court of Appeal’s decision of Cousins & Associates v FM Custodians Ltd,5 which he submits demonstrates there is judicial discretion to reserve costs in circumstances where substantive financial matters are yet to be decided.

1      Tracey v Tracey [2023] NZFC 9125.

2      Tracey v Tracey [2024] NZHC 3960.

3 At [84].

4      Mr Henderson also advises that Mr Tracey now understands that the substantive issues he raises could only be addressed in a further appeal. Nevertheless, Mr Tracey expressly does not withdraw his memorandum and Mr Henderson is instructed to ask the Court to consider Mr Tracey’s comments. I have read Mr Tracey’s memorandum, but as Mr Henderson will no doubt have explained, the Court’s task now is to determine costs in accordance with the Judgment as it stands.

5      Cousins & Associates v FM Custodians Ltd [2013] NZCA 99.

[6]                 Mr Henderson submits the Court should reserve costs in the present case for the following reasons:

(a)with the Agreement set aside, there remains to be determined the total relationship property pool and the parties’ respective shares;

(b)if costs are ordered, given the little money that the appellant has available, Mr Tracey will be unable to afford the further legal advice required to determine and divide each party’s shares in the relationship property pool, which may create an access to justice issue;

(c)given the appellant’s age and poor health, his farm has been operating at a loss; and

(d)the final determination and division of the relationship property pool will provide clarity from which the issue of fair costs can be determined.

[7]                 I have already determined that Mrs Tracey is entitled to costs. If there remains a discretion to reserve costs, I would not do so. Mr Tracey’s appeal was unsuccessful and there is no good reason why costs should not follow. Mr Tracey has valuable assets. I note that shortly after Mr Tracey commenced his appeal Brewer J categorised the appeal as a category 2 proceeding, but did not require Mr Tracey to pay security for costs in the usual way. This was partly because his valuable farm provided an assurance that any future costs order would be paid.6 If there are now cashflow or other reasons why Mr Tracey requires time to pay these costs he can take this up with Mrs Tracey. In the meantime, she is entitled to her order.

6      Tracey v Tracey HC Whangārei CIV-2023-488-90, 15 December 2023, at [2].

[8]                 Mr Tracey does not (personally or through counsel) otherwise dispute the calculations set out in Ms Kennedy’s memorandum. I agree those calculations are appropriate. I direct that Mr Tracey is to pay Mrs Tracey costs and disbursements of

$19,585.18 as calculated in Ms Kennedy’s memorandum.

Robinson J