Turner v Turner

[2025] NZHC 1525

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, AND S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, 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 TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2024-470-000018

[2025] NZHC 1525

UNDER

Property (Relationships) Act 1976

BETWEEN

NORMA TURNER

Appellant

AND

GORDON JOHN TURNER

First Respondent

GORDON JOHN TURNER, ANDREW JAMES TURNER and TRUSTEE COMPANY

(RENRUT) LIMITED as trustees of the RENRUT FAMILY TRUST

Second Respondent [discontinued]

GORDON JOHN TURNER and TRUSTEE COMPANY (MELABOO) LIMITED as

trustees of the MELABOO FAMILY TRUST Third Respondent [discontinued]

On the papers
Counsel:	J R Hosking for Appellant First Respondent in person
Judgment:	11 June 2025

JUDGMENT OF VAN BOHEMEN J

[on costs]

This judgment was delivered by me on 11 June 2025 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

TURNER v TURNER [2025] NZHC 1525 [11 June 2025]

[1]    This judgment considers an application by Norma Turner for costs following her largely successful appeal against a Family Court decision determining relationship property and maintenance following the break-up of her marriage to Gordon John Turner. The application, like the appeal to which it relates, has taken a somewhat unusual course, as set out below.

The Substantive Judgment

[2]    In a judgment issued on 13 December 2024,1 Mrs Turner was substantially successful in her appeal against aspects of the Family Court decision which determined the relationship property of Mrs Turner and Mr Turner and made orders for final maintenance.2

[3]In the Substantive Judgment, I held that:3

(a)Mr Turner was to pay Mrs Turner the sum of $53,099.50 to equalise the division of relationship property chattels;

(b)Mrs Turner’s share in the value of Pacific Coast Realty Ltd (PCR), a company which both parties accepted was relationship property, was

$140,607.64; and

(c)Mr Turner was to pay Mrs Turner pre-dissolution maintenance of

$59,800 and post-dissolution maintenance of $35,000.

[4]    I also held that Mrs Turner was entitled to costs on a 2B basis. In addition, I recorded that, because both sides bore responsibility for the protracted way in which the appeal had been conducted, I saw no case for indemnity or increased costs.4 I gave leave, however, for the parties to file memoranda on costs in accordance with a timetable set out in the judgment.5

1      Turner v Turner [2024] NZHC 3826 [Substantive Judgment].

2      Turner v Turner [2023] NZFC 13674.

3 Substantive Judgment, above n 1, at [180].

4 At [191].

5 At [192].

Claim for costs by Mrs Turner

[5]    In submissions dated 3 February 2025, Ms Hosking, Mrs Turner’s counsel, submitted that this Court should determine costs in the Family Court (which, at the date of Ms Hosking’s submissions, had not been determined by the Family Court), as well as costs in the High Court. Ms Hosking submitted that I should order Mr Turner to pay the following amounts:

(a)$53,719 for costs incurred in the Family Court comprising scale costs of $37,627 but with a 50 per cent uplift for costs incurred after November 2021, plus disbursements of $3,008.32; and

(b)$44,479.56 for costs incurred in the High Court comprising costs of

$26,170.50 calculated on a 2B basis but with the costs of preparing the case on appeal calculated on a 2C basis, and with a 50 per cent uplift, and including disbursements of $5,223.80.

[6]    Ms Hosking advised that the total costs sought of $101,206.88 did not exceed Mrs Turner’s actual costs.

[7]    In relation to the High Court appeal, Ms Hosking submitted that Mr Turner failed to agree to settle matters between them in a way that would have been advantageous to Mr Turner and would have spared the parties the costs of the appeal. She also submitted that Mr Turner failed to provide relevant information and failed to engage in the process of quantifying the interest in PCR.

[8]In support of both claims, Ms Hosking provided:

(a)A breakdown of the calculation of the costs claimed in the High Court by reference to the steps in sch 3 to the High Court Rules 2016 (the Rules).

(b)A copy of her submissions filed in the Family Court in January 2024, in which Mrs Turner sought costs of $37,627 plus disbursements of

$3,008.32. Attached to the submissions were copies of correspondence

exchanged by counsel for Mr Turner and Mrs  Turner  between  March 2021 and August 2023, in which various proposals were made by both sides to settle the Family Court proceeding.

(c)Copies of emails between Ms Hosking and Mr Turner’s then counsel, Ms Hoult, exchanged between 8 May and 17 July 2024.

Application for leave to appeal by Mr Turner and subsequent events

[9]    On 17 February 2025, Mr Turner, who is now self-represented, filed an application for leave to appeal the Substantive Judgment and an application to extend time for the filing of an appeal. The following day, Mr Turner filed a memorandum in which he said that because the matter was still in dispute, no order for costs should be made. He also said all costs claimed were in dispute because my judgment was based on misinformation and was incorrect. The memorandum set out various matters which Mr Turner said had been decided incorrectly in the Substantive Judgment.

[10]   In a minute dated 21 March 2025, I explained the procedural and substantive difficulties Mr Turner’s application for leave was likely to face and stated my view that the application appeared to fall well short of establishing that there was any issue of general or public importance that would warrant granting leave to appeal.6 However, I set down the application for leave for hearing by telephone conference on 9 May 2025 and made timetable orders for the filing of evidence and submissions.7

[11]   By affidavit sworn on 10 April 2025, Mr Turner set out in some detail why he considered he had not been treated fairly in the Family Court and in the High Court and asked that I reconsider my judgment. On 28 April 2025, Mr Tuner filed a 54-page affidavit which he had filed in bankruptcy proceedings and asked that it be brought to my attention.

[12]   I did not respond to these affidavits because Mr Turner’s application for leave to appeal had been set down for hearing on 9 May 2025 and the affidavits appeared to be directed towards achieving a rehearing of the appeal.

6      Turner v Turner HC Auckland CIV-2024-470-018, 21 March 2025 (Minute of van Bohemen J).

7 At [30].

[13]   On 1 May 2025, Mrs Turner’s notice of opposition to Mr Turner’s application for leave to appeal, affidavit in support and submissions in opposition to Mr Turner’s application were filed.

[14]   On 5 May 2025, Mr Turner advised he had withdrawn his application for leave to appeal the Substantive Judgment. Accordingly, I vacated the telephone conference set down for 9 May 2025. I also held that Mrs Turner was entitled to costs in preparing for the telephone conference.8

[15]   On 6 May 2025, Ms Hosking filed a memorandum on behalf of Mrs Turner seeking costs of $3,824 for preparing and filing Mrs Turner’s notice of opposition and written submissions.

[16]No memorandum in reply has been filed by Mr Turner.

Applicable rules and principles on costs

[17]   As stated by the Supreme Court in Manukau Golf Club Inc v Shoye Venture Ltd and by the Court of Appeal in Bradbury v Westpac Banking Corp, and as reflected in the Rules, it is a fundamental principle that costs follow the event.9

[18]   While all matters relating to costs are at the discretion of the Court,10 that general discretion is qualified by the specific costs rules in the Rules and is exercisable only in situations not contemplated or not fairly recognised by the Rules. Ordinarily, the loser pays the winner’s costs according to the scale set out in the Rules.11 The scale reflects the complexity and significance of the proceeding and is assessed at two-thirds of the daily rate considered reasonable in relation to the proceeding.12’

[19]   In the circumstances provided for under r 14.6(3) and (4), the Court may either make an order for increased costs or an order for indemnity costs.

8      Turner v Turner HC Auckland CIV-2024-470-018, 5 May 2025 (Minute of van Bohemen J).

9      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8]; Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 at [6]; and High Court Rules 2016, r 14.2(1)(a).

10 High Court Rules, r 14.1(1).
11 Rule 14.2(1)(a).

12 Bradbury v Westpac Banking Corporation, above n 9, at [6]; and r 14.2(1)(d).

[20]   Under r 14.6(3)(b), the Court may order a party to pay increased costs if party: “has contributed unnecessarily to the time or expense of the proceeding” by:

…

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

(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or

(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or some similar requirement under these rules; or

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

[21]   Under r 14.6(3)(d), the Court may order increased costs if some other reason exists which justified the court making an order for increased costs, despite the principle that the determination of costs should be predictable and expeditious.

[22]   In Bradbury, the Court of Appeal summarised the circumstances where scale costs, increased costs and indemnity costs might be ordered as follows:13

(a)standard scale applies by default where cause is not shown to depart from it;

(b)increased costs may be ordered where there is failure by the paying party to act reasonably; and

(c)indemnity costs may be ordered where that party has behaved either badly or very unreasonably.

[23]Rule 14.10 provides:

14.10   Written offers without prejudice except as to costs

(1)A party to a proceeding may make a written offer to another party at any time that—

(a)is expressly stated to be without prejudice except as to costs; and

(b)relates to an issue in the proceeding.

13     Bradbury v Westpac Banking Corporation, above n 9, at [27].

(2)The fact that the offer has been made must not be communicated to the court until the question of costs is to be decided.

[24]   Under r 14.11, a party is entitled to costs on steps taken in a proceeding after an offer under r 14.10 is made to another party to settle the proceeding for a sum that exceeds the amount of a judgment obtained by that other party or makes an offer that would have been more beneficial to the other party than the judgment obtained by the offeror. In addition, an offer that is close to the value or benefit of the judgment obtained by the other party may also be taken into account.

[25]   In Gorringe v Pointon, the Court of Appeal confirmed that, to be effective for costs purposes pursuant to r 14.10, an offer needs to be clearly and unambiguously stated, capable of contractual acceptance, and more beneficial (or close in benefit) to the other party than the judgment actually obtained.14

Mr Turner’s opposition to costs

[26]   Mr Turner’s opposition to  costs  is  based  on  his  view  that  the  Substantive Judgment is incorrect in various respects. However, as noted, he has withdrawn his application for leave to appeal. Mr Turner’s position on costs, therefore, is that he is opposed to any order to pay Mrs Turner’s costs, but he has not filed submissions that engage the rules and principles on costs. Accordingly, I consider Mrs Turner’s application for costs in light of those circumstances.

Mrs Turner’s application for costs

[27]   I see no case for this Court to decide costs payable in respect of the proceeding in the Family Court. It is not usual for a superior court to decide costs payable in a lower court. To the contrary, where costs in a lower court need to be revisited because of a decision of a superior court, the usual practice is to remit costs back to the lower court for reconsideration.

[28]   Moreover, it is apparent that the question of costs in the Family Court is already before that Court as a result of the application filed in January 2024. Whether or not

14     Gorringe v Pointon [2023] NZCA 426 at [32].

the application has been decided, the Family Court is better placed than this Court to assess whether the costs claimed in that Court are appropriate, particularly given that an application for increased costs is now made.

[29]   As to the costs claimed in the High Court, I am satisfied that the costs identified in Ms Hosking’s breakdown of costs are appropriate, including the 2C costs for preparing the case on appeal.

[30]   The questions for determination, therefore, are whether any uplift should be ordered and, in that regard, whether Mr Turner contributed unnecessarily to the time or expense of the proceeding by failing, without reasonable justification to accept an offer under r 14.10 or some other offer to settle the proceeding, or by otherwise acting unreasonably?

Was there an offer to settle under r 14.10?

[31]   Of the four emails sent by Ms Hosking to Ms Hoult between 8 May and 17 July 2024, only the email sent on 8 May 2024 constituted a clear and unambiguous offer capable of contractual acceptance. The subject line of the email expressly included “without prejudice save as to costs”. It set out the elements to be agreed, which were issues in the proceeding, and stated that, if those elements were agreed, the appeal would be limited to Mrs Turner’s claim against the Renrut Family Trust.

[32]   Clearly, the email of 8 May 2024 was an offer to settle the proceeding pursuant to r 14.10. However, given the number of elements in the offer, it is difficult to assess whether acceptance of the offer would have been more beneficial to Mr Turner than the outcome he obtained under the Substantive Judgment. That is particularly so given that there was a later settlement of the claims against the  Renrut Family Trust and not a settlement of the other elements in the offer.

[33]   It is clear that acceptance of the offer would have meant a more beneficial result to Mr Turner with respect to Mrs Turner’s interest in PCR, which was valued at

$100,000 in the offer, and her share in the relationship property chattels, which was valued at $15,000. It is also clear that the settlement sum of $100,000 proposed for

maintenance was close to that achieved under the Substantive Judgment. However, because the overall settlement was put on a very different basis from that on which the appeal eventually proceeded, I am not satisfied that those matters are sufficient to establish that acceptance of the offer as a whole would have been more beneficial to Mr Turner. In any event, I am not satisfied they warrant an uplift on scale costs.

Did Mr Turner otherwise fail to act reasonably?

[34]   As Ms Hosking notes, Mr Turner was slow to provide financial statements and bank statements and correspondence from PCR’s accountant. This information was essential to quantifying the value of the PCR. However, that delay became significant after Ms Hosking, on behalf of Mrs Turner, elected to appeal the Family Court’s decision rather than use the procedure set out in that decision for finalising the value of PCR. In deciding the appeal, I adopted essentially the same procedure, which was to value the matters affecting the valuation of PCR that had not been determined in the Family Court.

[35]   It was also significant after the hearing of the appeal — at which Ms Hosking proposed that the value of PCR should be assessed on an entirely different basis from that on which it was assessed in the Family Court and sought to bring into consideration matters well outside the scope of the Family Court determination.15 These actions also contributed substantially to the delay in resolving the appeal.

[36]   It was for these reasons that I recorded in the Substantive Judgment my view that both parties bore significant responsibility for the protracted way in which the appeal had been conducted and said I saw no case for indemnity and increased costs. That remains my view.

[37]Accordingly, I make no order for increased costs.

[38]   However, as indicated in my minute of 5 May 2025, I am satisfied Mrs Turner is entitled to costs incurred in relation to Mr Turner’s application for leave to appeal.

15 See Substantive Judgment, above n 1, at [93].

Orders

[39]   Accordingly, I order that Mr Turner is to pay Mrs Turner costs of $35,218.30, which comprise:

(a)$26,170.50 for costs in relation to Mrs Turner’s appeal and disbursements of $5,223.80; and

(b)$3,824 for costs in relation to Mr Turner’s application for leave to appeal.

G J van Bohemen J

Counsel/Solicitors:

J R Hosking, Rotorua

Lance Lawson Solicitors, Mount Maunganui Tompkins Wake, Hamilton

Copy to: Gordon Turner