White v Henderson

[2025] NZHC 2968

IN THE HIGH COURT OF NEW ZEALAND N REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2025-443-012

[2025] NZHC 2968

UNDER

the Care of Children Act 2004

BETWEEN

ANDREW WHITE

Appellant

AND

HELEN HENDERSON

Respondent

Hearing:

On the papers

Appearances:

Appellant in person

No Appearance for Respondent

Judgment:

8 October 2025

JUDGMENT OF GRICE J

(Stay pending appeal) (Anonymous version)

Introduction

[1]    Andrew White seeks an urgent stay of proceedings and enforcement of a costs appeal judgment delivered on 12 August 2025, pending determination of an application for leave to bring a second appeal.1 The decision allowed in part an appeal against a decision of the Family Court which had made a costs order under s 142 of the Care of Children Act 2004, and remitted the issue of quantum of costs back to the Family Court for consideration.2

1      White v Henderson [2025] NZHC 2274 [appeal judgment].

2      [Henderson] v [White] [2025] NZFC 896. Costs of $20,000 were awarded to Ms Henderson, the respondent in the appeal proceeding.

WHITE v HENDERSON [2025] NZHC 2968 [8 October 2025]

[2]    The result and the relief granted on appeal was summarised in the appeal judgment as follows:3

[67]      The Judge made no error in her decision to award costs. The appeal is allowed to the extent only that the Judge applied a wrong principle in awarding costs in excess of actual costs incurred and failed to give the reasons for awarding increased or indemnity costs.

[68]      I am unable to substitute my decision on the quantum of the award as the required material concerning the actual costs is not before the  Court.   Ms [Henderson] must be given the opportunity to file and serve copies of the detailed narrated costs invoices supporting her actual costs, and make further submissions on increased or indemnity costs if they are sought. Mr [White] should be given an opportunity to file submissions in reply.

[69]      The order for costs is set aside. Under r 20.19(1)(i) of the High Court Rules, the matter is remitted to the Family Court for rehearing and determining the quantum including whether increased or indemnity costs should be awarded, taking into account the comments set out in this judgment.

[3]    By minute dated 12 September 2025, Cull J directed that Mr White serve his application for stay on Ms Henderson.4 Ms Henderson had not appeared at the appeal hearing but had filed a memorandum indicating she would abide the Court’s decision. Cull J indicated that the matter would then be dealt with on the papers. Mr White has now served the application  on Ms Henderson, and filed a further memorandum  on  3 October 2025 attaching a minute of the Family Court dated 30 September 2025. That minute indicated that the Family Court Judge would deal with the quantum of costs on the papers, and set out a timetable for the exchange of submissions, allowing 21 days for Ms Henderson to file submissions and a further 21 days for submissions by Mr White.

[4]    On 9 September 2025, Mr White applied to the Court of Appeal for leave to appeal against this Court’s decision on costs under s 145(1)(b) of the Care of Children Act. The substantive Family Court decision to which the costs order relates has not been appealed. It appears that the leave application has not yet been dealt with by the Court of Appeal, but Mr White requested in his 3 October memorandum that this stay application be determined on an urgent basis.

3      Appeal judgment, above n 1 (footnotes omitted).

4      [White] v [Henderson] HC New Plymouth CIV-2025-443-12, 12 September 2025 (Minute of Cull J).

[5]The stay application is brought on the following grounds:

(a)The Appellant has filed an application for leave to appeal against the decision of the High Court dated 12 August 2025.

(b)If the Family Court proceeds to rehear quantum of costs while the appeal is pending, this will result in duplication, unnecessary expense, and prejudice to the Appellant.

(c)There is no material prejudice to the Respondent if a stay is granted, particularly given the Respondent has filed a notice to abide previously in the High Court

The balance of convenience and the interests of justice strongly favour the grant of a stay.

[6]    Mr White submits that the relevant factors favour a stay being granted, in particular whether there is an arguable appeal, the risk of nugatory appeal, the balance of convenience, and the overall interests of justice. He says that a stay would preserve the status quo, avoid unnecessary duplication and wasted judicial resources, and ensure the appeal can be determined “fairly and efficiently”.

Legal principles relating to stay of proceedings

[7]    An appeal (or an application for leave to appeal) does not operate as a stay of proceedings.5 However, pending the determination of an application for leave to appeal to the Court of Appeal, r 12(3) of the Court of Appeal (Civil) Rules 2005 provides that this Court may order a stay of the decision appealed against and or the enforcement of any order. I note that in order to justify a second appeal there must generally be some point of sufficient importance to outweigh the cost and delay of a further appeal.6

[8]    An application for stay pending appeal under r 12(3) requires the court to balance the competing rights of the party who has the benefit of the judgment against the need to preserve the appellant’s position. Factors to be taken into account include whether the appeal may be rendered nugatory by lack of a stay, whether the successful party will be injuriously affected by the stay, any novelty or public interest in the

5      Court of Appeal (Civil) Rules 2005, s 12(1) and (2).

6      Waller v Hider [1998] 1 NZLR 412 (CA) at 413; and Snee v Snee [2000] NZFLR 120 (CA) at [15].

proceeding, the apparent strength of the appeal, and the overall balance of competing interests.7

Proposed grounds of appeal

[9]    Mr White seeks to appeal this Court’s decision on several grounds, including that: the Court erred in upholding liability for costs in proceedings where the child’s welfare and best interests is the paramount consideration; the imposition of substantial costs on parents of limited means undermines access to justice and natural justice principles; the decision to remit the issue of quantum but fix liability created uncertainty and unnecessarily prolonged litigation; and the High Court failed to exercise its evaluative function and ought to have substituted its own determination rather than remitting the matter to the Family Court.

[10]   Mr White contends that these grounds raise arguable questions of law and principle that have broader implications for how costs are treated in family law proceedings.

Decision

[11]   Mr White has not satisfied me that a stay should be granted. The proposed appeal will not be rendered nugatory if the Family Court deals with the matter of quantum on the papers, in accordance with its indication. Any costs awarded and enforced can be repaid at a later date if that need arises. Furthermore, the proposed grounds of appeal do not appear strong, nor is there any issue of novelty or public interest involved. While the application for leave to appeal has not yet been determined by the Court of Appeal, the application does not seem to disclose any issue of sufficient importance that might outweigh the cost and delay of a further appeal. Mr White seeks to reargue the points dealt with on appeal by this Court, which concerned the application of accepted principles to the facts in question.

[12]   The appeal sought is a second appeal on costs, in relation to substantive proceedings which have been on foot for many years, regarding a 2019 parenting

7      Keung v GBR Investment Ltd [2010] NZCA 396 at [11], citing Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].

order. Not only is it appropriate in general terms that this matter be progressed without further delay, but it is also in the interests of the child that the matter be dealt with in a timely manner. I conclude that the balance of convenience favours the dismissal of the stay application.

[13]   In the circumstances, the application for stay of the proceedings and enforcement is declined.

Grice J