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.

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 White v Henderson

Details

AGLC: White v Henderson [2025] NZHC 2968
Case: [2025] NZHC 2968
Decision Date: 8 October 2025

CaseChat Overview and Summary

Andrew White has applied for an urgent stay of proceedings and enforcement of a costs appeal judgment delivered on 12 August 2025, pending the determination of an application for leave to bring a second appeal. The decision in question 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. The appeal was brought under s 145(1)(b) of the Care of Children Act, and the stay application was brought under r 12(3) of the Court of Appeal (Civil) Rules 2005.

The legal issues before the court were whether an application for leave to appeal can operate as a stay of proceedings, and whether a stay should be granted pending the determination of the application for leave to appeal. The court considered whether the appeal was arguable, the risk of nugatory appeal, the balance of convenience, and the overall interests of justice. The court noted that an appeal or an application for leave to appeal does not operate as a stay of proceedings, but under r 12(3) of the Court of Appeal (Civil) Rules 2005, the High Court may order a stay of the decision appealed against and/or the enforcement of any order, pending the determination of an application for leave to appeal to the Court of Appeal. The court considered the competing rights of the parties and the factors to be taken into account in deciding whether to grant a stay.

The court found that Mr White had not satisfied it that a stay should be granted. The proposed appeal would not be rendered nugatory if the Family Court dealt with the matter of quantum on the papers, in accordance with its indication. Any costs awarded and enforced could be repaid at a later date if that need arose. Furthermore, the proposed grounds of appeal did not appear strong, nor was there any issue of novelty or public interest involved. While the application for leave to appeal had not yet been determined by the Court of Appeal, the application did not seem to disclose any issue of sufficient importance that might outweigh the cost and delay of a further appeal. The appeal sought was a second appeal on costs, in relation to substantive proceedings which had been on foot for many years, regarding a 2019 parenting order. Not only was it appropriate in general terms that this matter be progressed without further delay, but it was also in the interests of the child that the matter be dealt with in a timely manner. The balance of convenience favoured the dismissal of the stay application.

The application for stay of the proceedings and enforcement was declined. The court ordered that the matter be remitted to the Family Court to determine the quantum of costs, taking into account the comments set out in the appeal judgment. The court noted that the Family Court had indicated that it would deal with the quantum of costs on the papers, and had set out a timetable for the exchange of submissions.

Orders