White v Henderson
[2025] NZHC 2274
•12 August 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2025-443-012
[2025] NZHC 2274
UNDER the Care of Children Act 2004 BETWEEN
ANDREW WHITE
Appellant
AND
HELEN HENDERSON
Respondent
Hearing: 16 July 2025 Appearances:
Appellant in person
No Appearance for Respondent
Judgment:
12 August 2025
JUDGMENT OF GRICE J
(Appeal against costs order) (Anonymous version)
Introduction
[1] Andrew White appeals against a decision of the Family Court making a costs order under s 142 of the Care of Children Act 2004 (COCA).1 Costs of $20,000 were awarded to Helen Henderson, the respondent in this proceeding.
[2] Mr White appeals on the basis that the Family Court’s decision is incompatible with the fundamental principles of the COCA.2
1 [Henderson] v [White] [2025] NZFC 896 [the decision under appeal].
2 An order staying enforcement of that order pending resolution of the appeal was made in: [White] v [Henderson] HC New Plymouth CIV-2025-443-012, 7 April 2025 (Minute of McHerron J).
WHITE v HENDERSON [2025] NZHC 2274 (12 August 2025)
[3] Ms Henderson opposes the appeal. Her counsel filed memoranda of 2 April 2025 and 9 July 2025. However, Ms Henderson’s counsel did not appear at the appeal. Ms Henderson considers the costs decision under appeal was fair but will abide the decision of this Court.
The substantive judgment
[4] Jacob, the son of Mr White and Ms Henderson is not yet a teenager but the parties have been involved in various disputes concerning his care since he was two years of age. He is currently in Ms Henderson’s day-to-day care, with a contact arrangement with his father.
[5] A substantive judgment relating to Mr White’s contact time with Jacob was released on 24 October 2024.3 Judge Harrison found on the balance of probabilities that the child had been hurt physically by his father during their play fighting.4 However, she concluded that it was in the child’s best interests for unsupervised contact with his father be reinstated in a graduated way over time subject to reports on scheduled visits being provided to the hearing judge following the child’s visits.5
Costs decision
[6] After the substantive judgment, Ms Henderson made an application for costs seeking $33,616 on the basis of the costs schedule in the District Court Rules 2014 (the Rules).6
[7] In considering the costs award, the Judge first looked at the measure of success each party achieved. She said that at the very core of the proceeding was Ms Henderson’s claim that Mr White had been physically abusive to the child. Mr White had steadfastly denied the allegations and claimed the case was a “witch hunt”.7 The Judge made adverse findings against Mr White, saying his arguments
3 [Henderson] v [White] [2024] NZFC 13325 [the substantive judgment].
4 At [4].
5 At [5] and [187].
6 District Court Rules 2014. Schedule 4 sets out the appropriate time allocations for various steps and Schedule 5 sets out the appropriate daily rates.
7 The decision under appeal, above at n 1, at [22].
lacked merit and were rejected.8 The next question was whether the contact would remain supervised.9 In this respect, the Judge accepted that neither party was “wholly successful”.10 Ms Henderson had sought ongoing supervision by an agency pending Mr White providing further information and a transition to unsupervised contact.11 The Court however ordered unsupervised contact on a restricted and graduated basis, with reinstatement of the 2019 parenting order only to be achieved over time and following Mr White completing an in-person parenting course.12
[8] The Judge then considered the reasons the parties were engaged in litigation. She found that it was during proceedings initiated by Ms Henderson to prohibit the child “being taken to protests” that the child made disclosures that he did not want to go to his father’s home anymore.13 Mr White’s response to these disclosures led to Ms Henderson applying to vary the parenting order.14 The Judge therefore found that Ms Henderson had to “engage in unnecessary litigation because of the stance taken by [Mr White]”. He then attempted to expand the scope of the litigation to consider equal shared care.15
[9] The Judge rejected Mr White’s argument that Ms Henderson had unnecessarily prolonged the litigation.16 She also noted that while Mr White chose to give up employment due to the stress of the Family Court proceedings, he expected to get a job once the case was over.17 Mr White had also submitted that he chose to represent himself, but was in no better a financial position than a person funded on Legal Aid.18 The Judge commented that he did not submit any financial information to support his claim that he could not afford a costs award.19
8 At [23].
9 At [24].
10 At [26].
11 At [25].
12 At [27].
13 At [28].
14 At [29].
15 At [30].
16 At [32].
17 At [33].
18 At [34].
19 At [36].
[10] In conclusion, the Judge found that costs should be awarded in favour of Ms Henderson for the following reasons:
(a)The child remains in Ms Henderson’s day-to-day care, and she has incurred legal costs for the benefit of the child after his disclosure of being physically hurt by Mr White;
(b)The steps Ms Henderson took were reasonable and necessary, and were in the child’s best interests; and
(c)The steps incurred financial cost which directly reduced money available for the child’s benefit.
[11] Overall, she found it was for the welfare of and in the best interests of, the child, to make a costs order.20
[12] The Judge then considered the availability of “increased/indemnity costs” and accepted Ms Henderson’s submission that increased costs should be awarded.21 Actual costs equated to $18,000 compared to costs claimed on the District Court schedule amounting to $33,616. The Judge made a costs order in the sum of $20,000 against Mr White.
Legal principles
Approach to appeal
[13] An appeal against an order for costs is an appeal against an exercise of discretion.22 Accordingly, an appeal on costs cannot succeed unless it is shown that the court below acted on a wrong principle, failed to take account of relevant matters, factored in irrelevant matters, or was plainly wrong.23 Appellate courts will be slow to interfere with a lower court’s decision on costs, recognising the trial judge’s
20 At [40].
21 At [31] and [41].
22 Harrington v Wilding [2019] NZCA 605 at [14].
23 At [49]; and David Bullock and Tim Mullins The Law of Costs in New Zealand (lst ed. LexisNexis,Wellington, 2022) at 185.
“particular advantage” in knowing a “myriad of details that are difficult to replicate on appeal”.24
[14]Section 143 of the COCA relevantly provides:
143 Appeals to the High Court
(1)This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a)make or refuse to make an order (other than an interlocutory or interim order); or
(b)dismiss the proceedings; or
(c)otherwise finally determine the proceedings.
Costs under the Care of Children Act
[15] Section 142 of the COCA provides the statutory jurisdiction to award costs as follows:
142 Costs
(1)In any proceedings under this Act, the court may make any order as to costs it thinks fit.
…
[16] In the absence of statutory guidance in COCA, r 207 of the Family Court Rules 2002 provides:
207 Costs at discretion of court
(1)The court has discretion to determine the costs of—
(a)Any proceeding:
(b)Any step in a proceeding:
(c)Any matter incidental to a proceeding.
24 Tower Insurance Ltd and Elizabeth Mary Kilduff and Veritas (2012) Ltd (As Trustees of The Emosh Family Trust) [2019] NZCA 82 at [19]. See also Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [22].
(2)In exercising that discretion the court may apply any or all of the following DCRs, so far as applicable and with all necessary modifications:
(a)14.2—principles applying to determination of costs:
(b)14.3—categorisation of proceedings:
(c)14.4—appropriate daily recovery rates:
(d)14.5—determination of reasonable time:
(e)14.6—increased and indemnity costs:
(f)14.8—costs in interlocutory applications:
(g)14.9—costs may be determined by different judge:
(h)14.10—written offers without prejudice except as to costs:
(i)14.11—effect on costs:
(j)14.12—disbursements.
(3)This rule is subject to the provisions of the family law Act under which the proceedings ae brought.
[17] In turn, r 14.2 of the District Court Rules 2014 relevantly sets out the general principles applying to determination of costs:
14.2 Principles applying to determination of costs
(1)The following general principles apply to the determination of costs:
(a)the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds:
(b)an award of costs should reflect the complexity and significance of the proceeding:
(c)costs should be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required in relation to the proceeding or interlocutory application:
(d)an appropriate daily recovery rate should normally be two- thirds of the daily rate considered reasonable in relation to the proceeding or interlocutory application:
(e)what is an appropriate daily recovery rate and what is a reasonable time should not depend on the skill or experience of the solicitor or counsel involved or on the time actually spent
by the solicitor or counsel involved or on the costs actually incurred by the party claiming costs:
(f)an award of costs should not exceed the costs incurred by the party claiming costs (not being a party acting in person):
(g)so far as possible the determination of costs should be predictable and expeditious.
[18] The daily recovery rates and the time allocations considered reasonable for each step are set out in schedules 4 and 5 of the District Court Rules. Costs so calculated are also referred to as “scale costs”. The Court must in considering any application for costs in relation to care of children as in this case, have regard to the paramountcy principle contained in s 4(1) of the COCA. This provides that “the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration”. The Court of Appeal in Hawthorne v Cox, while noting that it had not heard full evidence on the point indicated that it approved of an approach to costs in which the welfare of the child is the overriding and paramount consideration (as required by s 4 of the COCA).25 This was emphasised in a decision of a full bench in R v S, where the High Court said:26
… it is wrong in principle to make an adverse order for costs against a parent who advances a genuine and responsible argument in what he or she regards as the best interests of the child. If costs orders are made in those circumstances they may operate as a disincentive for such arguments to be put to the Court. As the Family Court, in guardianship proceedings, exercises an inquisitorial jurisdiction it is important that all relevant arguments be put before the Court.
[19] As a matter of principle awards of costs are intended as a “reasonable contribution” to actual costs. The general goal of the costs scale is to allow a party to recover about two-thirds of their costs for each step at the prescribed daily rate.27
[20] An order for increased costs may be made under r 14.6. This includes cases where the proceedings were carried out in a way that was below standards of good practice, were unnecessarily prolonged or complicated, or where Court directions were not followed. Increased costs may also be awarded in cases where the proceedings
25 Hawthorne v Cox [2008] NZCA 146 at [27].
26 R v S [2004] NZFLR 207, (2003) 22 FRNZ 1017 at [63].
27 Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 [Bradbury v Westpac Banking Corporation (CA)] at [6].
legitimately exceeded the time allocated at the top end of the scale or where in the general public interest.
[21] Costs greater than provided for on the scale may be also awarded where the conduct of a party has been so outside the norm as to justify indemnity costs. This category of costs is intended to be invoked in more serious cases of vexatious or deliberately disobedient conduct and ought only to be awarded in "truly exceptional circumstances".28 Indemnity cost orders cover "the actual costs, disbursements, and witness expenses reasonably incurred by a party”.29
[22] Cooke J recognised that while some latitude needed to be given for parties who “behaved unreasonably by objective standards” and he did “not mean that costs should not be awarded when the conduct of a party has been unreasonable”.30 He also recognised that there will be cases where an award is “insufficient and an award of indemnity costs is appropriate”.31 In Adams v Watcher, the Family Court Judge had not conducted an analysis of the options, but had proceeded straight to an award of indemnity costs.32 Nor had the Judge considered whether the increased award should apply only with respect to some steps in the proceedings,33 the award also covered all actual expenditure and it was not clear whether some of the charges related to matters which were properly covered by the costs rules.34
Application to file further evidence on appeal
[23] At the High Court appeal management conference on 7 April 2025 Mr White sought to file an affidavit sworn in February 2025 as to his financial means. Mr White had initially sought to file evidence of his means after the decision on appeal was delivered. He said he only filed it then because the Judge had called for submissions
28 D v B FC Napier FAM-2005-041-591, 17 July 2007 at [25] citing Hedley v Kiwi Co-op Dairies Limited (2002) 16 PRNZ 694 and Tidd Ross Todd Limited v Stellbro New Zealand Limited (unreported, High Court, Christchurch, CIV-2004-409-1386, 7 March 2006).
29 District Court Rules, r 14.6(1)(b).
30 Adams v Watcher [2021] NZHC 432 at [17].
31 At [21].
32 At [21].
33 At [22].
34 At [23].
on costs beforehand but not for evidence. The Judge dealt with the costs application on the papers.
[24] The February 2025 affidavit indicates that Mr White’s income in the 52 weeks prior to 7 February 2025 (just prior to the Family Court costs hearing) was less than his outgoings. It also showed assets including a house. Mr White had been largely unemployed in that period.
[25] In the High Court on appeal, Ms Henderson was given the opportunity to respond to Mr White’s affidavit and did so in a memorandum dated 9 July 2025. She does not oppose the application for leave to file further evidence but pointed out that he had not disclosed his current income position as an IT systems engineer earning more than double the income he had declared and further that he has other assets.
[26] In response to that submission at the appeal hearing, Mr White handed up a further affidavit sworn by him dated 15 July 2025 in which he outlines his present financial position. He confirms his income has substantially increased. In response to the submission that he had shares, he says he has sold his shares to clear debt. He also refers to other assets.
[27] Rule 20.16 of the High Court Rules 2016 allows for the filing of further evidence on appeal with leave. Leave is only granted for special reasons.35 Generally the evidence must be fresh, credible and cogent.36 In this case the evidence sought to be filed has relevance relating to Mr White’s financial position. This was an issue in the decision under appeal and it is appropriate that his financial information be updated for the appeal. Therefore, the two affidavits are admitted.
Bundle of documents on appeal
[28] Mr White did not file the required bundle of the documents relating to the decision on appeal within 20 days following the appeal management conference as
35 High Court Rules 2016, r 20.16(3).
36 B v A [2020] NZHC 580 at [25].
required under the High Court Rules.37 In order not to delay the appeal being heard, on the morning of the appeal the Registrar photocopied the relevant documents from the Family Court file to use as the bundle on appeal and provided a copy to Mr White.38
The appellant’s submissions
[29] Mr White says the decision on appeal is procedurally flawed, substantively unjust, and incompatible with the fundamental principles of the COCA. He says the Court failed to properly consider his financial hardship, overlooked the partially favourable outcome of the proceedings, and relied on historical allegations that were neither tested nor supported by expert findings or corroborating evidence.
[30] Ms Gelston in her memorandum for Ms Henderson submits that the costs order of $20,000 made in the decision under appeal is reflective of the “long running and involved court process” leading to the costs order. She says the judge applied the correct legal principles.
[31]Mr White’s appeal arguments fall under the following main heads:
(a)that he was substantively successful in the underlying proceedings and there was a lack of evidential foundation for the costs award;
(b)failure to consider the interests of Jacob and the emotional and psychological impact on both Jacob and Mr White;
(c)failure to properly consider financial hardship; and
(d)unexplained uplift in the award of costs.
[32] I deal with the appeal under those headings. Then I separately deal with the issue of quantum of costs, and of increased or indemnity costs.
37 High Court Rules, r 7.14(5) and sch 6(8) which requires that a bundle must be filed 20 working days after the conference for the appeal.
38 I waived the obligation on Mr White to file the common bundle as required.
Substantive success in the underlying proceedings and lack of evidential foundation
[33] In the Family Court Ms Henderson sought increased costs and indemnity costs under r 14.6. She argued Mr White pursued arguments that lacked merit, made false allegations, behaved in a manner that had unnecessarily prolonged litigation, and caused unnecessary stress on the child as well as persisting in pursuing a shared care arrangement which the Court had made clear was not open to him.
[34]Ms Gelston in her memorandum says the costs award was reasonable.
[35] Mr White said the Family Court mischaracterised his applications as part of a vexatious pattern of litigation, despite making no findings of actual malice, bad faith or improper purpose in this instance. There was no evidence presented of irresponsible or inappropriate litigation tactics by Mr White in the current proceedings. By contrast, Ms Henderson filed extensive and emotionally charged affidavits, and opposed contact even after Mr White’s supervised access proved uneventful.
[36] Mr White says that his key objective in the proceedings was to remove the restriction of his only having supervised contact. He said he achieved this. The Court found that supervised contact was not in the child’s best interests, and that Ms Henderson’s concerns over safety were not justified. He said this was the central issue in dispute. Therefore, the costs order punishes him for succeeding on the main issue in his case. Mr White submits this is also contrary to the principle that a parent who advances responsible, child-focused arguments should not face punitive costs.39
Analysis
[37] Mr White says the Judge wrongly assessed the measure of success each party achieved. In fact, the Judge found that the “very core of the proceeding” was the claim that he had been physically abusive.40
[38]On this issue the Judge said:
39 R v S, above n 26, at [63]–[65] and [72]; IA v RRN [2017] NZHC 1997 at [10].
40 The decision under appeal, above n 1, at [22].
[22] At the very core of the proceeding was [Ms Henderson’s] claim that [Mr White] had been physically abusive to [Jacob]. [Mr White] steadfastly denied the allegations. He claimed the case was a witch hunt. And that it was about false allegations (claiming those who had received disclosures from [Jacob] were dishonest or biased), parental alienation and the Family Court’s inherent bias against fathers.
[23] The Court made adverse findings against[Mr White], that he had hurt [Jacob]. His arguments lacked merit and were rejected.
[39] The hearing had taken place over some four days (22–25 July 2024) with the substantive judgment running to some 191 paragraphs. The Judge there found that Jacob had disclosed that his father had hurt him and she rejected Mr White’s claims that these were false allegations.41 The Judge concluded that the child was hurt by his father in playfighting but the risk of being physically hurt in the future was low.42 Further under the heading “[Jacob’s] Psychological Safety” the Judge noted that “developmental influences”43 were at play and found that now Mr White had had the benefit of two years of supervised contact and “was developing a more compassionate approach to [Jacob]”.44 The Judge also noted that she treaded “carefully” with the return to unsupervised contact45 and put in place a graduated increasing programme of unsupervised contact subject to reports back to the hearing judge.46
[40] In the course of her substantive decision, the Judge commented on Mr White’s “entrenched views… about the Family Court, lawyers and judges”47 and his “adverse campaign” against Ms Henderson’s previous lawyer leading to the lawyer having to get a restraining order against Mr White.48 Mr White had also sought equal shared care and claimed damages. Both of the claims were dismissed, the Judge also noting that Mr White had not paid various costs ordered.49
[41] While Mr White takes issue with the findings of the Judge in the substantive decision, he accepts that decision is not the decision on appeal.
41 The substantive judgment, above n 3 at [85] and [86].
42 At [105]–[106].
43 At [107].
44 At [107].
45 At [173].
46 At [173] and [187].
47 Ay [108].
48 At [109].
49 At [183]–[186].
[42] The Judge was in the best position to note the assessment as to the manner in which Mr White conducted the proceeding. The basis for that assessment is noted in her judgment. For instance, his continuing to seek equal care even when that was clearly not an option, his seeking damages and his actions leading to the counsel for Ms Henderson seeking a protection order.
[43] I accept that Mr White had some measure of success in that he gained some unsupervised access. However, the Judge made no error in her conclusion that adverse findings had been made against Mr White both as to his hurting the child and that while he gained some supervised access, it was graduated. In addition, the Judge gave reasons for the award of costs and she was entitled to exercise her discretion on the basis of her assessment.
Failure to consider the interests of the child and the emotional and psychological impact on Mr White
[44] Mr White argued that the Court did not consider the psychological toll these proceedings had on both him and on the child. While the costs award does not directly regulate care arrangements, Mr White submits that its practical effect limits the ability for him to participate in future proceedings that may be necessary to support or safeguard his child’s welfare. He argues that this is contrary to s 4 of the COCA.50 He says that the Family Court failed to properly weigh the real and likely consequences of the $20,000 award on the child’s long-term welfare. The appellant’s affidavit of means demonstrates that such a financial burden will significantly compromise his ability to support his son, establish housing stability, or engage in further litigation to resolve outstanding parenting matters.
[45] Mr White refers to a number of authorities in support of his argument. For instance, IA v RRN in which Muir J preferred a “child centred approach” to costs awards.51 He said that in that context, there was therefore no presumption that costs
50 Care of Children Act 2004, s 4 (1). The welfare and best interest of the child in his or her particular circumstances must be the first and paramount consideration — (a) in the administration and application of this Act, for example, in proceedings under this Act; and (b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
51 Adams v Watcher above n 30 at [17]
would follow the event.52 However, as Cooke J said in Adams v Watchman, costs may be awarded against a party who acts unreasonably.53 In that case, the Judge concluded that a combination of the three related errors in assessing indemnity costs meant the costs award for indemnity costs could not stand and the order was quashed.54
[46] The Judge here clearly set out the principles in relation to the award of costs in COCA matters referring to the “primary guiding consideration” being the best interests of the child.55 She referred to the decision in IA v RNN noting a costs award may not be made against a parent who “advances a genuine and responsible argument in which he or she regards as the best interests of the child”.56 The Judge then set out the cost principles from A v A in such cases:57
(a)the outcome of the proceedings;
(b)the way in which the parties and their legal advisors have conducted the proceedings;
(c)the means of the parties;
(d)the actual costs incurred by the parties;
(e)the overall interests of justice; and
(f)the impact any costs order will or might have on the welfare of the children.
[47] The Judge assessed the circumstances and found that Ms Henderson had to engage in unnecessary litigation because of the stance taken by Mr White.58 She said that this included Mr White expanding the scope of the litigation unreasonably.
52 At [17].
53 At [17].
54 At [21]–[23].
55 The decision under appeal, above at n 1, at [17].
56 At [10].
57 At [20], citing A v A [1999] NZFLR 447 (FC) at 452.
58 The decision under appeal, above n 1, at [30].
[48] The Judge had the benefit of close involvement in the course of the proceedings and presiding over the hearing. She was uniquely placed to determine costs according to the relevant principles. She properly considered the paramountcy of the interests of the child and in exercising her discretion came to a decision that it was appropriate to award costs. That was a decision open to her.
Failure to properly consider financial hardship
[49] Mr White in his submissions on the application for costs in the Family Court asserted he had no savings to pay costs and had become unemployed in March 2023. The Judge accepted those submissions. She noted that Mr White had chosen to give up employment because of the toll of the proceedings and submitted that his health had suffered.59 The Judge records that Mr White submitted that he had chosen to represent himself in order to save incurring further debt.60 The Judge also notes that he intended to obtain employment once the case was over.61 However, as the Judge notes Mr White had not filed any financial information in support of his claim such as a declaration of financial means and their sources.62
[50] Mr White was given the opportunity to file submissions on costs in the Family Court. He did so. In his submissions dated 6 December 2024 (in response to the submissions of 15 November 2024), he put forward his inability to pay without providing more detail than that to which the Judge refers to in her costs decision. After the delivery of the Family Court judgment, Mr White says he tried to file an affidavit of his means apparently the same as the one he has filed in the High Court dated 5 February 2025.
[51] Mr White had been given the opportunity to put his position before the Family Court and he had done so in his submissions. The 5 February 2025 affidavit in any event would have been of limited assistance to the Judge as it only dealt with his position over the last 12 months. Mr White is now earning more.
59 At [33].
60 At [34].
61 At [33].
62 At [36].
[52] In relation to the issue of hardship in this case, the Judge had considered the position as put forward by Mr White. She concluded that hardship did not preclude the payment of costs at the level she was contemplating, of $20,000 on that basis that he would earn more in the future.63 That has proved to be the case. The Judge made no error in exercising her discretion based on her assessment. Nevertheless, I note that issues of financial hardship will be of greater weight in awards of costs in relation to proceedings where children are involved given the paramountcy of their interests must be considered.
Unexplained uplift
[53] Mr White points out that Ms Henderson had sought costs on a schedule 2B basis totalling $33,616. She had set out the scheduled steps making up the claim as well as the time taken in a table of costs attached to her memorandum in the Family Court. Mr White criticises a narration in the table relating to “selecting documents for common bundle”. This work together with the preparation of lists of issues and authorities and all other preparation was charged at 2.25 days, amounting to $4,297.50. Mr White submits this claim cannot be allowed as it was the lawyer for the child who actually prepared the common bundle pursuant to a direction of Judge Greig.64 However, there was no inconsistency as it is not the preparation of the common bundle which is described in the narration, but, among other things, the selection of the documents required on behalf of Ms Henderson to be included in the common bundle.
[54] The Judge in her decision notes that references to post hearing costs were not included in the calculation for costs presumably referring to the 2B table of costs supplied in Ms Gelston’s submissions. The Judge also refers to earlier proceedings under the Family Violence Act 2018 in 2022 and 2024 as having no relevance to the costs application.65 She also notes that earlier costs orders had not been paid in full.66
63 That is not to say that Mr White might not need to make arrangements for the payment of those costs over time as he had clearly done so for the earlier payments.
64 [Henderson] v [White] FC New Plymouth FAM-2017-043-019, 19 September 2023 (Minute of Judge Greig).
65 The decision on appeal, above n 1, at [32].
66 The Judge refers to Mr White not having paid some of the costs awarded at earlier stages of the proceedings. The substantive decision, above n 3, at [185]
[55] Mr White further submits there was a lack of evidential foundation and an unexplained uplift in the costs order. Ms Henderson had not provided evidence as to her actual legal costs, however, the Judge accepted her “actual costs” were $18,000 as asserted in Ms Gelston’s memorandum on costs. The Judge then uplifted that figure to $20,000 without explanation.
[56] The Judge was not in error in determining that it was appropriate to award costs and such an award was within her discretion.67 However, that discretion must be exercised according to established principles.68 Costs are usually to be assessed by applying the appropriate daily recovery rate to the time considered reasonable for each step reasonably required.69 For instance Category 2 is allocated for proceedings of average complexity requiring counsel of average skill and expertise and B represents a normal amount of time expended on the step to which it is applied by a counsel at that skill level. This was the categorisation and rate sought by Ms Henderson in her costs application and it would appear to be an appropriate categorisation in the circumstances. The case involved a substantial amount of evidence, and a hearing which took place over four days as well as issues of fact and law which were not straightforward.
[57] However, in the Family Court, Ms Gelston said that the actual costs charged to Ms Henderson were $18,000. An increase of that figure to 2B costs was sought because of Mr White’s conduct. Ms Gelston also submitted in her memorandum filed in the appeal that the costs award was reasonable and that over the course of the Family Court proceedings Ms Henderson had incurred legal fees of $49,040 which she says are reasonable compared to schedule 2B costs that could have been incurred. The detail of that amount is not provided nor whether costs have already been awarded in relation to at least part of the work covered by these costs.
[58] Costs are awarded to compensate a party for some or all of the expenses they have incurred in connection with a proceeding. They are not a damages award. To
67 District Court Rules 2014, r 14.1.
68 Rule 14.2.
69 Rule 14.2(1)(c).
that end, an award of costs should not exceed the costs incurred by the party claiming the costs.70
[59] In this case there was a lack of information before the Court as to the level of actual legal fees payable. This information is usually provided by the party claiming costs in the form of copies of the invoices detailing the work attached to a memorandum. This did not occur here.
[60] The assertion that actual costs incurred were $18,000 was not accepted by Mr White. The usual manner of dealing with costs is by submissions on the papers. It is relatively uncommon for that material to be provided by way of affidavit.71 The Judge made no error in not requiring the information concerning the fees charged to be provided by affidavit. However, at a minimum, copies of the legal fee invoices should have been provided to the Court by Ms Gelston and served on Mr White. He should also have been given the opportunity to comment on them by way of submission. The costs note from Ms Gelston should have included sufficient detail to explain what the fees charged covered and what work was involved to ensure only costs relating to the proceeding were included.
[61] In conclusion, the award of an amount of costs which apparently exceeds the actual costs incurred is an error. In addition, narrated costs invoices relating to the work claimed should have been filed and served.
Conclusion on appeal — liability for costs
[62] I conclude that the Judge acted on no wrong principle in relation to determining that costs were appropriate. She did not fail to take into account relevant matters, factor in irrelevant matters, nor was she plainly wrong in relation to her decision to award costs. She exercised her discretion appropriately. Accordingly, there is no reason to disturb her finding in relation to the case that it was appropriate to award costs against Mr White.
70 Rule 14.2(1)(f).
71 In large cases where substantial indemnity costs are sought the judge may require more formality: see Bradbury v Westpac Banking Corporation (2008) 18 PRNZ 859 (HC) at [198]–[214], upheld on appeal in Bradbury v Westpac Banking Corporation (CA), above n 27 at [88]. The schedule at
[212] of the High Court judgment provides an example of how to present at large claim.
Conclusion on quantum of award of costs and of increased or indemnity costs
[63] On the question of quantum however, I conclude that the Judge acted on a wrong principle and was plainly in error in assessing the quantum of the costs and awarding an amount above the actual costs incurred.
[64] First, as I pointed out, the actual costs of $18,000 were less than the award made of $20,000. Secondly there is no evidence upon which the Judge could properly rely in relation to the actual costs. The Judge had no invoices or other material which would enable her to ascertain the actual fees and ensure that they related to work on matters properly covered by costs. That information should have also been provided to Mr White and he should have been given the opportunity to comment on it.
[65] Where a court orders increased or indemnity costs, it should consider the extent to which the failure to act reasonably contributed to the time or expense of the proceeding. Only to that extent can any percentage uplift from scale be justified.72 Reasons for an uplift from a reasonable contribution to actual costs must be articulated.
[66] In this case, the Judge had a particular advantage and knew “a myriad of details that are difficult to replicate on appeal”.73 Indemnity costs are available where an award of costs or even increased costs is inadequate in the circumstances of the case. It was open to the judge to award increased or indemnity costs based on Mr White’s conduct of the proceedings. However, the court is required to give the reasons for any increased or indemnity costs awarded relating to the conduct of the proceedings and the quantum of such an uplift.
Relief
[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
72 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [165].
73 Tower Insurance Ltd and Elizabeth Mary Kilduff and Veritas (2012) Ltd (As Trustees of The Emosh Family Trust) above n 24, at [19]. See also Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) above n 24, at [22].
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 rehearing74 and determining the quantum including whether increased or indemnity costs should be awarded, taking into account the comments set out in this judgment.75
Grice J
74 High Court Rules, r 20.19(1)(b)(i). The matter may be dealt with on the papers.
75 Rule 20.19(3).
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