NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/	
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CIV 2019-419-0058
[2019] NZHC 1659	

BETWEEN	ARG
Appellant	
AND	BKL
Respondent	

Hearing:	On the papers	
Appearances:	J I Hawker for the appellant
S E Hughes for the respondent	
Judgment:	17 July 2019	

JUDGMENT OF JAGOSE J
[Costs]

This judgment is delivered by me on 17 July 2019 at10.00 am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
Wynyard Wood, City Office, Auckland Sarah Hughes, Wellington

ARG v BKL [2019] NZHC 1659 [17 July 2019]

[1]	My judgment of 1 July 2019, dismissing ARG’s appeal against parenting orders made under the Care of Children Act 2004 (the “Act”), took the preliminary view BKL was entitled to 2B costs and disbursements.1

[2]	BKL accepts that view, but (given HCR 14.2(1)(f)’s principle “an award of costs should not exceed the costs incurred by the party claiming costs”) properly acknowledges BKL’s legally-aided costs are likely to be less than if calculated at scale.

[3]	ARG, however, resists paying costs to BKL on grounds:

(a)	given the background of disputes between the parties in other proceedings, including in other courts, in which payment of costs had not been pursued, even when ordered;

(b)	even though unsuccessful, pursuit of the appeal gave the parties clarity as to their respective obligations under the parenting orders; and

(c)	such clarity advanced the welfare and best interests of the children, which is the first and paramount consideration in all matters under the Act,2 not to be discouraged by the prospect of costs liabilities.

[4]	I am not prepared to have regard for the parties’ conduct in other proceedings as a relevant consideration on an award of costs in this. Although I acknowledge costs should not be such as to deter parents from pursing their children’s welfare and best interests,3 that is not the present case on an unsuccessful appeal. If the lower court’s decision was not understood, there were more direct ways in the circumstances of obtaining its clarification than launching an appeal. And the appeal was illegitimately broad, even beyond that clarification.

[5]	I order ARG pay BKL costs and disbursements in the amount incurred, to a maximum of $9,812.00 calculated as 2B costs.

—Jagose J

1	ARG v BKL [2019] NZHC 1514 at [26].
2	Care of Children Act 2004, s 4.
3	Hawthorne v Cox [2008] NZCA 146 at [26]-[28].