Kidd v Right Investments Limited

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-578

[2025] NZHC 2707

BETWEEN
HILARY VICKY KIDD

Appellant

AND

RIGHT INVESTMENTS LIMITED

Respondent

Written submissions:
27 August 2025; 5 September 2025; 5 September 2025 and

12 September 2025

Appearances:

M P Davis for Appellant

G M Brodie for Respondent

Judgment:

17 September 2025

JUDGMENT OF OSBORNE J

[fixing costs]

Background

[1] By my judgment dated 14 August 2025 (Judgment),1 the appellant was successful in her appeal against judgments of the District Court.2

[2] In the Judgment, I allowed the appeal on the basis of the evidence as it had been presented in the District Court.

[3] I ordered the respondent to pay the appellant’s costs on a 2B basis together with the appellants’ reasonable disbursements, to be fixed by the Registrar.3

1      Kidd v Right Investments Ltd [2025] NZHC 2306.
2      Right Investments Ltd v Kidd [2024] NZDC 6683; and Right Investments Ltd v Kidd [2024] NZDC 15276.
3      High Court Rules 2016, Category 2 under r 14.3(1) and band B under r 14.5(2).

KIDD v RIGHT INVESTMENTS LTD [2025] NZHC 2707 [17 September 2025]

[4] For the purpose of her appeal, the appellant applied under r 20.16 High Court Rules 2016 for leave to adduce further evidence. The evidence related to decisions of bodies under the Real Estate Agents Act 2008 (the Real Estate decisions) and included a summary of statements made by Murray Irvine, the director of the respondent, in the course of the Committee’s investigation. The respondent opposed the application.

[5] In the present proceeding, case management directions were made for the interlocutory application to be heard at the same time as the substantive appeal. Both counsel presented, as directed, written submissions on the interlocutory issue as part of their submissions for the hearing.

[6] It transpired that, as a result of the conclusions I reached on the substantive issues, it was unnecessary to determine the interlocutory application. I therefore did not express a conclusion in relation to the interlocutory application—I neither granted nor dismissed it.

The appellant’s costs

[7] Mr Davis had identified the appellant was legally aided for the purposes of the appeal. That does not affect the appellant’s entitlement to an award of costs subject only to the limitation under r 14.2(1)(f) of the Rules.4

[8] Mr Davis has identified (correctly) that the costs of the appeal calculated on a 2B basis would amount to $13,742.50.

[9] Mr Davis has then properly disclosed (relevantly to r 14.2(1)(f)) that the appellant’s actual costs totalled $8,216.98.

[10] The appellant accordingly requested the Deputy Registrar to fix costs in the sum of $8,216.98.

4 Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC) at [43].

The issue

[11] Mr Brodie, for the respondent, accepted the quantum of costs sought by the appellant was “reasonable” but submitted the $8,216.98 claim should be reduced by
$2,500 (plus GST) to “reflect the wasted effort involved in defending [the] unsuccessful [interlocutory] application”. Mr Brodie referred to the considerable research he had undertaken in relation to the Real Estate decisions, resulting in significant expense in preparing a detailed (six-page) legal submission on the interlocutory issue.

[12] For his part, Mr Davis noted the Judgment did not contain any findings as to the success or failure of the interlocutory application and made no award of interlocutory costs. Mr Davis further, alternatively, noted that any entitlement of the respondent to an award of 2B costs (approaching its costs on the same basis as those awarded to the appellant) would have seen the respondent’s interlocutory costs set at
$5,019. As the deduction of that sum from the appellant’s entitlement on a 2B basis ($13,732.50) produces a net figure higher than the appellant’s actual costs, the correct outcome is to fix costs at the $8,216.98 figure.

Discussion

[13] This Court frequently, for case management purposes, sets down interlocutory evidential issues for determination at the substantive trial itself. That is sometimes done for timing reasons. It is also done, as here, out of recognition that having a single hearing may prove a more efficient and cost-effective way of resolving the proceedings as a whole. In some cases, as here, it transpires the substantive issue on appeal is capable of determination without reference to the outcome of any interlocutory issue.

[14] In this case I refrained from determining the interlocutory application precisely because my substantive conclusion rendered the interlocutory issue moot.

[15] Rule 14.8(1) of the Rules provides for the fixing of the costs of an interlocutory application “when the application is determined”. It is that provision on which Mr Brodie relies for his proposed off-setting. But there has not been a determination

of the interlocutory application. Pursuant to my overriding discretion in relation to costs, I consider the appropriate outcome is that the costs of the interlocutory application and the opposition to it should lie where they fall.

[16]On that basis, costs will be fixed in the sum of $8,216.98.

[17] Even had it been appropriate to fix the costs of opposing the interlocutory application in favour of the respondent, and to effect an off-setting, I would not have done so on the basis proposed by Mr Brodie. I would have viewed the appropriate figures for off-setting to be the costs of each party calculated on a 2B basis, that is
$13,742.50 for the appellant and $5,019 for the respondent, subject then to the application of r 14.2(1)(f). Given that the off-setting would result in a tentative award in favour of the appellant greater than the $8,216.98 costs actually incurred by the appellant, the respondent’s entitlement to have its costs off-set does not alter the appropriately fixed sum.

Result

[18] Pursuant to the award in the Judgment dated 14 August 2025,5 I fix the appellant’s costs and disbursements in the sum of $8,216.98.

Osborne J

Solicitors:
MDS Law, Christchurch Taylor Shaw, Christchurch

Counsel: G M Brodie, Barrister, Christchurch

5 Kidd v Right Investments Ltd, above n 1, at [34].

In the case of Kidd v Right Investments Limited, the appellant, Hilary Vicky Kidd, successfully appealed against District Court judgments, leading to a reassessment of her costs by the High Court. The respondent, Right Investments Limited, opposed the appellant's application to present additional evidence related to decisions under the Real Estate Agents Act 2008. The court did not need to determine this application as the substantive issues were resolved independently. The court needed to decide on the appropriate costs for the appeal, specifically whether to reduce the appellant's costs by the amount the respondent claimed as wasted effort on the interlocutory application. The respondent argued for an offset, suggesting the appellant's costs should be reduced by $2,500 plus GST. The appellant's counsel countered that the interlocutory application was never determined, and thus, no offsetting should occur. The court found that it was not appropriate to reduce the appellant's costs based on the respondent's argument, as the interlocutory application had not been determined. Consequently, the court fixed the appellant's costs at $8,216.98, as requested.

The court emphasized that interlocutory applications are sometimes set for determination at the substantive trial for efficiency, and in this case, the substantive issues rendered the interlocutory matter moot. The court relied on its discretion under Rule 14.8(1) of the High Court Rules, which provides for the fixing of costs when an application is determined. Since the interlocutory application was not determined, the court declined to offset the costs, maintaining that the appropriate outcome was for the costs of the interlocutory application to lie where they fell. The court concluded that any offsetting should be based on the costs calculated on a 2B basis, which would still result in the appellant's actual costs being the appropriate amount to award.

In light of the above, the court fixed the appellant's costs in the sum of $8,216.98, in accordance with the previous judgment dated 14 August 2025. The court did not make any deductions for the interlocutory application, as it was not determined, and the respondent's costs on the application should lie where they fell. The court's decision reflects the importance of ensuring that costs are fairly and justly allocated, particularly when interlocutory applications do not impact the substantive outcome of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established