TASMAN CHARTERS INCORPORATED (IN LIQUIDATION IN NEW ZEALAND) & ORS V KAMPHUIS & ORS HC AK CIV 2003-404-1642

TASMAN CHARTERS INCORPORATED (IN LIQUIDATION IN NEW ZEALAND) & ORS V KAMPHUIS & ORS HC AK CIV 2003-404-1642

No material change of circumstances justified reversing earlier staged orders; discovery improved plaintiffs' case but not decisively; defendants face real and appreciable risk of non-recovery of costs from an overseas/liquidated plaintiff and lack enforceable assurances; exercising discretion accordingly, further security totaling NZD 70,000 (plus payment of outstanding NZD 6,956.50 by defendants 2-4) ordered and proceedings stayed until lodged.

Citation
openlaw-53ba36f0_ffe0_4acb_ab52_a74d51df0bbb.pdf
Parties
First Plaintiff: Tasman Charters Incorporated (in liquidation in New Zealand); Second Plaintiff: Southern Cross Stevedores Limited; Third Plaintiff: Container Exchange (UK) Limited; First Defendant: Kornelius Herman Derk Kamphuis; Second Defendant: Tradex (Brokerage) UK Limited; Third Defendant: Ocean Link Agencies Limited; Fourth Defendant: Barrymore Evans; Fifth Defendant: Reef Shipping Limited; Sixth Defendant: Philip McNicholl; Seventh Defendant: Pacific Direct Line SARL; Eighth Defendant: Olivier Ravel; Ninth Defendant: Moana Navigation SA; Tenth Defendant: Alain Cesbron
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 February 2006
Procedural Posture
Commercial Civil Litigation (joint Venture/maritime) / Pre Trial Application for Further Security for Costs
Outcome
Plaintiffs' application to vary or reverse earlier security orders dismissed; further security for costs ordered against first and third plaintiffs and payment by defendants 2-4 of outstanding costs; stay of proceedings until security provided; costs of this application awarded to defendants on 2B basis.
Legal Topics
Security for Costs, Liquidator Litigation, Breach of Fiduciary Duty, Dishonest Assistance, Knowing Receipt, Voidable Transactions (property Law Act), Foreign Law Evidence, Trial Management
Civil Procedure Company Law Insolvency/liquidation Equitable Remedies/fiduciary Duties Property Law Conflict of Laws/foreign Law Evidence Security for Costs Liquidator Litigation +6 more

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Parties

Tasman Charters Incorporated (in liquidation in New Zealand)

First Plaintiff

Southern Cross Stevedores Limited

Second Plaintiff

Container Exchange (UK) Limited

Third Plaintiff

Kornelius Herman Derk Kamphuis

First Defendant

Tradex (Brokerage) UK Limited

Second Defendant

Ocean Link Agencies Limited

Third Defendant

Barrymore Evans

Fourth Defendant

Reef Shipping Limited

Fifth Defendant

Philip McNicholl

Sixth Defendant

Pacific Direct Line SARL

Seventh Defendant

Olivier Ravel

Eighth Defendant

Moana Navigation SA

Ninth Defendant

Alain Cesbron

Tenth Defendant

Procedural Posture

Commercial Civil Litigation (joint Venture/maritime) / Pre Trial Application for Further Security for Costs

Legal Issues

  1. 1 Whether earlier staged security for costs orders should be varied or set aside due to change of circumstances
  2. 2 Whether further security for costs should be ordered under r60(1) High Court Rules against overseas and liquidated plaintiffs
  3. 3 Quantum of additional security including expert costs

Ratio Decidendi

No material change of circumstances justified reversing earlier staged orders; discovery improved plaintiffs' case but not decisively; defendants face real and appreciable risk of non-recovery of costs from an overseas/liquidated plaintiff and lack enforceable assurances; exercising discretion accordingly, further security totaling NZD 70,000 (plus payment of outstanding NZD 6,956.50 by defendants 2-4) ordered and proceedings stayed until lodged.

Court Disposition

Plaintiffs' application to vary or reverse earlier security orders dismissed; further security for costs ordered against first and third plaintiffs and payment by defendants 2-4 of outstanding costs; stay of proceedings until security provided; costs of this application awarded to defendants on 2B basis.

Orders

  • Plaintiffs' application to vary or reverse earlier security orders dismissed
  • First plaintiff to provide further security to first defendant of NZD 15,000