N-TECH LIMITED AND ANOR V ABOOTH LIMITED (IN REC.) AND ANOR HC AK CIV-2006-404-003362

N-TECH LIMITED AND ANOR V ABOOTH LIMITED (IN REC.) AND ANOR HC AK CIV-2006-404-003362

The Court allowed a limited review of Judge Abbott's security order because category 3 was the appropriate costs category; recalculated security using Judge Abbott's methodology updated to category 3 and current daily rates and ordered plaintiffs to provide additional security to top up to $140,394 for completion of discovery (inspection) and further security to trial of $795,358, but held the Court has no jurisdiction to require security for costs a defendant might owe to third parties and treated affirmative defences as a discretionary factor in fixing quantum rather than a bar to ordering security.

Citation
openlaw-af45d625_7616_4f80_895d_ea96623751ee.pdf
Parties
First Plaintiff: N-TECH LIMITED; Second Plaintiff: ST LUCIA INVESTMENTS LIMITED; First Defendant: ABOOTH LIMITED (IN REC.); Applicants/defendants: INVESTOR GROUP DEFENDANTS; First Third Parties: R J CHAPMAN; G D C WALKER; T F MCGRATH; Second Third Parties: M V RICHARDSON; T J GOLDFINCH; Fourth Third Party: DENHAM MARTIN & ASSOCIATES; Fifth Third Party: G S C K SIDNAM; First Counterclaim Defendant: J A REID; Second Counterclaim Defendant: H MILLOY
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 November 2010
Procedural Posture
Civil Proceedings Concerning Security for Costs / Interlocutory — Review of Security for Costs Order and Application for Further Security to Trial
Outcome
Application to review partially allowed; further security for costs ordered
Legal Topics
Security for Costs, Review of Interlocutory Order, Costs Assessment Methodology, Third‑party/cross‑claims, Effect of Affirmative Defences
Civil Procedure Costs Company/insolvency Procedure Security for Costs Review of Interlocutory Order Costs Assessment Methodology Third‑party/cross‑claims Effect of Affirmative Defences

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Parties

N-TECH LIMITED

First Plaintiff

ST LUCIA INVESTMENTS LIMITED

Second Plaintiff

ABOOTH LIMITED (IN REC.)

First Defendant

INVESTOR GROUP DEFENDANTS

Applicants/defendants

R J CHAPMAN; G D C WALKER; T F MCGRATH

First Third Parties

M V RICHARDSON; T J GOLDFINCH

Second Third Parties

DENHAM MARTIN & ASSOCIATES

Fourth Third Party

G S C K SIDNAM

Fifth Third Party

J A REID

First Counterclaim Defendant

H MILLOY

Second Counterclaim Defendant

Procedural Posture

Civil Proceedings Concerning Security for Costs / Interlocutory — Review of Security for Costs Order and Application for Further Security to Trial

Legal Issues

  1. 1 Whether Judge Abbott's security for costs order should be reviewed
  2. 2 Appropriate costs category to apply (category 2 v category 3)
  3. 3 Quantum of further security to be ordered to completion of discovery and to trial

Ratio Decidendi

The Court allowed a limited review of Judge Abbott's security order because category 3 was the appropriate costs category; recalculated security using Judge Abbott's methodology updated to category 3 and current daily rates and ordered plaintiffs to provide additional security to top up to $140,394 for completion of discovery (inspection) and further security to trial of $795,358, but held the Court has no jurisdiction to require security for costs a defendant might owe to third parties and treated affirmative defences as a discretionary factor in fixing quantum rather than a bar to ordering security.

Court Disposition

Application to review partially allowed; further security for costs ordered

Orders

  • Plaintiffs to top up existing security so total security for completion of discovery (including inspection) is $140,394 (credit allowed for amounts already provided)
  • Plaintiffs to provide further security for steps from now to and including trial in the sum of $795,358 by 31 January 2011