cc048bb9-548e-49df-a826-ae704a2b1fa6.pdf

cc048bb9-548e-49df-a826-ae704a2b1fa6.pdf

Threshold under r 5.45 was met; the court found the counterclaim weak as to any PRA cause (estate final distribution by deed 14 Oct 2016) but could not exclude a plausible FPA claim because s 2(4) FPA may have preserved the estate until dispositions passed to beneficiaries; weighing merits, impecuniosity and access to courts, it was just to order security for costs of NZD 15,000 payable in two stages and to stay the counterclaim until payment.

Citation
openlaw-e1db56e8_e6cf_4431_b6b5_a4c8588784af.pdf
Parties
Plaintiff / Counterclaim Defendant: Melanie Takarangi; Defendant / Counterclaim Plaintiff: Gemma McConkey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 July 2021
Procedural Posture
Civil Debt Recovery and Professional Negligence Counterclaim / Interlocutory Application for Security for Costs
Outcome
Order for security for costs granted in part
Legal Topics
Security for Costs, Limitation Periods, Property (relationships) Act 1976, Family Protection Act 1955, Deed of Family Arrangement, Loss of Chance
Civil Procedure Family Law Trusts and Estates Professional Negligence Costs Security for Costs Limitation Periods Property (relationships) Act 1976 +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Melanie Takarangi

Plaintiff / Counterclaim Defendant

Gemma McConkey

Defendant / Counterclaim Plaintiff

Procedural Posture

Civil Debt Recovery and Professional Negligence Counterclaim / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether the threshold in r 5.45 High Court Rules is met
  2. 2 Whether the counterclaim was time-barred as at engagement date
  3. 3 Whether a qualifying relationship existed between deceased and claimant

Ratio Decidendi

Threshold under r 5.45 was met; the court found the counterclaim weak as to any PRA cause (estate final distribution by deed 14 Oct 2016) but could not exclude a plausible FPA claim because s 2(4) FPA may have preserved the estate until dispositions passed to beneficiaries; weighing merits, impecuniosity and access to courts, it was just to order security for costs of NZD 15,000 payable in two stages and to stay the counterclaim until payment.

Court Disposition

Order for security for costs granted in part

Orders

  • Defendant and counterclaim plaintiff to provide security for costs of NZD 15,000, NZD 7,500 payable immediately and NZD 7,500 payable if and when the proceeding is set down for trial
  • Counterclaim stayed until the first payment of NZD 7,500 is made