COLBART LIMITED V EASTPACK LIMITED HC ROT CIV 2011-463-000828

COLBART LIMITED V EASTPACK LIMITED HC ROT CIV 2011-463-000828

On the material before the Court there was reason to believe Colbart would be unable to meet any adverse costs award because it was recently incorporated with minimal capital, had no real property, provided equivocal trading evidence, relied on funding by Mr Campbell and offered no undertaking; accordingly security for costs in the sum of $40,000 was ordered, the proceeding stayed until payment, and costs of the application were awarded to the defendants.

Citation
openlaw-5d3f2a7b_effe_4fd2_a263_a9e6e9d71d1d.pdf
Parties
Plaintiff: Colbart Limited; First Defendant: Eastpack Limited; Second Defendant: Eastpack Kiwifruit Operations Limited; Third Defendant: Riverlock Orchard Pack and Coolstore Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 August 2012
Procedural Posture
Security for Costs Application (interlocutory) / Hearing on Security for Costs; Stay Pending Payment Ordered
Outcome
Security for costs ordered; proceeding stayed until $40,000 paid into Court; costs awarded to defendants on 2B scale
Legal Topics
Security for Costs, Impecuniosity, Contract Formation, Frustration, Costs Assessment
Civil Procedure Contract Commercial Law Security for Costs Impecuniosity Contract Formation Frustration Costs Assessment

Case Brief

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Parties

Colbart Limited

Plaintiff

Eastpack Limited

First Defendant

Eastpack Kiwifruit Operations Limited

Second Defendant

Riverlock Orchard Pack and Coolstore Limited

Third Defendant

Procedural Posture

Security for Costs Application (interlocutory) / Hearing on Security for Costs; Stay Pending Payment Ordered

Legal Issues

  1. 1 Whether there is reason to believe the plaintiff will be unable to pay costs if unsuccessful
  2. 2 Whether the merits of the plaintiff's claim are sufficiently weak to influence the security for costs decision
  3. 3 Appropriate quantum of security for costs and procedural consequences if not paid

Ratio Decidendi

On the material before the Court there was reason to believe Colbart would be unable to meet any adverse costs award because it was recently incorporated with minimal capital, had no real property, provided equivocal trading evidence, relied on funding by Mr Campbell and offered no undertaking; accordingly security for costs in the sum of $40,000 was ordered, the proceeding stayed until payment, and costs of the application were awarded to the defendants.

Court Disposition

Security for costs ordered; proceeding stayed until $40,000 paid into Court; costs awarded to defendants on 2B scale

Orders

  • Security for costs of $40,000 to be paid into Court in cleared funds and held on interest bearing deposit until further order
  • Proceeding stayed until the security is paid