DATA PACIFIC LIMITED & ANOR V LAWRENCE KIESER & ORS HC AK CIV 2007-404-7514

DATA PACIFIC LIMITED & ANOR V LAWRENCE KIESER & ORS HC AK CIV 2007-404-7514

There was still reason to believe each plaintiff would be unable to pay the defendants' costs if unsuccessful; Secureco admitted inability to pay; given the lack of reliable projected profitability for Data Pacific the court ordered security for costs and required the director Mr Woodley to give an undertaking to pay costs or, failing that within one month, for the plaintiffs to pay $30,000 into court as security and stayed the proceedings until payment.

Citation
openlaw-cdd5f165_7700_4290_8451_02f729f901fe.pdf
Parties
Plaintiff: Data Pacific Limited; Plaintiff: Secureco Limited; 1st Defendant: Lawrence Kieser; 2nd Defendant: Rodney Franzoi; 3rd Defendant: Third Defendant; 4th Defendant: Fourth Defendant; 5th Defendant: Fifth Defendant; 6th Defendant: Sixth Defendant
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 June 2008
Procedural Posture
Civil / Interlocutory Application for Security for Costs (rule 60)
Outcome
Security for costs granted in the alternative manner ordered; defendants' application for security succeeded; defendants entitled to costs on a Schedule 2B basis.
Legal Topics
Security for Costs, Mareva Injunction, Undertaking as to Damages, Identity of Interest, Joint and Several Costs, Rule 60 High Court Rules
Civil Procedure Company Law Employment Law Equity Remedies Costs Law Security for Costs Mareva Injunction +4 more

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Parties

Data Pacific Limited

Plaintiff

Secureco Limited

Plaintiff

Lawrence Kieser

1st Defendant

Rodney Franzoi

2nd Defendant

Third Defendant

3rd Defendant

Fourth Defendant

4th Defendant

Fifth Defendant

5th Defendant

Sixth Defendant

6th Defendant

Procedural Posture

Civil / Interlocutory Application for Security for Costs (rule 60)

Legal Issues

  1. 1 Whether plaintiffs should be ordered to provide security for costs under r 60 High Court Rules
  2. 2 Whether there is sufficient identity of interest between multiple plaintiffs to avoid individual security
  3. 3 Whether a director's personal undertaking given for Mareva damages suffices as an undertaking for costs

Ratio Decidendi

There was still reason to believe each plaintiff would be unable to pay the defendants' costs if unsuccessful; Secureco admitted inability to pay; given the lack of reliable projected profitability for Data Pacific the court ordered security for costs and required the director Mr Woodley to give an undertaking to pay costs or, failing that within one month, for the plaintiffs to pay $30,000 into court as security and stayed the proceedings until payment.

Court Disposition

Security for costs granted in the alternative manner ordered; defendants' application for security succeeded; defendants entitled to costs on a Schedule 2B basis.

Orders

  • Mr Woodley to enter an undertaking to pay any costs ordered in favour of the defendants against the plaintiffs or either of them
  • If such undertaking is not entered into within one month the proceedings shall be stayed until the plaintiffs pay $30000 into court as security for costs