D A JAQUES v V R MAIN and T C HODGSON [2016] NZHC 779

D A JAQUES v V R MAIN and T C HODGSON [2016] NZHC 779

Given the plaintiff's lack of accessible cash, the reliance on unproven trust interests and equivocal trustee/wife undertakings, his bankruptcy history, the weak prospects on substantial contract damages, and absence of credible evidence he can meet costs, the Court inferred a real risk he would be unable to pay defendants' costs and ordered security of $30,000 to be paid into Court and stayed the proceeding until payment; leave reserved to seek further security when trial costs can be assessed.

Citation
[2016] NZHC 779
Parties
Plaintiff: David Arthur Jaques; First Defendant: Victor Raymond Main; Second Defendant: Thomas Clarence Hodgson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 April 2016
Procedural Posture
Civil Contract Dispute With Interlocutory Security for Costs Application / Interlocutory (security for Costs Application)
Outcome
Security for costs ordered; proceedings stayed pending payment of security; leave reserved to apply for additional security; potential dismissal if security not provided by stipulated date.
Legal Topics
Security for Costs, Summary Judgment, Penalty Clause, Trust Assets and Availability, Bankruptcy History
Civil Procedure Contract Equity Insolvency/bankruptcy Trusts Security for Costs Summary Judgment Penalty Clause +2 more

Case Brief

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Parties

David Arthur Jaques

Plaintiff

Victor Raymond Main

First Defendant

Thomas Clarence Hodgson

Second Defendant

Procedural Posture

Civil Contract Dispute With Interlocutory Security for Costs Application / Interlocutory (security for Costs Application)

Legal Issues

  1. 1 Whether there is reason to believe the plaintiff will be unable to pay the defendants' costs if unsuccessful
  2. 2 Whether available assets or guarantees (including trust interests and spouse guarantee) provide satisfactory security
  3. 3 Whether the settlement agreement creates an unenforceable penalty rendering claim valuation unreliable

Ratio Decidendi

Given the plaintiff's lack of accessible cash, the reliance on unproven trust interests and equivocal trustee/wife undertakings, his bankruptcy history, the weak prospects on substantial contract damages, and absence of credible evidence he can meet costs, the Court inferred a real risk he would be unable to pay defendants' costs and ordered security of $30,000 to be paid into Court and stayed the proceeding until payment; leave reserved to seek further security when trial costs can be assessed.

Court Disposition

Security for costs ordered; proceedings stayed pending payment of security; leave reserved to apply for additional security; potential dismissal if security not provided by stipulated date.

Orders

  • Plaintiff to pay into Court NZD 30,000 as security for costs pending determination of the proceeding.
  • Proceeding stayed until the security is paid.