SMITH v NOBLE INVESTMENTS LIMITED [2015] NZHC 3006

SMITH v NOBLE INVESTMENTS LIMITED [2015] NZHC 3006

The applications for security for costs were dismissed because, while Noble and Apple Fields showed current inability to provide security, that impecuniosity is at least partly caused by subsisting caveats lodged by the applicants; the counterclaim is closely linked to the main claim and ordering security would likely prevent the counterclaim and deny access to justice; on balance the interests favored allowing the counterclaim plaintiffs to proceed.

Citation
[2015] NZHC 3006
Parties
Plaintiff: Gregory Robert Smith; Plaintiff: Colin Peter Stokes; First Defendant and Counterclaim Plaintiff: Noble Investments Limited; Second Defendant and Counterclaim Plaintiff: Apple Fields Limited; Third Defendant: Justin William Prain; Fourth Defendant: Cardno (NZ) Limited; Second Counterclaim Defendant: Shayne Philpott; Second Counterclaim Defendant: New Zealand Trustee Services Limited; Second Counterclaim Defendant: Fay Eunice Richardson; Second Counterclaim Defendant: Burnside Trustees Limited; Third Counterclaim Defendant: Stuart Ellesmere Lindsay; Third Counterclaim Defendant: Julie Ivonne Lindsay
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 November 2015
Procedural Posture
Civil: Breach of Contract and Misrepresentation; Counterclaim for Specific Performance / Interlocutory Application for Security for Costs (decision)
Outcome
Applications for security for costs dismissed.
Legal Topics
Security for Costs, Specific Performance, Caveats, Impecuniosity, Counterclaim, Misrepresentation, Access to Justice
Civil Procedure Contract Equity Property Law Costs Security for Costs Specific Performance Caveats +4 more

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Parties

Gregory Robert Smith

Plaintiff

Colin Peter Stokes

Plaintiff

Noble Investments Limited

First Defendant and Counterclaim Plaintiff

Apple Fields Limited

Second Defendant and Counterclaim Plaintiff

Justin William Prain

Third Defendant

Cardno (NZ) Limited

Fourth Defendant

Shayne Philpott

Second Counterclaim Defendant

New Zealand Trustee Services Limited

Second Counterclaim Defendant

Fay Eunice Richardson

Second Counterclaim Defendant

Burnside Trustees Limited

Second Counterclaim Defendant

Stuart Ellesmere Lindsay

Third Counterclaim Defendant

Julie Ivonne Lindsay

Third Counterclaim Defendant

Procedural Posture

Civil: Breach of Contract and Misrepresentation; Counterclaim for Specific Performance / Interlocutory Application for Security for Costs (decision)

Legal Issues

  1. 1 Whether to order security for costs under r 5.45 of the High Court Rules
  2. 2 Whether the counterclaim plaintiffs are impecunious
  3. 3 Whether impecuniosity is caused by the counterclaim defendants' actions (registration of caveats)

Ratio Decidendi

The applications for security for costs were dismissed because, while Noble and Apple Fields showed current inability to provide security, that impecuniosity is at least partly caused by subsisting caveats lodged by the applicants; the counterclaim is closely linked to the main claim and ordering security would likely prevent the counterclaim and deny access to justice; on balance the interests favored allowing the counterclaim plaintiffs to proceed.

Court Disposition

Applications for security for costs dismissed.

Orders

  • The applications for security for costs brought by the counterclaim defendants are dismissed.
  • The counterclaim plaintiffs Noble Investments Limited and Apple Fields Limited are entitled to one award of costs in their successful opposition to the present applications (to be met on a joint and several basis by the counterclaim defendants) calculated on a category 2B basis together with disbursements as fixed...