ETG HOLDINGS LTD V FIRST EASTERN HOLDINGS LIMITED HC AK CIV-2012-404-000228

ETG HOLDINGS LTD V FIRST EASTERN HOLDINGS LIMITED HC AK CIV-2012-404-000228

Threshold established: plaintiffs unlikely to be able to pay defendants' costs if unsuccessful given limited assets and contested valuation of shareholding; counterclaim and plaintiffs' causes are distinct enough not to preclude security; estimated defence costs ~NZD 90,000 and appropriate security set at three quarters; order for security for costs granted in the sum of NZD 67,500 payable by specified date with reserve for stay/dismissal if not provided.

Citation
openlaw-08b80cd0_365f_45a3_aa35_0d44f74b6ca2.pdf
Parties
First Plaintiff: ETG HOLDINGS LTD; Second Plaintiff: ETG BROKERAGE LIMITED; First Defendant: FIRST EASTERN HOLDINGS LIMITED; Second Defendant: FE INVESTMENTS LIMITED; Third Defendant: THATT KIONG SHIM
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 November 2012
Procedural Posture
Civil Contract and Fair Trading Act; Security for Costs Application / Interlocutory Application for Security for Costs
Outcome
Order for security for costs made in favour of defendants; defendants awarded costs of this application on a 2B basis with disbursements.
Legal Topics
Misrepresentation, Security for Costs, Counterclaim, Mitigation, Quantification of Costs, Contract Variation, Prospective Indemnity
Contract Law Fair Trading Act 1986 Civil Procedure Security for Costs Commercial Law Remedies Misrepresentation Security for Costs Counterclaim +4 more

Case Brief

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Parties

ETG HOLDINGS LTD

First Plaintiff

ETG BROKERAGE LIMITED

Second Plaintiff

FIRST EASTERN HOLDINGS LIMITED

First Defendant

FE INVESTMENTS LIMITED

Second Defendant

THATT KIONG SHIM

Third Defendant

Procedural Posture

Civil Contract and Fair Trading Act; Security for Costs Application / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether plaintiffs are likely unable to pay defendants' costs if defendants succeed (threshold for security for costs)
  2. 2 Whether the defendants' counterclaim arising from same facts precludes an order for security for costs
  3. 3 Appropriate quantum of security

Ratio Decidendi

Threshold established: plaintiffs unlikely to be able to pay defendants' costs if unsuccessful given limited assets and contested valuation of shareholding; counterclaim and plaintiffs' causes are distinct enough not to preclude security; estimated defence costs ~NZD 90,000 and appropriate security set at three quarters; order for security for costs granted in the sum of NZD 67,500 payable by specified date with reserve for stay/dismissal if not provided.

Court Disposition

Order for security for costs made in favour of defendants; defendants awarded costs of this application on a 2B basis with disbursements.

Orders

  • Plaintiffs to provide security for costs in the sum of NZD 67,500 to the satisfaction of the Registrar by 20 December 2011
  • If security is not provided by that date defendants have leave to apply to stay and/or dismiss the plaintiffs' claim against them