ECKHOFF v ORBELL [2023] NZHC 1068

ECKHOFF v ORBELL [2023] NZHC 1068

The Court found the r 5.45(1)(b) threshold satisfied because the plaintiff disclosed only a half interest in an unencumbered property worth circa NZD 935,000 and likely adverse costs would exceed her available assets and take into account plaintiff's own expected costs; exercising its discretion the Court ordered security in the global sum of NZD 300,000 (NZD 250,000 for defendants' costs plus NZD 50,000 for experts) to be provided within 28 days, capable of being secured by a first registered mortgage over the plaintiff's interest in the Braeview Crescent property; no stay ordered but leave reserved to apply for one if security is not provided.

Citation
[2023] NZHC 1068
Parties
Plaintiff: Philippa Jane Eckhoff; First Defendant: Ruth Alice Orbell; Second Defendant: Nicola Alice Hyslop; Third Defendant: William Hamish Orbell; Fourth Defendants: Ruth Alice Orbell and William Hamish Orbell as trustees of the Hamish Orbell Family Trust; Fifth Defendants: Nicola Alice Hyslop, Jonathan Angus Hyslop and QA Trustees2012 Limited as trustees of the Hyslop Family Trust; Sixth Defendant: John Duncan McFarlane; Seventh Defendant: Jonathan Angus Hyslop
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 May 2023
Procedural Posture
Civil (trust and Estate Dispute) / Pre Trial (security for Costs Application)
Outcome
Application for security for costs by second to seventh defendants granted in part; separate questions application dismissed; plaintiff ordered to provide security for costs; leave reserved to defendants to apply for stay if security not provided; costs on applications likely 2B basis (parties may file memoranda).
Legal Topics
Security for Costs, Breach of Trust, Limitation, Acquiescence, De Facto Trustee, Mortgage as Security
Trusts Estate Administration Civil Procedure Costs Security for Costs Breach of Trust Limitation Acquiescence +2 more

Case Brief

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Parties

Philippa Jane Eckhoff

Plaintiff

Ruth Alice Orbell

First Defendant

Nicola Alice Hyslop

Second Defendant

William Hamish Orbell

Third Defendant

Ruth Alice Orbell and William Hamish Orbell as trustees of the Hamish Orbell Family Trust

Fourth Defendants

Nicola Alice Hyslop, Jonathan Angus Hyslop and QA Trustees2012 Limited as trustees of the Hyslop Family Trust

Fifth Defendants

John Duncan McFarlane

Sixth Defendant

Jonathan Angus Hyslop

Seventh Defendant

Procedural Posture

Civil (trust and Estate Dispute) / Pre Trial (security for Costs Application)

Legal Issues

  1. 1 Whether r 5.45(1)(b) threshold (reason to believe plaintiff will be unable to pay defendants' costs) is met
  2. 2 Whether the court should exercise its discretion under r 5.45(2) to order security and in what amount and form
  3. 3 Whether an order for security would stifle a meritorious claim or be tactical

Ratio Decidendi

The Court found the r 5.45(1)(b) threshold satisfied because the plaintiff disclosed only a half interest in an unencumbered property worth circa NZD 935,000 and likely adverse costs would exceed her available assets and take into account plaintiff's own expected costs; exercising its discretion the Court ordered security in the global sum of NZD 300,000 (NZD 250,000 for defendants' costs plus NZD 50,000 for experts) to be provided within 28 days, capable of being secured by a first registered mortgage over the plaintiff's interest in the Braeview Crescent property; no stay ordered but leave reserved to apply for one if security is not provided.

Court Disposition

Application for security for costs by second to seventh defendants granted in part; separate questions application dismissed; plaintiff ordered to provide security for costs; leave reserved to defendants to apply for stay if security not provided; costs on applications likely 2B basis (parties may file memoranda).

Orders

  • Plaintiff's application under r 10.15 for separate questions dismissed
  • Plaintiff to provide security for costs to the satisfaction of the Registrar in the global sum of NZD 300000 within 28 days (security may be by a registrable first mortgage over plaintiff's interest in Braeview Crescent property)