ECKHOFF v ORBELL [2023] NZHC 3002

ECKHOFF v ORBELL [2023] NZHC 3002

The judge concluded the plaintiff did not provide admissible evidence that she had funds beyond an undivided one-half interest in the Braeview Crescent property sufficient to satisfy a costs award; enforcement remedies are confined to the plaintiff's interest (not the whole property); no arguable legal error or precedent justified leave to appeal; accordingly leave to appeal was refused and the interlocutory security for costs order was upheld.

Citation
[2023] NZHC 3002
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 (trustees of Hamish Orbell Family Trust); Fifth Defendants: Nicola Alice Hyslop, Jonathan Angus Hyslop and QA Trustees 2012 Limited (trustees of the Hyslop Family Trust); Sixth Defendant: John Duncan McFarlane; Seventh Defendant: Jonathan Angus Hyslop
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 October 2023
Procedural Posture
Interlocutory Application for Security for Costs and Application for Leave to Appeal / Application for Leave to Appeal From Interlocutory Order Requiring Security for Costs
Outcome
Application for leave to appeal dismissed
Legal Topics
Security for Costs, Leave to Appeal, Joint Tenancy, Enforcement of Costs, Beneficiary V Trustee Claims
Civil Procedure Trusts Property Law Relationship Property Costs Law Security for Costs Leave to Appeal Joint Tenancy +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 (trustees of Hamish Orbell Family Trust)

Fourth Defendants

Nicola Alice Hyslop, Jonathan Angus Hyslop and QA Trustees 2012 Limited (trustees of the Hyslop Family Trust)

Fifth Defendants

John Duncan McFarlane

Sixth Defendant

Jonathan Angus Hyslop

Seventh Defendant

Procedural Posture

Interlocutory Application for Security for Costs and Application for Leave to Appeal / Application for Leave to Appeal From Interlocutory Order Requiring Security for Costs

Legal Issues

  1. 1 Whether the threshold under r 5.45(1)(b) High Court Rules was met
  2. 2 Appropriate application of joint tenancy and relationship property principles when assessing plaintiff's means to pay costs
  3. 3 Whether security for costs can be ordered against a beneficiary pursuing claims against trustees

Ratio Decidendi

The judge concluded the plaintiff did not provide admissible evidence that she had funds beyond an undivided one-half interest in the Braeview Crescent property sufficient to satisfy a costs award; enforcement remedies are confined to the plaintiff's interest (not the whole property); no arguable legal error or precedent justified leave to appeal; accordingly leave to appeal was refused and the interlocutory security for costs order was upheld.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Application for leave to appeal dismissed
  • Counsel to confer regarding costs and if unable to agree file memoranda; preliminary view that one set of costs for all defendants is appropriate