BODY CORPORATE NO. 209549 AND ANOR V AKITA CONSTRUCTION LIMITED AND ORS HC AK CIV-2005-404-3080

BODY CORPORATE NO. 209549 AND ANOR V AKITA CONSTRUCTION LIMITED AND ORS HC AK CIV-2005-404-3080

Given lack of financial particulars from Blue Sky and potential inability or unwillingness to meet adverse costs, the Court exercised its discretion to order security for costs of $70,000 per defendant (or per paired defendants where applicable), payable in two tranches, in the interests of fairness and proportionality; stays were declined at this stage but leave granted to apply on short notice in event of default; costs of the applications awarded to defendant applicants on a 2B basis.

Citation
openlaw-6c477687_4fc0_4edf_9b34_6a5fb6c7de5a.pdf
Parties
First Plaintiff: Body Corporate No. 209549; Second Plaintiffs: Sealite Investments Limited; Second Plaintiff (one Of): Blue Sky Holdings Limited; First Defendant: Akita Construction Limited; Second Defendant: Cornerstone Group Limited; Third Defendant: George Clarke; Fourth Defendant: Compass Building Certification Limited; Fifth Defendant: Plaster Systems Limited; Sixth Defendant: Nu-Way Plasterers Limited; Seventh Defendant: Raymark Waterproofing Limited; Eighth Defendant: MSC Consulting Limited; Ninth Defendant: QBE Insurance (International) Limited; Tenth Defendant: Cornerstone Oyster Cove Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 July 2007
Procedural Posture
Civil (leaky Building Claims) / Pre Trial Applications for Security for Costs
Outcome
Ordered Blue Sky (one of the second plaintiffs) to provide security for costs; awarded costs of the security applications to defendant applicants on a 2B basis; refused immediate stay but granted leave to apply for stay on three days notice in event of default; reserved procedural rights to apply for additional orders.
Legal Topics
Security for Costs, Costs Orders, Stay for Non Compliance, Unit Titles, Party and Party Costs
Civil Procedure Costs Property Law Insurance Law Contract/tort Security for Costs Costs Orders Stay for Non Compliance +2 more

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Parties

Body Corporate No. 209549

First Plaintiff

Sealite Investments Limited

Second Plaintiffs

Blue Sky Holdings Limited

Second Plaintiff (one Of)

Akita Construction Limited

First Defendant

Cornerstone Group Limited

Second Defendant

George Clarke

Third Defendant

Compass Building Certification Limited

Fourth Defendant

Plaster Systems Limited

Fifth Defendant

Nu-Way Plasterers Limited

Sixth Defendant

Raymark Waterproofing Limited

Seventh Defendant

MSC Consulting Limited

Eighth Defendant

QBE Insurance (International) Limited

Ninth Defendant

Cornerstone Oyster Cove Limited

Tenth Defendant

Procedural Posture

Civil (leaky Building Claims) / Pre Trial Applications for Security for Costs

Legal Issues

  1. 1 Whether security for costs should be ordered against Blue Sky Holdings Limited
  2. 2 Appropriate amount of security for costs
  3. 3 Form and timetable for provision of security

Ratio Decidendi

Given lack of financial particulars from Blue Sky and potential inability or unwillingness to meet adverse costs, the Court exercised its discretion to order security for costs of $70,000 per defendant (or per paired defendants where applicable), payable in two tranches, in the interests of fairness and proportionality; stays were declined at this stage but leave granted to apply on short notice in event of default; costs of the applications awarded to defendant applicants on a 2B basis.

Court Disposition

Ordered Blue Sky (one of the second plaintiffs) to provide security for costs; awarded costs of the security applications to defendant applicants on a 2B basis; refused immediate stay but granted leave to apply for stay on three days notice in event of default; reserved procedural rights to apply for additional orders.

Orders

  • Blue Sky to provide security for costs of $70,000 for each defendant (or pair of defendants in the cases of the second and tenth and the fourth and ninth defendants)
  • Security to be provided in two tranches of $35,000 each: first tranche within 14 days and second tranche no later than 90 days before trial