WHITEHEAD & ORS V HONEY NEW ZEALAND (INTERNATIONAL) LIMITED HC AK CIV 2008-404-002149

WHITEHEAD & ORS V HONEY NEW ZEALAND (INTERNATIONAL) LIMITED HC AK CIV 2008-404-002149

The Trust failed to meet the threshold requirement under r 5.45 to show reason to believe HNZIL would be unable to pay costs because the hearsay material was largely inadmissible and HNZIL's unaudited accountant statement and director's evidence demonstrated substantial assets and prior payment to the Trust;...

Source-derived case information.

Citation
openlaw-369e854c_89c4_402f_aec6_76ce250c7fd7.pdf
Parties
Plaintiffs: John Edward Whitehead; Rosalene Marie Whitehead (trustees of the J & R Whitehead Trust); Defendant/counterclaimant: Honey New Zealand (International) Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2009
Procedural Posture
Application for Security for Costs in a Contract Dispute With Counterclaim / Interim Application for Security for Costs After Pleadings (summary Judgment Withdrawn)
Outcome
Application for security for costs dismissed
Legal Topics
Security for Costs, Counterclaim, Breach of Contract, Fair Trading Act 1986, Admissibility of Hearsay, Export Compliance (eu/umf)
Contract Law Civil Procedure Evidence Commercial Law Security for Costs Counterclaim Breach of Contract Fair Trading Act 1986 +2 more

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Parties

John Edward Whitehead; Rosalene Marie Whitehead (trustees of the J & R Whitehead Trust)

Plaintiffs

Honey New Zealand (International) Limited

Defendant/counterclaimant

Procedural Posture

Application for Security for Costs in a Contract Dispute With Counterclaim / Interim Application for Security for Costs After Pleadings (summary Judgment Withdrawn)

Legal Issues

  1. 1 Whether there is reason to believe HNZIL will be unable to pay costs if unsuccessful on its counterclaim
  2. 2 Admissibility of hearsay evidence relied on to establish inability to pay
  3. 3 Whether the court should exercise its discretion to order security for costs after the threshold is met

Ratio Decidendi

The Trust failed to meet the threshold requirement under r 5.45 to show reason to believe HNZIL would be unable to pay costs because the hearsay material was largely inadmissible and HNZIL's unaudited accountant statement and director's evidence demonstrated substantial assets and prior payment to the Trust; accordingly the court declined to exercise its discretion to order security for costs and dismissed the application.

Court Disposition

Application for security for costs dismissed

Orders

  • Application for security for costs dismissed
  • Trust to pay HNZIL its costs of and incidental to this application on a 2B basis together with disbursements as fixed by the Registrar