SUN & ORS V PENINSULA ROAD LTD & ORS HC AK CIV 2011-404-7991

SUN & ORS V PENINSULA ROAD LTD & ORS HC AK CIV 2011-404-7991

The plaintiffs' statutory and Fair Trading claims were held arguable but not strong; because most plaintiffs are resident overseas and enforcement of undertakings abroad would be costly and uncertain, the court ordered security for costs and security to support the plaintiffs' undertakings. Practical quantum was fixed: security for costs of $3,500 per plaintiff (excluding plaintiffs 10, 36, 53, 57, 64, 80 and 90 who hold NZ real estate) until setting‑down; security to support undertakings equal to 24% of the deposit held for each plaintiff (excluding plaintiffs 10, 36, 53, 57, 58, 64, 80 and 90; no deposit held for plaintiff 58) calculated as a two‑year interest differential based on the...

Citation
openlaw-cb78c147_0d6b_42e9_ace5_3524d3a3eb39.pdf
Parties
Plaintiffs: Ho Kok Sun & Ors; First Defendant: Peninsula Road Limited; Second Defendant: Kawarau Village Holdings Limited; Third Defendant (stakeholder): Russell McVeagh
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 May 2012
Procedural Posture
Civil – Property/development Dispute With Alleged Statutory Breaches / Interlocutory Applications: Security for Costs and Security for Undertakings; Interim Injunction in Place
Outcome
Interim orders directed: security for costs and security for undertakings granted in part; interim injunction remains subject to undertakings and ordered security; costs to second defendant
Legal Topics
Security for Costs, Undertakings as to Damages, Interim Injunction, Misrepresentation, Offer of Participatory Securities, Assignment of Contractual Rights
Civil Procedure Property Law Contract Law Securities Law Consumer Protection (fair Trading) Security for Costs Undertakings as to Damages Interim Injunction +3 more

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Parties

Ho Kok Sun & Ors

Plaintiffs

Peninsula Road Limited

First Defendant

Kawarau Village Holdings Limited

Second Defendant

Russell McVeagh

Third Defendant (stakeholder)

Procedural Posture

Civil – Property/development Dispute With Alleged Statutory Breaches / Interlocutory Applications: Security for Costs and Security for Undertakings; Interim Injunction in Place

Legal Issues

  1. 1 Whether agreements constituted offers of participatory securities under s 37 Securities Act 1978 and are therefore invalid
  2. 2 Whether representations by vendor amounted to misleading or deceptive conduct under ss 9 and 14 Fair Trading Act 1986
  3. 3 Whether security for costs should be ordered against overseas plaintiffs

Ratio Decidendi

The plaintiffs' statutory and Fair Trading claims were held arguable but not strong; because most plaintiffs are resident overseas and enforcement of undertakings abroad would be costly and uncertain, the court ordered security for costs and security to support the plaintiffs' undertakings. Practical quantum was fixed: security for costs of $3,500 per plaintiff (excluding plaintiffs 10, 36, 53, 57, 64, 80 and 90 who hold NZ real estate) until setting‑down; security to support undertakings equal to 24% of the deposit held for each plaintiff (excluding plaintiffs 10, 36, 53, 57, 58, 64, 80 and 90; no deposit held for plaintiff 58) calculated as a two‑year interest differential based on the...

Court Disposition

Interim orders directed: security for costs and security for undertakings granted in part; interim injunction remains subject to undertakings and ordered security; costs to second defendant

Orders

  • Each plaintiff, other than plaintiffs 10, 36, 53, 57, 64, 80 and 90, to provide security for the second defendant's costs up to setting‑down in the sum of NZD 3,500 per plaintiff
  • Each plaintiff, other than plaintiffs 10, 36, 53, 57, 58, 64, 80 and 90, to provide security to support their undertaking as to damages in a sum equivalent to 24% of the deposit held in Russell McVeagh's trust account (excluding interest) for that plaintiff