WEST HARBOUR HOLDINGS LTD V WAIPAREIRA INVESTMENTS LTD HC AK CIV-2011-404-005801

WEST HARBOUR HOLDINGS LTD V WAIPAREIRA INVESTMENTS LTD HC AK CIV-2011-404-005801

Threshold for inability to pay was met; on discretionary assessment West Harbour's prospects were weak given Woodhouse J's comprehensive findings, impecuniosity was not shown to be caused by Waipareira, and no evidence of shareholder or creditor support; accordingly it was just to require security for costs of $75,000 payable to the Registrar by 18 January 2013, failing which the proceeding will be stayed and Waipareira may apply to strike out and seek judgment on its counterclaim; application to discharge consent orders adjourned pending compliance; costs awarded to Waipareira on a 2B basis with disbursements.

Citation
openlaw-5891882e_a820_44f5_bfbe_081f4df9e631.pdf
Parties
Plaintiff/respondent: West Harbour Holdings Limited; First Defendant/applicant: Waipareira Investments Limited; Second Defendant: Marina Resort Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 November 2012
Procedural Posture
Civil Commercial/property Dispute (joint Venture and Mortgage) / Interlocutory Applications for Security for Costs and to Discharge Consent Orders (pre Trial)
Outcome
Security for costs ordered and consent order discharge application adjourned
Legal Topics
Security for Costs, Injunctions, Mortgage, Joint Venture, Summary Judgment, Consent Orders, Undertakings
Civil Procedure Property Law Contract Company Law Equity Security for Costs Injunctions Mortgage +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

West Harbour Holdings Limited

Plaintiff/respondent

Waipareira Investments Limited

First Defendant/applicant

Marina Resort Limited

Second Defendant

Procedural Posture

Civil Commercial/property Dispute (joint Venture and Mortgage) / Interlocutory Applications for Security for Costs and to Discharge Consent Orders (pre Trial)

Legal Issues

  1. 1 Whether to order security for costs under High Court Rules r 5.54
  2. 2 Whether the plaintiff (West Harbour) will be unable to pay defendant's costs if unsuccessful (threshold)
  3. 3 Whether West Harbour's impecuniosity was caused by Waipareira's actions

Ratio Decidendi

Threshold for inability to pay was met; on discretionary assessment West Harbour's prospects were weak given Woodhouse J's comprehensive findings, impecuniosity was not shown to be caused by Waipareira, and no evidence of shareholder or creditor support; accordingly it was just to require security for costs of $75,000 payable to the Registrar by 18 January 2013, failing which the proceeding will be stayed and Waipareira may apply to strike out and seek judgment on its counterclaim; application to discharge consent orders adjourned pending compliance; costs awarded to Waipareira on a 2B basis with disbursements.

Court Disposition

Security for costs ordered and consent order discharge application adjourned

Orders

  • West Harbour to provide security for costs of $75,000 by 18 January 2013 by paying that sum to the Registrar of the High Court
  • If West Harbour fails to provide security the proceeding will be stayed