STRACHAN v MOODIE [2013] NZHC 2022

STRACHAN v MOODIE [2013] NZHC 2022

Security for costs was refused because the evidence did not establish a sufficient risk that the debtor would be unable to pay costs: the 17 December 2012 letter referred to inability to satisfy the judgment debt rather than to an inability to pay costs, and the debtor's evidenced prior income (net $163,129) undermined the applicant's claim of inability to pay.

Citation
[2013] NZHC 2022
Parties
Judgment Creditor: ELIZABETH GRACE STRACHAN; Judgment Debtor: ROBERT ALEXANDER MOODIE
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 August 2013
Procedural Posture
Bankruptcy/insolvency Proceedings Under Insolvency Act 2006 / Interlocutory Hearing (security for Costs and Strike Out Applications) 9 August 2013
Outcome
Application for security for costs declined; strike-out application deferred to the bankruptcy hearing; directions given for case management.
Legal Topics
Security for Costs, Strike Out, Bankruptcy Petition, Counterclaim, Set Off, Costs Orders, Judgment Enforcement
Insolvency Bankruptcy Civil Procedure Costs Employment Law Security for Costs Strike Out Bankruptcy Petition +4 more

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Parties

ELIZABETH GRACE STRACHAN

Judgment Creditor

ROBERT ALEXANDER MOODIE

Judgment Debtor

Procedural Posture

Bankruptcy/insolvency Proceedings Under Insolvency Act 2006 / Interlocutory Hearing (security for Costs and Strike Out Applications) 9 August 2013

Legal Issues

  1. 1 Whether to order security for costs in relation to the debtor's counterclaim/set-off/cross-demand
  2. 2 Whether portions of the debtor's application and affidavit should be struck out as scandalous or an attempt to re-litigate the Employment Court judgment
  3. 3 Whether the debtor's evidence demonstrates inability to pay costs or a real risk of non-payment

Ratio Decidendi

Security for costs was refused because the evidence did not establish a sufficient risk that the debtor would be unable to pay costs: the 17 December 2012 letter referred to inability to satisfy the judgment debt rather than to an inability to pay costs, and the debtor's evidenced prior income (net $163,129) undermined the applicant's claim of inability to pay.

Court Disposition

Application for security for costs declined; strike-out application deferred to the bankruptcy hearing; directions given for case management.

Orders

  • Application for security for costs dismissed.
  • Application to strike out portions of the debtor's counterclaim and affidavit to be dealt with at the bankruptcy hearing.