BURDEN v PLANTATION GROWN TIMBERS (INTL) LTD [2015] NZHC 263

BURDEN v PLANTATION GROWN TIMBERS (INTL) LTD [2015] NZHC 263

An order for security for costs was warranted because plaintiffs are resident/incorporated outside New Zealand, there was troubling evidence of unpaid costs ordered against the plaintiffs in Irish proceedings and inadequate disclosure of the plaintiffs' overall financial position; however, to avoid denying access to justice the security should be staged. Staggered security payments totalling NZD 75,000 with a stay of proceedings if payments are not made appropriately balance defendant protection and plaintiffs' access.

Citation
[2015] NZHC 263
Parties
First Plaintiff: Ian James Burden; Second Plaintiff: Plantation Grown Timbers (International) Limited; Third Plaintiff: Plantation Grown Timbers (Vietnam) Limited; First Defendant: Debonaire Furniture Limited; Second Defendant: Burden Furniture (International) Limited; Third Defendant: Burden Furniture Co Limited; Fourth Defendant: Lindsay John Burden; Fifth Defendant: Jeremy David Smith; Sixth Defendant: Robert Wayne Smith
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 February 2015
Procedural Posture
Civil Copyright and Fair Trading / Interlocutory Application for Security for Costs (pre Trial)
Outcome
Security for costs ordered in favour of first defendant; plaintiffs required to pay staged security totaling NZD 75,000; proceeding will be stayed if payments are not made; first defendant awarded costs on a 2B basis.
Legal Topics
Security for Costs, HCR R 5.45, Stay and Strike Out, Enforcement Abroad, Originality in Copyright
Copyright Fair Trading Act Civil Procedure Security for Costs Enforcement of Foreign Judgments Security for Costs HCR R 5.45 Stay and Strike Out Enforcement Abroad +1 more

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Parties

Ian James Burden

First Plaintiff

Plantation Grown Timbers (International) Limited

Second Plaintiff

Plantation Grown Timbers (Vietnam) Limited

Third Plaintiff

Debonaire Furniture Limited

First Defendant

Burden Furniture (International) Limited

Second Defendant

Burden Furniture Co Limited

Third Defendant

Lindsay John Burden

Fourth Defendant

Jeremy David Smith

Fifth Defendant

Robert Wayne Smith

Sixth Defendant

Procedural Posture

Civil Copyright and Fair Trading / Interlocutory Application for Security for Costs (pre Trial)

Legal Issues

  1. 1 Whether security for costs should be ordered under HCR r 5.45(1)(a) and (b)
  2. 2 Whether plaintiffs will be unable to pay an adverse costs award
  3. 3 Whether unpaid costs ordered in prior Irish proceedings indicate inability/unwillingness to pay

Ratio Decidendi

An order for security for costs was warranted because plaintiffs are resident/incorporated outside New Zealand, there was troubling evidence of unpaid costs ordered against the plaintiffs in Irish proceedings and inadequate disclosure of the plaintiffs' overall financial position; however, to avoid denying access to justice the security should be staged. Staggered security payments totalling NZD 75,000 with a stay of proceedings if payments are not made appropriately balance defendant protection and plaintiffs' access.

Court Disposition

Security for costs ordered in favour of first defendant; plaintiffs required to pay staged security totaling NZD 75,000; proceeding will be stayed if payments are not made; first defendant awarded costs on a 2B basis.

Orders

  • Plaintiffs to pay security for costs into Court in three stages: Stage 1 NZD 25,000; Stage 2 NZD 15,000; Stage 3 NZD 35,000.
  • First payment (NZD 25,000) to be paid by 9 March 2015.