IRELAND v IRELAND [2015] NZHC 1655

IRELAND v IRELAND [2015] NZHC 1655

Although the threshold 'reason to believe inability to pay' could be made out on the evidence, the Court exercised its discretion to refuse security because the defendant's counterclaim is factually and legally inter‑connected with the plaintiff's claim arising from the same Deed and is, in substance, a defence;...

Source-derived case information.

Citation
[2015] NZHC 1655
Parties
Plaintiff/counterclaim Defendant (applicant): Patricia Ann Ireland; Defendant/counterclaim Plaintiff (respondent): Hamish Robert Kay Ireland
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 July 2015
Procedural Posture
Civil – Relationship Property / Enforcement of Settlement Deed; Consolidated Family Court Proceeding Under Property (relationships) Act 1976 / Interlocutory Application for Security for Costs
Outcome
Application for security for costs dismissed
Legal Topics
Security for Costs, Enforcement of Settlement Deed, Set Aside Deed, Counterclaim as Defence, Impecuniosity
Family Law Property Law Civil Procedure Trusts Security for Costs Enforcement of Settlement Deed Set Aside Deed Counterclaim as Defence +1 more

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Parties

Patricia Ann Ireland

Plaintiff/counterclaim Defendant (applicant)

Hamish Robert Kay Ireland

Defendant/counterclaim Plaintiff (respondent)

Procedural Posture

Civil – Relationship Property / Enforcement of Settlement Deed; Consolidated Family Court Proceeding Under Property (relationships) Act 1976 / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether there is reason to believe the defendant (counterclaimant) will be unable to pay costs if unsuccessful
  2. 2 Whether an order for security for costs should be exercised in the Court's discretion
  3. 3 Whether the defendant's counterclaim is in substance a defence to the plaintiff's claim arising from the same deed

Ratio Decidendi

Although the threshold 'reason to believe inability to pay' could be made out on the evidence, the Court exercised its discretion to refuse security because the defendant's counterclaim is factually and legally inter‑connected with the plaintiff's claim arising from the same Deed and is, in substance, a defence; ordering security would unjustly impede access to the Court and was not justified on these facts.

Court Disposition

Application for security for costs dismissed

Orders

  • Mrs Ireland's application for security for costs is dismissed
  • Further particulars application withdrawn by consent with no order as to costs