SKELTON v HOWCROFT [2017] NZHC 1149

SKELTON v HOWCROFT [2017] NZHC 1149

Security for costs was ordered because the intending plaintiff is an undischarged bankrupt with a history of unpaid costs and the proposed claims, arising from substantially the same facts as prior struck-out proceedings and subject to settlement and limitation defences, have little or no realistic prospect of success; accordingly it was just to protect the intended defendants by ordering security and staying the proceeding until paid.

Citation
[2017] NZHC 1149
Parties
Intending Plaintiff: Bevin Hall Skelton; First Intended Defendant: Charles Michael Howcroft; Second Intended Defendant: Daran Nair; Third Intended Defendant: Charles Henry Bird
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 May 2017
Procedural Posture
Pre Commencement Discovery Application; Application for Security for Costs / Interlocutory Application (security for Costs Hearing)
Outcome
Security for costs ordered against intending plaintiff; proceeding stayed if security not paid; leave reserved to seek further security; costs awarded to first and second intended defendants.
Legal Topics
Security for Costs, Pre Commencement Discovery, Striking Out, Fraud Allegations, Bankruptcy, Limitation Defence, Settlement Estoppel
Civil Procedure Bankruptcy Law Trusts and Fiduciary Duties Limitation of Actions Costs Law Security for Costs Pre Commencement Discovery Striking Out +4 more

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Parties

Bevin Hall Skelton

Intending Plaintiff

Charles Michael Howcroft

First Intended Defendant

Daran Nair

Second Intended Defendant

Charles Henry Bird

Third Intended Defendant

Procedural Posture

Pre Commencement Discovery Application; Application for Security for Costs / Interlocutory Application (security for Costs Hearing)

Legal Issues

  1. 1 Whether the intending plaintiff should be ordered to provide security for costs
  2. 2 Whether the intending plaintiff (an undischarged bankrupt) will be unable to pay defendants' costs if unsuccessful
  3. 3 Whether the proposed claims have realistic prospects of success given prior settlements and limitation defences

Ratio Decidendi

Security for costs was ordered because the intending plaintiff is an undischarged bankrupt with a history of unpaid costs and the proposed claims, arising from substantially the same facts as prior struck-out proceedings and subject to settlement and limitation defences, have little or no realistic prospect of success; accordingly it was just to protect the intended defendants by ordering security and staying the proceeding until paid.

Court Disposition

Security for costs ordered against intending plaintiff; proceeding stayed if security not paid; leave reserved to seek further security; costs awarded to first and second intended defendants.

Orders

  • Intending plaintiff to give security for costs of NZD 15,000 in respect of each of the first and second intended defendants (total NZD 30,000)
  • If such security is not paid by 4:00pm on Friday 16 June 2017 the proceeding is stayed until such security is paid