DONALDSON v SKYKING INVESTMENTS LTD [2018] NZHC 3299

DONALDSON v SKYKING INVESTMENTS LTD [2018] NZHC 3299

Application to stay and adjourn was dismissed because (1) trial was imminent, (2) costs order was recent and a response to late application for security, (3) plaintiffs had complied with the security for costs order by paying $26,000, (4) staying the first and second plaintiffs would unfairly prejudice the third plaintiff, and (5) there was no cogent evidence of egregious non‑compliance or proven impecuniosity warranting denial of trial access.

Citation
[2018] NZHC 3299
Parties
First Plaintiff: Brett Royce Donaldson; Second Plaintiff: Jonathan Chiswell; Third Plaintiff: Stephen Wilton; First Defendant: Skyking Investments Ltd; Second Defendant: Ocean Pacific Resort Holdings Ltd; Third Defendants: Kevin Storey & Brent Gibson; Fourth Defendant: Castle Brown
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 December 2018
Procedural Posture
Civil / Pre Trial Application to Stay/adjourn Prior to Trial Scheduled 25 February 2019
Outcome
Defendants' application dismissed
Legal Topics
Security for Costs, Costs Orders, Stay of Proceedings, Adjournment, Impecuniosity, Compliance With Court Orders, Trial Timetable and Expert Evidence
Civil Procedure Costs Security for Costs Judicial Case Management Costs Orders Stay of Proceedings Adjournment Impecuniosity +2 more

Case Brief

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Parties

Brett Royce Donaldson

First Plaintiff

Jonathan Chiswell

Second Plaintiff

Stephen Wilton

Third Plaintiff

Skyking Investments Ltd

First Defendant

Ocean Pacific Resort Holdings Ltd

Second Defendant

Kevin Storey & Brent Gibson

Third Defendants

Castle Brown

Fourth Defendant

Procedural Posture

Civil / Pre Trial Application to Stay/adjourn Prior to Trial Scheduled 25 February 2019

Legal Issues

  1. 1 Whether the Court should stay or adjourn the plaintiffs' claims for failure to pay an interlocutory costs order
  2. 2 Whether impecuniosity excuses non-compliance with a costs order
  3. 3 Whether the plaintiffs' payment of security for costs affects the entitlement to proceed to trial

Ratio Decidendi

Application to stay and adjourn was dismissed because (1) trial was imminent, (2) costs order was recent and a response to late application for security, (3) plaintiffs had complied with the security for costs order by paying $26,000, (4) staying the first and second plaintiffs would unfairly prejudice the third plaintiff, and (5) there was no cogent evidence of egregious non‑compliance or proven impecuniosity warranting denial of trial access.

Court Disposition

Defendants' application dismissed

Orders

  • Defendants' application to stay or adjourn the plaintiffs' claims dismissed
  • Plaintiffs awarded costs on a 2B basis