100 INVESTMENTS LTD v WALKER [2020] NZHC 3248

100 INVESTMENTS LTD v WALKER [2020] NZHC 3248

Rule 5.45 was engaged because there was reason to believe the plaintiffs might be unable to pay costs; in all the circumstances it was just to order security but at sums lower than defendants sought and higher than plaintiffs offered; security was fixed at $175,000 for LPF and $83,375 for SPF with staged payments and a stay until the first instalments were paid, with leave to seek further security if circumstances change.

Citation
[2020] NZHC 3248
Parties
First Plaintiff/first Respondent: 100 Investments Limited; Second Plaintiff/second Respondent: FTG Securities Limited; Third Plaintiff/second Respondent: RFD Finance Limited; Fourth Plaintiff/fourth Respondent: Tomanovich Holdings Limited; First Defendant: Robert Bruce Walker; Second Defendant: John Marshall Scutter; Third Defendant/first Applicant: LPF Group Limited; Fourth Defendant/second Applicant: SPF No 10 Limited (in liquidation)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 December 2020
Procedural Posture
Security for Costs Application (interlocutory) / Interlocutory Application for Security for Costs and Stay
Outcome
Application for security for costs granted in part
Legal Topics
Security for Costs, Litigation Funding, Liquidator Duties, Allocation of Settlement Proceeds, Standing, Conversion, Money Had and Received, PPSA Ss 43 44, Companies Act S301
Company Law Insolvency/liquidation Civil Procedure Personal Property Securities Act Contract Security for Costs Litigation Funding Liquidator Duties +6 more

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Parties

100 Investments Limited

First Plaintiff/first Respondent

FTG Securities Limited

Second Plaintiff/second Respondent

RFD Finance Limited

Third Plaintiff/second Respondent

Tomanovich Holdings Limited

Fourth Plaintiff/fourth Respondent

Robert Bruce Walker

First Defendant

John Marshall Scutter

Second Defendant

LPF Group Limited

Third Defendant/first Applicant

SPF No 10 Limited (in liquidation)

Fourth Defendant/second Applicant

Procedural Posture

Security for Costs Application (interlocutory) / Interlocutory Application for Security for Costs and Stay

Legal Issues

  1. 1 Whether there is reason to believe plaintiffs will be unable to pay defendants' costs if unsuccessful
  2. 2 Whether it is just in all the circumstances to order security for costs
  3. 3 Appropriate quantum and timing/staging of security

Ratio Decidendi

Rule 5.45 was engaged because there was reason to believe the plaintiffs might be unable to pay costs; in all the circumstances it was just to order security but at sums lower than defendants sought and higher than plaintiffs offered; security was fixed at $175,000 for LPF and $83,375 for SPF with staged payments and a stay until the first instalments were paid, with leave to seek further security if circumstances change.

Court Disposition

Application for security for costs granted in part

Orders

  • Security for LPF fixed at NZD 175000
  • Security for SPF fixed at NZD 83375