WHITE v JAMES HARDIE NEW ZEALAND LIMITED [2021] NZHC 936

WHITE v JAMES HARDIE NEW ZEALAND LIMITED [2021] NZHC 936

The court held there was a material change in circumstances given the scale and complexity of the discovery process and that the original security was inadequate; accordingly it increased security by $1.25m to a total of $1.5m (additional $500,000 for discovery to a discovery total of $750,000 and $750,000 for expected scale costs and expert disbursements to the end of Stage 1), refused a stay, required posting of the security within 15 working days and permitted revisit if not posted; ATE insurance and Harbour funding were relevant but not decisive.

Citation
[2021] NZHC 936
Parties
Plaintiffs: Karen Louise White and the persons listed in Schedule 1; First Defendant: James Hardie New Zealand Limited; Second Defendant: Studorp Limited; Third Defendant: James Hardie NZ Holdings Limited; Fourth Defendant: RCI Holdings Pty Limited; Fifth Defendant: James Hardie Australia Pty Limited; Sixth Defendant: James Hardie Research Pty Limited; Seventh Defendant: James Hardie Industries PLC
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 April 2021
Procedural Posture
Civil Security for Costs Application / Pre Trial (interlocutory Security for Costs)
Outcome
Application to increase security for costs granted in part
Legal Topics
Security for Costs, Variation of Interlocutory Orders, Jurisdiction Over Overseas Litigation Funders, After the Event Insurance (ate), Discovery Costs, Expert Witness Costs, Enforcement of Costs Orders
Civil Procedure Commercial Litigation Costs Litigation Funding Insurance Evidence and Discovery Security for Costs Variation of Interlocutory Orders +5 more

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Parties

Karen Louise White and the persons listed in Schedule 1

Plaintiffs

James Hardie New Zealand Limited

First Defendant

Studorp Limited

Second Defendant

James Hardie NZ Holdings Limited

Third Defendant

RCI Holdings Pty Limited

Fourth Defendant

James Hardie Australia Pty Limited

Fifth Defendant

James Hardie Research Pty Limited

Sixth Defendant

James Hardie Industries PLC

Seventh Defendant

Procedural Posture

Civil Security for Costs Application / Pre Trial (interlocutory Security for Costs)

Legal Issues

  1. 1 Whether security for costs should be increased
  2. 2 Whether court has jurisdiction to vary an existing security order against an overseas litigation funder
  3. 3 Whether ATE insurance negates need for security

Ratio Decidendi

The court held there was a material change in circumstances given the scale and complexity of the discovery process and that the original security was inadequate; accordingly it increased security by $1.25m to a total of $1.5m (additional $500,000 for discovery to a discovery total of $750,000 and $750,000 for expected scale costs and expert disbursements to the end of Stage 1), refused a stay, required posting of the security within 15 working days and permitted revisit if not posted; ATE insurance and Harbour funding were relevant but not decisive.

Court Disposition

Application to increase security for costs granted in part

Orders

  • Security for costs increased by $1,250,000 to a total of $1,500,000
  • Additional $500,000 awarded in respect of discovery (bringing discovery security to $750,000)