ANGLAND AND ORS V MOWER AND ORS HC CHCH CIV-2008-409-001990

ANGLAND AND ORS V MOWER AND ORS HC CHCH CIV-2008-409-001990

Leave to amend was granted; discovery orders and timetables were imposed by consent or adjourned; security for costs was granted because the defendant is resident abroad, the counterclaim is a substantive claim that will significantly increase trial scope and cost, and the defendant's prior decision to litigate in the US despite a New Zealand jurisdiction clause supports an inference of risk of evading New Zealand enforcement; accordingly the defendant was ordered to provide NZD 20,000 security and the counterclaim was stayed until payment.

Citation
openlaw-366f7517_a5a3_4a09_89b2_a127fc464b86.pdf
Parties
First Plaintiff: John Shearer Angland; Second Plaintiff: Trevor John Burt; Third Plaintiff: Michael Tong Chee Chin; Defendant: Thomas Elwin Mower; First Counterclaim Defendant: Phillip Boyd Wilson; Second Counterclaim Defendant: Ronald W Angland & Son
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 December 2010
Procedural Posture
Civil Litigation Contract and Related Tort/statutory Claims / Interlocutory Applications (amendment, Discovery, Security for Costs)
Outcome
Interlocutory applications partly granted: leave to file second amended defence and counterclaim granted; discovery orders made/adjourned by consent; security for costs granted and counterclaim stayed until security paid; various matters adjourned to 19 April 2011 or listed timetables.
Legal Topics
Specific Performance, Counterclaim as Sword or Shield, Further and Better Discovery, Security for Costs, Jurisdictional Conduct, Costs Assessment
Civil Procedure Contract Tort Misrepresentation Statutory Consumer Law Discovery Costs/security for Costs Fiduciary Duty +6 more

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Parties

John Shearer Angland

First Plaintiff

Trevor John Burt

Second Plaintiff

Michael Tong Chee Chin

Third Plaintiff

Thomas Elwin Mower

Defendant

Phillip Boyd Wilson

First Counterclaim Defendant

Ronald W Angland & Son

Second Counterclaim Defendant

Procedural Posture

Civil Litigation Contract and Related Tort/statutory Claims / Interlocutory Applications (amendment, Discovery, Security for Costs)

Legal Issues

  1. 1 Whether leave should be given to file a second amended statement of defence and counterclaim outside timetable orders
  2. 2 Scope and content of further and better discovery against defendant and first counterclaim defendant
  3. 3 Whether security for costs should be ordered against defendant given foreign residence and active counterclaim

Ratio Decidendi

Leave to amend was granted; discovery orders and timetables were imposed by consent or adjourned; security for costs was granted because the defendant is resident abroad, the counterclaim is a substantive claim that will significantly increase trial scope and cost, and the defendant's prior decision to litigate in the US despite a New Zealand jurisdiction clause supports an inference of risk of evading New Zealand enforcement; accordingly the defendant was ordered to provide NZD 20,000 security and the counterclaim was stayed until payment.

Court Disposition

Interlocutory applications partly granted: leave to file second amended defence and counterclaim granted; discovery orders made/adjourned by consent; security for costs granted and counterclaim stayed until security paid; various matters adjourned to 19 April 2011 or listed timetables.

Orders

  • Leave granted to defendant to file second amended statement of defence and counterclaim outside timetable order
  • Consent discovery orders against first counterclaim defendant as recorded (email/Hotmail correspondence search, particulars of viruses/hard drive crashes, further affidavit, US cellphone records subject to confidentiality claim) with compliance by 28 January 2011 and interrogatory timetable culminating 25 February 2011