GARDINER AND CLARK v DYER [2018] NZHC 3052

GARDINER AND CLARK v DYER [2018] NZHC 3052

Threshold under r 5.45 was met because Mr Dyer lacked funds and had incurred very substantial litigation costs; given the history, overlap with prior family litigation and realistic risk of non‑payment, it was just to order staged security for costs totaling $60,000 NZD and to stay proceedings pending the Court of...

Source-derived case information.

Citation
[2018] NZHC 3052
Parties
Plaintiff (trustee): Julia Frances Gardiner; Plaintiff (trustee): Peter John Clark; Defendant: Wayne Dyer
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 November 2018
Procedural Posture
Civil (trusts/property/family Related) / Interlocutory Applications for Security for Costs and Strike Out; Stay Ordered Pending Court of Appeal Outcome
Outcome
Application for security for costs granted in part; security of $60,000 NZD ordered in three staged instalments; proceedings stayed pending Court of Appeal outcome and for non-payment of required security; ancillary directions given for future conduct and reserve of costs
Legal Topics
Security for Costs, Strike Out, Vesting Order, Constructive Trust, Issue Estoppel, Stay of Proceedings
Trusts Family Law Civil Procedure Property Law Costs Security for Costs Strike Out Vesting Order +3 more

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Parties

Julia Frances Gardiner

Plaintiff (trustee)

Peter John Clark

Plaintiff (trustee)

Wayne Dyer

Defendant

Procedural Posture

Civil (trusts/property/family Related) / Interlocutory Applications for Security for Costs and Strike Out; Stay Ordered Pending Court of Appeal Outcome

Legal Issues

  1. 1 Whether threshold under High Court Rules r 5.45(1) is satisfied that there is reason to believe the plaintiff will be unable to pay defendant's costs
  2. 2 Whether it is just to exercise the discretion to order security for costs under r 5.45(2)
  3. 3 What quantum of security for costs is appropriate and whether payments should be staged

Ratio Decidendi

Threshold under r 5.45 was met because Mr Dyer lacked funds and had incurred very substantial litigation costs; given the history, overlap with prior family litigation and realistic risk of non‑payment, it was just to order staged security for costs totaling $60,000 NZD and to stay proceedings pending the Court of Appeal and pending payment; failure to make staged payments results in a stay.

Court Disposition

Application for security for costs granted in part; security of $60,000 NZD ordered in three staged instalments; proceedings stayed pending Court of Appeal outcome and for non-payment of required security; ancillary directions given for future conduct and reserve of costs