TAYLOR v WYNN WILLIAMS [2017] NZHC 2598

TAYLOR v WYNN WILLIAMS [2017] NZHC 2598

Threshold under r 5.45(1) was satisfied. On balancing discretionary factors the Court formed an overall impression that the Taylors' claim, while facing considerable difficulties, was not prima facie unmeritorious and that ordering full security would likely deprive them of access to justice; however the defendant...

Source-derived case information.

Citation
[2017] NZHC 2598
Parties
Plaintiff/applicant: David John Taylor; Second Applicant: David John Taylor and Alison Taylor as trustees of the DJ Taylor Family Trust; Respondent: Wynn Williams
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 October 2017
Procedural Posture
Security for Costs Application Under R 5.45 High Court Rules / Interlocutory
Outcome
Order for security for costs in the sum of NZD 15,000 with immediate retention of NZD 6,888.17 and the balance payable by instalments; leave to review security reserved; costs to lie where they fall
Legal Topics
Security for Costs, Duty of Care of Solicitors, Appeal Advice, Impecuniosity, High Court Rules R 5.45
Civil Procedure Legal Professional Negligence Trusts and Receivership Security for Costs Duty of Care of Solicitors Appeal Advice Impecuniosity High Court Rules R 5.45

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Parties

David John Taylor

Plaintiff/applicant

David John Taylor and Alison Taylor as trustees of the DJ Taylor Family Trust

Second Applicant

Wynn Williams

Respondent

Procedural Posture

Security for Costs Application Under R 5.45 High Court Rules / Interlocutory

Legal Issues

  1. 1 Whether threshold under r 5.45(1) is satisfied (reason to believe plaintiff will be unable to pay defendant's costs)
  2. 2 Whether it is just to order security under r 5.45(2)
  3. 3 Appropriate quantum of security

Ratio Decidendi

Threshold under r 5.45(1) was satisfied. On balancing discretionary factors the Court formed an overall impression that the Taylors' claim, while facing considerable difficulties, was not prima facie unmeritorious and that ordering full security would likely deprive them of access to justice; however the defendant would incur substantial unrecoverable costs if no security were ordered. The Court therefore ordered a modest security amount of NZD 15,000, with NZD 6,888.17 retained by the defendant immediately and the balance payable by monthly instalments, and reserved the right to seek review of the security when the case is ready for trial.

Court Disposition

Order for security for costs in the sum of NZD 15,000 with immediate retention of NZD 6,888.17 and the balance payable by instalments; leave to review security reserved; costs to lie where they fall

Orders

  • Security for costs ordered in the sum of NZD 15,000
  • Wynn Williams to retain NZD 6,888.17 as first tranche of security