Benniman v Harmer - [2021] NZHC 2049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1391

BETWEEN
JASON BENNIMAN

Plaintiff

AND

JOHN ANTHOY HARMER and LINDA JANE HARMER

First Defendants

JANE BENNIMAN

Second Defendant

Hearing: 3 August 2021

Appearances:

Brian Stewart and Kelsey Sabine for the Plaintiff Tom Pasley for the Defendants

Judgment:

9 August 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 9 August 2021 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

Solicitors:
Simpson Western (B Stewart/K Sabine), Takapuna, for the Plaintiff Fee Langstone (T Pasley), Auckland, for the Defendants

BENNIMAN v HARMER and [2021] NZHC 2049 [9 August 2021]

[1] In this family litigation, the defendants apply for security for costs against the plaintiff. Mr and Mrs Harmer, the first defendants, are the parents of Jane Benniman, the second defendant, who was married to Jason Benniman, the plaintiff. In the early years of Mr and Mrs Benniman’s relationship, Mr and Mrs Harmer gave them financial assistance to buy a family home in Auckland. The purchase was also financed with a bank mortgage. Four years later, the Bennimans transferred the property to Mr and Mrs Harmer. The Harmers took out a fresh bank mortgage in place of the Bennimans’ mortgage but did not pay the Bennimans anything for the transfer. The Bennimans continued to live in the house until they separated. Mr Benniman claims that Mr and Mrs Harmer own the property subject to an equitable interest in favour of the Bennimans. The defendants say that his claim is opportunistic and has no merit. Mr Benniman accepts that he will not be able to pay the defendants’ costs if his case fails.

[2] I do not order security. Mr Benniman’s case is worth hearing, but any order for significant security would block his claim. That prevails over the defendants’ interest in being protected from a barren costs order.

[3] The case turns on the exercise of the discretionary power to order security: “if the Judge thinks it is just in all the circumstances”.1 The discretion is exercised according to the principles summarised in A S McLachlan Ltd v MEL Network Ltd,2 and taking into account the factors set out by Kós J in Highgate on Broadway Ltd v
Devine.3 It is helpful to bear in mind William Young J’s statement in Reekie v Attorney-
General:4

[2] … The jurisdiction to require security poses something of a conundrum for the courts. The poorer the plaintiff, the more exposed the defendant is as to costs and the greater the apparent justification for security. But, as well, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled.

[3] … [J]udges are slow to make an order for security which will stifle a claim.

1 High Court Rules 2016, r 5.45(2).
2 A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benniman v Harmer

Details

AGLC: Benniman v Harmer [2021] NZHC 2049
Case: [2021] NZHC 2049
Decision Date: 9 August 2021

CaseChat Overview and Summary

The case of Benniman v Harmer involved a dispute between the plaintiff, Jason Benniman, and the first and second defendants, John Anthoy Harmer, Linda Jane Harmer, and Jane Benniman. The plaintiff claimed that the Harmers own the property subject to an equitable interest in favour of the Bennimans, while the defendants argued that the claim was opportunistic and had no merit. The central legal issue in the case was whether the court should order security for costs against the plaintiff. The court held that the plaintiff's case was worth hearing, but any order for significant security would block his claim, which prevailed over the defendants' interest in being protected from a barren costs order. The court's decision was based on a careful assessment of the merits of the case and a consideration of the competing interests of the parties. The court ultimately decided not to order security, balancing the plaintiff's right of access to the court with the defendants' interest in being protected from a barren costs order.

The court's reasoning in this case was based on the principles set out in A S McLachlan Ltd v MEL Network Ltd and Highgate on Broadway Ltd v Devine. The court noted that the jurisdiction to require security posed a conundrum for the courts, as the poorer the plaintiff, the more exposed the defendant was as to costs, but the poorer the plaintiff, the less likely it was that security would be able to be provided, and thus the greater the risk of a worthy claim being stifled. The court was slow to make an order for security which would stifle a claim. In assessing whether it was just in all the circumstances of the case to order security, some assessment of the merits of the case was required. Such an assessment was a matter of impression. The court considered the plaintiff's circumstances, which were modest, and the defendants' relative affluence. The court also noted that the infrequent use of the power to order security in family litigation gave claimants a proper opportunity to have their case heard. The court held that it would be pointless to ask the plaintiff to put up token security, an amount that he may be able to pay but would fall well short of any costs he may be ordered to pay. Overall, the balance favoured not ordering security.

Orders