Brown v Windowmakers Limited - [2016] NZHC 1024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002771 [2016] NZHC 1024

BETWEEN
TERENCE JOHN BROWN

Plaintiff

AND

WINDOWMAKERS LIMITED First Defendant

AND

MARTIN ERIC BAMFORD Second Defendant

Hearing: 14 March 2016

Appearances:

A G Maclean for the Plaintiff
K Sheehan for the First Defendant
J Armstrong for the Second Defendant

Judgment:

18 May 2016

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 18 May 2016 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Armstrong Murray, Auckland
Shine Lawyers, Auckland

A Maclean, Auckland

BROWN v WINDOWMAKERS LIMITED & Anor [2016] NZHC 1024 [18 May 2016]

[1] The defendants, Windowmakers Limited and Martin Bamford, apply for an order for security for costs in the sum of $52,035.00 each against the plaintiff, Terence Brown, in reliance on High Court Rule 5.45. It is not in dispute that the plaintiff would be unable to pay costs should he be unsuccessful in this proceeding, and that accordingly, the jurisdictional threshold to make an order under rule 5.45 has been met.1 The question remains whether I should exercise my jurisdiction to make such an order.

Background

[2] This is the second proceeding in which the same causes of action have been pursued against the defendants. The first proceeding was issued by the plaintiff’s company, Architecture and Property Management Ltd (APML), but was discontinued in 2014 after APML went into voluntary liquidation.2 When the proceeding was terminated, the defendants unsuccessfully sought costs against the plaintiff as a non-party. The plaintiff was at the time director of APML, and had engaged a lawyer for APML on a contingency basis. The defendants argued he was the “real plaintiff”. The costs claim failed.3

[3] The primary substantive claim in that first proceeding was an allegation of trespass against Windowmakers for the removal of joinery from a property at
17A Churchhouse Rd on about 31 October 2008. APML had been building the property and the defendants were sub-contractors. Windowmakers had supplied and installed the joinery, while Mr Bamford was responsible for installing various bathroom items. In October 2008 Windowmakers demanded payment. Mr Brown informed it that there were insufficient funds to pay it then, but that money would be available when the property was sold. Windowmakers elected not to wait until the sale, and advised Mr Brown that it would remove the joinery pursuant to its terms of
trade, which provided that it retained ownership of all items supplied until they had

1Mr Brown has admitted in affidavit evidence that he would have no prospect of paying costs should he be unsuccessful.

2 The file number was CIV-2013-404-3023.
3 Architecture and Project Management Ltd v Windowmakers Ltd [2016] NZHC 700.

been paid for in full. On 31 October 2008 Windowmakers’ agents entered the property and removed all the joinery. Because the property was insecure, various other contractors removed fittings that they had supplied. Mr Bamford removed items including vanities, basins, tapware and plumbing fittings, the oven,…

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.

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Details

Case: [2016] NZHC 1024
Decision Date: 18 May 2016

CaseChat Overview and Summary

The defendants, Windowmakers Limited and Martin Bamford, applied for an order for security for costs against the plaintiff, Terence Brown, in the sum of $52,035 each. The plaintiff would be unable to pay costs if he were to be unsuccessful in this proceeding, satisfying the jurisdictional threshold under rule 5.45 of the High Court Rules. The court was required to decide whether it would be just in all the circumstances to make an order that Mr Brown provide security for costs. The court considered the principles relevant to its discretion to make such an order, including that the court should not allow the rule to be used oppressively to deny plaintiffs with limited means the ability to bring their case before the court. The court also considered the ease, convenience, and cost of enforcing a costs judgment in the plaintiff's country of residence, but determined that the issue at the heart of the matter was impecuniosity. The court ordered that the plaintiff provide security for costs in the sum of $40,000, and the proceeding was stayed until the security was paid.

Orders