Cable Bay Sections Ltd v Wu HC Auckland CIV 2007-404-004704

[2008] NZHC 2381

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-004704

CIV 2008-404-001466

BETWEEN  CABLE BAY SECTIONS LTD Plaintiff

AND  SUFAN WU Defendant

Hearing:         26 June 2008

Appearances: M J Hammond for Plaintiff

B Rooney for Defendants

Judgment:      27 June 2008 at 5pm

JUDGMENT OF ASSOCIATE JUDGE ROBINSON

This judgment was delivered by me on 27 June 2008 at 5 pm pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Tomkins Wake, PO Box 258, Hamilton

B Rooney, Simpson Grierson, PO Box 3320, Shortland Street, Auckland

CABLE BAY SECTIONS LTD V SUFAN WU HC AK CIV 2007-404-004704 27 June 2008

[1]      The  defendant  has  withdrawn  his  application  for  the  plaintiff  to  provide security for costs. Following the withdrawal of that application both the plaintiff and the defendant seek orders for costs. Counsel for the plaintiff in support of the plaintiff’s application for costs relies upon the fact that the defendant has withdrawn the application. The plaintiff has incurred costs in opposing the application. Such opposition has been successful. Consequently, the general principle referred to in rule 47(a) that the party who fails with respect to an interlocutory application should pay the costs to the party who succeeds results in the plaintiff being entitled to an order for costs against the defendant.

[2]      Counsel  for  the  defendant  points  out  that  prompted  by  recent  publicity relating to the value of real estate in the north and the financial strength of finance companies, the defendant’s solicitor sought from the solicitors for the plaintiff some assurance of the plaintiff’s financial ability to meet any award for costs made in favour of the defendant should the plaintiff’s claim against the defendant be unsuccessful. In a letter from the defendant’s solicitor to the plaintiff’s solicitor the plaintiff’s solicitor is invited to respond to the defendant’s concerns and disclose its financial circumstances. The letter concludes as follows: “If your client elects not to do that, and if it discloses the relevant information only in response to an application for security for costs, our client will rely on this letter in relation to his costs in the application, whatever the outcome”.

[3]      As there was no satisfactory response to that request the defendant brought this application for security for costs. I am satisfied that in the circumstances of this case, the plaintiff’s failure to supply the information requested by the defendant prior to the application being made by the defendant for security for costs is sufficient justification to depart from the normal rule that applies in the case of a successful defence to an application for an interlocutory matter. Consequently, I am satisfied that the plaintiff is not entitled to any costs following the withdrawal of the application for security for costs against it.

[4]      I am also satisfied that the defendant is not entitled for an order for costs in his favour following withdrawal of the application for an order requiring the plaintiff to provide security. That application was not successful. The defendant was in possession of some information relating to the financial position of the plaintiff which would indicate that the plaintiff was in a position to pay any order for costs ordered against it.

[5]      In summary the application by the defendant requiring the plaintiff to provide security is withdrawn by leave; no order for costs is made in favour of either party.

Associate Judge Robinson