Chevin v Valmont
[2022] NZHC 134
•9 February 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1547
[2022] NZHC 134
BETWEEN PETER LOUIS CHEVIN
Plaintiff
AND
CLARK VINCENT VALMONT
First Defendant
TIMOTHY LAIRD EDNEY and THE GOLDEN BELT MINING COMPANY LIMITED
Second Defendants
Hearing: 20 September 2021 Appearances:
R Hucker & M Swan for the Plaintiff S Lowery for the First Defendant
M Lenihan for the Second Defendants
Judgment:
9 February 2022
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 9 February 2022 at 4.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors/Counsel:
Hucker & Associates, Auckland Bankside Chambers, Auckland M Lenihan, Auckland
CHEVIN v VALMONT & ORS [2022] NZHC 134 [9 February 2022]
Introduction
[1]Two applications have been filed:
(a)an application by the plaintiff for leave to appeal my decision to decline the plaintiff’s application to vary the consent order for security for costs; and
(b)a joint application by the defendants to strike-out the proceedings for failure to pay security for costs by 19 February 2021, the date ordered in my judgment dated 18 December 2020.1
[2] The original security for costs order was made by consent on 1 November 20192 and required Mr Chevin, the plaintiff, to provide security for costs of $100,000 in one lump sum. When this amount had not been paid by August 2020, the defendants applied for orders striking out the proceeding or alternatively for an unless order requiring the plaintiff to provide security by 30 November 2020 or the proceeding would be dismissed.
[3] Following the filing of that application, Mr Chevin applied to vary the security for costs order, to allow security to be provided in three stages, with various dates and stages proposed.
[4] In my decision dated 18 December 2020, I declined to vary the consent order to allow for payment in stages and required security to be paid by 19 February 2021. I declined to strike out the proceeding or make unless orders at that stage but reserved leave to the defendants to apply again if security was not paid by the date ordered.
[5] Mr Chevin filed an application for leave to appeal my decision declining to vary the consent order on 10 February 2021. Shortly afterwards, counsel for Mr Chevin, Mr Hucker, sought to withdraw as solicitor on the record.
1 Chevin v Valmont [2020] NZHC 3438.
2 I note that my original judgment recorded the date of the consent order incorrectly as 24 October 2019. Whilst the error is regrettable, nothing turns on the precise date of the order.
[6] I issued a minute dated 1 March 2021 asking for confirmation (before making an order that the solicitor for the plaintiff may withdraw):
(a)whether the plaintiff would be acting for himself and, if so, his address for service;
(b)whether the plaintiff intended to proceed with the application for leave to appeal; and
(c)whether the plaintiff would be responding to the defendants’ memorandum on costs.
[7]No memorandum was filed by or on behalf of the plaintiff.
[8] On 16 August 2021 the defendants filed a memorandum asking for costs on the applications to be determined and for directions to be made for a hearing of their renewed strike out application. Unfortunately, the defendants’ renewed application for strike out had not been brought to my attention. Nor had email correspondence from Mr Chevin to the Registry in early May 2021 confirming that he wished to pursue his application for leave to appeal, a copy of which was attached to the defendants’ memorandum.
[9] Following the filing of the defendants’ memorandum, I issued a minute dated 18 August 2021 granting leave to Mr Hucker to withdraw as counsel, confirming the address for service for the plaintiff was the email address used to correspond with the Registry and listing the proceedings for mention in the Chambers List for directions for the hearing of the applications.
[10] Orders were made by Lang J on 20 August 2021 directing the applications to be heard together and for the filing of submissions. Mr Hucker had by this stage been re-instructed as counsel for the plaintiff.
Plaintiffs’ application for leave to appeal
[11] My decision to decline the plaintiff’s application to vary the consent order in respect of security for costs is a decision on an interlocutory application. Mr Chevin therefore requires leave to appeal pursuant to s 56(3) of the Senior Courts Act 2016.
Relevant legal principles
[12] The relevant principles are set out by the Court of Appeal in Greendrake v District Court at Invercargill:3
[6] In Finewood Upholstery Ltd v Vaughan, to which Dunningham J referred in the leave decision, Fitzgerald J appropriately observed that the requirement for leave to appeal should serve as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made. The following considerations were recognised as relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
(footnotes omitted)
[13]These principles have recently been confirmed by the Court of Appeal in
Tomar v Tomar.4
[14] Counsel for the plaintiff also referred to Li v Chief Executive of the Ministry of Business, Innovation and Employment, which counsel submits demonstrates that the threshold for leave is not as high as Greendrake suggests.5 In support of this
3 Greendrake v District Court of New Zealand [2020] NZCA 122, citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.
4 Tomar v Tomar [2021] NZCA 419 at [6] and [7].
5 Li v Chief Executive of the Ministry of Business, Innovation and Employment [2018] NZHC 1171, [2018] NZAR 1134 at [21].
submission, counsel relies on a passage where Palmer J held after reviewing relevant case law:
[21] Pulling all these strands together, I consider the text, purpose, context and case law of s 56 suggests an application to appeal an interlocutory decision under s 56(3) is likely to be granted if:
(a)the appeal is not likely to be overtaken by the substantive hearing or cannot otherwise be considered as effectively in the context of an appeal of the substantive decision; or
(b)the appellant is likely to be prejudiced by a postponement to the substantive appeal; or
(c)the appeal may be dispositive of the case in law or as a practical matter; and
(d)the arguments in the appeal are capable of bona fide and serious argument; and
(e)the issue on appeal concerns a decision of sufficient significance to the parties or a question of law or general principle of sufficient importance as to outweigh the cost and delay of the appeal.
[15] In terms of leave to appeal in respect of a security for costs decision I do not consider the factors referred to by Palmer J above are significantly different to those in Finewood as summarised in Greendrake. Prior to the passage referred to above, Palmer J recorded that “the wider purpose behind s 56(3) is to lessen tactical delays and enhance the efficiency of the administration of justice”.6 And following the passage, Palmer J summarised that an application for leave is likely to be granted where “more pithily”:7
(a)there is good reason to consider it before, or separately to, the substantive appeal; and
(b)it is sufficiently meritorious in substance and relates to a sufficiently important issue as to outweigh the cost and delay of appeal.
[16] Given the recent confirmation in Tomar of the approach in Finewood, I consider Mr Chevin’s application for leave in accordance with the factors listed in Finewood.
6 At [20].
7 At [22].
High threshold
[17] The first factor listed in Finewood is the high threshold before leave to appeal is granted, with the requirement to apply for leave referred to as a “‘filtering mechanism’ to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made”.8
[18] I return to this factor after considering the other factors to determine whether this high threshold has been met.
Is there an arguable error of law or fact?
[19] Counsel for the plaintiff submits that I erred in declining the plaintiff’s application to vary the consent order in seven different respects. I consider each of these alleged errors in turn below.
Failure to identify why this case not appropriate for staged order
[20] Counsel for the plaintiff submits that after holding that security for costs is usually ordered on a staged basis,9 I then failed to identify or articulate why this case did not fall within that ordinary category of case.
[21] However, in the same paragraph I referred to security usually being ordered on a staged basis, I recorded that the defendants were not prepared to agree to staged payments when agreeing to the original consent order because they expected staged security would require applications to be made at every stage to enforce security, increasing costs for the defendants and increasing delay. I then recorded that “the defendants’ concerns appear to have been borne out”.10
8 Finewood Upholstery Ltd v Vaughan, above n 2, at [13].
9 Chevin v Valmont, above n 1, at [54].
10 At [54].
[22] Furthermore, I went on to say in the following paragraph that to disturb the consent order it would be necessary for Mr Chevin to provide evidence of a change in circumstances or whether a variation to staged orders would improve his prospects of compliance. I held that sufficient evidence had not been provided.
[23] I did, therefore, identify the reasons why I considered the case did not fall within the ordinary category of case where security is ordered on a staged basis.
Failure to assess effect on plaintiff and overstating effect on defendants
[24] Counsel for the plaintiff submits that I failed to assess the effect on the plaintiff of not allowing security for costs to be paid on a staged basis and overstated the effect on the defendants’ interests.
[25] Rather than a failure to assess the effect on the plaintiff, my decision was made largely on the basis of failure by the plaintiff to establish that he would be unable to prosecute his claim if I declined the application to vary.
[26] Nor do I consider that I overstated the effect on the defendants. If the order was varied to allow staged payments and that was likely to result in further cost and delay to the defendants then that is clearly relevant.
[27]In the judgment I stated:
[46] The plaintiff has not provided evidence of his financial position or how his circumstances have changed since he agreed to provide the security in one lump sum. He relies on the impact of COVID-19 but does not provide any detail as to how this has impacted on him. The defendants submitted that the failure by the plaintiff to provide any evidence as to his finances is not an oversight and that I should infer that provision of further details is not likely to support his position. It is hard to disagree with that submission when the defendants’ joint notice of opposition to the application to vary was filed on 1 September 2020 and squarely put the lack of details in regard to the plaintiff’s financial position in issue.11 The plaintiff had the opportunity to correct this when he filed his opposition to the application to strike out on 30 September 2020 with a supporting affidavit. However, he failed to include any detail of his financial position.
11 Joint notice of opposition dated 1 September 2020 at [3(f)].
[28] I went on to say that if Mr Chevin is serious about prosecuting his claim, but his financial position does not allow him to provide security for costs in the amount agreed, then I would have expected him to apply to vary the quantum of the security for costs order at an earlier time and with further detail. Failure to provide this evidence led me to question the submission that Mr Chevin is serious about prosecuting his claim.12
[29] There is nothing to stop the plaintiff from making a fresh application to vary with sufficient evidence at any stage. Without that evidence, it is not possible to properly assess the effect on the plaintiff of not allowing security for costs to be paid on a staged basis. At the time of my decision it was not clear to me that if I declined the application to vary that Mr Chevin would be prevented from prosecuting his claim although I recognised that as a possibility.
[30] In submissions filed for the application for leave, counsel for the plaintiff records that since my decision the judgment debts in the Avon Parnell proceedings have been settled and settlements have been reached with all creditors in the adjudication proceedings. As counsel for the second defendants submits, these payments are a double-edged sword because they suggest that Mr Chevin is able to arrange payment when it suits him to do so.
Fettered discretion by holding change in circumstance required
[31] Counsel for the plaintiff submits that I fettered my discretion “by holding that a change in circumstances was required to be established by the plaintiff prior to the consent order being varied as at [45] of the judgment in circumstances where the order was required in any event to be varied to set a time by which it was to be complied with and the Court was exercising a fresh discretion as to how and when the security would be required to be provided.”
[32] Counsel for the plaintiff submits that the original consent order made determined the quantum of security but not the time for payment or whether such payment should be on a staged basis.
12 Chevin v Valmont, above n 1, at [47] – [48].
[33] I accept that the original consent order did not set a date by which payment was required to be made but there is no question that the quantum agreed was to be paid in a lump sum as the proceeding was stayed until “the sum is paid or the security is given”. If the security was to be given in stages this would not only have been set out in the order made but the stay would not have continued until the whole of the amount was paid.
[34] As I held in my decision, the authorities are clear that consent orders should not easily be disturbed, with the applicant needing to establish that it is in the interests of justice to do so.13 I went on to explain that all of the circumstances needed to be considered including the financial position of the plaintiff, the merits of the claim and the interests of the other parties. I held that the plaintiff had not provided evidence of his financial position or how his circumstances had changed since he agreed to provide the security in one lump sum. I did not, therefore, fetter my discretion by holding that a change in circumstances was necessary. Whether there was evidence of a change in circumstances was just one of the factors considered.
Overstating legitimate interests of defendants
[35] Counsel for the plaintiff further submits that I took into account irrelevant considerations such as those at [36], [40] and [41] of my decision by overstating the legitimate interests of the defendants required to be protected in the balancing of the interests in the proceeding by taking account of factors beyond those of ensuring that there was security for the costs incurred in the proceeding by the defendants.
[36] Each of these matters is considered in paragraphs of my judgment in which I discuss the application to strike out brought by the defendants rather than the application to vary the consent order. It is not therefore correct to say that I erred by taking these matters into account in considering the application to vary the consent order.
13 SCC (New Zealand) v Samsung [2016] NZHC 2630 at [12] – [15] (considering whether there had been change in circumstances). Steadly Ship Ocean Quest of Arne [1995] 3 NZLR 415, (1995) 8 PRNZ 610 at 617 (amending consent order on the basis of significant change in circumstances).
Revisited merits of the plaintiff’s case when the merits were already taken into account in the initial order made by the Court
[37] The original order was made by consent and not by the Court so there was no assessment of the merits by the Court when the original order was made.
[38] Moreover, I reached the view that the decisions whether to vary the consent order and whether to order staged security both depended on whether they were in the interests of justice and so all of the circumstances needed to be considered. I was concerned to ensure that the merits were considered given the plaintiff was seeking to materially vary the consent order. As a result, I do not consider that I erred by taking the merits into account.
Took into account irrelevant considerations including effect of banning order and conduct in other proceedings
[39] Counsel for the plaintiff further submits that I took an irrelevant consideration into account by considering the effect that the “banning order” may have had on Mr Chevin’s ability to provide direction to the first defendant in circumstances where the obligations owed by the first defendant to the plaintiff were fiduciary in nature and the first defendant had acknowledged the shares were being held on a bare trust. Counsel also submits that I took into account irrelevant considerations as to conduct in other proceedings at [40] and [41].
[40] As I have said above, however, I considered that the merits of Mr Chevin’s claims were relevant. I consider that the management “banning order” at the time of the impugned conduct will make it difficult for Mr Chevin to argue that the first defendant should have sought instruction from him as it would appear to be directly contrary to the terms of the “banning order”. On that basis, I do not accept that I erred by taking the “banning order” into account.
[41] I referred to Mr Chevin’s conduct in other proceedings at [40] and [41] of my judgment, but that was when considering the application to strike out. One of the questions relevant to the strike out application was whether there was any realistic expectation that compliance would be rectified: Mr Chevin’s position or conduct in
other proceedings was relevant to that. I do not consider therefore that I erred as submitted by the plaintiff.
Failed to apply the approach of the Court of Appeal in Bevan-Smith v Reed Publishing (NZ) Ltd14
[42] Finally, counsel for the plaintiff submits that I failed to apply the approach in Bevan-Smith v Reed Publishing (NZ) Ltd where the Court emphasised the primacy of the need to ensure that the merits of the dispute are adjudicated upon.
[43] Bevan-Smith v Reed Publishing (NZ) Ltd was an appeal against a decision declining to adjourn a trial which the Court of Appeal heard while the trial was underway. My decision not to vary the consent orders was made on the basis that there was not sufficient evidence that Mr Chevin would be unable to continue with his claim unless the order was varied. If Mr Chevin is not able to proceed with his claim there is nothing to stop him from making a further application with the necessary evidence.
Summary on arguable error
[44] I do not consider that the plaintiff has identified an arguable error of law or fact. It is therefore unnecessary to consider the further factors listed in Finewood. In case I did err, however, I consider those factors below.
Is there general or public importance in the appeal or is it sufficiently important to the applicant to outweigh the lack of general or public importance?
[45] I do not accept that there is general public importance in the Court of Appeal providing guidance as to the approaches that should be adopted to varying consent orders for security for costs and the relevant interests to be taken into account. Such cases almost always depend on their facts. The reason for declining the application to vary in this case was a lack of evidence from Mr Chevin as to his financial position, whether he would still be able to prosecute his claim without variation and whether any variation would in fact improve the likelihood of the security for costs being paid. A decision by the Court of Appeal is therefore unlikely to provide the guidance that counsel for the plaintiff suggests.
14 Bevan-Smith v Reed Publishing Ltd (2006) 18 PRNZ 310.
[46] Counsel for the plaintiff further submits that the outcome of the appeal has huge significance to the plaintiff, as an otherwise meritorious case may be prevented from being determined on its merits. But I do not accept that is necessarily the case. As I have said earlier, if Mr Chevin’s financial position means he will not be able to proceed with his claim if the security order stands, then he is able to make a further application with evidence to show how his financial position prevents payment of the security offered. As I have said, the failure to provide that evidence was an important factor in why the application to vary failed in the first place. The Court of Appeal is not going to be in any better position to determine this question without such evidence.
Do the circumstances warrant incurring further delay?
[47] Mr Chevin filed these proceedings on 1 August 2019 and has taken no substantive steps since other than consenting to the security for costs order just prior to the hearing of the defendants’ application. The hearing was allocated despite Mr Chevin not having filed a notice of opposition or any affidavit in support of that opposition. He has still not provided initial disclosure, despite repeated requests from the defendants. Nor has he filed a reply to the statements of defence or defence to the first defendant’s counterclaim.
[48] Counsel for Mr Chevin submits in response that the matter is stayed until payment of the security and so Mr Chevin’s failure to take any steps including providing initial disclosure cannot be criticised.
[49] I recorded in my original judgment that because the proceedings are stayed the plaintiff technically may not be required to comply with all of the steps referred to above yet. But initial disclosure was due when Mr Chevin first served his statement of claim, prior to the stay being ordered, so the failure to provide that disclosure can be taken into account in considering the circumstances.
[50]Furthermore, as I said in my original judgment:15
… there is a strong public interest in ensuring the expeditious resolution of proceedings once filed. Litigation which lies dormant in our court system does so at a public cost and is not consistent with the objective of the High Court Rules “to secure the just, speedy and inexpensive determination of any proceeding”.16
[51] The circumstances here do not warrant further delay where Mr Chevin has failed to provide the evidence needed in support of his application to vary despite being on notice that the defendants considered further evidence is required.
Are the interests of justice served by granting leave?
[52] I do not consider the interests of justice would be served by granting leave. If I had granted the application on the basis of a simple statement by Mr Chevin that his financial circumstances prevent payment of the security sum agreed without any supporting detail it would potentially set a precedent for a party to consent to an order and then apply to vary it if they are no longer prepared to pay, rather than not being able to pay, the security agreed. As I have said above, if Mr Chevin is not able to proceed with the claim he is able to make a further application with the necessary evidence.
Has the high threshold for leave to appeal been met?
[53] I do not consider that the high threshold for granting leave to appeal has been met. The factors above do not support granting leave and an appeal will unnecessarily delay matters when the plaintiff has alternative options if he considers that he is not able to proceed with his claim.
Strike out
[54] In my decision on the application to strike out and to vary the consent order, I considered the factors listed by Gault J in Xu v Liu.17 The final factor listed in that case is:
15 Chevin v Valmont, above n 1, at [28].
16 High Court Rules 2016, r 1.2.
17 Xu v Liu [2020] NZHC 921 at [8].
(f)Whether there is any realistic expectation that [the default] will be rectified following further opportunity for compliance.
[55] The result on the application to strike out was set out in my judgment as follows:
[57] If the consent order is not varied then the answer to the final question set out in paragraph 23(f) above, whether there is any realistic expectation that the failure to provide security will be rectified following further opportunity to comply, is likely to be no.
[58] I am not prepared to strike out the proceeding immediately, however, because that would remove Mr Chevin’s rights to bring the claim now, denying him access to justice, in circumstances where the consent order did not include a date by which security was to be provided, this is the first time the failure to provide security is before the Court and there have been disruptions beyond his control as a result of COVID-19.
[56] I therefore made an order, dated 18 December 2020, that the plaintiff was to provide the security for costs ordered by consent on 1 November 2019 in the amount of $100,000 by 19 February 2021. This allowed the plaintiff a further two months, bringing the total time allowed for the plaintiff to organise security to one year and two months.
[57] Mr Chevin did not pay the security by 19 February 2021, and so the defendants brought a further application to strike out as I had reserved leave for them to do.18
[58] Counsel for the plaintiff submits that strike out orders or, in the alternative, an unless order striking out the proceedings unless security is provided, are not justified in circumstances where:
(a)an application for leave to appeal has been filed and, if granted, will result in a variation of the consent order to allow payment of the security on a staged basis;
(b)the plaintiff has prosecuted his application to vary the terms of the security for costs order in a timely manner and in accordance with the directions of the Court relating to that application;
18 Chevin v Valmont, above n 1, at [62].
(c)the proceedings were stayed as a result of the initial order for security for costs being made and the plaintiff has, as a result, been prohibited from taking steps to prosecute the proceeding whilst the proceedings remain stayed; and
(d)there is no prejudice to the first defendant and second defendants that arises as a result of the continuation of these proceedings pending the determination of the appeal of my judgment.
[59] As I have already determined the question of leave to appeal, the first and last of these reasons fall away unless Mr Chevin decides to seek leave to appeal from the Court of Appeal. If he does so, then orders can be sought staying the effect of this decision if necessary.
[60] Counsel for Mr Chevin submits the plaintiff is not responsible for the time the application for leave to appeal has taken to progress in 2021. I accept that there have been delays at the Court’s end, but some responsibility must be borne by Mr Chevin in circumstances where he failed to advise the Court for over two months whether he intended to continue with his application for leave to appeal and then only by email to the Registry and not by memorandum as directed.
[61] In making my decision on this strike out application, however, I do not take the delays in 2021 into account to ensure that the approach is fair.
[62] In my judgment I listed six factors to be considered in determining whether the proceeding should be struck out:19
(a)the duration of the breach;
(b)its impact upon the progress of the proceedings as a whole;
(c)whether there appears to be any excuse or explanation;
(d)whether it continued after reasonable opportunities and reminders, particularly where the Court had already made a fresh order, or given a warning, due to earlier non-compliance;
19 At [23].
(e)whether it has substantially prejudiced the innocent party, whether procedurally or due to some wider impact upon the innocent party's interests and affairs; and
(f)whether there is any realistic expectation that it will be rectified following further opportunity for compliance.
[63]I consider each of these factors below afresh.
Duration of breach
[64] The original consent order was made on 1 November 2019. I then made an order on 18 December 2020 declining to vary the consent order and ordering security to be paid by 19 February 2021. Mr Chevin did not pay security but instead applied for leave to appeal.
[65] The original consent order did not include a date by which security was required to be paid. However, with the failure to pay by 19 February 2021 there is now a clear breach. The application for leave to appeal the decision setting that date was brought by Mr Chevin within time, but no formal application for stay was filed other than orally at the hearing.
Impact upon the progress of the proceedings as a whole
[66] The proceedings remain stayed until security is paid. As a result, no progress is being made at all.
Whether there appears to be any excuse or explanation
[67] As submitted by the defendants, Mr Chevin has not given any explanation to the Court for his failure to pay security. It is presumably because he has applied for leave to appeal my decision. However, as noted above, an application for leave to appeal does not automatically stay the order made. I have now declined Mr Chevin’s application for leave so the application for leave will no longer provide an excuse or explanation if further steps are not taken by Mr Chevin to appeal.
Whether it continued after reasonable opportunities and reminders
[68] The defendants filed their renewed strike-out application on 26 March 2021. Despite that, Mr Chevin has not formally applied to stay the proceedings and nor has he apparently attempted to reach any further agreement in respect of variation of the security for costs order or even paid the first proposed stage.
[69] The breach has therefore continued despite reasonable opportunity and reminders.
Whether it has substantially prejudiced the innocent party
[70] As I have found in my decision, there is considerable prejudice to the defendants in having the proceeding hanging over their heads in terms both of conducting their business and having to instruct counsel. Costs continue to be incurred and uncertainty continues.
Whether there is any realistic expectation that it will be rectified
[71] Despite my judgment expressly pointing to the fact that there was no evidence that breaches would be rectified, there is still no such evidence.
Should the proceeding be struck out?
[72] In my view all of the grounds set out above support an order striking out this proceeding but not immediately given that Mr Chevin filed the application for leave to appeal. The order is, therefore, in the form of an unless order requiring security to be paid by the date set out below or the proceeding will automatically be struck out. I allow a further two months as I did previously to allow Mr Chevin time to take the necessary steps.
Result
[73] Mr Chevin’s application for leave to appeal my decision dated 18 December 2020 is declined.
[74] The defendants’ application for an unless order is granted requiring security for costs of $100,000 to be paid by 9 April 2022 or the proceeding will be struck out.
Costs
[75] The defendants are entitled to costs, having succeeded on both applications. I record my preliminary view that there does not seem any basis for departing from costs on a 2B basis. I ask the parties to confer and attempt to agree costs. If agreement cannot be reached, memoranda of no more than five pages may be filed on behalf of the defendants within 15 working days of this judgment and on behalf of the plaintiff within 25 working days.
Associate Judge Sussock
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