Chevin v Valmont - [2022] NZHC 134

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…

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 Chevin v Valmont

Details

AGLC: Chevin v Valmont [2022] NZHC 134
Case: [2022] NZHC 134
Decision Date: 9 February 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Associate Judge Sussock heard two applications filed in the case of Chevin v Valmont. The first application was by the plaintiff, Peter Louis Chevin, for leave to appeal the decision to decline his application to vary the consent order for security for costs. The second application was a joint application by the defendants to strike out the proceedings for the plaintiff's failure to pay security for costs by 19 February 2021. The court was required to decide whether the plaintiff's application for leave to appeal should be granted and whether the defendants' application to strike out the proceedings should be allowed.

The court first considered the plaintiff's application for leave to appeal. It found that the plaintiff had not identified an arguable error of law or fact in the decision to decline the application to vary the consent order. The court held that the plaintiff had not provided sufficient evidence of his financial position or how his circumstances had changed since he agreed to provide the security in one lump sum. The court also found that the plaintiff had not provided evidence that he would be unable to prosecute his claim if the order was not varied, and that the failure to provide such evidence was an important factor in why the application to vary failed in the first place. The court further found that the circumstances did not warrant incurring further delay, as the plaintiff had failed to provide the evidence needed in support of his application to vary despite being on notice that the defendants considered further evidence was required.

The court then considered the defendants' application to strike out the proceedings. It found that all the grounds set out in the application supported an order striking out the proceeding. The court allowed a further two months for the plaintiff to take the necessary steps and granted an unless order requiring security for costs of $100,000 to be paid by 9 April 2022 or the proceeding would be struck out.

The court declined the plaintiff's application for leave to appeal and granted the defendants' application for an unless order. The defendants were entitled to costs, having succeeded on both applications. The court asked the parties to confer and attempt to agree on costs, with the possibility of filing memoranda if agreement could not be reached.

In summary, the court found that the plaintiff had not met the high threshold for granting leave to appeal, and that the circumstances did not warrant incurring further delay. The court granted the defendants' application to strike out the proceedings, allowing the plaintiff a further two months to provide the required security for costs. The court ordered the defendants to be entitled to costs and requested the parties to attempt to agree on the amount of costs to be awarded.

Orders