Chevin v Valmont
[2020] NZHC 3438
•18 December 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1547
[2020] NZHC 3438
BETWEEN PETER LOUIS CHEVIN
Plaintiff
AND
CLARK VINCENT VALMONT
First Defendant
TIMOTHY LAIRD EDNEY and THE GOLDEN BELT MINING COMPANY LIMITED
Second Defendants
Hearing: 29 October 2020 Appearances:
R Hucker & M Swan for the Plaintiff S Lowery for the First Defendant
D Chisholm QC for the Second Defendants
Judgment:
18 December 2020
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 18 December 2020 at 4.30pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Hucker & Associates, Auckland Bankside Chambers, Auckland D Chisholm QC, Auckland
Chevin v Valmont & Ors [2020] NZHC 3438 [18 December 2020]
Introduction
[1] A security for costs order was made by consent in this proceeding on 24 October 2019 requiring Mr Chevin, the plaintiff, to provide security of $100,000. The proceedings were stayed until the sum was paid or security given in a form acceptable to the Registrar. No date was set by which security was to be provided.
[2]The security ordered has not been provided.
[3] Mr Valmont, Mr Edney and Golden Belt Mining Company Limited (GBMC), the first and second defendants, now jointly seek orders striking out the proceeding or alternatively for an unless order requiring the plaintiff to provide security by 30 November 2020 or the proceeding will be dismissed.
[4] Following the filing of the defendants’ application to strike out, Mr Chevin filed an application to vary the security for costs order, to allow security to be provided in three stages.
[5]Both applications are opposed.
Issues
[6]The issues for this Court are:
(a)Should the proceeding be struck out immediately for failure to provide security?
(b)If not, should the application to vary the security for costs order be granted?
(c)Should unless orders be made?
Background
[7] Mr Chevin filed his claim on 1 August 2019. The claim relates to transactions entered into by companies for which the first defendant, Mr Valmont, was the sole
director. Mr Valmont held shares in these companies as bare trustee for Mr Chevin.1 The plaintiff says the transactions were at an undervalue and were not disclosed to him, in breach of Mr Valmont’s duties as trustee and as a director. The transactions were entered into with the second-named second defendant, GBMC. Mr Chevin alleges the second defendants knowingly received the trust property.
[8] The defendants deny the claims. Mr Valmont says that he acted in accordance with his trustee and director’s duties. Mr Valmont, Mr Edney and GBMC submit that the claims appear to arise out of Mr Chevin’s attempts to circumvent his disqualification as a director pursuant to s 382(1) of the Companies Act 1993.
[9] The defendants further submit that since bringing the claim, Mr Chevin has failed to prosecute it. Mr Chevin has not provided initial disclosure despite several requests from the defendants, and nor has he filed a reply to Mr Valmont’s statement of defence or a defence to the counterclaim.
[10] On 27 September 2019, the defendants filed a joint application for security for costs with comprehensive affidavits in support from Mr Valmont and Mr Edney. Mr Chevin did not file an opposition to that application within the deadline but sought leave to oppose the application out of time. Following the granting of leave, Mr Chevin decided not to oppose after all. Security for costs orders for a lump sum payment of $100,000 were then made by consent on 1 November 2019. The orders included a stay until security was provided but no date by which its provision was required.
[11] Prior to the call in the Chambers list on 7 August 2020, a joint memorandum was filed on behalf of the defendants submitting that the proceeding should be struck out unless the plaintiff provided the security ordered by 7 September 2020.
[12] The plaintiff responded by memorandum stating that he intended to apply to vary the order for security so that it could be paid in three tranches as follows:
1 Mr Valmont admits he held shares as bare trustee but disputes the number of shares held and whether shares were held in all companies alleged.
(a) $30,000 on 20 October 2020;
(b) $30,000 on 20 January 2021; and (c) $40,000 on 20 March 2021.
[13] Associate Judge Bell issued a Minute on 7 August 2020 directing the parties to file formal applications by 21 August 2020 if they wished to pursue their respective applications. As a result, the defendants filed a joint application to strike out the proceeding together with a supporting affidavit by the first defendant on 19 August 2020. The plaintiff, meanwhile, filed an application to vary the security for costs order on 24 August 2020 together with a short affidavit in support, promising a further affidavit would be filed setting out the grounds for the variation. The plaintiff’s application proposed a different breakdown of the total amount to be provided and by later dates from that set out in the earlier memorandum, this time proposing:
(a)$20,000 to be provided on or before 10 November 2020;
(b)$50,000 on the service of the plaintiff’s briefs of evidence; and
(c)$30,000 at the commencement of the trial.
[14] Notices of opposition were filed on 1 September 2020 by the defendants jointly and on 30 September 2020 by the plaintiff. A further short affidavit was filed by the plaintiff in support of his notice of opposition.
Application to strike out
[15] The joint application by the defendants to strike out the proceedings seeks either:
(a)an order striking out the proceeding immediately; or
(b)in the alternative, an “unless” order striking out the proceeding unless by 30 November 2020 the plaintiff pays $100,000 into Court or gives security in that amount.
[16] The defendants’ application is made in reliance on rr 7.48(2)(a) and 15.2 of the High Court Rules 2016. Rule 7.48 relevantly provides:
7.48 Enforcement of interlocutory order
(1)If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.
(2)The Judge may, for example, order—
(a)that any pleading of the party in default be struck out in whole or in part;
…
[17] Pursuant to r 15.2, if a plaintiff fails to prosecute a proceeding the defendant may apply to dismiss or stay the proceeding and a court “may make such order as it thinks just”.
[18] The defendants focussed on r 7.48 in the hearing which is appropriate in the circumstances. The law is settled that before an order to dismiss a proceeding is made under r 15.2 the defendants must show that the plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants.2 In this case, where there was no date by which security was required to be provided and only one application has been filed as a result of the delay, it is difficult to describe the delay as inordinate.
[19] In Jagwar Holdings Ltd v Fullers Corporation3, Thorp J contrasted the Court’s power under r 7.48 with the more general power under r 15.2 in the context of a failure to provide security for costs:4
2 Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 at 248.
3 Jagwar Holdings Ltd v Fullers Corporation (1991) 4 PRNZ 577.
4 At 578.
It has long been accepted that the Court has a discretion to dismiss proceedings for failure to comply with an order to give security for costs. … However, the authorities also establish that such a course will not be taken unless the circumstances of the case make it appropriate to do so and that the dismissal of proceedings for failure to comply with an order of the Court where the applicant to strike out cannot make out the more general ground for failure to prosecute with due diligence is only appropriate if the failure to comply with the order is “intentional and contumelious”: Birkett v James [1978] AC 297 per Lord Diplock at 321.
[20] The Court in Jagwar concluded, after consideration of relevant Australian authorities:5
… that a plaintiff is entitled to a reasonable opportunity to comply with an order to provide security, but that if such opportunity is given and continuation of the proceedings would involve substantial prejudice to the defendants, a Court is entitled to direct that the actions be dismissed, even within the normal limitation period.
[21] Thorp J held there needed to be a balancing of the detriment which would be caused to the defendants against the detriment that would be caused to the plaintiff by an order to strike out.6
[22] In Xu v Liu Gault J referred to the broad powers of the Court under r 7.48 and noted the Court of Appeal’s decision in Kidd v van Heeren where it was held that “deliberate, blameworthy or contumelious conduct”7 will “usually be highly relevant to whether an order should be made but it is not a jurisdictional requirement”.8
[23] Gault J listed the factors that would “usually be critical” when considering whether to dismiss a proceeding for failure to provide security for costs:9
“(a) Its duration.
(b)Its impact upon the progress of the proceedings as a whole.
(c)Whether there appears to be any excuse or explanation.
5 Jagwar Holdings Ltd v Fullers Corporation, above n 3, at 579, citing Speed Up Holdings Ltd v Gough & Co (Handly) Ltd [1986] FSR 330 and Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 2) (1986) 4 NSWLR 491.
6 Jagwar Holdings Ltd v Fullers Corporation, above n 3, at 579, referring to Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (1986) 4 NSWLR 491 at 501.
7 Xu v Liu [2020] NZHC 921 at [7].
8 At [7], referring to Kidd v van Heeren [2019] NZCA 275 at [34].
9 Xu v Liu, above n 7, at [8] relying on Smith v Antons Trawling Company Ltd HC Auckland CL40/98, 24 March 2000 at [4].
(d)Whether it continued after reasonable opportunities and reminders, particularly where the Court has already made a fresh order, or given a warning, due to earlier non-compliance.
(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.
(f)Whether there is any realistic expectation that it will be rectified following further opportunity for compliance.”
[24] I proceed below by considering each of these factors in turn, with the application to vary the consent order being considered in the context of factor (f), as it impacts upon the determination to be made in relation to the defendants’ application for strike out or an unless order. I then go on to determine whether unless orders should be made.
Discussion of factors
Duration
[25] Here, the plaintiff agreed to provide security for costs of $100,000 more than a year ago, the security order having been made on 1 November 2019. There was no date set by which the security was required to be provided, but the proceedings were stayed in the meantime. Counsel for both the first and second defendants submitted that where no date is set, the presumption is that security must still be provided within a reasonable time. The first time that the defendants brought the delay to the Court’s attention, however, was in their memorandum filed prior to the call in the chambers list on 5 August 2020. Following the filing of the defendants’ memorandum, Mr Chevin sought to vary the original consent order (so that security could be provided in three stages) rather than argue that he is not yet required to pay.
[26] In Jagwar there was no date by which security was required to be provided either, with the security orders made on 12 July 1991 and the application to strike out heard and determined orally on 5 September 1991. Despite the short time that had passed between the order and the strike out application, an unless order was still made,
requiring payment of security within three months or the proceedings would be struck out.10
Impact on proceeding
[27] As far as the impact of the failure to provide security, the proceeding has been stayed since the security for costs order was made. Until security is provided, the proceeding will not progress. Several steps have not been completed by Mr Chevin including initial disclosure and nor has a reply to the statements of defence or defence to the first defendant’s counter-claim been filed. Because the proceedings are stayed, the plaintiff technically may not be required to comply with all of these steps yet but it leaves the defendants in a difficult position as they are without the information necessary for fully assessing the strength of the plaintiff’s case.
[28] Furthermore, 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”11.
Excuse or Explanation
[29] The reasons for non-payment provided by the plaintiff include that “[c]ircumstances have emerged where I am unable to make payment immediately”12 and a “variety of issues (including the difficulties in 2020 with the various lockdowns that have occurred)”.13 No further detail is given of how Mr Chevin’s circumstances have changed, and no statement of his current financial position is provided. Mr Chevin states that the failure to provide the security agreed is attributable to the actions of the defendants upon which the claims are based. But those actions had already occurred when Mr Chevin consented to providing security.
10 Jagwar Holdings Ltd v Fullers Corporation, above n 3, at 580.
11 High Court Rules 2016, r 1.2.
12 Affidavit of Peter Louis Chevin in support of his application to vary, dated 24 August 2020.
13 Affidavit of Peter Louis Chevin in support of his opposition to strike-out, dated 30 September 2020.
[30] As counsel for the second defendants submitted, the position may be different if the plaintiff had come to him earlier in the year and said he needed to vary the orders, but he did not. His application to vary the security order was only filed following the application to strike out. In Jagwar, Thorp J referred with approval to Allen v Sir Alfred McAlpine Sons Ltd where Salmon LJ held that in determining whether delay is inordinate: “until a credible excuse is made out the natural inference would be that it is inexcusable”.14
Continuation of breach after reminders
[31] The hearing of these applications is the first time the failure to provide security has been considered by the Court. It cannot be described as a situation, therefore, where there have been numerous or repeated breaches. Once a reminder was given, however, in the form of the defendants’ memorandum seeking strike out or unless orders, Mr Chevin still did not provide the security for costs he had agreed to.
[32] Mr Chevin’s response to the defendants’ memorandum was to propose varying the consent order to allow a first tranche of $30,000 by 20 October 2020 followed by two further tranches of $30,000 in January 2021 and $40,000 in March 2021. When required to file a formal application, the first tranche was reduced to $20,000 by 10 November 2020 with a further payment of $50,000 on service of the plaintiff’s briefs and $30,000 at the commencement of the trial.
[33] To the surprise of the defendants, Mr Hucker advised at the hearing of these applications that Mr Chevin had deposited $20,000 into Mr Hucker’s trust account. That amount has not, however, been paid into Court. Mr Chisholm QC submitted in reply that it was difficult to assess this development as the terms on which the money was being held by Mr Hucker had not been disclosed. Mr Hucker then advised that he had irrevocable instructions to pay it into Court if the payment would be taken into account in the decisions on the applications. As Mr Chisholm submitted, payment was, therefore, still conditional.
14 Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 269.
Prejudice to innocent parties
[34] Counsel for Mr Chevin submitted that the non-compliance had not substantially prejudiced the other parties, noting that the fact that proceedings were brought within a few months of the impugned conduct reduced the prejudice to the defendants.
[35] The claim against Mr Valmont is for approximately $1 million including interest and costs. As Mr Valmont sets out in his affidavit, the proceeding affects him significantly as his business is property development which requires financing from financial institutions. Applications for financing require disclosure of all contingent liabilities. This claim reduces his ability to secure financing and therefore his ability to run his business. Furthermore, Mr Chevin has accused Mr Valmont of breaching his duties as a trustee and as a director, both serious allegations which Mr Valmont says he wants to be resolved within a reasonable time.
[36] Mr Valmont also points to the large amount of stress his dealings with Mr Chevin have caused, damaging his physical and mental health and leading to his hospitalisation in mid May 2019. Whilst the latter statement relates to Mr Valmont’s dealings with Mr Chevin generally, rather than just in these proceedings, the fact that Mr Valmont pleads in his defence that he was unaware that Mr Chevin was subject to a management banning order when he agreed to take over as director and shareholder of the companies involved in this claim, suggests that he was not fully aware of the circumstances when he agreed to assist. He and the other defendants have a right to have the claim prosecuted without unreasonable delay now that it has been filed against them. As the Court of Appeal said it its recent decision, Houghton v Saunders15:
Defendants are no less entitled to access to justice than plaintiffs. For a defendant, one very important element to access to justice is the hearing and determination of claims against them in a timely manner. It is oppressive and unfair for claims to be left hanging over the head of a defendant for an unnecessarily protracted period.
15 Houghton v Saunders [2020] NZCA 638 at [84].
Whether there is any realistic expectation that compliance will be rectified
[37] The final factor in considering whether a claim should be struck out for failure to pay security for costs is whether there is any reasonable expectation that the non- compliance will be rectified. In Jagwar, the “absence of any contention, let alone evidence” that allowing further time would improve the plaintiff’s prospects of providing security, justified the inference that there would be no purpose served by further deferring the application.16
[38] Mr Hucker submitted that, in contrast to the position in Jagwar, the staged approach proposed in the plaintiff’s application to vary would improve the prospect of providing security. Mr Chevin states in his affidavit that while he is unable to pay
$100,000 in one lump sum, he will be able to make payment of the $100,000 in three stages.
[39] The difficulty with this submission is that there was no evidence from Mr Chevin as to how he would be able to meet staged orders. Further, the proposed timeframes and their amounts have changed between the original memorandum filed on his behalf and the later application. The first tranche proposed in the application to vary is now for only $20,000, or $10,000 per defendant, with no further security available until the filing of briefs of evidence at some uncertain time in the future.
[40] By contrast, there was significant evidence from the defendants in both the affidavits filed in support of the original application for security for costs and in the affidavit of Mr Valmont in support of the application to strike out, that there are a number of other amounts outstanding by Mr Chevin. This includes costs awards and a further security for costs amount agreed to by Mr Chevin in the proceedings brought by Avon Parnell Limited and Mr Leggatt against Mr Chevin and Mr Valmont among others (the Avon Parnell proceedings).17
16 Jagwar Holdings Ltd v Fullers Corporation, above n 3, at 580.
17 CIV-2019-404-1119.
[41] Mr Chevin’s previous record in complying with orders made by the Court does not support the submission that he will comply if a staged approach is adopted. The fact that Mr Chevin is subject to the management banning order until August 2021 is also likely to impact on his ability to provide security.
Application to vary a consent order
[42] The submission made on Mr Chevin’s behalf that compliance will be rectified through allowing security to be provided in stages depends upon his application to vary being successful.
[43] Whilst the Court has inherent jurisdiction to vary an order,18 Mr Chevin’s application to vary is being made in respect of a consent order. The Court of Appeal held in Kain v Hutton that consent orders should not easily be disturbed.19 It needs to be demonstrated that it is in the interests of justice to do so. Just as in Kain v Hutton, here Mr Chevin was represented by senior counsel at the time of the consent order, he was not under a disability and freely agreed to the order.20
[44] Mr Hucker submits that as Mr Chevin is not seeking to vary the quantum of the security ordered, it is not necessary to consider Mr Chevin’s financial position, the merits of the claim and the other factors usually relevant to the exercise of the discretion in respect of security for costs, relying on SCC (New Zealand) Ltd v Samsung Electronics New Zealand.21 But in SCC the variation was being sought by the defendants and was to increase the security provided when the defendants had consented to the original amount ordered. In such a case, the merits of the claim, the plaintiff’s financial information and so forth would not be relevant because they would already have been factored in by the defendants when agreeing to the security amount in the first place.
18 Cargill NZ Limited v Palmerston Wool Co Ltd (1997) 11 PRNZ 52 (HC), Stead v The Ship “Ocean Quest of Arne” [1995] 3 NZLR 415 and O’Malley v Garden Helicopters Limited (1994) 8 PRNZ 182.
19 Kain v Hutton [2007] NZCA 199, [2007] 3 NZLR 349 at [230].
20 At [231].21 SCC (New Zealand) Ltd v Samsung Electronics New Zealand [2016] NZHC 2630 at [19] - [22].
[45] Here, however, the plaintiff is asking the Court to vary the terms originally agreed. I do not consider that I am able to determine whether the security order should be varied to allow it to be paid in three stages without considering the financial position of the plaintiff, the merits of the claim and the interests of the defendants. As deciding to vary the consent order and to order staged security both depend on whether they are in the interests of justice, all of the circumstances must be considered.
[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.22 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.
[47] 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. The courts have allowed matters to proceed previously where the plaintiff is impecunious without a security order in place (or with a reduced order) if the claim has merit and to do otherwise would deny the plaintiff access to justice.
[48] The failure to provide this evidence leads me to question the submission that Mr Chevin is serious about prosecuting his claim. This is reinforced by his failure to provide initial disclosure despite repeated requests from the defendants and his repeated failure to comply with Court deadlines.
22 Joint notice of opposition dated 1 September 2020 at [3(f)].
[49] As noted above, Mr Hucker also submitted for Mr Chevin that a consideration of the merits is not relevant to his application to vary, as the total sum remains the same. In my view, it is necessary to consider the merits so as to be able to weigh the interests of the parties, as a decision not to vary the order may result in Mr Chevin being unable to prosecute his claim.23
[50] My impression of the merits is that Mr Chevin’s claims are weak. He was under a management banning order at the time of the impugned conduct yet is arguing that the first defendant should have sought instruction from him. This would appear to be directly contrary to the terms of the banning order.
[51] The claim against the second defendants is for knowing receipt, with the knowledge pleaded including knowledge that the first defendant was required to act at the direction of the plaintiff. The difficulty with this pleading is that the plaintiff was subject to the management banning order at the time and so was banned from such direction.
[52] Apart from the issues arising as a result of the management banning order, the plaintiff appears to face a number of other hurdles in relation to the claims pleaded. Mr Hucker submitted that the defendants had made a number of important concessions in their statements of defence, including that the first defendant held the shares in the relevant companies as bare trustee. The real issues in the claim appear to be, however, whether Mr Valmont was required to act at the direction of Mr Chevin despite the management banning order and whether the transactions were at an undervalue.
[53] The interests of the defendants also need to be considered when weighing the balance between the parties as previously referred to.24
23 Although the lack of evidence as to how Mr Chevin would provide the security in stages may mean the risk of Mr Chevin not being able to prosecute is the same, whether the security is staged or not.
24 Houghton v Saunders [2020] NZCA 638 at [84].
[54] I am conscious that staged security is more commonly ordered than one lump sum but the defendants were not prepared to accept staged payments when agreeing to the security orders because they expected it would require applications to be made at every stage to enforce the provision of security, increasing the costs for the defendants and adding further delay. The defendants’ concerns appear to have been borne out.
[55] To disturb the consent order, it would be necessary for Mr Chevin to provide detailed evidence of a change in circumstances or whether the variation would improve his prospects of compliance. No such evidence has been provided.
[56] Taking all of the above factors into consideration, in my view, it is not in the interests of justice to vary the consent order.
Result on Application to Strike Out
[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 right 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.
Unless Order
[59] The defendants have sought an unless order in the alternative to their application to strike out so that if further time is allowed for Mr Chevin to provide security but he still does not pay, the claim will automatically be struck out on that date.
[60] I do not consider it appropriate for an unless order to be made at this stage. In SM v LFDB the Court of Appeal described unless orders as “an order of last resort”, “properly made only where there is a history of failure to comply with earlier orders”.25 This is the first time the failure to pay the security for costs has been considered in this proceeding. Even with an unless order, the plaintiff would still be able to apply for relief from that order, and so the defendants may not be in a significantly better position if one were made. In the orders made below, however, I reserve leave to the defendants to apply to strike out the proceedings again if security is not provided by the date set.
[61] I allow a further two months for the provision of security to ensure the competing interests of the parties are fairly balanced taking into account the difficulties that may arise with organising security over the Christmas period and allowing for the impact of COVID-19.
Result
[62] Both applications are dismissed with the security for costs order varied only by adding the following conditions:
(a)the plaintiff is to provide the security for costs ordered by consent on 1 November 2019 in the amount of $100,000 by 19 February 2021;
(b)the original order for stay continues until the security is provided with leave now reserved to the defendants to apply to strike out the proceedings if it is not provided by the date set out in (a).
Costs
[63] The defendants seek costs on their application whether it is successful or not. As counsel for the second defendants said in his submissions, Mr Chevin has caused unnecessary expense in failing to comply with the consent order and, even on his best case, he is seeking an indulgence from not having to comply with orders, that he freely consented to, with the advice of senior counsel.
25 SM v LFDB [2014] NZCA 326 at [31], [2014] 3 NZLR 494.
[64] Mr Chevin only consented to the security for costs order after a joint application with significant affidavit evidence was filed by the defendants, having sought an earlier indulgence from the Court to oppose out of time. He then decided to consent before filing any documents in opposition. Almost a year later Mr Chevin has still not complied with the consent order made and has now sought to vary it without providing the evidence required.
[65] In these special circumstances, I direct that costs are to be paid to the defendants on a 2B basis.
[66] If the parties cannot agree on the amount to be paid, memoranda are to be filed by the defendants within 25 working days of this judgment, and by the plaintiff 10 working days following. Memoranda are limited to a maximum of five pages.
Associate Judge Sussock
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