Crawford v Bacon - [2022] NZHC 3085

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-17

[2022] NZHC 3085

BETWEEN
MATTHEW WILLIAM CRAWFORD

Plaintiff

AND

WAYNE ERROL BACON, VANESSA JAYNE BACON and VICKY AILEEN BEALE

First Defendants

STACEY RENEE BACON

Second Defendant

Hearing: 14 November 2022

Appearances:

J Bates for Plaintiff/Respondent

J W A Johnson and S T Dymond for Defendants/Applicants

Judgment:

24 November 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

Introduction

[1] This is an application by the defendants (“the applicants”), Wayne Bacon, Vanessa Bacon and Vicky Beale, and Stacey Bacon, pursuant to r 5.45 of the High Court Rules 2016 for an order for security for costs. The applicants invite the Court to make an order requiring the plaintiff (“the respondent”), Matthew Crawford, to pay security in the sum of $42,174 before the proceeding goes any further. Matthew opposes the application.1

1 For ease of reference I use first names in this judgment.

CRAWFORD v BACON, [2022] NZHC 3085 [24 November 2022]

[2]The factual background is not complicated.

[3] Wayne, Vanessa and Vicky are the trustees of the Bacon Family Trust. In that capacity they own a large residential property in Hawkes Bay. The property was acquired by the trustees from Wayne and Vanessa in November 2014. Wayne and Vanessa’s home is located on the property.

[4] In 2000 Matthew and Stacey embarked upon a de facto relationship. Stacey is Wayne and Vanessa’s daughter. Vicky is Vanessa’s mother and Stacey’s grandmother.

[5] Between 2004 and 2008 Matthew and Stacey lived in Wayne and Vanessa’s home. Over that time, Matthew and Stacey had their first and second children. Although the parties offer different descriptions of exactly how and when this came about, it is clear enough that, as this time drew to a conclusion, Matthew and Stacey were anxious to establish their own home.

[6] It will be necessary to come back to the precise circumstances in which they did so, but, in September 2008, Matthew and Stacey borrowed $330,000 from the National Bank (now ANZ) in order to build a second dwelling on the property owned by the trustees. The discharge of their obligations as borrowers was guaranteed by the trustees, and the debt was secured over the trust property. Further borrowing followed in April 2009, May 2013, and October 2013. The second dwelling was built between March and May 2009, and Matthew, Stacey and their family lived in this dwelling until February 2018. During that time, they had two more children.

[7] In or around February 2018 Matthew and Stacey separated. Their separation was not amicable. There are unresolved proceedings in the Family Court. The evidence before the Court — not unusually I am afraid to say — contains accusations and counter-accusations as to their behaviour towards each other both during the relationship and after it came to an end. It is not obvious to me that the behaviour of the parties to each other outside the immediate context of this proceeding is of any…

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 Crawford v Bacon

Details

AGLC: Crawford v Bacon [2022] NZHC 3085
Case: [2022] NZHC 3085
Decision Date: 24 November 2022

CaseChat Overview and Summary

The case of Crawford v Bacon involved an application by the defendants, Wayne Bacon, Vanessa Bacon, Vicky Beale, and Stacey Bacon, for an order for security for costs against the plaintiff, Matthew Crawford. The defendants sought an order requiring Matthew to pay $42,174 in security before the proceedings continued. Matthew opposed the application. The primary issue before the Court was whether the defendants had met the threshold test under r 5.45 of the High Court Rules 2016, which governs security for costs. The Court found that the threshold test was met, as there was evidence suggesting Matthew would be unable to pay the defendants' costs if his claim was unsuccessful.

The Court considered various factors in determining whether to exercise its discretion to make an order for security for costs. These factors included the apparent merits of Matthew's claim, whether he was being put up as a claimant to shield others from potential liability, and whether there was any public interest in the proceedings. The Court found that Matthew's claim was arguable but not obviously strong, and that making an order for security for costs would likely preclude him from prosecuting his claim. However, the Court concluded that substantial justice would be done by requiring Matthew to pay the pre-hearing component costs at that stage and defer any final order in relation to hearing costs until the matter was set down for trial.

The Court made an order that Matthew pay $17,079 in security for costs forthwith, and a further order that he provide security for costs for $25,095 when the matter was set down for trial. The proceedings were stayed pending the payment of the initial $17,079. The question of whether the proceedings should be stayed if further security was required was left to be addressed at a later time. Costs were reserved for potential resolution between the parties or through memoranda if necessary.

Orders