IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2023-463-52
[2024] NZHC 3029
UNDER the Trusts Act 2019; the Law Reform (Testamentary Promises) Act 2040, the Family Protection Act 1955 and
Part 18 of the High Court Rules 2016
BETWEEN
HOWARD ADRIAN DAVEY
Plaintiff
AND
MYRA ANNE CARDINALI and ARLENE RENEE LU-ANA DAVEY-
DIESTERBECK as executors and trustees of the Estate of HOWARD ALBERT DAVEY First Defendants
MKYRA ANNE CARDINALI and ARLENE RENEE LU-ANA DAVEY-
DIESTERBECK as executors and trustees of the Estate of KATHLEEN DAVEY
Second Defendants
ARLENE RENEE LU-ANA DAVEY- DIESTERBECK
Third Defendant
MYRA ANNE CARDINALI
Fourth Defendant
Hearing: 12 September 2024 Appearances:
Plaintiff is self-represented
Erin Anderson for the First and Second Defendants Jose San Diego for the Third and Fourth Defendants
Judgment:
29 October 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application by the Defendants for security for costs Application by the plaintiff for security for costs]
DAVEY v CARDINALI [2024] NZHC 3029 [29 October 2024]
This judgment was delivered by me on 29 October 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
TABLE OF CONTENTS Paragraph
Introduction
[1]
Background
[2]
Applications for security for costs
[8]
Defendants’ application dated 5 December 2023 [8] Plaintiff ’s application dated 16 January 2024 [10] Defendants’ submissions
[14]
Defendants’ application [14] Opposition to Mr Davey’s application [18] Mr Davey’s submissions
[21]
Mr Davey’s opposition to the defendants’ application [23] Legal principles
[24]
Analysis
[32]
Defendants’ application [32] Mr Davey’s application [34] Defendants’ application
[36]
Have the defendants satisfied the Court of the threshold under r 5.45(1)? [36] Conclusion in respect of r 5.45(1) [40] Should the Court exercise its discretion under r 5.45(2)? [41] Conclusion in respect of r 5.45(2) [48] What is the appropriate amount of security? [50] Conclusion in respect of security amount [52] Mr Davey’s application for security for costs
[52]
Conclusion in respect of Mr Davey’s application [57] Result
[59]
Should the proceedings be stayed pending payment of the security? [61] Orders
[ ]
Introduction
[1] On 5 December 2023, the first to fourth defendants filed an application collectively seeking security for costs to the value of $55,009.
[2] In lieu of filing opposition, on 16 January 2024 the plaintiff, Mr Howard Davey (Mr Davey), instead filed his own application for security for costs to the value of
$312,000.
Background
[3] The substantive proceedings relate to Mr Davey’s claims against Ms Myra Anne Cardinali and Ms Arlene Davey-Diesterbeck, both personally and in their capacities as executors of the estates of Mr Howard Albert Davey and Mrs Kathleen Davey respectively. Mr Davey, Ms Cardinali and Ms Davey-Diesterbeck are all children of the deceased.
[4] Mr Davey’s claims against the defendants are to the effect they breached their duties as executors of Howard Davey’s estate through unreasonable expenditure, along with their failure to remunerate him for services performed with respect to the family farm. This was filed on…
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- Davey v Cardinali [2024] NZHC 3029
- Case
- [2024] NZHC 3029
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the defendants were entitled to security for costs, the appropriate amount of security, and whether the plaintiff could apply for security for costs against the defendants. The court assessed the applications for security for costs under Rule 5.45 of the High Court Rules 2016, focusing on whether the defendants could satisfy the threshold under Rule 5.45(1), whether the court should exercise its discretion under Rule 5.45(2), and the appropriate amount of security.
The court concluded that the defendants met the threshold under Rule 5.45(1) as it was reasonably inferred that the plaintiff would be unable to pay costs if his claim was unsuccessful. The balance of convenience favoured the defendants, and the court exercised its discretion to order security for costs. The appropriate amount of security was determined to be $40,000, shared between the first and second defendants and the third and fourth defendants. The plaintiff's application for security for costs was declined as it was fundamentally flawed; only defendants are entitled to apply for security for costs against plaintiffs under Rule 5.45(1).
The final orders of the court granted the defendants' application for security for costs of $40,000, requiring the plaintiff to pay the amount into court within 28 days or face the striking out of his claims. The plaintiff's application for security for costs was declined, and the defendants were declared the successful party with costs to follow the event.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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