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Davey v Cardinali

Davey v Cardinali

Case [2024] NZHC 3029 29 October 2024

Unconscionable Conduct

Civil Litigation & Procedure

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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…

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 Davey v Cardinali

Details

AGLC: Davey v Cardinali [2024] NZHC 3029
Case: [2024] NZHC 3029
Decision Date: 29 October 2024

CaseChat Overview and Summary

The case of Davey v Cardinali [2024] NZHC 3029 involves a dispute between the plaintiff, Howard Adrian Davey, and the first to fourth defendants, Myra Anne Cardinali and Arlene Renee Lu-Ana Davey-Diesterbeck, regarding claims of unreasonable expenditure and failure to remunerate for services performed with respect to the family farm. The substantive proceedings relate to claims against the defendants for their alleged breach of duties as executors of Howard Davey’s estate. The case also includes a history of procedural issues, including a previous claim that was struck out and costs awarded against the plaintiff.

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