Eckhoff v Orbell - [2023] NZHC 3002

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-133

[2023] NZHC 3002

BETWEEN
PHILIPPA JANE ECKHOFF

Plaintiff

AND

RUTH ALICE ORBELL

First Defendant

NICOLA ALICE HYSLOP
Second Defendant

WILLIAM HAMISH ORBELL
Third Defendant

continued over

Hearing: 6 October 2023

Appearances:

D R Tobin and R M Reeve for Plaintiff No appearance for First Defendant

M J Wallace for Second, Fifth and Seventh Defendants S J Jamieson for Third and Fourth Defendants

D M Jackson for Sixth Defendant

Judgment:

26 October 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 October 2023 at 3.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

ECKHOFF v ORBELL [2023] NZHC 3002 [26 October 2023]

RUTH ALICE ORBELL and WILLIAM
HAMISH ORBELL as trustees of HAMISH ORBELL FAMILY TRUST
Fourth Defendants

NICOLA ALICE HYSLOP, JONATHAN ANGUS HYSLOP and QA TRUSTEES
2012 LIMITED as trustees of the HYSLOP FAMILY TRUST
Fifth Defendants

JOHN DUNCAN McFARLANE
Sixth Defendant

JONATHAN ANGUS HYSLOP
Seventh Defendant

[1]In a judgment of 5 May 2023, I ordered the plaintiff to provide security for costs to the second to seventh defendants to the satisfaction of the Registrar in the amount of $300,000 within 28 days.1

[2]I did not direct how security would be provided but noted that it may be provided by way of a first registrable mortgage over the plaintiff’s interest in a property owned by the plaintiff and her husband as joint tenants at Braeview Crescent, Dunedin.2

[3]Although there was some delay, resulting in a stay of the proceeding, ultimately security was provided by the giving of a registrable first mortgage over the Braeview Crescent property.

[4]The plaintiff seeks leave to appeal from my decision on several grounds, which I summarise as follows:

(a)That the threshold requirement in r 5.45(1)(b) of the High Court Rules 2016 was not met, as I inappropriately shifted the onus onto the plaintiff to show that she was in a position to pay costs if unsuccessful, and omitted facts in assessing the plaintiff’s evidence as to her assets and means to pay costs;

(b)That the proposed appeal has general and precedential value in respect to:

(i)the proper approach to be taken to the application of relationship property and joint tenancy legal principles when assessing a plaintiff’s means to pay costs;

(ii)the ordering of security for costs for several defendants on a global basis; and

1 Eckhoff v Orbell [2023] NZHC 1068 at [50].
2 At [47].

(iii)the ordering of security for costs against a beneficiary of a trust bringing an action to hold trustees to account for breaches of trust;

(c)That there were material errors in my assessment that the plaintiff’s claim against the sixth defendant did not appear strong; and

(d)That ordering the plaintiff to provide security for costs unjustly prejudices the plaintiff in the pursuit of her claim.

[5]The application is opposed by the second to seventh defendants.

[6] The first defendant, who is the…

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 Eckhoff v Orbell

Details

AGLC: Eckhoff v Orbell [2023] NZHC 3002
Case: [2023] NZHC 3002
Decision Date: 26 October 2023

CaseChat Overview and Summary

In the case of Eckhoff v Orbell, the plaintiff, Philippa Jane Eckhoff, sought leave to appeal a decision that required her to provide security for costs in an amount of $300,000. The defendants, including Ruth Alice Orbell, Nicola Alice Hyslop, and others, were opposing the appeal. The primary legal issues involved whether the threshold for providing security for costs was met, the precedential value of the appeal, potential errors in assessing the plaintiff's claim, and whether the order for security prejudiced her litigation efforts.

The court found that the plaintiff had not met the threshold for demonstrating her ability to pay costs, as she did not provide clear evidence of her financial means. The court rejected the plaintiff's argument that joint tenancy and relationship property principles should have altered this assessment. Additionally, the court determined that the appeal lacked precedential value and did not identify any significant errors in the court's assessment of the plaintiff's claim against the sixth defendant. The court concluded that ordering security for costs did not unjustly prejudice the plaintiff, as the method of providing security was designed to mitigate such prejudice.

Given the considerations of cost, potential delay, and the lack of significant error or precedential value, the court dismissed the application for leave to appeal, finding that the interests of justice did not support granting the appeal.

Orders