Eckhoff v Orbell - [2023] NZHC 1068

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-133

[2023] NZHC 1068

BETWEEN
PHILIPPA JANE ECKHOFF

Plaintiff

AND

RUTH ALICE ORBELL

First Defendant

AND

NICOLA ALICE HYSLOP

Second Defendant

AND

WILLIAM HAMISH ORBELL

Third Defendant

AND

RUTH ALICE ORBELL and WILLIAM

HAMISH ORBELL as trustees of the Hamish Orbell Family Trust

Fourth Defendants

Continued page 2 …

Hearing: 14 March 2023

Appearances:

D R Tobin and R M Reeve for Plaintiff

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

D M Jackson for Sixth Defendant

Judgment:

5 May 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 5 May 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ECKHOFF v ORBELL [2023] NZHC 1068 [5 May 2023]

ANDNICOLA ALICE HYSLOP, JONATHAN ANGUS HYSLOP and QA TRUSTEES
2012 LIMITED as trustees of the Hyslop Family Trust
Fifth Defendants

AND JOHN DUNCAN MCFARLANE
Sixth Defendant

AND JONATHAN ANGUS HYSLOP
Seventh Defendant

[1] This judgment is concerned with an application by all defendants apart from the first defendant that the plaintiff provide security for costs under r 5.45 of the High Court Rules 2016 (the Rules).

[2] An application by the plaintiff under r 10.15 of the Rules for separate questions to be determined before trial was withdrawn during the hearing, and the case has been set down for trial over 20 days in early 2025.

[3] The primary issues that arise to be determined on the application for security for costs are:

(a)whether the threshold requirement in r 5.45(1)(b), that there is reason to believe the plaintiff will be unable to pay the costs of the proceeding if she is unsuccessful, has been met; and

(b)whether, in the exercise of the court’s discretion, the plaintiff should be required to provide security for costs.

Background

[4] It is not necessary to unduly lengthen this judgment with a detailed recitation of the facts, but some context is required. This is a dispute principally between family members relating to the administration of the estate of William Andrew Orbell (the Estate) and a trust that was established during the deceased’s lifetime called the W A Orbell Family Trust (the Trust). I understand the deceased went by the name Andrew and I refer to him as such.

[5] The first defendant, Ruth Orbell, is Andrew’s widow. The plaintiff (Philippa), the second defendant (Nicola) and the third defendant (Hamish) are the children of Ruth and Andrew. The seventh defendant is Nicola’s husband. The sixth defendant is a retired chartered accountant, but previously acted as an advisor to the Orbell family.

[6] At the time of Andrew’s death the major assets of the Orbell family were shares in farming companies called Clayton Station Ltd (Clayton) and Levels Estate Co Ltd (Levels). Philippa says transactions that were entered into involving these assets

deprived her of her true entitlement under Andrew’s will…

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 1068
Case: [2023] NZHC 1068
Decision Date: 5 May 2023

CaseChat Overview and Summary

The case of Eckhoff v Orbell was heard by the High Court of New Zealand, Christchurch Registry. This legal proceeding involves Philippa Jane Eckhoff, the plaintiff, and multiple defendants, including family members and a family trust, relating to disputes over the estate and a family trust established by the late William Andrew Orbell. The central issue in this case is whether Philippa should provide security for costs under rule 5.45 of the High Court Rules 2016 if she is unsuccessful in her claims against the defendants. Philippa has alleged that transactions involving family assets, specifically the sale of shares in farming companies, deprived her of her rightful entitlement under Andrew's will and as a beneficiary of the trust.

The court had to determine two primary issues: first, whether there was reason to believe Philippa would be unable to pay the costs if she lost the case, and second, whether it was just to exercise the court's discretion in ordering Philippa to provide security for costs. The court found that there was credible evidence suggesting Philippa might be unable to meet a significant costs award, considering her limited disclosed assets and potential personal liability for her own legal costs. The court further reasoned that ordering security for costs would not stifle Philippa's claim, given that the security could be provided by a mortgage on her property, and that the claim had arguable merits, although the outcome remained uncertain.

The court concluded that Philippa should provide security for costs in the amount of $300,000 within 28 days, to be given to the satisfaction of the Registrar. This decision allows the defendants to protect themselves against potential financial loss while balancing Philippa's right to pursue her claims. The court also set directions for pre-trial management and reserved the right for the defendants to apply for a stay if Philippa failed to provide the ordered security.

Orders