Erwood v Harley HC Wellington CIV 2000-485-27

[2007] NZHC 1984

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2000-485-27

BETWEEN  ROBERT JOHN ERWOOD Applicant

AND  RAYLEE PATRICIA HARLEY Respondent

Hearing:         6 August 2007

Appearances: Applicant Appears in Person

A Butler and P Dorrans for Respondent

Judgment:      10 August 2007

JUDGMENT OF SIMON FRANCE J (Application by Respondent for Security for Costs)

[1]      This is an application for security for costs.

[2]      Mr Erwood and Ms Harley have been in a protracted dispute.  One aspect of the   dispute   involved   Mr   Erwood  bringing   unsuccessful  proceedings   against Ms Harley, which culminated in costs awards in her favour.

[3]      Recently, Ms Harley identified funds available to  meet the awards.    She sought and obtained a writ of sale and charging orders.  They have been executed, and the money is held by the Registrar of the Auckland High Court.

[4]      Mr Erwood has brought an application for the writ of sale, and charging orders, to be set aside.  They were obtained ex parte and he says they were based on inadequate disclosure.  He also claims that a settlement between the parties in 2003

covered the costs as well.

ERWOOD V HARLEY HC WN CIV 2000-485-27  10 August 2007

[5]      Ms Harley seeks security for costs in relation to the setting aside application, based on the proposition that Mr Erwood is either unable or unwilling to pay costs, and the merits are lacking.

[6]      Mr Erwood has queried the jurisdiction to obtain security for costs on such an application, relying on Westpac Banking Corp v Wayland (1992) 6 PRNZ 75.   He also opposes the application on its merits, but I will deal first with the jurisdiction point.

[7]      I am satisfied Mr Erwood is correct.  I do not consider that Rule 60 applies to an individual interlocutory step in the process, or that it would be appropriate to exercise the inherent jurisdiction to do that which Rule 60 does not.

[8]      Westpac v Wayland was a case of a plaintiff seeking security for costs in relation   to   an   application   by   the   defendant   to   have   judgment   set   aside. Master Gambrill decided the case on the basis that it was an interlocutory application and it would not be right to order security so as to prevent a defendant being heard.

[9]      In Downley Properties Ltd v Stirling (1993) 7 PRNZ 241 Barker ACJ ruled that an application to amend a writ of sale was an interlocutory step.  The context for that decision was a dispute as to the jurisdiction of a Master.

[10]     In  my  view  the  present  application  to  set  aside  the  writ  of  sale  is  an interlocutory application which relates back to the substantive proceeding and accordingly Rule 60 is inapplicable.

[11]     Turning to the inherent jurisdiction, the capacity to order security for costs in a matter falling outside Rule 60 was considered in Smith v Covington Spencer Ltd CA255/06 16 May 2007.   In that case, a multiple plaintiff proceeding, Rule 9 had been used to order security for costs.  The Court of Appeal held such an order to be contrary to the philosophy of Rule 60, and quashed it.  The case does not seem to go so  far  as to say the  inherent  jurisdiction  can  never  be  used,  but  it  is  a  strong endorsement for the proposition that Rule 60 should be regarded as defining the appropriate situations.

[12]     I see nothing in this application that particularly requires an order for security for costs to be made.  I also consider that an order for security for costs as regards a final interlocutory step is contrary to the philosophy of Rule 60, and should not be made for that reason.  Rule 60 plainly contemplates an order in relation to the whole proceeding, not a final interlocutory matter however frustrating it  may be to the Respondent.   Accordingly the application is declined.   A separate Minute is being

issued outlining the future progress of the primary application.

Simon France J

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 10th day of August 2007.

Solicitors:

Applicant appears in Person

Russell McVeagh, Wellington for Respondent