Ghana v Chin

In the Court of Appeal of New Zealand, the case of Ghana v Chin involved Hana Ghana, the applicant, appealing against the decision of the respondents, Alan Chin and James Chin, who were the executors of the will of Kim Kee Chin. The dispute arose from a claim for rent, rates, and mesne profits made by the respondents against Ms Ghana, who had occupied premises owned by the late Mr Chin from 1987 until March 2002. Ms Ghana counterclaimed for misrepresentation, breach of quiet enjoyment, breaches by the landlord of repair covenants under the lease, and loss of "general business revenue." The Court was tasked with determining whether the decision to require Ms Ghana to give security for costs was properly made, particularly in light of the substantial lack of merit in her counterclaim and the relative merits of the matter.

The legal issues before the Court were centered on the discretion of the Court to order security for costs under the circumstances. The Court needed to assess whether the Master and the Judge had correctly exercised their discretion, considering factors such as the merits of the counterclaim, the conduct of the parties, and the impact of the order on Ms Ghana’s ability to prosecute her counterclaim. Additionally, the Court had to determine if there were any new matters or errors of principle that would justify granting special leave to appeal.

In reaching its decision, the Court noted that the Master and the Judge had both thoroughly considered the merits of the counterclaim and the discretionary factors relevant to ordering security for costs. The Court found no error in the assessment that Ms Ghana’s counterclaim was substantially lacking in merit and that it had no reasonable prospect of success. Furthermore, the Court agreed with the Judge's finding that the respondents were not using the security of costs process oppressively. Consequently, the Court concluded that the order for security was properly made and declined the application for special leave to appeal. The Court awarded costs of $750 to the respondents, with reasonable disbursements to be set by the Registrar if necessary.