| IN THE COURT OF APPEALOF NEW ZEALAND |
| CA578/2014 [2015] NZCA 141 |
| BETWEEN | ERIC MESERVE HOUGHTON |
| AND | TIMOTHY ERNEST CORBETT SAUNDERS, SAMUEL JOHN MAGILL, JOHN MICHAEL FEENEY, CRAIG EDGEWORTH HORROCKS, PETER DAVID HUNTER, PETER THOMAS AND JOAN WITHERS CREDIT SUISSE PRIVATE EQUITY INC CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP FIRST NEW ZEALAND CAPITAL FORSYTH BARR LIMITED |
| Hearing: | 13 April 2015 |
Court: | Stevens, Wild and Miller JJ |
Counsel: | C R Carruthers QC and PAB Mills for Appellant |
Judgment: | 1 May 2015 at 2.15 pm |
JUDGMENT OF THE COURT
A The Registrar’s decision is varied.
BIncreased security for costs in the sum of $100,000 is to be paid by 29 May 2015.
CThe time for filing the case on appeal is extended until 7 May. Amended grounds of appeal should be filed, or an extension sought for good reason, by 29 May.
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REASONS OF THE COURT
(Given by Miller J)
This judgment responds to the appellant’s application for review of a Registrar’s decision increasing, from $23,520 to $344,000, the amount of security for costs payable on this appeal.
The appellant is a representative plaintiff who is supported by litigation funders. He is indemnified for adverse costs awards under an insurance policy for $5 million, and he is protected by undertakings from Harbour Litigation Investment Fund LP, a limited partnership domiciled in the Cayman Islands.[1] Harbour Litigation Investment Fund is not a party to the litigation.
[1]A New Zealand resident litigation funder (Joint Action Funding Ltd) is also involved, but it appears to be common ground that it has no assets of its own.
The claim failed in the High Court, following a trial of 52 days duration.[2] The High Court has very recently fixed costs and disbursements payable to each respondent at a total of approximately $5 million.[3] That sum will exhaust the insurance policy, leaving the appellant to rely upon the indemnity from Harbour Litigation Investment Fund. However, it is not in dispute that the indemnity extends to costs of the appeal, or that Harbour Litigation Investment Fund can meet its obligations to Mr Houghton.
[3]Houghton v Saunders [2015] NZHC 548 [Costs judgment].
Security for costs is not payable as a matter of course in the High Court, but under r 35 of the Court of Appeal (Civil) Rules 2005 it is presumptively payable on appeal to this Court. The rationale is that the respondent, having succeeded at first instance, should enjoy a degree of protection against the risk that costs awarded on an unsuccessful appeal will not be paid. Security is fixed according to the following formula:[4]
2 x a, where a is the daily recovery rate for category 3 proceedings that is specified in Schedule 2 of the High Court Rules.
The daily…
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- AGLC
- Houghton v Saunders [2015] NZCA 141
- Case
- [2015] NZCA 141
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the increased security for costs was justified. Under the Court of Appeal (Civil) Rules 2005, security for costs is presumptively payable, and the Registrar has the authority to adjust this amount based on the circumstances. The court had to determine if the reasons provided by the respondents warranted an increase from the default amount.
The court held that the Registrar's decision to increase the security was justified. Two main reasons supported this decision: first, the appellant relied on an overseas litigation funder, which retained the right to terminate its indemnity for costs on notice. Second, the scale costs were expected to be unusually high due to the extensive preparation and the likely duration of the hearing. The court concluded that total security of $100,000 appropriately balanced the parties' interests. This amount was to be held in equal shares for the four separately represented sets of respondents and had to be paid by 29 May 2015. The court also addressed other issues, including the content of the case on appeal, the extension of time for filing the case on appeal, and the direction for filing amended grounds of appeal.
In summary, the Court of Appeal varied the Registrar’s decision, ordering increased security for costs in the sum of $100,000. The time for filing the case on appeal was extended until 7 May, and amended grounds of appeal should be filed by 29 May.
Orders
Orders of the court
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Background
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Decision
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