Impeys Hardware & Timber Limited v Richardson

[2015] NZHC 3194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-593 [2015] NZHC 3194

BETWEEN

IMPEYS HARDWARE & TIMBER

LIMITED Plaintiff

AND

NATALIE RACHAEL RICHARDSON Defendant

Hearing:	14 December 2015
Counsel:	P Davey for Plaintiff S Kilian for Defendant
Judgment:	14 December 2015

JUDGMENT OF DUFFY J

Solicitors:

Gill, Coutts & Co, Ponsonby, Auckland       [email protected]

Kilian & Associates Ltd, Albany                 [email protected]

Counsel:

Peter Davey, Auckland  [email protected]

IMPEYS HARDWARE & TIMBER LIMITED v RICHARDSON [2015] NZHC 3194 [14 December 2015]

[1]      The defendant, Natalie Richardson, requires leave to file an application for security for costs and stay of proceeding.  Her application is opposed by the plaintiff.

[2]      Ms Richardson’s application is well out of time.   On 27 November 2015

Associate Judge Sargisson directed that any application for security for costs was to be filed and served by no later than 5.00 pm, Wednesday 2 December 2015.   At [7](c) the Judge directed that the applications, if any, were to be listed in the next available Duty Judge list after 30 November 2015.  She noted that the applications would need to go before a Duty Judge as the close of the pleadings date had passed, which  meant  leave  was  required  before  the  applications  could  be  brought,  and further that the applications could put the trial date at risk.  At [7](d) the Associate Judge  noted  that  given  the  proximity  of  the  trial  date  there  was  to  be  strict compliance and extensions of time would not be granted.

[3]      The  minute  of  Associate  Judge  Sargisson  sets  out  the  history  of  the defendant’s defaults in terms of her earlier compliance with required time limits.  It is fair to say there has been a history of non-compliance with directions.

[4]      No notice of application for security for costs was filed by the cut off date of

2 December 2015.  Ms Richardson filed the application in this Court on 4 December

2015.  However, the appropriate filing fee was not included, and so the application was returned. A copy of that application and the affidavit in support was received by the plaintiff’s counsel on 8 December 2015.   It was later, on 10 December 2015, provided to the registry with the appropriate filing fee.

[5]      In view of the history of non-compliance and the stern direction by Associate Judge  Sargisson  that  no  further  extensions  of  time  would  be  granted,  it  was incumbent on Ms Richardson to file her application for security for costs within the time directed.  Her failure to do so was sufficient in itself to warrant refusing leave to bring the application.

[6]      However there are additional problems with Ms Richardson’s application. The close of pleadings date was 16 November 2015 and accordingly leave to bring the application is required.  The application for security for costs does not seek leave

to bring the application.   In terms of the accompanying affidavit filed in support, Ms Richardson provides no explanation for why it has taken her until now to make this application.

[7]      The basis of the application is that the plaintiff has sold its main business and is no longer trading. Accordingly Ms Richardson is concerned that if it should fail in this proceeding it will not pay a costs award made against it.  Nothing is said as to when the plaintiff sold its main business or when it ceased trading, all of which is relevant to explaining the delay in making an application for security for costs.

[8]      The proceeding was commenced in March 2014.  The trial date is 21 March

2016.  For Ms Richardson to seek an order for security for costs now, she needed to provide the Court with an evidential foundation explaining why it has taken her so long to make this application.  Without such an application I have nothing to support me granting her the indulgence that she seeks from the Court.

[9]      Secondly, her affidavit touches on the merits of the claim and seeks to show that  the  plaintiff’s  claim  is  weak.    However,  the  affidavit  is  incomplete.    An agreement she relies upon to dispute the plaintiff’s entitlement to the vessel, the ownership of which is the subject of the proceedings, has not been attached to the affidavit.   From reading the affidavit it is clear that it was intended to attach this agreement, but in fact another document has been attached by mistake in its place.  I am, therefore, not able to assess the merits of the claim other than by reading the statement of claim and the statement of defence.  From what I have read the claim does not seem to me to be without merit. Though I acknowledge that Ms Richardson may have a good affirmative defence based on equitable set-off as a result of sums of money she has expended on the vessel over the years.  Thus I consider the merits of the claim to be equally balanced.

[10]     There  is  no  court  hearing  time  this  year  to  deal  with  Ms  Richardson’s

application.  There is insufficient time between when the Court resumes in February

2016 and the trial date for the application to be dealt with other than on an urgent basis.  This will inconvenience other users of this Court in circumstances where the need for urgency appears to be due solely to Ms Richardson’s delay.

[11]     Applications for security for costs made at a very late stage in a proceeding are often not successful.  Relevant considerations in terms of delay are:1

(a)      whether the application was made as soon as the defendant became aware, or could with reasonable enquiry have become aware, of the plaintiff’s likely inability to meet costs; and

(b)       any needless delay, particularly if designed to prejudice the plaintiff.

[12]     McGechan on Procedure2 notes that an obvious example of prejudicial delay is where a plaintiff who has expended substantial sums of money including legal costs to get a proceeding to the brink of trial is met by an application for security deliberately withheld to the eleventh hour.3

[13]     There is nothing here to suggest the lateness of the application is deliberate. However, as matters stand, there is no explanation at all for the delay.

[14]   In short, the application was filed after the cut off date for filing in circumstances  where  an Associate Judge made  it  very clear there  would  be no extension  of  time  granted.    The  application  is  poorly  made  in  the  sense  the supporting affidavit lacks necessary information.  If leave to bring the application is granted today the outcome is likely to be prejudicial to the plaintiff as it will then be facing an application for security for costs sometime between February 2016 and the trial date on 21 March 2016.   In the meantime steps have to be taken in terms of matters such as preparation of evidence that are timetabled to occur in January 2016. I do not see why the plaintiff should be troubled by an opposed interlocutory hearing

so close to the trial date without good cause.

1      Oceania Furniture Ltd v Debonaire Products Ltd HC Wellington CIV-2008-485-1701, 24 April

2009 AT [29].

2      Andrew Beck and others McGechan on Procedure (online loose-leaf ed, Brookers).

3      At [HR 5.45.03].

[15]     In all the circumstances I consider that the interests of justice lie in refusing leave to bring the application.

“Duffy J”