Jaques v Main - [2016] NZHC 1978

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND] REGISTRY

CIV-2015-404-000619 [2016] NZHC 1978

BETWEEN
DAVID ARTHUR JAQUES

Plaintiff

AND

VICTOR RAYMOND MAIN First Defendant

THOMAS CLARENCE HODGSON Second Defendant

Hearing: On the Papers

Counsel:

C T Patterson and H P Holland for the Plaintiff
B L Gray for the Defendants

Judgment:

24 August 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 24 August 2016 at 1.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: C T Patterson, Auckland
H P Holland, Auckland
B L Gray, Dunedin

Solicitors: J H West, Paraparaumu
Race Douglas Burke, Dunedin

JAQUES v MAIN [2016] NZHC 1978 [24 August 2016]

Introduction

[1] Mr Jaques applies to review the decision of Associate Judge Christiansen dated 22 April 2016.1

[2] The Associate Judge ordered Mr Jaques to provide security for costs in the sum of $30,000 and ordered 2B costs to be paid for the application. Mr Jaques says the Judge also fixed 2B costs for Mr Jaques’ previous unsuccessful summary judgment application.

[3] The review is determined on the papers at the parties’ request.

Background

[4] In March 2011, the defendants entered into a management agreement with Mr Jaques to provide services over a three year period. Pursuant to that agreement, Mr Jaques paid $60,000 to acquire a shareholding in the defendants’ company. Mr Jaques claims that he also acquired an interest in the defendants’ intellectual property, although the defendants dispute this.

[5] Shortly after the payment was made, the parties fell out and on 5 September

2011, the defendants advised Mr Jaques that they wished to terminate their business relationship. They subsequently refunded $30,000 of the $60,000 paid.

[6] On 24 September 2011, the parties entered into a settlement agreement. The terms of that settlement agreement are not entirely clear, but Mr Jaques contends that the defendants agreed to repay the balance of $30,000 and the sum of $4,600 per week from 10 April 2011 until the $30,000 was repaid.

[7] Mr Jaques commenced proceedings for breach of the settlement agreement. He claims damages comprising of two sums which total $986,800, and claims the sum of $4,600 accruing on a weekly basis from 10 April 2015 until all money is paid
in full.

1 Jaques v Main [2016] NZHC 779.

[8] The defendants accept that they entered into a settlement agreement with Mr Jaques, but they say they did so in reliance on his representation that he was legally qualified, able to easily obtain a practising certificate and a businessman. They say these representations were untrue and vitiate the terms of the settlement.

[9] In addition, the defendants plead that they tendered to Mr Jaques the sum of

$30,000 plus interest under s 87 of the Judicature Act 1908 from 24 September 2011 until 4 June 2015. Mr Jaques refused to accept this sum.

[10] Finally the defendants argue that certain clauses of the settlement agreement are penal and unenforceable.

[11] On…

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 Jaques v Main

Details

AGLC: Jaques v Main [2016] NZHC 1978
Case: [2016] NZHC 1978
Decision Date: 24 August 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an application for review from David Arthur Jaques against Victor Raymond Main and Thomas Clarence Hodgson, seeking to overturn an order that he provide security for costs. The application for review was dismissed. The plaintiff had commenced proceedings against the defendants for breach of a settlement agreement. The defendants had applied for security for costs and this was granted by Associate Judge Christiansen. The plaintiff argued that the Associate Judge erred in determining that the threshold for security for costs had been met, and that the amount of security fixed was excessive. The court found that the Associate Judge was correct in determining that the threshold for security for costs had been met, and that the amount of security was not excessive. The court found that the plaintiff's financial situation, including his previous bankruptcy and liquidations, and his current lack of evidence regarding his financial position, provided sufficient reason to believe that he would be unable to pay the defendants' costs if he was unsuccessful in his claim. The application for review was dismissed, and the plaintiff ordered to pay costs to the defendants on the application for review.

Orders