Jaques v Main - [2016] NZHC 779

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2015-404-000619 [2016] NZHC 779

BETWEEN
DAVID ARTHUR JAQUES

Plaintiff

AND

VICTOR RAYMOND MAIN First Defendant

THOMAS CLARENCE HODGSON Second Defendant

Hearing: 22 April 2016

Appearances:

Plaintiff/Respondent in person
B L Gray for the Defendants/Applicants

Judgment:

22 April 2016

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

D A JAQUES v V R MAIN and T C HODGSON [2016] NZHC 779 [22 April 2016]

[1] The defendants apply for an order for security for costs against the plaintiff. The defendants say they believe the plaintiff (Mr Jaques) will be unable to pay the costs if his claim against the defendants is unsuccessful.

The proceeding

[2] Mr Jaques’ statement of claim focuses upon an agreement by which he says his services were as CEO of Nouveau-Zenith Limited (NZL); that Mr Jaques could purchase a shareholding in NZL for $60,000; and he would acquire an interest in the intellectual property of that company.

[3] He worked as CEO from March to September 2011 by which time he said he had paid the $60,000 share purchase price.

[4] When their business relationship terminated in September 2011, a sum of

$30,000 was repaid to Mr Jaques.

[5] It is pleaded that on 24 September 2011, the parties entered into a written settlement agreement which provided, inter alia:

(a) Mr Jaques would be repaid $30,000 by bank cheque and no longer have any right to acquire shares in NZL;

(b)the sum of $4,600 per week would be paid from 10 April 2011 until the $30,000 was paid (on account of the management contract being terminated prematurely); and

(c) all money owing was to be paid by 10 April 2014.

[6] Other than the $30,000 referred to no further money has been paid since the settlement agreement was entered into.

[7] Mr Jaques’ proceeding, filed on 20 March 2015, claimed damages in a sum of

$986,800, together with $4,600 per week from 10 April 2015 until all monies were paid in full.

[8] Mr Jaques filed an application for summary judgment. This was heard by

Associate Judge Doogue on 24 August 2015. His Honour dismissed that application.

[9] His Honour commented that there was an area of substantial dispute about whether or not Mr Jaques’ initial funding was linked to an ultimate acquisition of shares in NZL; that it seemed to be that Mr Jaques would put money in and that depending on how the affairs of the Company turned out he might get some shares in the future.

[10] His Honour noted that Mr Jaques’ agreement for services was with NZL and not with the defendants personally, but that questions arose when they signed the settlement agreement that might indicate they were accepting personal liability for the amounts claimed – or did they, on the other hand, execute that agreement as directors of the Company?

[11] His Honour noted that questions about Mr Jaques’ claims of qualifications were relevant to his contract for services, but that those could not…

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 779
Case: [2016] NZHC 779
Decision Date: 22 April 2016

CaseChat Overview and Summary

The defendants in the case of Jaques v Main applied for an order for security for costs against the plaintiff, Mr Jaques. The defendants argued that Mr Jaques would be unable to pay their costs if his claim against them was unsuccessful. The plaintiff opposed the application on several grounds, including that he had a valid claim that was likely to succeed and that the defendants had contributed to his financial difficulties by failing to repay the $30,000 he had paid towards a share purchase option that was cancelled. The court considered the evidence presented by both parties and concluded that there was sufficient reason to believe that Mr Jaques would be unable to pay the defendants' costs if his claim was unsuccessful. The court ordered that Mr Jaques pay $30,000 into court by way of security and that the proceeding be stayed until that security was paid. If the security was not paid by a specified date, the court would consider any application by the defendants to dismiss the proceeding.

The legal issues in this case included whether there was sufficient evidence to infer that Mr Jaques would be unable to pay the defendants' costs if his claim was unsuccessful, and whether Mr Jaques had provided sufficient security for costs. The court considered these issues in light of the evidence presented by both parties and the relevant legal principles. The court found that the balance of considerations favoured the grant of an order for payment of security into court. The court also noted that the plaintiff's claims, while not without merit, were not particularly strong, and that there were several factors that suggested that Mr Jaques may not be able to pay the defendants' costs if his claim was unsuccessful. These factors included his previous bankruptcy, his limited cash resources, and his association with a large number of business companies, many of which had been struck off the Register.

Orders