Jeffs v Harris-Brunt - [2023] NZHC 3682

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1555

[2023] NZHC 3682

UNDER s 124 District Courts Act 1947 and r 20.4 High Court Rules 2016

BETWEEN

ANNA JEFFS

Appellant

AND

TRACEY HARRIS-BRUNT

Respondent

Hearing:
19 October 2023, updating memoranda received 4 and 11

December 2023

Appearances:

K E Hogan for Appellant Respondent in person

Judgment:

13 December 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 13 December 2023 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Zhang Law, Auckland Counsel: K E Hogan, Auckland
Copy for: Respondent

JEFFS v HARRIS-BRUNT [2023] NZHC 3682 [13 December 2023]

Introduction

[1] The appellant, Ms Jeffs, appeals against a decision of Judge McGuire of 9 June 2023, dismissing her application for security for costs.1 Ms Jeffs had sought security in the sum of $26,000 in proceedings brought against her by Ms Harris-Brunt, the respondent to this appeal.

[2]The appeal is opposed.

[3] The appeal proceeds by way of rehearing and so is to be determined in accordance with the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar.2 It is for Ms Jeffs to establish that the District Court decision is wrong and that I should reach a different conclusion.

District Court Rules 2014, r 5.48

[4] Ms Jeffs’ application for security was made pursuant to District Court Rules 2014, r 5.48.

[5] An applicant for security for costs must first establish one of the “threshold” grounds in r 5.48(1). If a threshold ground is established, the applicant must then persuade the Court that the circumstances are such that it should order the giving of security under r 5.48(2).3

[6]Rule 5.48 provides:

5.48 Power to make order for security for costs

(1)This rule applies if the court is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)is resident outside New Zealand; or

(ii)is a corporation incorporated outside New Zealand; or

1      Harris-Brunt v Jeffs [2023] NZDC 11495.
2      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
3      McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA).

(iii)is, within the meaning of section 158 of the Companies Act 1955 or section 5 of the Companies Act 1993, as the case may be, a subsidiary of a corporation incorporated outside New Zealand; or

(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2)When this rule applies, the court may, if it thinks fit in all the circumstances, order the giving of security for costs.

(3)An order under subclause (2)—

(a)must require the plaintiff or plaintiffs against whom the order is made to give security for costs in respect of the sum that the court considers sufficient—

(i)by paying that sum into court; or

(ii)by giving, to…

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 Jeffs v Harris-Brunt

Details

AGLC: Jeffs v Harris-Brunt [2023] NZHC 3682
Case: [2023] NZHC 3682
Decision Date: 13 December 2023

CaseChat Overview and Summary

Anna Jeffs appeals against a decision by Judge McGuire dismissing her application for security for costs against Tracey Harris-Brunt, who brought proceedings against Jeffs. Jeffs sought security for costs in the sum of $26,000, but the District Court declined to grant the application. Jeffs contends the District Court decision was incorrect and that she should be granted security for costs. Harris-Brunt opposes the appeal. The appeal is to be determined by rehearing and Jeffs must establish that the District Court was wrong and that a different conclusion should be reached.

The primary legal issue is whether Jeffs is entitled to security for costs under District Court Rules 2014, r 5.48. To establish a threshold ground, an applicant must demonstrate one of the specified grounds, such as the plaintiff being unable to pay costs if unsuccessful. If a threshold ground is established, the court must then consider whether to order security for costs based on the circumstances. Jeffs argued that Harris-Brunt is likely unable to pay costs if Jeffs is successful and thus a threshold ground was met. The District Court agreed but declined to order security, finding that it would stifle Harris-Brunt’s claim.

The High Court found that the District Court decision was incorrect. The court must consider the factors for and against ordering security, including the risk of stifling a claim. However, the court noted that Jeffs cannot be compelled to swear an affidavit. Since Harris-Brunt’s claim regarding the affidavit is unlikely to succeed, Jeffs should be protected for costs defending that part of the proceeding. The court ordered security for costs in the sum of $6,000 and stayed the proceeding until security is provided. The appeal is allowed and the proceeding is stayed pending compliance with the order. No order is made as to costs on the appeal.

Orders