New Zealand Tamil Society Incorporated v Caisley HC Auckland Civ-2011-404-000160

[2011] NZHC 1214

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-000160

UNDER  Part 20 of the High Court Rules

IN THE MATTER OF     Section 72 of the District Courts Act 1947

AND IN THE MATTER OF an appeal

BETWEEN  THE NEW ZEALAND TAMIL SOCIETY INCORPORATED

Appellant

ANDKEILY THOMPSON CAISLEY First Respondent

Hearing:         13 October 2011

Counsel:         C Henry for the Appellant

M McNabb for the First Respondent
G B Presland for the Second to Twelfth Respondents

Judgment:      13 October 2011

ORAL JUDGMENT OF WOODHOUSE J

(application by the second to twelfth respondents for security for costs)

Solicitors / Counsel:

Mr C S Henry, Barrister, Orewa

Ms M McNabb, Barrister, Auckland

Mr G Presland, Presland & Co., Solicitors, Glen Eden
Instructing Solicitors:

Mr AJH Witten-Hannah, Witten-Hannah Howard (for the Appellant), Solicitors, Takapuna

Kiely Thompson Caisley (for the First Respondent), Solicitors, Auckland

THE NEW ZEALAND TAMIL SOCIETY INCORPORATED V KEILY THOMPSON CAISLEY HC AK CIV-

2011-404-000160 13 October 2011

Cont …

ANDCHARUKESI RAJAKUMAR Second Respondent

ANDRANGANATHAN AKULA Third Respondent

ANDVICKI GNANAKUMAR Fourth Respondent

ANDMALINI SILVANANTHAN Fifth Respondent

ANDTHARMALINGAM THARMAKUMAR Sixth Respondent

ANDNIRMALAN SIVANANTHAN Seventh Respondent

ANDG LASCELLES GNANAKUMAR Eighth Respondent

ANDNATHAN SAMINATHAN Ninth Respondent

ANDYOGESWARAN INTHIRAN Tenth Respondent

ANDPATHMANATHAN ARVINTHAN Eleventh Respondent

ANDSOMASINTHARAM UTHAYANAN Twelfth Respondent

[1]      This is an application by the second to twelfth respondents for security for costs in respect of an application by the appellant for leave to appeal against the decision of Courtney J of 6 September 2011.

[2]      I note that at the beginning of the hearing this morning Mr Henry, for the appellant, and Ms McNabb, for the first respondent, advised that agreement had been reached that the appellant would pay $900 security for costs in favour of the first respondent in respect of the appellant’s application for leave to appeal. An order was made by consent in terms of the memorandum filed.

[3]      The second to twelfth respondents in broad terms base their application on the evidence which persuaded Wylie J to make an order for security for costs for the appeal to this Court in a sum of $5,000.  The second to twelfth respondents (who I will  now  refer  to  as  the  applicants)  rely  on  the  affidavit  filed  on  the  earlier application and a supplementary affidavit.  On the basis of the evidence before the Court  the  appellant’s  financial  circumstances  have  certainly not  improved.    Mr Presland  also  referred  to  an  annexure  to  the  latest  affidavit  indicating  that  no financial statements for the appellant Society have been filed since July 2010 and notwithstanding the statutory requirements.

[4]      Mr Presland submitted on the question of merit that it is reasonably unlikely that the appellant will get leave having regard to the fact that it will be a second appeal and having regard to the careful judgment of Courtney J.

[5]      Mr Henry advised that the application was not served until last Tuesday, 11

October 2011, sometime after 4:15 pm.  I do note that the application itself was filed on 11 October.  The main relevance of this is that there has been insufficient time to obtain evidence for the appellant in response on the question of ability to pay costs. Mr Henry submitted that  in  assessing the  question  of ability to  pay costs  it  is essential to have regard to the application in respect of which costs are sought.  It is a straight forward application for leave to appeal which has been set down for one hour only.  The question of ability to pay costs addressed by Wylie J for the appeal was different because the quantum of likely costs on an unsuccessful appeal was far

greater than the likely quantum of costs on an unsuccessful application for leave to appeal.   Mr Henry quite properly emphasised that I need to be satisfied that the appellant will be unable to pay costs if costs are awarded against it on the application for leave.

[6]      In reply Mr Presland addressed the question of ability to pay.  He had referred to outstanding costs awarded in the District Court and he supplemented that submission in response to Mr Henry.  There is a sum of approximately $44,000 in costs ordered to be paid in the District Court and which have not been paid. A broad estimate of possible costs for the respondents on the appeal was $15,000.  The total is close to $60,000.  Mr Henry had referred to evidence that the appellant Society owns a building with a book value of $70,000.  I accept the thrust of Mr Presland’s submission that the costs already outstanding are likely to consume at least the book value of what I apprehend to be the only significant asset of the appellant, or at least the only significant asset that is in evidence.

[7]      I am satisfied on the evidence, and having full regard of the submissions by Mr Henry on this question, that the threshold requirement for an order for security for costs is met.   I also consider that, on the question of merit, it must favour the applicants.  (That of course does not indicate any pre-judgment of the application for leave.)

[8]      On the question of quantum Mr Presland submitted this is a case warranting security for costs in the sum of $3,000.   That, with respect, is a bold submission indeed.   It represents 3/5ths  of the security that was awarded for the substantive appeal.  It is in excess of the total of scale costs likely to be awarded on a 2B basis if the application for leave is unsuccessful.  My quick calculation of scale costs, if all items are allowed on a 2B basis, would be around $2,000.   On the question of

quantum it is also relevant that the interests of the applicants are likely to be the same  as  the  interests  of  the  first  respondent.    Both  groups  of  respondents  are opposing the appeal.  An application for leave to appeal is a straight forward matter. Indeed, it is unusual for there to be an application for security for costs for an application for leave to appeal.

[9]      In  all  of  the  circumstances  I  consider  that  the  appellant  should  provide security in the same sum that has been agreed for the first respondent; that is, $900. That order is made on the same terms as the consent order in favour of the first respondent; $900 is to be paid into Court for security for costs for the second to twelfth respondents no later than 5:00 pm the day before the hearing of the leave

application. The leave application is to be heard on 26 October 2011.

Peter Woodhouse J