NZ Properties International Limited v Hoskins HC Auckland CIV 2010-404-006744

[2011] NZHC 354

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-006744

BETWEEN  NZ PROPERTIES INTERNATIONAL LIMITED

Plaintiff

ANDDAVID HOSKINS AND MARY EVANS First Defendants

ANDHERON'S FLIGHT LIMITED Second Defendant

ANDPETER LOWNDES Third Defendant

Hearing:         9 February 2011

Appearances: D G Collecutt for the Plaintiff

J D McBride for the First and Second Defendants

Judgment:      9 February 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

D Collecutt, Barrister, Auckland – [email protected]

J McBride, Barrister, Auckland – [email protected]

NZ PROPERTIES INTERNATIONAL LIMITED V DAVID HOSKINS AND MARY EVANS HC AK CIV

2010-404-006744 9 February 2011

[1]      This morning I heard counsels’ submissions upon the defendants’ security for costs application.  Counsel addressed at length the merits of the respective parties’ case for trial.  It is clear by those that it appears that prospects are evenly balanced.

[2]      At the conclusion of submissions I informed counsel that whilst a Court would readily consider ordering security if a plaintiff’s case appeared weak it did not follow that security would not be awarded if the plaintiff’s case did not appear weak.

[3]      I directed that security ought be fixed in the amount sought by the defendants but should be staggered, as plaintiff’s counsel submitted was appropriate if security was to be ordered at all.

[4]      In that outcome I directed the plaintiff was to pay $10,000 as security into Court initially and that until it did the proceeding would be stayed.  Thereafter the plaintiff would be required to post a further $10,000 as security into Court at the time the matter was set down for trial.

[5]      The security is to be held by the Registrar on interest bearing deposit until further direction of the Court.

[6]      When the plaintiff has paid the initial security the Registrar will schedule this matter for call in an Associate Judge’s chambers list for the purpose of timetabling the parties’ obligations thereafter.

[7]      Counsel are to file memoranda for that chambers list call identifying issues to be addressed.

[8]      The  defendants  have  largely  succeeded  with   their  security  for  costs application.  Therefore they will be awarded costs on a 2B basis.  In the particular circumstances of this case I direct that of the cost due the sum of $2,500 must be paid to the defendants at the same time the initial instalment of security is paid to the Court.  Accordingly the stay of proceeding will not be lifted until both the initial instalment and the payment of $2,500 have been paid.

[9]      The balance of the costs awarded to the defendants shall become payable upon the resolution of this proceeding.

[10]     Full reasons for these decisions will be provided in the event of an appeal of this decision being filed.

Associate Judge Christiansen