Robinson v Whangarei Heads Enterprises Ltd
[2013] NZHC 2247
•30 August 2013
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV 2012-488-185 [2013] NZHC 2247
BETWEEN JOHN CLIFFORD WALTER ROBINSON Applicant
ANDWHANGAREI HEADS ENTERPRISES LIMITED
Defendant
CIV 2013-488-223
BETWEEN JOHN CLIFFORD WALTER ROBINSON Applicant
ANDWHANGAREI HEADS ENTERPRISES LIMITED
First Defendant
VICTOR LEONARD FREAKLEY Second Defendant
Hearing: 16 August 2013
Counsel: J C W Robinson, in person, Applicant
S R Ebert for Whangarei Heads Enterprises Ltd and Mr
Freakley
Judgment: 30 August 2013
JUDGMENT OF HEATH J
This judgment was delivered by me on 30 August 2013 at 3.00pm pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Billings, New Plymouth
Copy to:J C W Robinson, Applicant
ROBINSON v WHANGAREI HEADS ENTERPRISES LIMITED [2013] NZHC 2247 [30 August 2013]
Contents
Introduction [1] Jurisdiction to review an Associate Judge’s decision [4] Security for costs – applicable legal principles [9] The Associate Judge’s decision [11] The review application
(a) The arrest proceeding [17]
(b) The trespass proceeding [30] (c) The torts of abuse of process and malicious prosecution [33] (d) Analysis
(i) The arrest proceeding [40]
(ii) The trespass proceeding [55]
Result [59]
Introduction
[1] Mr Robinson has bought two proceedings in this Court. One arises out of an application in 2012 by Whangarei Heads Enterprises Ltd (Whangarei Heads), to have Mr Robinson arrested (the arrest proceeding).1 That claim2 is brought against Whangarei Heads, as the party that sought the arrest warrant. The other proceeding3
has its origins in a prosecution for trespass (the trespass proceeding).4 The complaint
on which the prosecution was brought was laid by Mr Freakley, a director of
Whangarei Heads. As a result, both Whangarei Heads and Mr Freakley are sued.
[2] On 7 May 2013, Associate Judge Bell heard an application by Whangarei Heads and Mr Freakley for an order that Mr Robinson give security for costs in each proceeding. In a judgment given orally on the same day, he ordered that Mr Robinson give security for costs, in a total sum of $20,000. The Judge stayed the proceedings pending payment of security into Court. He made it clear that if payment were not made within six months Mr Robinson would be regarded as in
default of the order. Leave was reserved to any party to seek further directions.5
1 Judicature Act 1908, s 55.
2 CIV 2012-488-185.
3 CIV 2013-488-233.
4 The background to which is set out by Allan J in Robinson v Police [2013] NZHC 1511, set out at para [32] below.
5 Robinson v Whangarei Heads Enterprises Ltd HC Whangarei CIV 2012-488-185 and CIV 2013-
488-223, 7 May 2013, at para [46].
[3] Mr Robinson applies to review the Associate Judge’s decision to order security for costs.6 He does so on the basis that, if the orders were upheld, he would not be able to continue the claims. There is evidence that Mr Robinson has been adjudged bankrupt, and is not in a position to pay security in the sum ordered.7
Jurisdiction to review an Associate Judge’s decision
[4] The power for a Judge of this Court to review a decision of an Associate Judge is conferred by s 26P of the Judicature Act 1908. Section 26P(1) and (1AA) provide:
26P Review of, or appeals against, decisions of Associate Judges
(1) Any party to any proceedings who is affected by any order or decision made by an Associate Judge in Chambers may apply to the Court to review that order or decision and, where a party so applies in accordance with the High Court Rules, the Court—
(a) Must review the order or decision in accordance with the
High Court Rules; and
(b) May make such order as may be just.
(1AA) The determination of the High Court on a review under subsection (1) is final, unless the High Court gives leave (or the High Court refuses leave, but the Court of Appeal gives special leave) to appeal from it to the Court of Appeal.
....
[5] More specific provisions dealing with the way in which the review is conducted are set out in r 2.3 of the High Court Rules. Rule 2.3(4) and (5) provide:
2.3 Review of decision
…
(4) If the order or decision being reviewed was made following a defended hearing and is supported by documented reasons,—
(a) the review proceeds as a rehearing; and
6 Judicature Act 1908, s 26P and High Court Rules, r 2.3, set out at paras [4] and [5] below.
7 Although Mr Robinson has been adjudged bankrupt, the causes of action he has bought are likely to be personal to him, so that the proceeds would not vest in the Official Assignee. See Heath & Whale on Insolvency (LexisNexis looseleaf ed) at para 4.3 and the authorities to which reference is made.
(b) the Judge may, if he or she thinks it is in the interests of justice, rehear the whole or part of the evidence or receive further evidence.
(5) In all other cases,—
(a) a review proceeds as a full rehearing; and
(b) the Judge may give the order or decision the weight he or she thinks appropriate.
[6] The present application falls within r 2.3(4). I am required to conduct the review as if it were a rehearing on the papers: r 2.3(4)(a). The nature of this type of rehearing was discussed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,8 in the context of an appeal by way of rehearing. I see no reason to take any different approach to the view of an Associate Judge’s decision.
[7] I start from the proposition that the decision was discretionary in nature. Ordinarily, that would require me to give significant weight to the decision that Judge Bell gave.9 I say that because, using appellate principles by way of analogy, a discretionary decision will generally be overturned only if a Judge has made an error of law, has failed to take into account a relevant factor, has taken into account an irrelevant factor or is plainly wrong.10 This aspect of a rehearing of a first instance decision does not appear to have been affected by the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar.11
[8] Since Judge Bell gave his judgment on 7 May 2013, the Privy Council has given advice in a case in which the torts of both malicious prosecution and abuse of process were examined in detail.12 The reasons given by Their Lordships are relevant to the assessment of prospects of success in this case. As Judge Bell did not
have the opportunity to consider the judgments, I have decided to approach
8 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC); in particular, at paras
[4], [5], [13] and [16].
9 High Court Rules, r 2.3(5)(b).
10 May v May (1982) 1 NZFLR 165 (CA) at 169–170.
11 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at para [17].
12 Crawford Adjusters v Sagicor Insurance (Cayman) Ltd [2013] UKPC 17. Judgment was delivered on 13 June 2013.
evaluation of the issues afresh. I discuss the impact of the Privy Council’s decision
later.13
Security for costs – applicable legal principles
[9] Relevantly, r 5.45 of the High Court Rules provides:
5.45 Order for security of costs
(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
(a) that a plaintiff—
(i) is resident out of New Zealand; or
(ii) is a corporation incorporated outside New Zealand;
or
(iii) is a subsidiary (within the meaning of section 5 of the Companies Act 1993) 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) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
(3) An order under subclause (2)—
(a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—
(i) by paying that sum into court; or
(ii) by giving, to the satisfaction of the Judge or the
Registrar, security for that sum; and
(b) may stay the proceeding until the sum is paid or the security given.
...
(5) A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.
....
13 See paras [33]–[38] below.
[10] The decision whether (or not) to order security (and, if so, in what sum) is generally regarded as a matter of discretion. The controlling authority is A S McLachlan Ltd v MEL Network Ltd.14 Dealing with the predecessor of r 5.45 (r 60 of the earlier version of the Rules) the Court of Appeal emphasised that nature of the decision and the need to avoid fettering that discretion “by constructing ‘principles’ from the facts of previous cases”.15 Importantly, the Court added, in relation to the possibility of an award preventing a plaintiff from pursuing a claim:
[15] The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.
[16] Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted.
(emphasis added)
The Associate Judge’s decision
[11] The Associate Judge considered a variety of factors in reaching his decision. Correctly, he identified, as the two most important factors to be balanced, the real likelihood that Mr Robinson would not be able to proceed with his claims if security were ordered and the need for Whangarei Heads and Mr Freakley to be protected for costs incurred, in the event that the claims were unsuccessful. In order to balance those competing considerations, it was necessary for the Judge to form at least a provisional view on the merits of the claims.
[12] As Mr Robinson is a litigant in person (albeit one with some experience in the civil justice system) it is not surprising that the current pleadings lack the particularity that might be expected from a trained lawyer. To meet that concern, Judge Bell, obviously after he had given considerable thought to the issues, analysed
various ways in which Mr Robinson might frame his proceedings.
14 A S McLachlan Ltd v MEL Network Ltd (2002) 6 PRNZ 747 (CA).
15 Ibid, at para [13].
[13] In relation to the arrest proceeding, Judge Bell concluded:16
[24] What I say now is simply provisional. It seems to me that Mr Robinson could not make a claim for false imprisonment because the defendant would be able to point to a court order for his arrest and refer to that court order as justification for any claim for false imprisonment. Mr Robinson would not have any claim under the New Zealand Bill of Rights, because that Act gives remedies only against the Crown, not against private citizens. And if he were to sue under that act, it would be difficult to obtain any monetary relief, given that under Attorney-General v Chapman the judiciary cannot be liable to pay damages for any breaches of the New Zealand Bill of Rights Act.
[25] Instead, Mr Robinson might have to consider either malicious prosecution or the tort of abuse of process.
[26] There are difficulties with bringing a claim for malicious prosecution for civil proceedings in New Zealand. The law is still not clear-cut whether there can be liability for malicious prosecution. Generally for civil proceeding there are limited exceptions. The matter still seems to be at large.
[27] Probably the most fruitful avenue for Mr Robinson is a claim in tort for abuse of process. That might be available because the arrest and detention, and the subsequent release, have already taken effect. It is not a case where Mr Robinson has to await the final outcome of the proceeding and then see whether it goes in his favour, as might happen in a claim for malicious prosecution. The wrong has been done to him before he has even been given the chance to be heard. The tort of abuse of process may be allowed in circumstances where the person obtaining the court orders for the detention of property of another person has been wrongly motivated. That seems to be the strongest part of Mr Robinson’s case here.
[28] If the case is run along those lines, Mr Freakley would be able to point to the fact that Mr Robinson had removed valuable equipment of the company. That equipment included a John Deere tractor, a Komatsu digger, and a 25 tonne log-splitter which Mr Freakley had estimated would be worth about $140,000 on the market. It was used as working plant and it was important to the company to generate income. Mr Robinson had removed this from the company premises to parts unknown, at a time when he was about to depart the country and make himself unavailable to Mr Freakley. It does not appear that Mr Robinson strenuously disputes those particular facts, although he contends that his actions were in the interests of the company. He contends that Mr Freakley had no right to institute the court proceedings against him because he was a director also and proceedings could not be started without the consent of both directors.
(emphasis added)
[14] In relation to the “trespass” proceeding,17 Judge Bell said:
16 The factual background to which is set out at paras [17]–[20] and [26]–[29] below.
17 The background to which is set out at para [32] below.
[30] Under proceeding 223, the real thrust of Mr Robinson’s allegations centre around the matter of trespass including the prosecution. Mr Freakley can again point to his position as sole shareholder, his exercise of his powers as shareholder to remove Mr Robinson as a director as then entitling him to exercise the powers of the company to exclude Mr Robinson from the company premises. Mr Robinson’s statement of claim includes an allegation of malicious prosecution. A claim for malicious prosecution is available when there is a criminal prosecution. But in a claim for malicious prosecution it has to be established that there was not a reasonable cause for the prosecution, the prosecution was brought maliciously, and that the prosecution was unsuccessful.
[31] Leaving aside the question of motive, the prosecution resulted in a conviction. Mr Robinson would point out that he has appealed and on the appeal he may be vindicated. But the fact that a District Court Judge heard the charge and found it proved might be some support for Mr Freakley and Whangarei Heads Enterprises Ltd that there was a reasonable basis for the prosecution. Again, I regard Mr Robinson’s chances of success in proceeding 223 as likewise being very much an uphill task for him.
[32] For his causes of action in proceeding 185, Mr Robinson has made what I regard as exaggerated claims for damages. For each cause of action the relief sought is in the order of $500,000. Mr Robinson is not familiar with this aspect of the law. The courts do take a relatively strict view of exaggerated claims for exemplary damages. In the words of one Judge they are often seen to be in terrorem. I regard these claims for exemplary damages of $500,000 per cause of action as being grossly exaggerated and as intended to intimidate; they are improper.
[15] Having identified the critical factors to be balanced and considered the Court of Appeal’s decision in A S McLachlan Ltd, Judge Bell concluded that security for costs should be ordered. He said:18
[37] At paragraph [15] of its decision in A S McLachlan Ltd v M E L Network the Court of Appeal emphasised the need for care when any order requiring substantial security would in effect prevent the plaintiff from pursuing the claim. I consider that that need for care applies here. I am conscious that if I were to require Mr Robinson to put up any security at all, I may be closing the court door on him. The Court of Appeal emphasised that that approach is required where substantial security would be ordered. I consider that this case is one which would require substantial security in the sense that any security would have to be reasonably meaningful to give some measure of protection to the defendants. That is required because Mr Robinson is running a claim as a litigant in person which will tend to escalate time and attendances and correspondingly the amounts of costs that may be ordered. I also take into account the limited prospects of success for Mr Robinson under his claims.
[38] In weighing Mr Robinson’s interests on the one hand and the interests of the defendants on the other, and in taking account of the Court of Appeal’s advice to proceed with care, it is my assessment that the balance
18 Paragraph [15] of the McLachlan judgment is set out at para [10] above.
lies in favour of the defendants in requiring Mr Robinson to provide security for his claims. I am satisfied that this is an appropriate case to require security from Mr Robinson.
[16] In determining the amount of security required, the Judge acknowledged that while Mr Robinson had “an uphill task”, his claims were not “completely hopeless”. In those circumstances, he fixed the amount of security at $20,000 to be paid within six months. The proceedings were to be stayed in the meantime.19
The review application
(a) The arrest proceeding20
[17] In a “revised” Statement of Claim filed on 27 February 2013, Mr Robinson sets out his position with regard to an agreement he contends was struck between Mr Freakley and himself in relation to the 1000 shares in Whangarei Heads. Mr Freakley and Mr Robinson each held 500 shares in the company.
[18] Mr Robinson alleges that in early March 2012 he ascertained that Mr Freakley was acting in a manner contrary to their agreement; in particular, he had failed to pay monthly interest owed by the company and had negotiated to buy plant and machinery for the company. This occurred at a time when, on the face of it, Mr Robinson had transferred his shares to Mr Freakley.
[19] Mr Freakley’s version of what occurred was set out in his affidavit in support
of the arrest application:21
3. On the 17th of March 2012, I discovered that a Hitachi XL 70
Loader (the “Loader”) owned by the company was removed from a quarry in
Opua (the “Quarry”). The Company had the right to keep and maintain the Loader at the Quarry. Mr Robinson was authorised to use the Loader at the Quarry to undertake work at the Quarry. Mr Robinson had no authority from the Company, or myself, to remove the Loader from the Quarry.
19 Robinson v Whangarei Heads Enterprises Ltd HC Whangarei CIV 2012-488-185 and CIV 2013-
488-223, 7 May 2013, at paras [42]–[44].
20 CIV 2012-488-185.
21 Compare with the articulated background facts in Allan J’s judgment on the trespass appeal:
Robinson v Police [2013] NZHC 1511 at paras [5]–[11]; set out at para [32] below.
4. On the 18th of March 2012 Mr Robinson removed several items of valuable plant and equipment from the Company’s premises. The plant and equipment taken by Mr Robinson is as follows:
(a) John Deer Tractor 6110 (“Tractor”);
(b) 1.8 Komatsu Digger on tandem trailer (“Digger & Trailer”);
(c) Towable 25 tonne log splitter (“Splitter”); (together with the Loader called the “Equipment”)
5. The Equipment is worth about $140,000 on the market as second hand goods, but they are worth more than that to the Company as working plant and equipment in terms of generating an income for the Company.
6. On the 18th of March 2012, as soon as I found out Mr Robinson had taken the Equipment, I reported the actions of Mr Robinson to the New Zealand Police. The New Zealand Police would not take any action because Mr Robinson was a director of the Company and could rely on his authority as a director to take the Equipment. They advised me that it was a civil matter and to contact my solicitor.
[7]. After contacting my solicitor on Sunday 18 March 2012, I then signed a shareholders resolution to remove Mr Robinson as director of the Company.
[8]. I contacted the Police once again to advise them that Mr Robinson was no longer a director of the Company and he still had the Equipment, and I asked the Police to investigate further and see what they could do.
[9]. On Monday the 19th of March 2012, I instructed my lawyers to remove Mr Robinson, as a director Company, from the Companies Office website. That was done, which is apparent in the extract from the Companies Office annexed “A”.
[10]. Later on, on Monday the 19th of March 2012, at approximately 6pm, I was having a drink at the Mount Manaia Club. Mr Robinson was also at the club. He approached me and advised that he would return the Equipment the following day, being Tuesday the 20th of March 2012.
[11]. After having this discussion I went home but I was left entirely unconvinced that Mr Robinson would actually return the Equipment to the Company. I decided to contact my lawyer again the following day.
[12]. On Tuesday the 20th of March 2012, I instructed my lawyer to formally demand the return to the Company of the Equipment. A letter was prepared and sent to Mr Robinson’s lawyer, Mr Mike Badham of Thomson Wilson Lawyers in Whangarei. Annexed “C” is a true copy of that letter which my lawyers tell me was sent in the morning on Tuesday the 20th of March 2012. That letter specifically demands the return of the Equipment plus a towable concrete mixer and the Company cheque book. I have subsequently found the company cheque book in Mr Robinson’s office at the
Company’s business premises and the concrete mixer was found (never
taken by Mr Robinson) in the back of the yard at the Company’s premises.
[13]. My lawyers gave me the option of making this application and they needed instructions immediately on that. I told them I would get back to them after speaking again to the Police. I rang the Police again and spoke to the officer I was dealing with earlier. That officer told me he had followed it up with Mr Robinson and in his view it was unlikely that Mr Robinson would return the Equipment. The officer advised me to take the option of instructing my lawyers to make this application. I immediately telephoned my lawyers and instructed them to make this application.
[14]. My lawyers advised later in the day, on Tuesday the 20th of March
2012, that a secretary at Mr Mike Badham’s office had acknowledged receipt
of the demand letter (annexed “C”) and the follow up phone message left at Mr Badham’s offices, and would respond by telephoning my lawyers that afternoon. At the end of the day my lawyers advised that Mr Robinson’s lawyers had not contacted them. My lawyers advised me that they would email this affidavit to me to swear as soon as possible today, Wednesday 21st of March 2012, and file in Court together with other papers making this application.
[15]. At the time of swearing this affidavit today I have not heard from my lawyers to say that Mr Robinson (through his lawyers) is going to return the Equipment to the Company. I still do not have the Equipment.
[16]. It is my firmly held view that Mr Robinson is in possession of the Equipment and intends to sell this Equipment for his personal gain, or arrange to have someone sell on the Equipment on his behalf, or try and move it out of New Zealand.
[17]. About a week ago, on Thursday 15 March 2012, Mr Robinson told me he was leaving New Zealand to go to Vanuatu this Wednesday, today. I have made some inquiries and the only flight leaving New Zealand for Vanuatu today 21 March 2012 is flight number is NZ 378 Air New Zealand (and carrier number is NF 51 Air Vanuatu) and this flight leaves at 13:05 today. I annex “D” the international departure schedule from Auckland today.
[18]. Mr Robinson has previously departed New Zealand for significant periods of time at short notice. He was supposed to be coming back to New Zealand from Vanuatu on 18 March 2012 but he had come back earlier than that. It seems to me that because he came back early he now wants to get back to Vanuatu. I firmly believe that once Mr Robinson leaves New Zealand he will not be back for a long time. He will have someone in New Zealand selling the Equipment and sending the money to Mr Robinson overseas.
[19]. I don’t know where the Equipment is. All I know is that the Company doesn’t have it. The Company will want to take proceedings against Mr Robinson to recover the Equipment but it will not be able to serve him with those proceedings easily or at all when he has left New Zealand.
...
[21]. In order to recover the Equipment prior to Mr Robinson leaving New
Zealand I have no other option than to seek this order from the Court.
[20] The arrest proceeding was issued on 21 March 2012. It took the form of an originating application “to arrest and imprison [an] absconding debtor”.22 At the time the arrest application was made, no substantive proceedings had been brought to recover the plant and equipment to which Mr Freakley had referred in his affidavit.23
[21] The arrest application was made under s 55 of the Judicature Act 1908. Although, as the intitulment to Whangarei Heads’ arrest proceeding suggests, it is often referred to as a provision permitting the arrest of an “absconding debtor”, that is not, in fact, its true focus. Section 55 provides:
55 Power under certain circumstances to arrest defendant about to quit New Zealand
(1) A person shall not be arrested upon mesne process in any civil proceedings in the High Court.
(2) Where in any civil proceedings in the High Court in which, if brought before the first day of October, 1874 (being the date of the coming into operation of the Imprisonment for Debt Abolition Act 1874), the defendant would have been liable to arrest, the plaintiff proves at any time before final judgment, by evidence on oath to the satisfaction of a Judge of the Court, that the plaintiff has good cause of action against the defendant to the amount of $100 or upwards, and that there is probable cause for believing that the defendant is about to quit New Zealand unless he is apprehended, and that the absence of the defendant from New Zealand will materially prejudice the plaintiff in the prosecution of those proceedings, such Judge may, in the prescribed manner, order such defendant to be arrested and imprisoned for a period not exceeding 6 months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in those proceedings, that he will not go out of New Zealand without the leave of the High Court.
(3) Where the civil proceedings are for a penalty, or sum in the nature of a penalty, other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from New Zealand will materially prejudice the plaintiff in the prosecution of those proceedings; and the security given (instead of being that the defendant will not go out of New Zealand) shall be to the effect that any sum recovered against the defendant in those proceedings will be paid or that the defendant shall be rendered to prison.
22 Taken from the intitulment to the originating documents in the arrest proceeding.
23 See paras 3, 4 and 5 of Mr Freakley’s affidavit, set out at para [19] above.
(4) All the powers conferred by this section upon a Judge may be exercised by the Registrar of the Court:
Provided that such powers shall be exercised by the said Registrar only in the absence of the Judge from the place where the office of the Court is situate at which the application for such order as aforesaid is made.
[22] Having considered the relevant documents, Woodhouse J made an order, in these terms:
To the Sheriff at Auckland:
1.This Court orders that you are authorised and required to arrest Mr John Clifford Walter Robinson (the liable party) within 1 month of the date of this order and imprison the liable party at Auckland for 1 day unless and until:-
a.The liable party deposits in the court $140,000 by way of security; or
b.The liable party gives to Whangarei heads Enterprises Limited (the applicant) a bond executed by the liable party and 2 sufficient securities of $140,000 or some other security satisfactory to the applicant.
2.The security is t be held on the basis that it is forfeit to the applicant if the liable party leaves New Zealand without leave of the Court.
[23] The original purpose of s 55 was to substitute a different process for the pre- existing ability to imprison a debtor for non-payment of a debt and to issue a writ of arrest on mesne process.24 It was enacted initially as part of the Imprisonment for Debt Abolition Act 1874, to which reference is made in s 55(2).
[24] The limited scope and purpose of s 55 has been described in this way:25
J55.01 Limited scope and purpose
The scope and purpose of this section are sometimes misconceived. The following principles should be understood:
1.The Court’s jurisdiction under the section is discretionary and has been exercised sparingly.
2.The section is concerned with the arrest of a defendant who is absconding before judgment with the aim of frustrating the plaintiff’s action and the obtaining of judgment.
24 See the reference to mesne process in s 55(1) and the discussion of that subject in Sutherland, Mesne Process in the Early Common Law (1966) 82 LQ Rev 482.
25 McGechan on Procedure (Brookers, looseleaf edition) at para J 55.01.
3.The Court will order the arrest of the defendant only where the evidence of the defendant is materially necessary for the plaintiff to prove his case. The application should thus be supported by affidavits which demonstrate why the defendant’s evidence is necessary.
4.The section is not intended to give any right to a plaintiff to arrest a defendant merely because the absence of the defendant would render it difficult or impossible for the plaintiff to obtain the fruits of his judgment if the defendant left New Zealand.
5.The entry of judgment against a defendant operates as a discharge or annulment of an order for arrest previously obtained against him under the section: Felton v Callis [1968] 3 All ER 673; Lawson, Swain & Walker Ltd v Montefiore [1919] NZLR 666; Hunter v Sullivan (1911) 14 GLR 293.
....
[25] Professor Sutton once described the statutory regime in this way:26
2.21 Arrest in [High] Court proceedings
...
The statutory conditions must be strictly complied with. For example, s 55 states there must be a cause of action for the recovery of money, so that an action designed to compel the defendant to pay money to a third party is not within it. No arrest can therefore be ordered under the section. The third condition is especially important, since it shows that the purpose of the section is not to assist the creditor in recovering a debt, but to assist him in proving his claim. In many cases he will be able to establish his case without the assistance of the defendant’s evidence, and the section then has no application. It is therefore necessary, in applications under the section, to demonstrate the way in which the attendance of the defendant is important to the plaintiff’s case. It is not enough generally to state that this is so, and the Judge will examine such assertions very carefully. Moreover any order made under the section ceases to operate as soon as the plaintiff obtains judgment since the need for such an order has ended, and any security the defendant has given for his attendance is immediately refundable to him. Even where the statutory conditions are fulfilled the Judge’s power to make the order is discretionary and it need not be exercised where undue hardship would be caused the debtor especially if there is a suggestion that the plaintiff has deliberately delayed his proceedings for arrest in order to put pressure on the defendant shortly before his departure from New Zealand.
[26] Based on Mr Freakley’s affidavit evidence, counsel for Whangarei Heads
submitted, in support of the without notice application:
26 R J Sutton, The Law of Creditors’ Remedies in New Zealand (Butterworths Wellington 1978) at
18–19.
9.There are flights from New Zealand to Vanuatu (where [Mr Robinson] intends to travel to) almost every day leaving from Auckland. The inconvenience to [Mr Robinson] in arranging a later flight to Vanuatu is less than the risks of [Whangarei Heads] in not being able to recover the property taken by [Mr Robinson] and earn a living from it or to replace that property so that it can earn a living from it.
[27] Mr Robinson was arrested before boarding a flight to Vanuatu, at about
12.30pm on 21 March 2013. He was taken to Mt Eden Prison, where he was processed and incarcerated overnight. He was required to mix with other prisoners. The following morning he was told to shower and dress to attend at Court that morning. Mr Robinson asserts that, around 11am on 22 March 2012, he was advised that he would be released at midday, though his passport was to be retained.
[28] That evidence is consistent with a second application made by Whangarei Heads, on 21 March 2012, in which it sought a variation to the order enabling release of Mr Robinson following expiry of 24 hours from the time of arrest, on the basis that possession of his passport be retained by the Police. A variation was also sought that the passport be retained until Mr Robinson had complied with the earlier order of 21 March 2012 and the order directing release of the passport. An order to that effect was made by Woodhouse J, on the afternoon of 21 March 2012.
[29] The following day, on Mr Robinson’s application, Woodhouse J ordered that Mr Robinson’s passport be released and delivered back to him. Reasons for that decision were given on 26 March 2012.27 Woodhouse J said:
[4] In the course of the hearing Mr Robinson acknowledged that the equipment in question is the property of Whangarei Heads Enterprises Limited. He said that Mr Freakley knew where the equipment was. He said that he was, in any event, willing to disclose the whereabouts of the equipment and allow it to be returned to Whangarei Heads Enterprises Limited, provided it was not used for the purposes of the company’s hireage business. In the event I determined that such a condition was not appropriate as Mr Robinson acknowledged that the equipment is the property of the applicant company and there is an undertaking as to damages.
[5] In the course of further discussion Mr Robinson disclosed the addresses where the property had been put or left by him. He identified three properties. In respect of each of these:
27 Whangarei Heads Enterprises Ltd v Robinson [2012] NZHC 544.
(a) Mr Robinson said that the loader was at a property owned by Roddy McGregor. Mr Ebert advised that earlier that day Mr Freakley went to the property, but Mr McGregor would not allow the loader to be picked up without authority from Mr Robinson. It was agreed that this could be dealt with by my issuing an appropriate minute recording Mr Robinson’s acknowledgement that this loader (and the other equipment) is owned by the company.
(b) Mr Robinson said the John Deer tractor was at the back of a property owned by John Dimond at Ody Road, Parua Bay, Whangarei Heads.
(c) Mr Robinson said the small digger and wood splitter were at a property owned by Mr Robinson’s daughter and son-in-law, Joan and Caleb Piggot. Mr Robinson was unsure of the exact address. In the course of the hearing he telephoned his son-in-law who provided the address. Mr Robinson advised Mr Piggot that the digger and wood spliter were to be released. Mr Piggot offered to take the equipment to the premises of Whangarei Heads Enterprises Limited.
[6] Mr Ebert submitted that the passport should not be released until it had been confirmed that all of the equipment was at the locations identified. I did not consider that that was a basis for Mr Robinson’s passport to be detained any further. There were no further grounds for detention under s 55 of the Judicature Act 1908 as the evidence required from Mr Robinson had now been provided. Retention of the passport was in substitution for continued detention of Mr Robinson under s 55. Mr Robinson nevertheless agreed, at Mr Ebert’s request, to state on oath that the equipment was at the addresses that he had identified, and he did so.
(b) The trespass proceeding28
[30] Following release, the dispute between Mr Robinson and Mr Freakley continued to fester. Following service of a trespass notice on Mr Robinson on 13
November 2012, and Mr Robinson’s apparent refusal to comply with it, a
prosecution for trespass was initiated, on Mr Freakley’s complaint.
[31] In the District Court, Judge Davis found Mr Robinson guilty on a charge of wilful trespass, convicted him and ordered him to come up for sentence if called upon within six months.29 On appeal, the District Court Judge’s finding of guilt was upheld but the appeal was allowed, on the basis that Mr Robinson was discharged without conviction.30 Mr Robinson had been travelling to and from Vanuatu for health reasons. Allan J held that there was a “real and appreciable risk that Mr
Robinson may not be able to return to Vanuatu ... by reason of the conviction”. That
28 CIV 2013-488-223
29 Police v Robinson DC Whangarei CRI-2012-088-3883, 11 February 2013.
30 Robinson v Police [2013] NZHC 1511 at para [38].
consequence being “altogether disproportionate to the gravity of the offending”,31
the Judge discharged Mr Robinson without conviction.
[32] In his judgment on appeal from the trespass conviction, Allan J set out the background to the issue of the trespass notice:32
[5] By July 2011, Mr Robinson was in serious financial difficulties. He agreed to transfer his 500 shares in the company to Mr Freakley. The share transfer was back dated to March 2011. Mr Robinson was to remain a director. By a resolution dated 18 March 2012, Mr Freakley, being the sole shareholder in the company, passed a resolution removing Mr Robinson as a director of the company.
[6] Mr Robinson’s case is that the shares were transferred to Mr Freakley for two quite separate reasons. The first is that because Mr Robinson was facing insolvency issues and was concerned about the possibility that the shares would vest in the Official Assignee, he considered that the shares would be better off in Mr Freakley’s ownership (I note that Mr Robinson was adjudicated bankrupt on 3 December 2012). Assuming that to be a reason for the transfer, Mr Robinson would appear to face difficulties in maintaining his contention that these shares by Mr Freakley are held on a resulting trust for him. That was noted by Associate Judge Bell in a recent judgment given in related civil proceedings.
[7] A transfer of assets in contemplation of bankruptcy will generally be considered to be absolute, in that it is not possible to assert a beneficial interest in assets which were transferred in order to put them out of the reach of creditors.
[8] The second reason for the share transfer, according to Mr Robinson, was that it occurred pursuant to a somewhat complicated arrangement between himself and Mr Freakley, under which Mr Freakley was entitled to maintain full control of the company for a period of one year, ending in about October 2012, during which time Mr Freakley was to have an option to buy Mr Robinson out. If the option was not exercised by Mr Freakley, then positions would be reversed. Mr Robinson would become entitled to run the company for a year and he would have an option to buy Mr Freakley out. This somewhat complex and unusual arrangement is not the subject of any formal legal agreement, but it is recorded in legal correspondence from Mr Robinson’s solicitors, and is the subject of certain notes made by him, some of which were initialled by Mr Freakley. Mr Robinson says there was a contract between the two, partly written (being Mr Robinson’s notes) but mostly oral. In October 2012. he was entitled to have all of the shares transferred to him because Mr Freakley had not exercised his option.
[9] Although the share transfer specified a consideration of $250,000, that sum was never paid either in cash or by way of set off, on Mr Robinson’s argument. The transfer, which on its face was absolute, was
31 Ibid, at para [37].
32 Ibid, at paras [5]–[11].
subject to the arrangements between the parties and to the equitable and contractual rights which stemmed from their agreement.
[10] Mr Freakley’s position is quite different. He says he did give consideration for the shares, and that the transfer was absolute. He accepts that Mr Robinson remained a director of the company after the date of the share sale, but that he removed Mr Robinson as a director after the parties had seriously fallen out in March 2012. Interestingly, Mr Robinson wrote to Mr Freakley giving notice of his intention to resign as a director in a letter dated 20 March 2012, presumably in the context of their disagreement. At that stage Mr Robinson had been unaware of the fact that Mr Freakley had already taken steps to remove him as a director. In any event, Mr Robinson seems not to have actually given notice of resignation.
[11] It is common ground that a trespass notice was duly served on Mr Robinson on 13 November 2012. Prior to that, he had apparently evinced an intention to return to the company’s premises, he having stayed away for a significant period because, he says, Mr Freakley was entitled to have control of the company for a one year period. Two days later, on 15 November
2012, Mr Robinson walked into the offices of the company. Mr Freakley was there. Mr Freakley said that Mr Robinson had come onto the property
because he wanted to test the validity of the trespass notice in court. There was no confrontation. Mr Robinson was polite. Indeed, Mr Freakley said he
was “smug”. The police were called. Mr Robinson was arrested and charged with wilful trespass.
(c) The torts of abuse of process and malicious prosecution
[33] In Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd,33 the Privy Council reconsidered the nature, extent and inter-relationship of the torts of abuse of process and malicious prosecution. I agree with Judge Bell that they are the only tenable bases on which either the arrest proceeding or the trespass proceeding could be pursued against Whangarei Heads and (in the case of the trespass proceeding) Mr Freakley.
[34] The Privy Council appear to have been unanimous in their view of the nature and extent of the tort of abuse of process. In my view, Their Lordships’ conclusion, on this topic, is best articulated in the judgment given by Lord Sumption. His Lordship said:
149. Abuse of process emerged as a tort considerably later than malicious prosecution and differs from it in significant respects. It applies to the initiation or conduct of civil proceedings. It is not necessary to prove malice. It is not necessary to show that the proceedings have gone to judgment. It is not even necessary to show that they were baseless, although in practice they
33 Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17.
often will be. The essence of the tort is the abuse of civil proceedings for a predominant purpose other than that for which they were designed. This means for the purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought. The paradigm case is the use of the processes of the court as a tool of extortion, by putting pressure on the defendant to do something wholly unconnected with the relief, which he has no obligation to do. Such cases are extremely rare. Although there is a moderately substantial body of case-law, there are only two reported cases in England in which the action has succeeded, both involving the now obsolete procedures for the arrest of debtors, which had an obvious potential for abuse. No case has succeeded in England since 1860, although Australian litigants appear to have been both more persistent and more successful. Like the tort of malicious prosecution as it was conceived to be before this case, abuse of process is on the verge of extinction, the only recent sightings being in Australia.
...
153. Once the tort had been established, the courts consistently declined to extend it so as to cover cases in which the defendant was genuinely seeking the relief prayed in the writ but for an ulterior motive, even if that motive were malicious or improper. Insolvency proceedings were, and perhaps still are commonly initiated with a view to obtaining some benefit which will flow from the insolvency other than the recovery of the debt or a dividend. In King v Henderson [1898] AC 720, the creditor intended to obtain the dissolution of his partnership with the debtor, which would automatically follow from his bankruptcy. In the Australian case of Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509, the creditor hoped to discover from the bankrupt’s examination who had instigated him to make certain defamatory statements. In neither case was the creditor’s conduct tortious. He truly wanted a bankruptcy order, which was the purpose for which the proceedings were designed. Once that was demonstrated, the reason why he wanted it no longer mattered. In Dowling, Isaacs J put the point in this way at pp 521-522:
“If the object sought to be effected by the process is within the lawful scope of the process, it is a use of the process within the meaning of the law, though it may be malicious, or even fraudulent, and in the circumstances the fraud may be an answer; if, however, the object sought to be effected by means of the process is outside the lawful scope of the process, and is fraudulent, then - both circumstances concurring - it is a case of abuse of that process, and the court will neither enforce nor allow it to afford any protection, and will interpose, if necessary, to prevent its process being made the instrument of abuse”.
(Emphasis added)
[35] The Privy Council was divided on the scope of the tort of malicious prosecution. Three members of the Court34 concluded that the cause of action
34 Lady Hale, Lord Kerr and Lord Wilson.
extended to the prosecution of a civil proceeding. The other two35 disagreed. I explain why the majority reached their conclusion, as it is the best basis on which Mr Robinson could plead his case.
[36] The leading judgment was given by Lord Wilson. In reaching his conclusion, he had regard to two decisions given in this country, New Zealand Social Credit Political League Inc v O’Brien36 and Rawlinson v Purnell Jenkison and Roscoe.37
Lord Wilson’s primary reason (I discern) for bringing civil proceedings within the scope of the tort was based on the proposition that “a distinctive feature of the tort is that the defendant has abused the coercive powers of the State”. Lord Wilson considered that feature was present as much in civil as criminal proceedings. His Lordship added that there was “no principle behind a redefinition of [that] distinctive feature as being an abuse of the coercive powers of the State only in criminal proceedings: that would be to generate a delineation of the contours of the tort in line
only with what the draftsman of the redefinition subjectively preferred”.38
[37] Lady Hale expressed agreement with Lord Wilson’s views. She also aligned herself with the reasons given by Lord Kerr for reaching the same conclusion. Lady Hale said:
90. For all these reasons, and for the reasons given by Lord Wilson and Lord Kerr, I agree that bringing a civil claim which you know to be bad and which results in damage to the defendant’s reputation, person, liberty, property or finances, comes within the scope of the tort of malicious prosecution and this appeal should succeed.
[38] Lord Kerr defined the “essence of the tort” as “the illegitimate use by an individual of coercive legal powers to cause harm to another”.39 His Lordship considered that the case for recognising that the tort extended to civil proceedings was more grounded in logic than the case for excluding it. Lord Kerr said:
119. The case for recognising the existence of the tort for civil proceedings as well as in criminal proceedings seems to me far more
35 Lord Neuberger and Lord Sumption.
36 New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA) at 88.
37 Rawlinson v Purnell Jenkison and Roscoe [1999] 1 NZLR 479 (HC) at 488.
38 Ibid, at para 78(f), drawing on Lord Steyn’s speech in Gregory v Portsmouth City Council [2000] 1 AC 419 (HL) at 426. Other members of the House of Lords agreed with Lord Steyn’s reasoning.
39 Ibid, at para 104.
grounded in logic than the case for refusing to extend it. Although the private prosecutor may take on the mantle of the state in criminal proceedings and although the coercive power of the state may be present in the prosecution by the DPP of offences, the central and critical species of wrongdoing is the same in malicious prosecution of civil proceedings. It is the procuring by malice of the discomfiture (at least) or the ruin (not infrequently) of the person against whom the action is taken for reasons disassociated with the professed purpose of the proceedings. Proceedings motivated by nothing more than malice are capable of wreaking devastation whether in pursuit of criminal prosecution or private action. Where it can be demonstrated that the court’s procedures do not provide an adequate remedy (or in this case no remedy at all) there can be no logic for denying the person who has suffered the same harm by the institution of civil proceedings as he who has been the victim of criminal proceedings. Indeed, it is not difficult to envisage cases where the harm will be considerably greater.
(Emphasis added)
[39] In analysing whether (and if so in what sum) an order for security for costs is required, I apply those principles to the allegations advanced by Mr Robinson in the arrest and trespass proceedings. In my view, the strength of each proceeding must be considered discretely and weighed against the desirability of a defendant having some protection for costs in a particular proceeding brought by an insolvent plaintiff.
(d) Analysis
(i) The arrest proceeding
[40] In the arrest proceeding, Associate Judge Bell considered that the tort of abuse of process was probably the strongest means by which Mr Robinson could make his case. On the basis of the Privy Council’s approach, in Crawford Adjusters, it would not be necessary for Mr Robinson to prove malice, or even that the substantive allegations on which the claim for the property was made, were baseless. He would need to prove that the application to arrest him was made to obtain “some wholly extraneous benefit other than the relief sought and not reasonably flowing
from or connected with” that relief.40
[41] Applying the majority view in Crawford Adjusters, on the topic of malicious prosecution, it would be necessary for Mr Robinson to prove that the application for
40 Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, at para 149, set out at para [34].
the arrest warrant was made maliciously (at least) to procure his “discomfiture” for
“reasons disassociated with the professed purpose of the proceedings”.41
[42] The strength of the arrest proceeding, under both heads, depends upon the purposes for which the application for the warrant was made. The grounds were set out in Mr Freakley’s affidavit in support of the application, to which I have already referred.42 Some nuanced differences in their expression can be found in Allan J’s summary of background facts on the trespass appeal.43 There were arguable questions about whether the elements of ss 55 could be established.44
[43] Whangarei Heads, based on Mr Freakley’s evidence,45 claimed that Mr Robinson had removed “several items of valuable plant and equipment” owned by it, with a second hand market value of about $140,000.
[44] At the time the goods were allegedly removed, Mr Robinson remained a director of Whangarei Heads. When Mr Freakley reported the alleged theft on 18
March 2012 he was met by a Police response that no action would be taken because Mr Robinson was likely to have had authority, as a director, to take the equipment. He was advised that the issue was civil, not criminal, in nature.
[45] On the same day, Mr Freakley contacted his solicitor and signed a shareholders’ resolution to remove Mr Robinson as a director of the company. At that stage, of course, the equipment had already been moved. At that stage, it is likely that Mr Robinson believed he was still a director.
[46] There were discussions between Mr Freakley and Mr Robinson on 19 March
2012, at which Mr Robinson allegedly told Mr Freakley that he would return the equipment the following day. Mr Freakley did not believe him. On 20 March 2012
Mr Freakley instructed his solicitors to demand return of the equipment to the
41 Ibid, at para 119 (Lord Kerr), set out at para [38] above.
42 See para [19] above.
43 Robinson v Police [2013] NZHC 1511 at para [38], set out at para [32] above.
44 For example, while Mr Freakley knew that Mr Robinson travelled not infrequently between New Zealand and Vanuatu, it was necessary to prove that he was leaving New Zealand with the intention of frustrating a claim that had not then been filed: see para [24] above.
45 My summary is taken from the terms of Mr Freakley’s affidavit, set out at para [19] above.
company. While an acknowledgement of receipt of the demand was received from
Mr Robinson’s solicitor in Whangarei, no substantive response was forthcoming.
[47] Mr Freakley asserts that he was then advised that he had the option of applying for Mr Robinson’s arrest. At the time of swearing the affidavit, Mr Robinson had not provided a substantive response to the return of the equipment. Without expressing any reasons for holding the view, Mr Freakley opined that Mr Robinson intended to sell the equipment for personal gain or try to move it outside of New Zealand.
[48] Mr Freakley gave evidence that about a week before, Mr Robinson had told him that he was going to travel to Vanuatu on 21 March 2012. Mr Freakley knew that Mr Robinson had travelled to Vanuatu in the past. He expressed a belief, again unsupported by reasons, that once Mr Robinson left New Zealand he would not “be back for a long time” and would “have someone in New Zealand selling the equipment and sending the money to Mr Robinson overseas”.
[49] Mr Freakley deposed that he did not know where the equipment was. He indicated that Whangarei Heads would “want to take proceedings against Mr Robinson to recover the goods” but would “not be able to be able to serve him with those proceedings easily or at all when he has left New Zealand”.
[50] One interpretation of that evidence is that which found favour with Woodhouse J, namely that Mr Robinson intended to depart New Zealand in circumstances where his absence would materially prejudice Whangarei Heads’ intended proceeding to recover property. Another is that, despite knowledge that Mr Robinson had travelled to and from Vanuatu in the past, and without any basis to believe that Mr Robinson intended to deal with the property for his own purposes, the arrest application was made illegitimately, to put pressure on Mr Robinson to return the items.
[51] Having regard to the principles set out in Crawford Adjusters and the factual basis on which Mr Robinson puts forward his case in the arrest proceeding46 I
46 See paras [17] and [18] above.
consider that Mr Robinson’s case, whether based on abuse of process or malicious prosecution, has somewhat greater prospects of success than Judge Bell assessed. I emphasise that the Associate Judge did not have the benefit of the Privy Council judgment.
[52] Mr Robinson’s arrest (whether right or wrong), in the circumstances disclosed by Mr Freakley, was a significant intrusion into his rights of liberty47 and freedom of movement.48 Although protected from a claim for false imprisonment by the Court order that authorised Mr Robinson’s arrest, the circumstances in which the warrant was sought and the information provided to the Court, on the basis of which the order was made, are relevant considerations. My provisional view is that
security for costs ought not to be set at a level which would shut out this particular claim, given the loss of liberty involved.
[53] Having said that, before the question of security can be finally determined, I consider that Mr Robinson must put his Statement of Claim into a more structured form, making it clear precisely on what basis he seeks damages. I urge Mr Robinson to seek legal assistance, at least for the purpose of settling the form of a Statement of Claim. Whether, and if so in what sum, security for costs should be ordered will need to be assessed by reference to that amended claim.
[54] To enable Mr Robinson to recast his claim, I intend to allow the review in respect of the arrest proceeding, make no order for security for costs, but reserve the right for Whangarei Heads to apply again for security once it is in receipt of an amended Statement of Claim.
(ii) The trespass proceeding
[55] Mr Robinson’s claim in the trespass proceeding was summarised accurately
by Judge Bell.49
47 New Zealand Bill of Rights Act 1990, s 22.
48 Ibid, s 18.
49 Robinson v Whangarei Heads Enterprises Ltd HC Whangarei CIV 2012-488-185 and CIV 2013-
488-223, 7 May 2013, at paras [30]–[32], set out at para [14] above.
[56] Given that the prosecution brought as a result of Mr Freakley’s complaint of trespass was ultimately successful (notwithstanding that Mr Robinson was discharged without conviction on appeal), I do not consider that it can be said that the trespass proceeding has any realistic prospect of success when one applies the principles relating to the torts of abuse of process and malicious prosecution laid down by the Privy Council in Crawford Adjusters.
[57] I agree with Judge Bell’s assessment that Mr Robinson has “very much an uphill task” in prosecuting his claim. I agree also with his view that the claims for exemplary damages are grossly exaggerated and may be intended to intimidate. I assess the prospects of success as “slim”.
[58] I consider that an order for security is justified in relation to the trespass claim, given the very limited prospects of success. I consider that a sum of $15,000 is appropriate, at this juncture.
Result
[59] For the reasons given:
(a) In relation to the arrest proceeding, I allow the application for review and quash the order for security for costs. The application for security in this proceeding is dismissed. Leave is reserved for a fresh application to be made after Mr Robinson re-pleads his claim.
(b)The application for review in respect of the trespass proceeding is granted, so far as quantum is concerned. The application for security is granted, on the basis that security for costs must be given to the satisfaction of the Registrar in the sum of $15,000, within six months of the date of this order. The proceeding is stayed meantime.
[60] The Registrar is directed to allocate a case management conference before Associate Judge Bell as soon as practicable so that the Judge may, after hearing from Mr Robinson and counsel for Whangarei Heads in the arrest proceeding, make such
timetabling orders as he considers appropriate in respect of any re-pleading of the claim.
[61] Both parties having been successful in part on the review, I make no order as to costs.
Delivered at 3.00pm on 30 August 2013
P R Heath J
12
4
1