Savill v AMFL Limited - [2020] NZHC 3061

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-143

[2020] NZHC 3061

BETWEEN
SIMON LYDALL SAVILL

Plaintiff (Respondent)

AND

AMFL LIMITED

Defendant (Applicant)

Hearing: 16 November 2020

Appearances:

S Austin for plaintiff/respondent

M Hammer for defendant/applicant

Judgment:

19 November 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] This is an application pursuant to r 5.45 of the High Court Rules 2016 for an order for security for costs made by the defendant, AMFL Limited, and opposed by the plaintiff, Mr Simon Savill.

[2] The proceeding was originally commenced by Mr Savill in March 2020, at which point Mr Savill applied ex parte for injunctive relief preventing AMFL from pursuing a mortgagee sale of his property in Queen Charlotte Sound. Dunningham J dealt with the ex parte application on the papers and on 25 March 2020 issued a short judgment granting such relief.1 AMFL then applied for an order rescinding the injunction. That application was heard on 13 August 2020. In a results judgment that day Dunningham J made an order rescinding her earlier order. Her Honour delivered a reasons judgment on 20 August 2020.2

1 Savill v AMFL Limited [2020] NZHC 655.
2 Savill v AMFL Limited [2020] NZHC 655.

SAVILL v AMFL LIMITED [2020] NZHC 3061 [19 November 2020]

[3] I respectfully adopt Dunningham J’s description of the background to the dispute:3

Paras [7]-[14]

[7] Mr Savill approached AMFL to borrow money to settle the purchase of a beachfront property in Kumutoto Bay in the Marlborough Sounds. The property was previously owned by his son-in-law. The property is legally described as Lot 1 DP 8221, MB4D/1116, Kumutoto Bay, Queen Charlotte Sound, Marlborough, comprised in Certificate of Title MB4D/1116 (the property).

[8] Mr Savill, together with his wife, in their [capacities] as trustees of the Shaw Savill Family Trust No. 2, also own the adjacent beachfront property in Kumutoto Bay (the Trust property).

[9] Mr Savill also owns a boatshed, fixed jetty and slipway and floating jetty which are all located on the waterfront, not on the property. He holds resource consent U15110.1 which is a coastal permit permitting these structures to be erected “fronting Lot 1 DP 8221 in Kumutoto Bay”. Condition 10 of this permit states:

The land to which the approved structures relate is presently known as Lot 1 DP 8221 (the Land). This coastal permit must not be transferred to any person other than an owner of the Land. In the event that the Land is sold or otherwise transferred to a new owner, this coastal permit must within three months be transferred to a new owner of the Land, failing which the consent must be surrendered to the consent authority.

[10] Mr Savill also owns a swing mooring (M714) located in Kumutoto Bay, pursuant to resource consent U15110.2. Resource consent U15110.2 contains a condition in the same terms as condition 10 for resource consent U15110.1, saying that the approved mooring relates to Lot 1, DP…

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 Savill v AMFL Limited

Details

AGLC: Savill v AMFL Limited [2020] NZHC 3061
Case: [2020] NZHC 3061
Decision Date: 19 November 2020

CaseChat Overview and Summary

Savill v AMFL Limited is an application for an order for security for costs by AMFL Limited against Simon Savill. The case was heard on 16 November 2020, with S Austin representing the plaintiff and M Hammer representing the defendant. The judgment was delivered on 19 November 2020 by Associate Judge Johnston.

The primary issue in the case was whether it was appropriate to order the plaintiff to give security for costs under r 5.45 of the High Court Rules 2016. This rule allows for an order for security of costs if the defendant can demonstrate that the plaintiff is resident outside of New Zealand, is a corporation incorporated outside of New Zealand, is a subsidiary of a corporation incorporated outside of New Zealand, or if there is a reason to believe that the plaintiff will be unable to pay the defendant’s costs if the plaintiff is unsuccessful in the proceeding. The defendant argued that the plaintiff had a history of impecuniosity and would be unable to pay the defendant’s costs if the plaintiff were to lose the case.

Associate Judge Johnston found that the threshold test was satisfied as the plaintiff was impecunious. However, the court also had to consider whether it was just in all circumstances to order the giving of security for costs. The court found that while the plaintiff had a right to bring his claim before the court, the defendant was also entitled to some level of protection given that the plaintiff's claim was not a strong one. The court assessed the likely costs of the trial and concluded that the defendant's scale costs on a 2B basis would likely be in the region of $50,000, with an additional one-third for indemnity costs, resulting in an estimated total of $65,000. The court ordered that the plaintiff pay $32,500 within 15 working days of the judgment, and a further $32,500 within five working days of the case being set down for trial. If either payment was not made by the specified time, the plaintiff's claim would be stayed and ultimately struck out for want of prosecution.

In conclusion, the court granted the defendant's application for an order for security for costs, ordering the plaintiff to pay $65,000 in two instalments, with a stay and potential strike-out if the plaintiff failed to make the payments on time. The plaintiff was also ordered to pay the defendant's costs of the application.

Orders