Sisson v IAG New Zealand Ltd

[2014] NZHC 616

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-000989 [2014] NZHC 616

BETWEEN  THERESE ANNE SISSON Plaintiff

ANDIAG NEW ZEALAND LIMITED Defendant

Submissions received:

20 March 2014

Appearances:           G D R Shand for Plaintiff/Respondent

R Coltman for Defendant/Applicant

Judgment:                31 March 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

on interlocutory applications

Introduction

[1]      This  judgment  relates  to  three  interlocutory  applications  made  by  the defendant (IAG).   The substantive proceeding involves insurance claims of the plaintiff (Ms Sisson) following substantial damage caused to a Colombo Street property  caused  by  the  Christchurch  earthquakes  of  4  September  2010  and  22

February 2011.

[2]      The interlocutory applications which I will deal with in this order are for: (a)           further and better discovery;

(b)      further particulars of claim;

(c)       security for costs.

SISSON v IAG NEW ZEALAND LIMITED [2014] NZHC 616 [31 March 2014]

Background

The Colombo Street Property

[3]      Until 2007 the Colombo Street property was in the name of David Hampton, Ms Sisson’s former husband.   In 2005 the Commissioner of Inland Revenue (Commissioner), as a result of claims for taxation liabilities against various entities associated with Mr Hampton and Ms Sisson (including Chesterfields Preschools Ltd), obtained Mareva injunctions (the freezing orders) against the Colombo Street

property, and others.1

[4]      In 2007 the Colombo Street property was transferred into the name of Ms Sisson to allow refinancing.   In exchange Ms Sisson provided an undertaking (the text of which is not in evidence).   At the same time the freezing orders were set aside.2    However, in 2008, upon concerns as to Ms Sisson’s compliance with her undertaking, the Court imposed fresh freezing orders and left her undertaking in place.3     The orders prevented Ms Sisson and her  co-plaintiffs from any further dealings with the properties, including Colombo Street.  Fogarty J recorded that he intended the word “dealings” to be understood in its broadest sense.4

The insurance contracts

[5]      Following the transfer of the property to her, Ms Sisson had the property insured with IAG.  The two relevant periods of insurance are 22 January 2010 to 22

January 2011 and 22 January 2011 to 22 January 2012.

[6]      During the term of those periods of insurance the earthquakes of 4 September

2010 (the September earthquake) and 22 February 2011 (the February earthquake)

inflicted  damage  upon  the  Colombo  Street  property.    One  earthquake  occurred during the currency of each policy.

1      The freezing orders were granted in Chesterfield Preschools Ltd v Commissioner of Inland

Revenue (2005) 22 NZTC 19,500.

2      Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-

2004-409-1596, 31 October 2007.

3      Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-

2008-409-722, 28 August 2008.

4      Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-

2008-409-722, 28 August 2008 at [7].

The loss claimed

[7]      Ms Sisson claims she suffered the following losses from the earthquakes:

(a)      The September earthquake:  $465, 750 which consists of an expert’s estimate of $517,500 to repair the property, less a ten per cent allowance for deprecation; and

(b)      The February earthquake:  a total loss, which will “cost in excess of

$1,800,000 to rebuild.  The building on the Colombo Street property has since been demolished.  The value of the property now lies in its land.

[8]      Ms  Sisson  has  so  far received the  following payments  in  respect  of the claimed losses:

(a)       The September earthquake:

(i)       $20,000 from the Earthquake Commission (EQC); and

(ii)      No payment from IAG. (b)       The February earthquake:

(i)       $120,000 from EQC; and

(ii)      $720,000 from IAG, which is calculated by reference to IAG’s

estimate  of  the  present  day  value  of  the  property,  being

$840,000, less the payment from EQC of $120,000.

[9]      Since receiving the above payments, Ms Sisson has repaid and discharged the mortgage securing the loan over the property, leaving a balance of the insurance proceeds ($180,000) invested on term.  That deposit is now also the subject of the freezing orders and/or Ms Sisson’s undertaking to the Court in the litigation with the Commissioner.

The claim

[10]     In the meantime, Ms Sisson was adjudicated bankrupt on 29 November 2011. The Official Assignee disclaimed any interest in the Colombo Street property.  Mr Hampton was subsequently adjudicated bankrupt on 5 June 2013.

[11]     Ms Sisson issued this proceeding on 15 May 2013.   Her claim is in two principal parts, and one ancillary part:

(a)       First, she sues for $465,750, which she says is IAG’s liability for the

September 2010 loss.

(b)Secondly, she sues for $473,000 for the difference between what she was paid by IAG ($840,000 less the $120,000 payment from EQC) and    IAG’s   total   liability   under   the   policy   of   $1,313,000. Alternatively, if there is not to be judgment for the $473,000, she seeks a declaration that IAG is liable to pay for replacement costs up to that sum.

(c)       Finally, she sues for general damages.

The pleadings

[12]     In issuing this proceeding, Ms Sisson referred to herself on the heading in this way:

Therese  Ann  Sisson  as  trustee  of  854  Colombo  Street,  Christchurch, property owner

Plaintiff

[13]     In its statement of defence, IAG stated that it had insufficient knowledge and therefore denied the description of Ms Sisson in the intituling to the Claim as “a trustee”.  IAG had its solicitors write to Ms Sisson’s solicitor on 24 September 2013 requesting details as to the basis upon which Ms Sisson alleged that a trust exists.  In the letter, Mr Coltman noted that various Court judgments and minutes which had

been  provided  in  Ms  Sisson’s  discovery  did  not  make  clear  the  nature  of  the

trusteeship.

[14]     In the letter, Mr Coltman also sought:

information as to Ms Sisson’s financial circumstances and her ability to

effect reinstatement of the building;

details of any litigation funding arrangement; and

discovery of documents relating to the demolition payments made by

IAG and whether Chesterfields had undertaken the demolition.

[15]     IAG, through John Parker gave evidence that Ms Sisson’s solicitor had not

responded to the September 2013 letter.

[16]    There occurred, in the meantime, the first conference in relation to this proceeding.  Wylie J dealt with discovery as the Court is required to do at the first conference.  The reference to Ms Sisson’s trusteeship in the statement of claim was discussed as was IAG’s request for documents in that regard.  Wylie J recorded that Ms Sisson (and Mr Hampton) did not resist making discovery to IAG.  His Honour then made a direction that general discovery take place within five weeks and also directed:

Discovery is to extend to Ms Sisson’s position as a trustee and the ultimate

beneficiary or beneficiaries of any monies which might be paid to her.

IAG files its interlocutory applications

[17]     Against this background, IAG made the three applications5 which I have now heard.

[18]     Ms Sisson filed a notice of opposition but no evidence in opposition.  The notice of opposition recorded that Ms Sisson opposes all the orders sought by IAG

and specified two grounds:

5 Above at [2].

Ms Sisson is the owner of the Colombo Street property which has a value of $720,000; and

there are no further documents as Ms Sisson has provided discovery of all

documents available to her in a verified list.

[19]     IAG’s solicitors then emailed Ms Sisson’s solicitors.   They referred to the

2004 Chesterfields proceedings and also later Chesterfields proceedings issued in

2008.  They noted that it was likely that documents relating to the ownership of the Colombo Street property might be located on those files and sought Ms Sisson’s consent to accessing the Court files.

[20]     Mr Shand responded by email, attaching a copy of an affidavit sworn by Mr Hampton on 25 October 2013 in support of an application to set aside freezing orders.   The application itself was not provided.   Nor did Mr Shand explain the outcome of the application.   Shortly afterwards, Mr Shand sent some further judgments and minutes of the High Court from a number of Chesterfields proceedings.

[21]     IAG then filed a further affidavit in support of the applications exhibiting the correspondence just referred to.  The deponent asserted that there were other relevant

documents which had clearly not been disclosed including:

the undertaking of Ms Sisson’s to the Court;

any consent of the Court to the Colombo Street property being provided as security for costs  in this proceeding; and

all judgments in the various Chesterfields proceeding which related to the

freezing orders.

[22]     Ms Sisson did not provide any further evidence.

The position of the Commissioner of Inland Revenue

[23]     The  Commissioner  became  aware  of  these   interlocutory  applications. Through counsel she filed a memorandum for the hearing.   The memorandum records:

3.The Commissioner wishes to be heard in relation to any application which may cut across freezing orders granted in her favour and to inform the Court of the following:

3.1The property at 854 Colombo Street is subject to a freezing order.

3.2She  is  not  aware  that  his  Honour  Justice  Fogarty  has approved  the  use  of  854  Colombo  Street  as  security  for costs.

3.3She does not consent to the use of 854 Colombo Street as security for costs.

Information as to the freezing orders

[24]     When IAG’s applications were allocated a hearing before me, I convened a conference.    It emerged at the conference that Mr Coltman was still without the information  which  might  reasonably  inform  him  as  to  the  current  standing  of freezing orders.   By agreement of counsel, I arranged for the Registrar to provide counsel with copies of each of the judgments of Fogarty J which I had referred to in a  judgment  I  gave  in  Chesterfields  Preschools  Ltd  v  Commissioner  of  Inland

Revenue.6

[25]     This  was  a  peculiar  situation  to  have  developed.    Ms  Sisson  had  been involved throughout the relevant stages of the Chesterfields litigation, having taken over ownership of the Colombo Street property and having been involved in the undertakings and orders made.  One might have anticipated that even had she not to hand the relevant documents she could, with reasonable enquiry, have obtained them and been able to inform the Court and IAG both as to the current state of the freezing orders and as to the precise arrangements of her trusteeship.  In the event the matter proceeded  to  the  hearing  before  me  on  the  basis  that  Ms  Sisson  opposed  any

direction that she give any further information as to her trusteeship.  To the extent

6      Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2012] NZHC 2629 at [52] –

[54].

that issues relating to the freezing orders remained unclear, Mr Shand was left in the position of having to record in his written submission:

… the property appears to be currently subject to a freezing order in the

separate Chesterfields proceedings.

[26]     Quite  why  Ms  Sisson  was  unable  to  bring  Mr  Shand  to  a  clearer understanding of the freezing order position before the hearing escapes me.

Further particulars

The application

[27]     IAG seeks further and  better particulars as to Ms Sisson’s representative

capacity referred to in the intituling in the statement of claim

Opposition

[28]     Ms Sisson opposed such an order.   The ground apparently relating to that

opposition was that Ms Sisson is “the owner of the property”.

Discussion

[29]     The representative capacity of a party must be shown in the statement of claim.  Rule 5.35 High Court Rules provides:

5.35     Representative capacity of party

A party to a proceeding who sues or is sued in a representative capacity must show in what capacity the party sues or is sued in the statement of claim.

[30]     The identification of the representative capacity within the intituling to a statement of claim (while not contained in the pleading itself) sufficiently meets the requirements of r 5.35.7

[31]     As the pleadings stand, IAG has denied Ms Sisson’s asserted representative capacity (because it does not know whether that is correct or not).  The capacity is therefore in issue.

[32]     Further particulars of the way in which the trusteeship is said to exist must be likely to assist the resolution of this issue before trial.  Counsel for IAG will, through the  Chesterfields  judgments  which  are  now  available  to  him,  be  able to  assess whether a more particularised claim of trusteeship matches up with information contained in those judgments.

[33]     In  their  commentary  on  r  5.35  in  McGechan  on  Procedure,  the  authors provide an example of a satisfactorily worded heading:8

HR5.35.01      Proceedings against executors and trustees of estates

The rule has perhaps its commonest application in proceedings against executors and trustees of estates. Such should be named in the statement of claim in fashion recognising their capacity as such, and not simply in their individual names.  For example, description in the heading of the statement of claim might be “AB and CD of Wellington, Solicitors as executors and trustees  of  the  estate  of  EF,  late  of  Wellington,  Retired,  Deceased”.  In Cadman v Visini HC Auckland CIV-2009-404-7925, 30 May 2011 it was held that reference to representative capacity in the intituling is sufficient, rather than requiring the capacity to be fully pleaded in the body of the claim.

[34]     As the example from McGechan illustrates, the identification of the type or source of trusteeship is a particular which is reasonably required.   A proper description in a case such as the present requires the plaintiff to identify not simply (as Ms Sisson has done) that she is a “trustee” but rather to identify “trustee of what?”  It seems likely, on the limited information available, that there is no trust instrument relevant in this case such as would apply in relation to a written inter vivos trust or in relation to a will trust.  Mr Coltman has hypothesised that it may be suggested that there is a resulting trust.   The proper particularisation of the representative capacity of Ms Sisson will identify the nature of the trust and will identify the general circumstances by which that trust was created.  That approach is similar to the particularity with which a caveator identifies the nature of any non- written trust on which he or she claims an interest.

[35]     There will be an order for further particulars of the “trusteeship” such as would meet the requirements under s 137(2)(b) Land Transfer Act 1952 that the nature of the interest claimed be stated with sufficient certainty.

Further and better discovery

The categories of documents sought

[36]     IAG applies for three categories of documents by way of further and better discovery:

(a)       as to Ms Sisson’s trusteeship;

(b)      as to the trustees’ ability to reinstate the building; and

(c)       as to demolition of the building.

Mr Coltman abandoned at the hearing the application in relation to another category, namely litigation funding.

Opposition

[37]     Ms Sisson’s notice of opposition gave as the ground of resisting all discovery

orders that:

There are no further documents as the Plaintiff has provided discovery of all documents available to it (sic) in a verified list.

Trusteeship

[38]     In line with its request for further particulars of the trusteeship, IAG seeks further discovery in relation to the trusteeship.   For this purpose, Mr Coltman has identified more specifically three sub-categories of document, namely:

(i)        [those o]n the identity and creation of the purported trust including whether  there  is  a  deed  of  trust  or  if  there  is  a  constructive  or informal trust the basis on which the plaintiff purports to act as trustee;

(ii)      Whether there is a judgment, direction or minute of a competent court which established the existence of the purported trust of any other records;

(iii)     On ownership of the property by the purported trust of the property

…

[39]     Mr Shand submitted that documents relating to Ms Sisson’s trusteeship are irrelevant to the issues in the proceeding.   Mr Shand noted that in relation to an insurance claim such as the present, the essential facts are:

(a)       Property ownership;

(b)      Policy existence and terms; (c)  Insured event(s);

(d)      Losses.

[40]     Mr Shand  submitted that  the nature,  duration  and  beneficial  entitlements under a trust are irrelevant to the claim.   He submitted that they are not essential facts and need not be pleaded.

[41]     Mr Shand’s submissions overlook two matters.  First, he ignores Ms Sisson’s previous  agreement  (on 25 July 2013) to provide discovery of this category of document and the consequential order made by Wylie J that day.  There has been no request to amend or rescind that aspect of the order.  Secondly, Mr Shand ignores that trusteeship is in issue in the pleadings, precisely because Ms Sisson showed in her claim at least her trusteeship and IAG has denied it.

[42]     If it had transpired that discovery of the ordered trusteeship documents would be  disproportionate  in  terms  of  time  and  expense,  the  Court  may  well  have favourably considered a request for amendment of the earlier order.  But Ms Sisson has  not  suggested  discovery  would  include  disproportionate  time  or  expense. Rather,  Mr  Shand’s  submissions  were  addressed  to  the  proposition  that  the documents were simply irrelevant.   In the course of his submissions he went on (slightly in the alternative) to suggest that, if there were judgments and minutes which  cast  light  on  the  trusteeship,  then  Ms  Sisson  was  not  required  to  give discovery of those as they were matters of “public record” obtainable by IAG.  That alternative submission of Mr Shand is not an answer – Ms Sisson’s obligation is to give discovery of documents in her control or possession.  Given that she is a party

(through partnership) to the key Chesterfields proceedings, the documents such as the judgments and minutes must be taken to be within her control if not possession.

[43]     The documents sought by IAG in relation to the trust referred to by Ms Sisson in her claim reasonably relate to the existence and nature of that trust. Additionally the discovery order made by Wylie J of 25 July 2013, which included identification of the ultimate beneficiary or beneficiaries under the trust, remains unmet.

[44]     There will accordingly be orders as to the discovery of documents relating to the trust in the terms sought by IAG together with a reiteration of the particular order previously made.

Documents relating to ability to reinstate

[45]     IAG seeks discovery of documents which relate to the ability of Ms Sisson or the trust to reinstate the Colombo Street property.

[46]     The  grounds  in  Ms  Sisson’s  notice  of  opposition  did  not  challenge  the relevance of that category of documents.  Rather the simple relevant ground was that there were no further documents as Ms Sisson had provided discovery of all documents available.  She has not explained in evidence why there are no documents pertaining to the financial ability of herself or the trust to reinstate the property.

[47]     I cannot accept, in the absence of evidence, Ms Sisson’s assertion that there are no additional relevant documents.   It is probable that she has the ability to provide documentary evidence (including in relation to the bank statements of any relevant funder and any correspondence relating to the financing of reinstatement).

[48]     In his submissions Mr Shand noted that, in relation to the reinstatement issues arising in relation to the insurance for the February 2011 earthquake, Ms Sisson seeks a declaration of IAG’s liability to pay the full replacement costs to a maximum of $473,000.   The implication of his submission was that it was not necessary to consider  documents  relating  to  Ms  Sisson’s  actual  financial  ability to  reinstate,

because even were a declaration granted, she would not be immediately receiving the insurance funds which she is then required to utilise to replace the property.

[49]     Mr Shand’s submission cannot stand because Ms Sisson seeks, alternatively to a declaration, a judgment for $473,000.  In other words, one outcome of the claim as pleaded is that IAG would be ordered to pay money to Ms Sisson as part of the replacement costs.   IAG understandably wishes to see documents which will cast light on whether Ms Sisson is in a position or not to use such funds for replacement.

[50]     There  will  accordingly  be  an  order  for  discovery  of  that  category  of documents.

Documents relating to the demolition of the building

[51]     IAG seeks two categories of documents relating to the demolition of the building, IAG having made two payments of $86,825 and $11,438.57 in connection with that demolition.  It is common ground that the building has been demolished.

[52]     IAG has not demonstrated a satisfactory basis on which it needs to know, in relation to the issues in the case as pleaded, how Ms Sisson spent monies paid previously by IAG on account of demolition costs.  IAG in its statement of defence refers to its making of the demolition payments but does not assert that those payments affect the entitlements pleaded in this proceeding by Ms Sisson.

[53]     The application for documents relating to the demolition will be refused.

Security for costs

The jurisdiction

[54]     The jurisdiction to grant security for costs is contained in r 5.45 High Court

Rules. Relevantly, r 5.45 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.

…

The threshold test

[55]     IAG asserts that there is reason to believe that Ms Sisson will be unable to pay an adverse award of costs to the defendant in the event Ms Sisson’s claim is unsuccessful.

[56]     IAG relies upon the fact that Ms Sisson is bankrupt.   It also relies on the bankruptcy of Mr Hampton, who has been closely associated with her in relation to businesses and properties (having previously been the registered proprietor of the Colombo Street property itself).

[57]     IAG also relies on evidence given by Mr Hampton in other litigation which indicates that Ms Sisson’s conduct of this litigation is being carried for the time being by solicitors with the expectation that Ms Sisson’s costs will be recovered as an additional entitlement under her IAG insurance policies.  Mr Coltman points out that the basis upon which the policies make such provision has not been established by Ms Sisson – he rejects the correctness of the assumption.  More relevantly to a security for costs application, the apparent situation in relation to Ms Sisson’s own costs serves to emphasise that, should she be unsuccessful in the litigation, there are real doubts as to her ability to pay costs to IAG.

[58]     The single ground of opposition advanced by Ms Sisson is that she is the owner of the Colombo Street property which has a value of $720,000.

[59]     It is common ground that $720,000 is the Quotable Valuation figure for the property.  It is also common ground that there is no debt secured over the property. For these interlocutory purposes, I would be prepared to assume that the property has a value in the region of $720,000.

[60]     Were the affairs of Ms Sisson and Mr Hampton not complicated by the pre- judgment claim of the Commissioner against the Colombo Street property (together with the $180,000 deposit), Ms Sisson would have defeated this security application on the threshold test.

[61]    The freezing orders in relation to the Colombo Street property and the undertaking apparently given by Ms Sisson in relation to dealing with the property clearly take IAG across the threshold.   The Commissioner of Inland Revenue has gone to lengths to obtain, and then to keep, freezing orders against the property, so as to protect a fund from which the Commissioner might obtain satisfaction of taxation debts  if  judgment  is  obtained  in  relation  to  them.     Through  counsel  The Commissioner confirms that she does not consent to the use of the property as security for the costs of this proceeding.  There are therefore two consequences to the orders and undertakings which effectively freeze the property:

(a)      First, the property and the deposit may well remain out of reach of IAG if it is the successful defendant in this proceeding so that the threshold test is clearly established for the time being;

(b)Secondly,  it  is  not  realistic  to  anticipate  that  those  assets  will  be available to Ms Sisson for security purposes unless she can persuade a Judge, over the Commissioner’s objection, to release  some of the frozen assets for the effective benefit of IAG.

The discretion

[62]     The awarding of security for costs involves the exercise of a discretion based upon the considerations of justice in all the circumstances.

[63]     I have referred to the single ground of opposition relating to the security application.   Appreciating how limited that ground was, I had directed before the hearing that Ms Sisson file any amended grounds of opposition prior to the hearing. She did not do so.  Nevertheless, Mr Shand at the hearing placed the emphasis of his submissions upon the discretion.  In doing so, he went so far in his oral submissions as to accept that realistically the threshold test has been achieved in this case.

[64]     That leaves me to consider the exercise of my discretion.  It is not because of any matters properly raised by Ms Sisson against the exercise to the discretion that I consider that discretion but rather because it falls to me in any event to exercise a discretion under r 5.45.

[65]     Mr Shand invited me to exercise the discretion against an order for security for three reasons.

[66]     First, Mr Shand submitted that any order for security might bring to an end Ms Sisson’s claim.  I reject that submission because Ms Sisson elected to provide no evidence to support it.  As it happens, the level of security I propose to order at this point is not great, particularly when regard is had to the size of the claim.  Given Mr Hampton’s explanation that Ms Sisson’s costs in this litigation are effectively being carried for the time being, Ms Sisson may be in the unusual position of being able to focus her need for immediate cash resources on the security sum only and not on her legal costs.

[67]     Secondly, Mr Shand invited me to place emphasis on Ms Sisson’s rights of access to justice than the right of IAG to know that it will be able to collect any costs awarded.  Access to justice is a valid consideration in relation to security, but it will usually be most significant when an order for security will end a plaintiff’s claim. By reason of my finding in relation to Mr Shand’s first submission, access to justice considerations do not weigh significantly in this case.

[68]     Thirdly, Mr Shand submits that security should not be awarded because Ms Sisson has a strong claim that IAG has breached its payments obligations, thereby contributing to the current financial position of Ms Sisson.  I find in relation to this particular  submission  that  Ms  Sisson’s  failure  to  identify  it  in  her  notice  of opposition as a ground for opposing an award must have a consequence.  The ground surfaced late the evening before the hearing in Mr Shand’s written submission, filed after Mr Coltman had filed his submissions.   It is unsupported by any affidavit explanation of the facts on the part of Ms Sisson, or other analysis by those legally advising  her.    Because  of  the  way  the  issue  was  raised  IAG  has  not  had  an opportunity to respond to it by reference to the detail of the insurance policy and the factual  background.    The  merits  of  a  claim  and  contribution  to  the  plaintiff’s financial position are classically viewed as matters on which the Court must form an impression rather than being able to come to any clear view.  In the circumstances of this case the only impression I can reach which is fair to both sides is that there are arguments to be had on both sides.

[69]     Bringing the various matters raised together, the discretion in this case ought to be exercised in favour of a grant of security.

The amount of security

[70]     Counsel both accepted that it was appropriate to approach costs on a 2B basis when considering security in this case.  I agree.

[71]     A solicitor employed by IAG’s solicitors firm deposed as to the Schedule items which are likely to be recovered by IAG if it is successful after a one day hearing.  I adopt what MacKenzie J said in relation to the future-looking nature of security in Pickard v Ambrose,9 the comments of whom were apparently accepted on appeal by the Court of Appeal.10    In particular, MacKenzie J observed:11

It would not be appropriate now to make an order for security of costs which have already been incurred by the defendants.

9      Pickard v Ambrose HC Wellington CIV-2003-091-143 13 August 2009, per MacKenzie J at [9].

10     Ambrose v Pickard [2009] NZCA 502.

11     Above n 9, at [30]-[32].

[72]     I indicated to counsel that that was the approach I intended to adopt in this case.   Mr Coltman responsibly did not submit that there was any good reason to depart from that approach.  Counsel accepted that it was appropriate in this case, if security is awarded, that it be dealt with in a staged manner.12

[73]     There is a realistic prospect in this case that the parties will seek in the first instance a one day trial which may focus solely on contractual interpretation issues. Judgment  on  those issues  may be determinative of the proceeding.    If not,  the broader and factual issues may require a second trial of some days’ duration.

[74]     In these circumstances, a first tranche of security covering attendances from now to the conclusion of an (assumed) one day trial is appropriate, with the security application to be adjourned to be brought on at the election of IAG if it transpires that there is initially to be longer than a one day trial.

Items to be allowed in security calculation

[75]     I have taken into account for the purposes of assessing an appropriate award of security the four costs items identified by IAG from now to a one day trial, as

follows:

Item 30 (preparation of briefs) – 2.5 days                 $4,975.00

Item 32 (issues, authorities and bundle) – 2 days     $3,980.00

Item 33 (preparation for hearing) – 3 days               $5,970.00

Item 34 (hearing) – 1 day  $1,990.00

Total  $16,915.00

[76]     I have not allowed Item 35 (second counsel) as sought by IAG.   It is not

probable that that item would be allowed in relation to a one day trial.

12     Following  the  approach  adopted  in  cases  referred  to  in  McGechan  on  Procedure  (online looseleaf ed, Brookers) at HR5.45.09.

Assessment of appropriate award of security

[77]     The likelihood is that IAG would be awarded at least $16,915 by way of costs if successful in the litigation.  It does not automatically follow that that sum should be awarded. As the authors of McGechan on Procedure note:13

Past costs awards often represent some discount on the likely award of costs calculated under schedule 3.

[78]     I view this case as slightly unusual.  Ms Sisson is bankrupt.  She has provided no information whatsoever as to any assets or income outside the frozen assets.  Mr Hampton, who because of the background, may have been expected to later assist Ms Sisson if able to do so (such as in the event she faces a court judgment for costs), is himself bankrupt and unlikely to be able to assist.

[79]     In  these  circumstances  I do  not  consider it  appropriate or just  to  award security other than upon the basis of the full 2B calculation set out above.

Timing of security

[80]     The orders I make in relation to further particulars and better discovery will require compliance within 20 working days.  Ms Sisson and her counsel will need to have a focus on those matters of particularisation and discovery in that period.

[81]     It is appropriate that there be an additional 10 working days thereafter for security to be provided.  The total time (30 working days) leaves Ms Sisson with the opportunity to pursue some form of assistance in relation to the frozen assets either through discussion with the parties involved in the Chesterfields litigation or through application to the Court in that proceeding as she sees fit.  At the 30 working day time  limit,  security  is  to  have  been  provided  regardless  of  what  assistance  or

difficulties are encountered in relation to freeing up the frozen assets.

13     At HR5.45.07.

Stay of proceeding

[82]     IAG’s application for an order for security did not include an application for an order that the proceeding be stayed if security is not provided.   Nor did Mr Coltman’s submissions address that issue.

[83]     I regard it as appropriate from now to order without the imposition of a pending  stay  that  security  be  provided.    The  Court  expects  the  security  to  be provided as ordered, particularly having regard to the limited sum involved.  If for any reason security is not provided as ordered, leave is reserved to IAG to have this adjourned application brought back on for further direction in relation to the security order and possible stay.

Costs

[84]     Mr Shand accepted that in relation to these interlocutory applications costs would follow the event on a 2B basis, together with disbursements.

[85]     There will accordingly be such an order.

Order

[86]     I order:

Particulars

(a)      The  plaintiff  is,  within  20  working  days,  to  file  and  serve  a Memorandum (to be treated as a pleading) as to the representative capacity of the plaintiff, providing:

(i)Details identifying the purported trust including the name of the trust (if named) and whether there is a deed of trust or if there is some other form of trust (such as resulting or constructive trust) in which case identifying the principal documents or events relevant to the plaintiff’s assumption of her role of trustee; and

(ii)Further and better particulars as to whether there is another trustee or trustees of the said trust and, if so, whether those persons have consented to the plaintiff acting on their behalf.

Further and better discovery

(b)The  plaintiff  is  to  file  and  serve  within  20  working  days  a supplementary verified  list  of documents  listing documents  in  the following categories:

(i)Documents  in  relation  to  the  identity  and  creation  of  the purported trust including whether there is a deed of trust and (if not) the basis upon which the purported trust came to exist;

(ii)Documents in the nature of judgments, directions or minutes of competent courts which establish or evidence the existence of the purported trust;

(iii)Documents which deal with any involvement of the trust in the ownership of the plaintiff’s property at Colombo Street, Christchurch; and

(iv)Documents which are relevant to an assessment of the ability of the plaintiff or the purported trust to reinstate the property.

Security

(c)      The plaintiff is within 30 working days to provide security to the satisfaction   of  the  Registrar   for  the  defendant’s   costs   in   this proceeding in the sum of $16,915;

(d)The  defendant’s  application  for  security  stands  adjourned  to  be brought on on three days’ notice by the defendant in the event either that there is to be in this proceeding a trial lasting more than one day or that the plaintiff fails to provide the directed security;

Costs

(e)      The plaintiff is to pay in any event the costs of these applications, this hearing and the orders thereon on a 2B basis, together with disbursements to be fixed by the Registrar.

Solicitors:

Grant Shand, Christchurch

Fortune Manning, Auckland