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Skelton v Howcroft

Skelton v Howcroft

Case [2018] NZSC 67 3 August 2018

Civil Litigation & Procedure

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 45/2018
[2018] NZSC 67

BETWEEN	BEVIN HALL SKELTON Applicant
AND	CHARLES MICHAEL HOWCROFT First Respondent DARAN NAIR Second Respondent CHARLES HENRY BIRD Third Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person B M Cunningham for First Respondent E J L Werry for Second Respondent
Judgment:	3 August 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant (Mr Bevin Skelton as the trustee of a family trust) and the first and second respondents (Messrs Charles Howcroft and Daran Nair) have been involved in various proceedings. The first was settled. The second was struck out by Asher J, primarily on the basis that the claims were precluded by the settlement agreements.[1] Mr Skelton appealed against this decision to the Court of Appeal, but this appeal did not proceed because he did not provide security for costs.[2] The third was against Mr Howcroft and this was struck out by Associate Judge Sargisson as precluded by the settlement agreements and barred by the Limitation Act 1950.[3] Mr Skelton applied to review this decision but eventually withdrew this application.
[1]Skelton v Nair [2015] NZHC 832.
[2]See the decision of the Court of Appeal dismissing an application for review of the Registrar’s decision refusing to dispense with security for costs: Skelton v Nair [2015] NZCA 343.
[3]Skelton v Howcroft [2015] NZHC 1313.
Mr Skelton was adjudicated bankrupt on the application of Mr Howcroft for unpaid costs relating to the strike out proceedings heard by Associate Judge Sargisson.[4]
[4]Howcroft v Skelton [2016] NZHC 1389.
Mr Skelton wishes to issue further proceedings against Messrs Howcroft and Nair and also a third person, Mr Charles Bird, who has been named as the third respondent. In anticipation of doing so, he has sought pre-commencement discovery against all three. Messrs Howcroft and Nair responded by seeking security for costs. At this point, the costs awarded against Mr Skelton in respect of the earlier proceedings are still unpaid and amount to $42,562.62.
Mr Bird did not participate in the application for security for costs or the later appeal and thus is not party to the current dispute. Accordingly he ought not to have been named as a respondent to this application.
In a judgment delivered on 30 May 2017, Paul Davison J ordered Mr Skelton to provide security for costs in the sum of $30,000.[5] He noted that the claims which Mr Skelton wishes to advance against Messrs Howcroft and Nair cover very much the same ground as the earlier proceedings which were struck out but also contain allegations of fraud. He described the allegations of fraud as “speculative” and lacking appropriate particulars.[6] More generally, he was of the view that the proposed claims faced “significant and probably insurmountable obstacles” and had “little prospect of success”.[7] He also referred to Mr Skelton’s “dogged persistence in pursuing unmeritorious claims”[8] against…

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 Skelton v Howcroft

Details

AGLC: Skelton v Howcroft [2018] NZSC 67
Case: [2018] NZSC 67
Decision Date: 3 August 2018

CaseChat Overview and Summary

The case of Skelton v Howcroft involved the applicant, Bevin Hall Skelton, who sought leave to appeal against decisions made by the Court of Appeal regarding security for costs in proceedings against the first and second respondents, Charles Michael Howcroft and Daran Nair. The third respondent, Charles Henry Bird, did not participate in the proceedings and is not party to the current dispute. The primary issue was whether the Court of Appeal's decision to deny leave to appeal was correct, considering the delay in filing the application and the jurisdiction to order security for costs in respect of an interlocutory application for pre-commencement discovery. The court examined the principles of delay and jurisdiction, ultimately finding no miscarriage of justice and dismissing the application for leave to appeal.

The legal issues in the case involved the interpretation of the rules governing security for costs and the timing of the application for leave to appeal. The applicant argued that the Court of Appeal misapplied the principles of delay by focusing on the delay between the initial judgment and the application for rescission, rather than the delay between the last High Court judgment and the application for leave to appeal. Additionally, the applicant contended that the court lacked jurisdiction to order security for costs in respect of an application for pre-commencement discovery. The court considered these arguments in the context of previous cases and the principles set out in relevant rules and statutes.

In dismissing the application for leave to appeal, the court found that the Court of Appeal was entitled to focus on the significant delay between the initial judgment and the application for rescission, as the applicant's substantive complaint was directed at the judgment. The court also determined that the argument concerning the jurisdiction to order security for costs had already been rejected by the High Court in similar cases. While the jurisdiction to order security for costs in respect of an interlocutory application might raise a question of public or general importance, the court did not see the case as appropriate to address the point, given its particular facts and issues. Consequently, the application for leave to appeal was dismissed.

No order for costs was made as the respondents did not actively oppose the application.

Orders