Skelton v Howcroft - [2017] NZHC 2941

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000716 [2017] NZHC 2941

BETWEEN
BEVIN HALL SKELTON

Intending Plaintiff

AND

CHARLES MICHAEL HOWCROFT

First Intended Defendant

AND

DARAN NAIR

Second Intended Defendant

AND

CHARLES HENRY BIRD

Third Intended Defendant

Hearing: On the papers

Counsel:

Intending Plaintiff in person

B M Cunningham for First Intended Defendant E J L Werry for Second Intended Defendant

Judgment:

29 November 2017

JUDGMENT OF PAUL DAVISON J

[Re: interlocutory application seeking leave to appeal]

This judgment was delivered by me on 29 November 2017 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
BSA Law, Auckland McDonald Law, Auckland

SKELTON v HOWCROFT [2017] NZHC 2941 [29 November 2017]

[1] The intending plaintiff, Mr Bevin Hall Skelton (Mr Skelton) now brings an interlocutory application seeking leave to appeal to the Court of Appeal from my judgment delivered on 4 October 2017 dismissing an application to extend time. In brief the background is as follows.

[2] On 11 April 2016 Mr Skelton filed an interlocutory application seeking orders for particular pre-commencement discovery against Mr Charles Howcroft, described as the intended defendant. He subsequently filed an amended application to include Mr Darren Nair and Mr Charles Bird as further intended defendants. The intended defendants, Mr Howcroft and Mr Nair, applied for an order directing Mr Skelton to pay security for costs in relation to Mr Skelton’s application for pre-commencement discovery orders.

[3] I delivered a judgment on 30 May 2017 in which I made orders granting the intended defendants’ application and directing Mr Skelton to provide security for costs in the sum of $15,000 in respect of each of the first and second intended defendants, Mr Howcroft and Mr Nair. I further ordered that if such security for costs was not paid by 4pm on Friday, 14 June 2017, the proceeding would be thereupon stayed until such security was paid.1

[4] Mr Skelton did not seek leave to appeal from that judgment. However, three months later, on 1 September 2017, he filed an interlocutory application seeking an order granting an extension of time within which to apply by way of further interlocutory application for an order to vary or rescind my judgment and orders relating to the payment of security for costs.

[5] By a judgment dated 4 October 2017, I dismissed Mr Skelton’s application for an extension of time.2 In that judgment I said:

[3] Mr Skelton seeks an extension of time on the grounds that, in summary, the five day deadline was not achievable given his situation, the respondents withheld information, and that granting the application is in the interests of justice as the point appears to be novel. The substantive ground on which Mr Skelton seeks to have the decision varied or rescinded is that

1 Skelton v Howcroft [2017] NZHC 1149.
2 Skelton v Howcroft [2017] NZHC 2425.

there is no jurisdiction to order security for costs…

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 [2017] NZHC 2941
Case: [2017] NZHC 2941
Decision Date: 29 November 2017

CaseChat Overview and Summary

In Skelton v Howcroft, Mr Bevin Hall Skelton sought leave to appeal from a High Court judgment dismissing his application for an extension of time to apply to rescind orders for security for costs. The background of the case includes a long history of litigation between Mr Skelton and the intended defendants, Mr Howcroft and Mr Nair, which has seen multiple applications, orders, and appeals. In this instance, Mr Skelton sought pre-commencement discovery orders and subsequently applied for an extension of time to challenge the orders for security for costs made in the earlier proceedings. The primary legal issue before the court was whether the High Court has jurisdiction to order security for costs in relation to an application for pre-commencement discovery under the High Court Rules. The court found that the High Court does indeed have such jurisdiction. The court further determined that Mr Skelton's application for leave to appeal did not involve any issue of public importance or any significant question of law warranting further consideration by the Court of Appeal. The application for leave to appeal was thus declined. The court emphasised that the matter had already been thoroughly addressed, and there was no apparent merit in Mr Skelton's renewed attempt to challenge the orders for security for costs.

Orders