Skelton v Howcroft - [2017] NZHC 2425

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000716 [2017] NZHC 2425

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/ Representation:

Intending Plaintiff in person
B M Cunningham for First Intended Defendant
E J L Werry for Second Intended Defendant

Judgment:

4 October 2017

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 4 October 2017 at 2.30pm 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 2425 [4 October 2017]

[1] On 30 May 2017 I granted an application by Mr Howcroft and Mr Nair for orders that Mr Skelton give security for costs in relation to his application for pre- commencement discovery orders pursuant to High Court Rule 8.20.1 I ordered that Mr Skelton give security for costs in the sum of $15,000 in respect of each of Mr Howcroft and Mr Nair and that, if security was not paid by 4 pm Friday 16 June
2017, the proceeding would be stayed until security was paid.

[2] Mr Skelton has now filed an application seeking an extension of time pursuant to r 1.19 to apply to the Court for variation or rescission of that interlocutory decision pursuant to r 7.49. Rule 7.49 provides that an application to vary or rescind an interlocutory order must be filed and served within five working days.

[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 The substantive ground on which Mr Skelton seeks to have the decision varied or rescinded is that there is no jurisdiction to order security for costs on an application for pre-commencement discovery as there is no “proceeding” as required by r 8.20.

[4] Rule 5.45 confers power upon a Judge to order security for costs. Where a Judge is satisfied on the application of a defendant that there is reason to believe that a plaintiff or defendant will be unable to pay the costs of the defendant if unsuccessful in the plaintiff’s proceeding, a Judge may where it is considered just in all the circumstances, order the giving of security for costs. Rule 5.45(6) provides:

References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[5] The power to make an order for security for costs extends to the hearing of an application for discovery before a proceeding is commenced. In Hetherington Ltd v
Carpenter Neazor J considered the issue…

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 2425
Case: [2017] NZHC 2425
Decision Date: 4 October 2017

CaseChat Overview and Summary

The case of Skelton v Howcroft involved a dispute between the plaintiff, Bevin Hall Skelton, and three defendants, Charles Michael Howcroft, Daran Nair, and Charles Henry Bird. Skelton sought pre-commencement discovery orders, which were opposed by the defendants. The matter reached the High Court of New Zealand, Auckland Registry, where the primary issue was whether the court had the jurisdiction to order security for costs in relation to Skelton's application for pre-commencement discovery.

The court had to determine whether Rule 8.20 of the High Court Rules permitted an order for security for costs on an application for pre-commencement discovery, given that such an application is considered interlocutory and is made before any proceeding officially exists. The case hinged on the interpretation of Rule 5.45, which confers the power to order security for costs, and whether this power extends to pre-commencement discovery applications. The court also had to consider whether the five-day deadline for applying to vary or rescind an interlocutory order under Rule 7.49 could be extended due to Skelton's circumstances.

In its judgment, the court found that the power to make an order for security for costs did indeed extend to applications for pre-commencement discovery, based on the reasoning in Hetherington Ltd v Carpenter. The court concluded that there was sufficient equivalence between the provisions of Rule 60 and Rule 46, which support the court's discretion to order security for costs in such applications. Consequently, the application to extend the time for Skelton to file an application to rescind the interlocutory decision was dismissed as the issue of jurisdiction had already been addressed in previous cases. The court held that granting an extension was not in the interests of justice, given that the matter had already been thoroughly considered under analogous provisions of the High Court Rules.

Orders