Skelton v Howcroft - [2017] NZHC 1149

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000716 [2017] NZHC 1149

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: 7 February 2017

Counsel:

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

Judgment:

30 May 2017

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 30 May 2017at 2.15pm 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 1149 [30 May 2017]

[1] This is an application by the first intended defendant, C M Howcroft (Mr Howcroft), and the second intended defendant, D Nair (Mr Nair), by which they seek an order that the intending plaintiff, Mr Skelton give security for costs in relation to the intending plaintiff’s application for pre-commencement discovery orders pursuant to High Court Rule 8.20. The third intended defendant, Mr Bird, is not an applicant in relation to the current application. Both applicants also apply for an order staying the proceeding until any security for costs ordered is either paid or security provided. The applicants base their application on the grounds that Mr Skelton is an undischarged bankrupt who will be unable to pay costs if his claim against them is unsuccessful. Further, the applicants say that Mr Skelton’s proposed proceedings are ill-founded and his application for pre-commencement discovery is nothing more than a “fishing expedition”. They say that Mr Skelton’s claim has little chance of success, and that they ought to be protected in terms of costs from being drawn into the litigation he is proposing to pursue.

Background

[2] There is a long history of litigation between Mr Skelton, Mr Howcroft and

Mr Nair.

[3] In order to put Mr Skelton’s application for particular pre-commencement discovery in context, it is necessary to briefly summarise what is an extensive litigation history.

[4] On 11 September 2006 the High Court made and order appointing Mr Nair as receiver of the Urban and Country Partnership,1 which was a partnership of two trusts each representing the respective interests of Mr Skelton and his former wife. Subsequently Mr Nair in his capacity as receiver commenced a proceeding against Mr Skelton’s trust. There was a settlement conference held on 4 August 2008 before an Associate Judge. Settlement was reached and a written heads of agreement was
executed by the parties. Two deeds of settlement were subsequently entered into.

1 Skelton v Skelton HC Auckland CIV-2006-404-002924, 11 September 2006.

[5] Mr Skelton years later commenced proceedings against Mr Nair. His claim related to the sale by Mr Nair as receiver of a half interest in a residential apartment on the Gold Coast, Queensland, that was owned by Mr Skelton’s former wife’s trust, to Mr Howcroft and his wife. Mr Howcroft and his wife were the existing owners of the other half interest in…

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 1149
Case: [2017] NZHC 1149
Decision Date: 30 May 2017

CaseChat Overview and Summary

In Skelton v Howcroft, Mr Skelton, the intending plaintiff, seeks pre-commencement discovery orders against Messrs Howcroft, Nair and Bird, the first, second and third intended defendants respectively. Mr Howcroft and Mr Nair apply for an order that Mr Skelton give security for costs in relation to his proposed proceedings, and for the proceeding to be stayed until such security is given. Mr Skelton is an undischarged bankrupt who has a history of failing to pay costs ordered by the Court. The applicants submit that Mr Skelton’s claims have little prospect of success as they are precluded by settlement agreements, and/or are statute barred. They submit that Mr Skelton’s claim has the hallmarks of being frivolous and vexatious. Mr Skelton submits that he will be able to pay any costs order if his claims are successful. The Court found that it was just in all the circumstances to order Mr Skelton to give security for costs. The Court ordered Mr Skelton to give security for costs in the sum of $30,000, to cover the first stage of the proceeding including Mr Skelton’s application for pre-commencement discovery and any interlocutory applications relating to the striking out of the proceeding. The Court reserved leave to the first and second intended defendants to apply for further security for costs in respect of the further stages of the proceeding beyond pre-commencement discovery and any interlocutory applications to strike out the proceeding, should the proceedings continue thereafter.

Orders