Slavich v Hamilton District Court - [2012] NZHC 2995

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-672 [2012] NZHC 2995

IN THE MATTER OF section 4 of the Judicature Amendment Act
1972

AND

IN THE MATTER OF an application for judicial review

BETWEEN JOHN KENNETH SLAVICH Applicant

ANDHAMILTON DISTRICT COURT First Respondent

ANDBRENT DONALD BAIRD, MURRAY DAVID BRANCH, DEAN BARRY CUFF, MICHAEL JAMES DONOVAN AND JOHN RHODES MAURD
Second Respondents

Hearing: 8 November 2012

Counsel: K I Bond for Mr Branch
T Sutcliffe for Messrs Baird, Cuff and Donovan
K Burroughs for Mr Maurd
J K Slavich in Person

Judgment: 12 November 2012

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment with a delivery time of 4 p.m. on 12 November 2012.

Solicitors: Harkness Henry, Hamilton – kevin.bond@harkness.co.nz

Copy to: T Sutcliffe, Hamilton – thomas@sutcliffe.co.nz
K Burroughs, Hamilton – kerryburroughs@me.com
J K Slavich, Hamilton – jks22@hotmail.com

SLAVICH V HAMILTON DISTRICT COURT HC HAM CIV-2012-419-672 [12 November 2012]

[1] These proceedings are an application for judicial review of a decision of the District Court at Hamilton staying prosecutions commenced by the applicant, Mr Slavich, against the second respondents. The prosecutions were stayed on the grounds of abuse of process. Mr Slavich seeks an order from this Court setting aside the stay.

[2] The alleged offences largely relate to share offer documents prepared by the second respondents as directors of Pacesetter Print Group Limited (Pacesetter). Mr Slavich claims that there were material omissions from the share offer documents and that they also contained material misstatements in breach of s 377 of the Companies Act 1993. The prosecutions involved allegations of fraud and deceit in breach of ss 240 and 242 of the Crimes Act 1961.

[3] The second respondents apply for security for costs. There are three applications before me:

(a) Application by Mr Branch for security for costs in the sum of

$31,584;

(b) Application by Mr Maurd for security for costs in the sum of $31,584; (c) Application by Messrs Baird, Cuff and Donovan (the remaining
second respondents) for security for costs in the sum of $31,584.

[4] The sum of $31,584 represents the costs anticipated on the basis of a four day hearing, calculated on as 2B basis.

[5] All three applications are opposed by Mr Slavich.

[6] As a preliminary issue, Mr Slavich submitted that only Mr Branch is entitled to seek security for costs, as he is the only party to have filed a statement of defence. Mr Slavich submitted that it must therefore be assumed that the other respondents are, in effect, abiding the decision of the Court.

[7] Counsel for the second respondents (other than Mr Branch) indicated however that their clients intend to participate actively in the proceedings. Different interests arise between the three different groups of respondents, hence the separate representation. However, until the security for costs application is determined counsel for Mr Maurd (on the one hand) and Messrs Baird, Cuff and Donovan (on the other) have…

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.

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Details

Case: [2012] NZHC 2995
Decision Date: 12 November 2012

CaseChat Overview and Summary

In these proceedings, Mr Slavich sought judicial review of a decision of the District Court at Hamilton to stay prosecutions he had commenced against the second respondents. The second respondents applied for security for costs, which Mr Slavich opposed. The court found that there was reason to believe Mr Slavich would be unable to pay the second respondents' costs if he were unsuccessful, given his status as a current bankrupt. The court considered whether it was just in all the circumstances to grant security for costs, taking into account the balancing of interests between the parties, the preliminary assessment of the merits of Mr Slavich's case, and whether his impecuniosity resulted from the second respondents' actions. The court found that the overall interests of justice favoured granting security for costs, and ordered Mr Slavich to provide security of $20,000 in favour of each of the second respondents, to be paid in two equal instalments. The court also stayed the proceedings until the security was paid.

The final orders of the court were that Mr Slavich was to provide security for costs in the sum of $10,000 in favour of Mr Branch, $10,000 in favour of Messrs Baird, Cuff and Donovan, and $10,000 in favour of Mr Maurd forthwith. Further security in the sum of $10,000 in favour of each of the three groups of respondents was to be paid within 10 working days of the setting down date. The proceedings were to be stayed until the security set out in the first order was paid, and further stayed if the security set out in the second order was not paid within 10 working days of the setting down date. The costs of the application were awarded to each of the second respondents on a 2B basis plus disbursements, as fixed by the Registrar.

Orders