Spring v Browne - [2022] NZHC 247

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000992

[2022] NZHC 247

BETWEEN
MARC ROBERT SPRING

Plaintiff

AND

CORY DAVID BROWNE

First Defendant

GLENN CHARLES TULLOCH

Second Defendant

Hearing: 11 November 2021

Appearances:

Plaintiff in Person

J Evans for the Defendants

Judgment:

22 February 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 22 February 2022 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Hayman Lawyers, Wellington

SPRING v BROWNE [2022] NZHC 247 [22 February 2022]

Introduction

[1] The defendants seek an order for security for costs under r 5.45 of the High Court Rules 2016, in the amount of $50,000. The application is made in the context of Marc Spring’s claim for injurious falsehood. Specifically, he claims that the defendants made false statements to a police officer that led to his property being searched, his detention and ongoing financial harm.

[2] The defendants contend that Mr Spring’s claim is without merit and will not succeed. They claim that if Mr Spring is unsuccessful at trial, he will not be able to meet a costs award, as he has limited income and assets and is involved in several other High Court proceedings.

[3] Mr Spring opposes the application on the basis that he does have adequate income and assets to meet a costs award in this proceeding and the other proceedings in which he is involved. Furthermore, he argues that his claim against the defendants is meritorious.

[4] This application calls me to decide, first, the threshold question of whether there is reason to believe that Mr Spring will be unable to meet the defendants’ costs if he is unsuccessful in the proceeding.

[5] If the answer to that question is yes, I will then consider whether it is “just in all the circumstances” for the Court to order security for costs, and if so, how much. This involves considering all the circumstances and endeavouring to balance the defendants’ interests in being protected from a barren costs order and the plaintiff’s right of access to the Court.1 I will consider:

(a)whether Mr Spring’s claim is unmeritorious; and

(b)any other relevant circumstances.

1 Clear White Investments Ltd v Otis Trustee Ltd [2016] NZHC 2837 at [4]; Reekie v Attorney- General [2014] NZSC 63, [2014] 1 NZLR 737 at [2].

Legal principles

[6] The Court may, if it thinks it would be just in all the circumstances, order a plaintiff to give security for costs where there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the proceeding.2

[7] An application for security usually requires the Court to determine the following three issues:

(a)Is there reason to believe the plaintiff will be unable to meet an award of costs against it (the threshold requirement)?

(b)Is it appropriate for an order for security for costs to…

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 Spring v Browne

Details

AGLC: Spring v Browne [2022] NZHC 247
Case: [2022] NZHC 247
Decision Date: 22 February 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Marc Robert Spring has filed a claim against Cory David Browne and Glenn Charles Tulloch for injurious falsehood, alleging that the defendants made false statements to a police officer, resulting in his property being searched, his detention, and ongoing financial harm. The defendants have applied for an order for security for costs under Rule 5.45 of the High Court Rules 2016, arguing that Mr Spring's claim is without merit and that he will be unable to meet a costs award if unsuccessful due to his limited income and assets and his involvement in several other High Court proceedings. The plaintiff opposes the application, asserting that he has adequate income and assets to meet a costs award and that his claim is meritorious. The court must decide if there is reason to believe that Mr Spring will be unable to meet the defendants' costs if he is unsuccessful and, if so, whether it is just in all the circumstances to order security for costs and, if so, how much.

The court considers the defendants' application by first determining whether there is reason to believe that Mr Spring will be unable to meet the defendants' costs if he is unsuccessful. This involves assessing whether Mr Spring's claim is unmeritorious and any other relevant circumstances. The court must balance the defendants' interest in being protected from a barren costs order against the plaintiff's right of access to the court. The court also considers the extent to which the plaintiff's financial situation may have been caused by the defendants' conduct. The court notes that the plaintiff's impecuniosity is not necessarily a bar to security for costs, and that the court will only make such an order in exceptional circumstances where the plaintiff's claim has little chance of success.

After reviewing the evidence presented by both parties, the court finds that Mr Spring has presented enough evidence to satisfy the court that he has enough funds or access to enough funds to satisfy a cost order. The court finds that Mr Spring has established that he is the shareholder and director of an apparently profitable wholesale car business and of another start-up company. He has provided evidence from a chartered accountant who has reviewed the unaudited accounts of Daytona Group Limited. Mr Spring has deposed that he has access to third-party funds, apparently the family trust of his partner, and that he has a personal annual income of around $150,000 and that he does not have any liabilities. He has also paid an earlier costs order by this Court. The court is not prepared to reject Mr Spring's evidence as false, and much of the defendants' evidence is speculative. The court concludes that there is not reason to believe that Mr Spring will be unable to meet the defendants' costs if he is unsuccessful.

The court dismisses the defendants' application for security for costs and orders that the plaintiff will be paid his costs on a 2B basis and disbursements as fixed by the Registrar. It should be possible to agree quantum, but failing that, the court will receive submissions from both parties within 10 working days.

Orders