Takarangi v McConkey - [2021] NZHC 1813

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2019-054-486

[2021] NZHC 1813

BETWEEN
MELANIE TAKARANGI

Plaintiff/Counterclaim Defendant

AND

GEMMA MCCONKEY

Defendant/Counterclaim Plaintiff

Hearing: 18 June 2021

Appearances:

J Forest for plaintiff/counterclaim defendant

M Josephson for defendant/counterclaim plaintiff

Judgment:

16 July 2021

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

Introduction and background

[1] This is an application for an order for security for costs. It is made by the plaintiff and counterclaim defendant, Melanie Takarangi, against the defendant and counterclaim plaintiff, Gemma McConkey. That is enough to indicate that Ms Takarangi’s claim in this case has been overshadowed by Ms McConkey’s counterclaim, which is unsurprising as the former is a debt collection claim for slightly more than $13,500 and the latter is a substantial claim for breach of contract or negligence in the context of a professional relationship.

[2] However, that is to get ahead of things. A narrative description of the background is called for. It will be as brief as possible.

[3] On 22 August 2014 the late Noel Clarke died leaving four children, one of whom, John Clarke, was the child of Mr Clarke and Ms McConkey. Mr Clarke’s estate

TAKARANGI v MCCONKEY [2021] NZHC 1813 [16 July 2021]

was valued at over $4m. In his will he left everything to his children. Letters of administration were granted to the children on 12 November 2015. There were obviously some differences within the family because the four administrators and beneficiaries all participated in a mediation to resolve these. This took place on 14 October 2016 on which date they executed a deed of family arrangement. This provided for how the estate would be distributed amongst them. It is common ground that this process of distribution was complete well before 8 December 2017, the significance of which date will become clear.

[4] Ms McConkey says that Mr Clarke and she were in a de facto relationship right up to the date of his death, and that she had a claim against his estate. Apparently as a result of her financial position, Ms McConkey had difficulty engaging solicitors and counsel to assist her to pursue any such claim. In any event, she did not do so until close to the end of 2016 when she engaged Mr Takarangi. There is some doubt about the precise date on which Mr Takarangi was engaged. On the evidence, it would appear that the earliest date that Ms McConkey could have engaged him was probably 1 November 2016 (the date from which the firm’s fee note indicates time was being recorded against the matter) and the latest date was probably 17 November 2016 (the date of a formal contract for the provision of professional services). In the end, it is not obvious that anything turns on whether it was the earlier or later date, or some date in between. For present purposes, I proceed on the basis that is most favourable to Ms McConkey, that is…

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 Takarangi v McConkey

Details

AGLC: Takarangi v McConkey [2021] NZHC 1813
Case: [2021] NZHC 1813
Decision Date: 16 July 2021

CaseChat Overview and Summary

Melanie Takarangi, the plaintiff and counterclaim defendant, has filed an application for an order for security for costs against Gemma McConkey, the defendant and counterclaim plaintiff, in the High Court of New Zealand. Takarangi seeks this order to protect herself from incurring significant costs if McConkey's counterclaim is unsuccessful. The central dispute revolves around the professional services provided by Takarangi's late father, Mr. Noel Clarke, to McConkey in relation to her potential claim against Clarke's estate. The primary legal issues the court had to decide were whether the threshold for an order of security for costs was met, whether it was just to make such an order, and if so, the appropriate quantum and terms of the order.

The court found that the threshold for an order of security for costs was met since there was a possibility that McConkey's claim was not strong, and she had a history of failing to pay costs ordered in previous litigation. The court also considered other relevant factors, such as whether a substantial order for security for costs would effectively prevent McConkey from pursuing her claim. The court concluded that it would be just in all the circumstances to make an order for security for costs to protect Takarangi from incurring significant costs if McConkey's counterclaim was unsuccessful.

Regarding the quantum of the order, the court decided on an amount of $15,000, to be paid in two installments: $7,500 immediately and a further $7,500 when the case is set down for trial. The court also proposed to make orders for stays accordingly, ensuring that the effect of the immediate order would not be rendered nugatory.

In conclusion, the court made the following orders:

(a) An order pursuant to r 5.45 of the High Court Rules 2016, requiring McConkey to pay Takarangi security for costs in the sum of $15,000, with $7,500 payable immediately and $7,500 payable if and when the proceeding is set down for trial;

(b) Until such time as the first of those payments is made, the counterclaim will be stayed; and

(c) The court reserved the decision on costs, indicating that the plaintiff and counterclaim defendant, as the successful party in this interlocutory proceeding, is entitled to a costs award on a 2B basis.

Orders