Tao v Waitakere District Court
[2019] NZHC 1304
•11 June 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001107
[2019] NZHC 1304
BETWEEN AN LI TAO
Plaintiff
AND
WAITAKERE DISTRICT COURT
First Defendant
JIGAR PANDYA
Second DefendantXIAOMEI (MAGGIE) JIANG
Third Defendant
Hearing: 4 June 2019 Appearances:
An Li Tao in Person
Appearance for the First Defendant excused P J Muir for the Second and Third Defendants
Judgment:
11 June 2019
JUDGMENT OF HINTON J
[Security for costs]
This judgment was delivered by me on 11 June 2019 at 11.00 am pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Price Baker Berridge, Henderson
Party:
An Li Tao
AN LI TAO v WAITAKERE DISTRICT COURT [2019] NZHC 1304 [11 June 2019]
[1]The relevant parties are all members of a body corporate.
[2] The first defendant, Waitakere District Court, has said they will abide the decision of the Court.
[3]The plaintiff earlier unsuccessfully sued the body corporate and others.
[4] She then brought this defamation proceeding in the District Court against the second and third defendants as a result of various statements made by them. The second and third defendants successfully sought summary judgment in that proceeding and obtained costs of about $6,000.
[5] After Judge Harrison entered summary judgment for the defendants, on 31 January 2019, the plaintiff was bankrupted on the application of parties including the second defendant, the body corporate management company and the body corporate itself.
[6]The plaintiff has applied for judicial review of the summary judgment decision.
[7] On 29 March 2019, the second and third defendants applied for security for costs. They seek a sum of $8,800 based on scale costs as set out in a schedule attached to the application itself.
[8] Although the plaintiff has been bankrupted, the Official Assignee has given permission for the proceeding to be filed, or at least is not opposing its continuation.
[9] The Court clearly has jurisdiction to award security for costs.1 The plaintiff’s impecuniosity is not in dispute, especially given the bankruptcy. It is a matter for the Court’s discretion.
[10] There have been four costs awards against the plaintiff which have not been paid: some in this proceeding and some in the earlier proceeding. The orders are as follows:
1 High Court Rules 2016, r 5.45; and Skelton v Howcroft [2017] NZHC 1149.
(a)On 8 August 2016, Thomas J ordered costs of $60,210.
(b)On 30 April 2018, Associate Judge Matthews awarded costs in the sum of $6,018.
(c)On 3 May 2018, Judge Harrison ordered costs in the sum of $3,382.
(d)There was also an order made on 23 August 2018 by the Court of Appeal for costs on a standard application on a band A basis which would be in the order of $400, but have never been quantified.
[11] There have also been various security for costs orders made along the way, beginning apparently with an order on 15 July 2016 by the Registrar of the Court of Appeal, despite a waiver application by Ms Tao. None of these was met. They have now been superseded by actual costs orders.
[12] The defendants submit that this proceeding, including the application for judicial review, lacks any merit. Mr Muir points to the summary judgment having been comprehensively successful, in his submission, and to the nature of the judicial review application, which he says involves raising numerous small points and making as much of them as possible. He says the lack of merit is relevant to whether I exercise my discretion to order security for costs.
[13] A significant point that the plaintiff makes is that she should not have to pay costs or security for costs because she says that the defendants’ costs are being paid by the body corporate. There are two answers to that. One, the defendants say that is wrong. They have to pay costs themselves and they are not being indemnified. I have no evidence to the contrary and I accept their position. Two, even if that is wrong, it would not impact on the Court’s ability to make an order for costs or an order for security for costs. What arrangements a defendant might have about having costs paid by someone else are a matter between that person and the third party, unless it falls into the very limited category of case where that arrangement is unlawful, which I see no reason to apply here.
[14] The plaintiff also says she has not been accorded natural justice before the District Court. On 1 November 2017, Judge Harrison directed that the two cases would be heard together. She says she was given no proper opportunity to be heard, which does not seem problematic as that order must have been helpful for her.
[15] On 7 March 2018, the plaintiff received a notice of urgent hearing of the interlocutory application to be held on 14 March 2018. She then asked for an adjournment because of her mother’s medical appointment. On 13 March 2018, the adjournment was declined.
[16] However, on 14 March 2018, the plaintiff still made oral submissions at the hearing.
[17] While I do not necessarily agree with Mr Muir that there is absolutely no substance in the judicial review application, I agree that there is little, if any substance in the proceeding overall.
[18] In all the circumstances, I consider it appropriate to order security for costs and I do so in the sum of $8,800 as sought. I am particularly influenced by the fact of the costs orders already made against the plaintiff in this and the related proceeding, and the fact not one cent of those orders has been paid. She says it is because the defendants bankrupted her, which was their call, but that is an obviously circular argument. Further, she was not bankrupt when Thomas J made her costs order, yet elected to pay not one cent between that date and the date of bankruptcy.
Orders
[19] I therefore order that the plaintiff pay security for costs by payment into Court in the sum of $8,800.
Hinton J
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