Tao v Waitakere District Court - [2019] NZHC 1304

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 Defendant

XIAOMEI (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,…

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: [2019] NZHC 1304
Decision Date: 11 June 2019

CaseChat Overview and Summary

The plaintiff, An Li Tao, filed an application for judicial review of a summary judgment decision made in a defamation proceeding against the second and third defendants, Jiyar Pandya and Xiaomei (Maggie) Jiang. The first defendant, Waitakere District Court, agreed to abide by the decision of the court. The plaintiff had previously sued the body corporate and others but was unsuccessful. She then filed a defamation proceeding in the District Court against the second and third defendants due to statements made by them. The second and third defendants successfully obtained summary judgment and were awarded costs of about $6,000. After the summary judgment was entered, the plaintiff was declared bankrupt, including by the second defendant. The plaintiff sought judicial review of the summary judgment decision, and the second and third defendants applied for security for costs.

The legal issue before the court was whether to grant the application for security for costs. The court considered the plaintiff's impecuniosity, the lack of merit in the proceeding, and the plaintiff's failure to pay previous costs orders. The court also considered the plaintiff's argument that the defendants' costs were being paid by the body corporate. The court found that the proceeding lacked any merit and that the plaintiff had not been accorded natural justice. The court also found that the plaintiff's argument about the defendants' costs being paid by the body corporate was not relevant to the court's ability to make an order for costs or security for costs.

The court decided to grant the application for security for costs and ordered the plaintiff to pay $8,800 into court. The court was particularly influenced by the fact that the plaintiff had not paid any of the previous costs orders made against her. The court also noted that the plaintiff's argument that she could not pay because the defendants bankrupted her was circular. The court found that the plaintiff was not bankrupt when the previous costs orders were made, yet she chose not to pay any of them.

The court ordered the plaintiff to pay security for costs in the sum of $8,800.

Orders