Time v Fagalilo HC Wellington CIV 2008-485-540

[2010] NZHC 1069

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-540

IN THE MATTER OF     the Green Valley Samoan Assembly of God

Property Trust Board

BETWEEN  SINETI TIME Applicant

ANDLUAIVA FAGALILO Respondent

Hearing:         22 June 2010 (Teleconference) Counsel:         R J Buchanan for Applicant

O Woodroffe for Respondent

Judgment:      22 June 2010

JUDGMENT OF RONALD YOUNG J

(Application for security for costs with respect to recall application)

[1]      The applicant, Mr Time, has made application for a recall of my judgment of

9 March 2010.  Mr Fagalilo named as the respondent and the opposing party in the substantive proceedings has made application that I order the applicant pay security for costs with respect to the application for recall.

[2]      I am not prepared to make any order for payment for security for costs.   I

give my reasons only briefly.

[3]      Firstly, I assume that an application for security for costs is essentially an interlocutory application.  I doubt the jurisdiction to make an order for security for costs on an interlocutory application.  See r 5.45 and the definition of proceedings at

r 1.3 of the High Court Rules.

SINETI TIME V LUAIVA FAGALILO HC WN CIV 2008-485-540  22 June 2010

[4]      Secondly, an application for a recall is essentially based on the proposition that there has been a judicial failure or error which should be corrected.   In those circumstances making an order for security for costs may unreasonably deny access to the Courts by a litigant seeking to correct an error not of their or the other party’s making.

[5]      For those reasons alone I would not be prepared to make an order for security for costs.

[6]      I acknowledge Ms Woodroffe’s submissions that:

a)        an application for a recall may be inapt where a judgment is subject to an appeal;

b)        the application is without merit and cannot succeed;

c)        there is reason to believe that Mr Time may not be able to meet any costs order should his application for recall be unsuccessful;

d)there is doubt whether Mr Fagalilo should still be a party to these proceedings.

[7]      However because of the circumstances identified above ([3], [4]) I do not think an order for security for costs is appropriate.  The application is refused.  The application for recall will therefore proceed to a hearing next week.  As I indicated to

counsel I expect no more than an hour and a half will be needed for the argument.

Solicitors:

Ronald Young J

R J Buchanan, Buchanan Gray, PO Box 24057, Wellington, email: [email protected]

O Woodroffe, Woodroffe Law Partnership, PO Box 6505, Auckland

Email:  [email protected]