Triastra Limited v The Proprietors of Taharoa 'C' Block
[2019] NZHC 466
•18 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-419-318
[2019] NZHC 466
BETWEEN TRIASTRA LIMITED
Plaintiff
AND
THE PROPRIETORS OF TAHAROA “C” BLOCK
Defendant
Hearing: 6 March 2019 Appearances:
B D Gustafson for the Plaintiff
JJK Spring and H Meikle-Downing for the Defendant
Judgment:
18 March 2018
JUDGMENT OF GORDON J
This judgment was delivered by me
on 18 March 2019 at 11.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Rainey Law, Auckland
Minter Ellison Rudd Watts, Auckland
TRIASTRA LTD v THE PROPRIETORS OF TAHAROA “C” BLOCK [2019] NZHC 466 [18 March 2018]
Introduction
[1]There were three applications before me on 6 March 2019 for determination:
(a)Application by the plaintiff, Triastra Ltd (Triastra), for leave to amend its statement of claim;
(b)Application by the defendant, the Proprietors of Taharoa “C” Block (Taharoa), for further and better particulars;
(c)Application by Taharoa for $30,000 increased security for costs.
[2] At the hearing I made an order granting Triastra’s application for leave to amend its statement of claim, with reasons to follow. I also granted, but only in a limited way, Taharoa’s application for further and better particulars with reasons similarly to follow. I reserved my decision on Taharoa’s application for increased security for costs.
[3] This judgment contains my reasons in relation to the first two applications and my decision on the third.
Background
[4] Triastra provided consultancy services to Taharoa in relation to a proposed wind farm. The central issue in the proceeding is when (and if) Taharoa gave effective notice of termination of a contract under which Triastra provided those consultancy services. Triastra makes its claim for payment of unpaid invoices for a period of time after the date on which Taharoa says the contract came to an end.
Application for leave to (further) amend the statement of claim
[5] The amended statement of claim, dated 5 November 2018,1 contains four causes of action:
1 Filed after close of pleadings date of 24 August 2018. Leave was not opposed by Taharoa.
(a)Action for debt for unpaid invoices (first cause of action);
(b)Breach of fiduciary duties which arose between the parties as joint venture partners (second cause of action);
(c)Action for estoppel in relation to Taharoa’s promise to share a success fee with Triastra (third cause of action); and
(d)Action for estoppel in relation to the work for which the unpaid invoices issued (fourth cause of action).
[6] In the amended statement of claim, dated 5 November 2018, Triastra abandoned an earlier quantum meruit claim for work claimed to have been done. Triastra now makes an application, dated 28 February 2018, to further amend its amended statement of claim by:
(a)Withdrawing the second and third causes of action referred to in [5] above;
(b)Adding an additional prayer for relief to both the first and fourth causes of action to provide for the payment of damages for the three month termination period provided for in the contract (the Final Agreement) in addition to payment of Triastra’s unpaid invoices. The proposed addition to the prayer for relief is as follows:
Damages in the sum of $55,200 for the failure to pay $16,0000 plus GST per month to the plaintiff for three months after the defendant gave notice of termination on 3 December 2013.
(c)Making a corresponding adjustment to the interest claim in the prayer for relief.
[7] Mr Gustafson, who appeared for Triastra, submits that the new additions proposed arise out of the same facts as the existing claim and do not cause any prejudice to Taharoa. Advance notice of the proposed amendments was given to Taharoa on 21 December 2018 by letter when Triastra served its briefs of evidence.
The delay in bringing the formal application, after the direction by this Court on 13 February 2019 to do so, was due to an oversight arising out of communications between the instructing solicitor and counsel.
[8] Mr Gustafson submits that no further discovery is required consequent upon the amendments and allowing the amendments will not cause delay of any steps or require adjournment of the trial scheduled for 8 April 2019.
[9] Mr Gustafson further submits that it is in the interests of justice for leave to be granted to make the amendments.
[10] Taharoa does not oppose the deletion of the second and third causes of action. However, it does oppose the proposed additions to the prayer for relief in both the first and fourth causes of action.
[11] Mr Spring, who appeared for Taharoa, submits that it is not in the interests of justice to grant the application. He submits that there is no pleaded cause of action for three months’ worth of consultancy fees to which the proposed prayers for relief could relate. A prayer for relief cannot have effect in the absence of a pleaded cause of action.
[12] In any event, Mr Spring submits, such a claim could not succeed as it relies on an incorrect assumption that Taharoa ended its contract with Triastra by letter of 3 December 2013. The letter neither purported to be nor was it a notice of termination; it merely recorded that the contractual arrangement had previously been terminated.
[13] Mr Spring says this is a late application to amend which does not have an immediate and obvious connection to the “real controversy” in this case. The real controversy, he says, concerns Taharoa’s cancellation of the contract in July 2012 and whether that was effective.
[14] Mr Spring also submits that Taharoa would be significantly prejudiced by the introduction of what is effectively a new cause of action at this late stage. He says the parties have already served their briefs of evidence. In response to the submission on
behalf of Triastra that the application, if granted, would reduce the quantum of claim, he says the current value of the claim (with the second and third causes of action not being pursued) is $99,268. The amendment seeking further relief in the amount of
$55,200 will increase the quantum of the claim by over half that amount.
[15] Finally, Mr Spring submits that Triastra has delayed. On 13 February 2019, the Court ordered Triastra to file its application “with expedition” but it was not filed until 1 March 2019.
Discussion
[16] In order to obtain leave to take steps after the close of pleadings date it is necessary to “surmount the three formidable hurdles” of showing that doing so would be in the interests of justice, will not significantly prejudice other parties, or cause significant delay.2
[17] The Court will weigh these constraints against the principle that the parties should have every opportunity to ensure that the real controversy goes to trial so as to secure the just determination of the proceeding.3
[18] The length of delay in amending the pleading and the reasons for it, the risk of prejudice to other parties and the merits of the proposed amendments are all factors that the Court will take into account when deciding whether to grant leave to amend.4
[19] I first address Mr Spring’s submission (contained in the written submissions) that “there are no pleaded allegations regarding a contract alleged to be in effect in December 2013 which contained a three month notice term which the defendant is alleged to have breached”.
[20] I do not accept the first part of that submission as to the alleged existence of a contract. The amended statement of claim of 5 November 2018 pleads that there was
2 Elders Pastoral v Marr (1987) 2 PRNZ 383 (CA) at 385.
3 Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd [1989] 3 NZLR 304 (CA) at 309.
4 Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR7.77.03].
a “Final Agreement” between the parties which stipulated that either party could terminate that agreement prior to completion with three months’ notice.
[21] The amended statement of claim of 5 November 2018 also pleads that, by letter from solicitors for Taharoa on 3 December, Taharoa advised it was cancelling the Final Agreement.
[22] However, on reading the submissions in advance of the hearing, I considered that there was substance in the second part of Mr Spring’s submission, namely that there is no pleaded allegation that Taharoa breached that agreement by failing to pay a fee for three months after termination.
[23] I therefore issued a minute on the day before the hearing giving counsel for Triastra the opportunity to file and serve a new amended draft statement of claim including a pleading of an alleged breach, for the purposes of the hearing.
[24] Mr Gustafson did so. The relevant clause now not only refers to unpaid invoices but also a failure to pay the three monthly fees as follows:
44.Taharoa C breached the Final Agreement by:
(a)failing and refusing to pay the Unpaid Invoices which are due and owing to Triastra under the Final Agreement and remain outstanding; and
(b)Failing to pay $16,000 plus GST per month to the plaintiff for three months after the defendant gave notice of termination of the Final Agreement on 3 December 2013.
[25] There was also an amendment to the proposed addition to the prayer for relief as set out in [6](b) above by adding the words “of the Final Agreement” after the words “… notice of termination …”.
[26] In my view the new amendments address the problem (correctly) identified by Mr Spring that there was no alleged breach to which the proposed relief was connected.
[27] On the one hand, I accept that there has been delay. Having said that, notice was given to Taharoa of the proposed amendment on 21 December 2018. I also accept Mr Gustafson’s explanation for the delay following the direction by the Court on 13 February 2019.
[28] I also acknowledge that the claim may not be a strong one having regard to the evidence that Taharoa relies on to support its position that the letter of 3 December 2013 was not a notice of termination and that the Final Agreement had been terminated by written notice in July 2012. In his decision on Taharoa’s application for security for costs, Associate Judge Doogue commented on the strength of Triastra’s claim in relation to unpaid invoices (which also relies on the Final Agreement being in force until 3 December 2013).5 The Judge said:
[59] In this case the defendant, as I have noted, has produced a letter giving notice of termination dated 26 July 2012. If that notification was valid, then as I have already concluded the notice arrangements must have been left on an implied basis and are likely to be less than three months duration. But the key point is that there is not a strong argument available to the plaintiff that the defendant acted unlawfully in giving notice. …
…
[61] There are doubts whether there has been any breach of contract by the defendant and, if so, the extent of harm caused to the plaintiff. …
…
[64] It cannot therefore be said that the claim is likely to succeed or likely to fail in regard to the claims that the defendant has failed to pay for a number of weeks for which services were rendered pursuant to the contract.
[29] I note the above observations. In my view, while Triastra’s case may not be a strong one, I do not put it in the category of a hopeless case.
[30] On the other hand, I consider that the proposed amendment is connected to the real controversy which is: when did Taharoa cancel the contract. In this respect, it is in the interests of justice for the application to be granted.
[31] I also do not consider that granting the application will significantly prejudice Taharoa. Its case in relation to the unpaid invoices is that the “Final Agreement had
5 Triastra Ltd v The Proprietors of Taharoa “C” Block [2017] NZHC 1229.
been cancelled and was not on foot”. That is the same position it would advance in relation to the amended claim. Accordingly, although Taharoa has now filed its evidence, I do not consider it is prejudiced in that regard.6 Additionally this is not a case where the trial date will need to be vacated. It can still proceed on 8 April 2019.
[32]In relation to quantum, although the new relief claimed does add to the sum of
$99,268 plus GST sought in the two claims that remain on foot, the two abandoned claims had sought damages in the sum of $829,659 plus GST and $1,456,00 plus GST respectively.
[33] For all those reasons, I granted the application for leave to file an amended claim (in the form filed and served on 5 March 2019).
[34] I also awarded costs to Taharoa on the application. Mr Gustafson accepted that such an award would be appropriate.
Application for further and better particulars
[35] Taharoa applies for further and better particulars submitting that Triastra’s claim fails to give sufficient particulars to inform the Court and the parties of Triastra’s two causes of action.7
[36] Mr Spring submits that even taking into account Triastra’s evidence that has now been served, those particulars cannot be discerned.
[37] Mr Gustafson submits that while the availability of written briefs of evidence does not alter the need for the pleading of particulars, the Court, when considering the need for particulars, will take into account the availability of detailed exchanged briefs.8 Mr Gustafson further submits that a plain reading of the claim fulfils the
6 I note that at the hearing, when I granted the application I also directed amendments to the timetable to give Taharoa the opportunity not only to file an amended statement of defence but also to file evidence in relation to the proposed amendment if it considered it necessary to do so.
7 Triastra did not oppose leave being granted to bring the application.
8 Body Corporate 351522 v Queenstown Lakes District Council [2013] NZHC 559 at [62].
requirements in Commissioner of Inland Revenue v Chesterfields Preschools Ltd.9 He submits that many of the particulars requested by Taharoa are requests for evidence.
Discussion
[38] The purpose of the statement of claim is to inform the opposing the party and the Court of the essential basis of a claim and the necessary ingredients of it.10
[39]In Chesterfields, the Court of Appeal held that a pleading must:11
(a)Be accurate, clear and intelligible;
(b)Give sufficient particulars to enable the defendant to be fairly informed of the case to be met;
(c)Separately state causes of action and set out all the elements of the cause of action; and
(d)Plead relief clearly in respect of each cause of action.
[40] Of relevance to this case, the Court of Appeal also held that, while adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.12
[41]As further explained in McGechan on Procedure:13
For example, in a motor vehicle collision claim it is not necessary to state that “as seen by bystander A the defendant was driving without lights”. The bare allegation “the defendant was driving without lights” will suffice. The statement of claim is not a compendium of evidence, but a distillation of the facts essential to the claim emerging from the evidence.
9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.
10 Reay v Attorney-General [2016] NZCA 519, [2016] NZAR 1672 at [16].
11 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 9 at [84].
12 At [84].
13 McGechan on Procedure, above n 4, at [HR5.26.04].
[42] At the hearing, I expressed my view to Mr Spring that Taharoa was effectively seeking evidence. Mr Spring conceded the point except for two instances, namely in relation to paragraphs 37.1 and 38 of the amended statement of claim.
Paragraph 37
[43]Paragraph 37 of the amended statement of claim pleads:
37. Between 1 June 2013 and 30 November 2013, Taharoa C instructed Triastra to continue to work in Auckland providing the Consultancy Services to produce a scaled down version of the wind farm project and to try and locate a new investor or purchaser for the wind farm project to replace Goldwind.
37.1 These instructions came from Peter Bowker, Pet Martin and John Forbes of Taharoa C in meetings and telephone calls between them and Adam Poulopoulos of Triastra.
(“June 2013 Instructions”)
[44]In its amended statement of defence Taharoa pleads:
37.It has no or insufficient knowledge of, save that Mr Bowker was not employed or in any way associated with the defendant as at June 2013, and therefore denies paragraph 37 and its sub-paragraphs which are insufficiently particularised. It may plead further upon receipt of further particulars.
Paragraph 38
[45]Paragraph 38 of the amended statement of claim pleads:
38.The June 2013 Instructions were complied with by Triastra and it continued to try to produce a scaled down version of the windfarm project and to try and locate a new investor or purchaser for the wind farm project to replace Goldwind.
[46]In its amended statement of defence, Taharoa pleads:
38. It has insufficient knowledge of and therefore denies paragraph 38, which is insufficiently particularised. It may plead further upon receipt of further particulars.
Further particulars sought
[47] The further particulars sought in relation to paragraphs 37.1 and 38 are as follows:
Paragraph 37.1
23.As to paragraph 37.1, with respect to the alleged meetings and telephone calls between the plaintiff’s director, Mr Poulopoulos, and Peter Bowker, Pet Martin and John Forbes, please identify in each case:
(a)The dates and locations of the alleged meetings;
(b)The dates of the telephone calls;
(c)The identities of the participants.
Paragraph 38
24.As to paragraph 38:
(a)With respect to the allegations that Triastra complied with the alleged June 2013 Instructions, please identify:
(i)the dates on which it is alleged that it so complied;
(ii)what it is alleged to have done to so comply;
(b)With respect to the allegation that Triastra continued to try to produce a “scaled down version of the wind farm project” please identify:
(i)the specifications of the alleged “scaled down version of the wind farm project”;
(ii)what efforts it is alleged to have made;
(c)With respect to the allegations that it tried to locate a new investor or purchaser, please identify:
(i)which persons it is alleged to have approached;
(ii)what statements are alleged to have been made to those persons.
[48] As to paragraph 37.1, I accept Mr Spring’s submission that this is a central part of the case and that even taking into account the brief of evidence of Mr Poulopoulos, director of Triastra, Taharoa is not fairly informed of the case it has to meet. What Taharoa is seeking are facts as opposed to “a compendium of evidence”. While there
are some particulars in the brief of evidence of Mr Poulopoulos, further should be supplied in response to the request by Taharoa.
[49] As to paragraph 38, this is similarly a central part of the case as it relates to Triastra’s presentation of invoices to Taharoa. For the same reasons referred to in [48] above in relation to paragraph 37.1, I directed Triastra to provide further and better particulars to the extent that such particulars are not already specified in Triastra’s briefs of evidence.
Application for further security for costs
[50] Finally, regarding Taharoa’s application for increased security for costs, I first set out the law in relation to security for costs itself.
[51] Under r 5.45 of the High Court Rules 2016, a judge may, if they think it just in the circumstances, order a plaintiff to give security for costs, if it appears the plaintiff will be unable to pay costs if the proceeding fails.
[52]Under an application for security for costs, the Court generally considers:14
(a)Has the applicant satisfied the Court of the threshold under r 5.45(1)?
(b)If so, how should the Court exercise its discretion under r 5.45(2)?
(c)What amount should be fixed for the security for costs?
(d)Should a stay be ordered?
[53] In this case, the r 5.45(1) threshold that Taharoa relies on is that there is reason to believe that Triastra will be unable to pay Taharoa’s costs if Triastra is unsuccessful.
14 Busch v Zion Wildlife Gardens Ltd (in rec and in liq) [2012] NZHC 17 at [2].
[54] Even if the threshold is met, whether or not to order security and, if so, the quantum, is a discretionary matter for the Court. The discretion is not to be fettered by constructing principles from the facts of previous cases.15
[55] On 7 June 2017, in a detailed and careful judgment, Associate Judge Doogue ordered security for costs in the sum of $32,500.16 I set out the following paragraphs from the judgment:
[100] The conclusion I have come to is that the defendant has satisfied the threshold requirement of the Rules in this case and has demonstrated that there is reason to believe that the plaintiff will be unable to pay the costs of the defendant.
…
[102] In the present case, I have concerns about the strength of the plaintiff’s case. As the case has been pleaded and explained to me, it does not appear to constitute a substantial case which has a basis in the realities of the circumstances in which the parties found themselves.
[103] There is not present in this case the risk that making an order for security for costs would bring the case of the plaintiff to a halt. The application does not therefore involve questions of access to justice. It is restricted to considerations of allocating the risk of financial hardship between one party or the other.
[104] In the overall circumstances balancing matters up overall I am persuaded that an order for costs ought to be made in this case. For the purposes of this application I would assess the likely costs are as being in the region of $50-$70,000. However, the prospective costs are what the application for security is concerned with as Mr Dellow [then counsel for Triastra] pointed out.
…
[106] On the other hand, I do not consider that some of the deductions that Mr Dellow proposed should be made to the overall 2B cost calculation of the applicant, are reasonable. It is likely that there will from this point be at least one additional conference and it is likely that there will be one or more interlocutory applications. As well, the costs of the present application which will follow this judgment will need to be paid and, because the order is going to be in favour of the defendant, that is a matter that needs to be factored into the overall amount of security. Taking these matters overall, my assessment would be that the 2B costs viewed prospectively will be in the region of $30-
$35,000, including trial costs based on an estimated trial duration of five days.
…
15 AS McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13].
16 Triastra Ltd v The Proprietors of Taharoa “C” Block, above n 5.
[109] From that starting point, and in the absence of any contrary contentions, in principle it seems to me that the plaintiff should be entitled to security for $32,500. The greater part of the costs in this case will begin to be incurred during the pre-trial programme at which stage briefs of evidence are being prepared. The security should be given on an incremental basis weighted to reflect that fact. …
[56] The Court has an inherent jurisdiction to vary the order made for security for costs where there has been a material change of circumstances.17 Examples of material changes include the addition of causes of action significantly increasing the complexity of the proceeding or a substantial increase in the amount claimed.18
[57] In the present case, Taharoa says there has been a material change of circumstances warranting an increase of $30,000 in security for costs. Taharoa also seeks an order that the proceeding is stayed unless the additional security is paid by a date promptly after the order is made.19
[58] Mr Spring submits first, that security remains necessary and appropriate in principle. He submits that the original finding of Associate Judge Doogue that Triastra is unlikely to be able to meet an award of costs remains correct and is reinforced by events since then. In terms of those subsequent events, Mr Spring submits that there is no evidence that Triastra has performed further work for clients since June 2013; Triastra continues to have no known property and/or assets and no advertising or social media presence in New Zealand; at the time of filing submissions on 25 February 2019, Triastra had not paid the hearing fee for trial;20 during a period from May to November 2018, Triastra was not represented by counsel and its former counsel were obliged to assert a lien to cover their fees; Triastra paid the previous tranche of security for costs very late and only after Taharoa had raised this with the Court; Triastra is “privately funded” but has not responded to requests from counsel for Taharoa to identify the person funding it.
17 See Cargill New Zealand Ltd v Palmerston Wool Co Ltd (1997) 11 PRNZ 52 (HC).
18 McGechan on Procedure, above n 4, at [HR5.45.04(1)(a)].
19 High Court Rules 2016, r 5.45(3)(b).
20 It was not made clear to me whether or not Triastra had since paid the hearing fee.
[59] Mr Spring also submits that Triastra’s claims are weak, being claims for fees said to be due under a consultancy agreement and notwithstanding that Taharao exercised an expressed contractual entitlement to terminate the contract.
[60] As to change of circumstances, Mr Spring submits that the proceeding has changed in character due to two new claims now brought, and Taharoa has incurred further costs since the last award of security. In that regard, Mr Spring says that Taharoa incurred significant costs in responding to the abandoned causes of action and that discovery was particularly onerous on Taharoa as it was in possession of the majority of the project documents. This was a wasted cost and was unnecessary because the abandoned claims for a success fee had no prospect of success.
[61] Mr Spring advises that Taharoa will seek increased costs from Triastra because it has abandoned the majority of the value of its claims shortly before trial (second and third causes of action). He says this further supports the Court ordering an increase in security.
[62] Taharao has filed a schedule of 2B costs anticipated by Taharoa in the proceeding, namely $35,234, as from the date of the application (29 November 2018).
[63] Triastra opposes the application. Mr Gustafson submits that no increase in security for costs is required. He submits that Taharoa is “double-dipping”, as the steps set out in Taharoa’s schedule referred to in [62] above, were all steps considered by Associate Judge Doogue. Mr Gustafson also submits that the trial will most likely be concluded within three days, being two days less than anticipated at the time of the hearing before Associate Judge Doogue. It is now a much smaller and less complex case.
[64] While accepting that Taharoa will be required to file an amended statement of defence to the amended statement of claim, the cost of that step is effectively cancelled out by the allowance for the filing of a counterclaim in the schedule presented to Associate Judge Doogue.
[65] As to the alleged existence of a “litigation funder”, Mr Gustafson refers to correspondence between counsel in which the solicitors for Triastra state that “a litigation funder was not involved, that it was simply a case of the company having made arrangements privately which it did not have to disclose the details of”.
[66] Mr Gustafson also refers to the affidavit of Mr Poulopoulos, Director of Triastra, sworn 27 February 2019 deposing that, in the period since December 2016, Triastra has not failed to meet any obligations on it to make any payments to any party. Mr Poulopoulos confirms that Triastra is committed to seeing this proceeding through to trial and that it is able to meet any costs award that the Court may make in this matter, should that occur.
Discussion
[67] I first record that I do not gain any assistance from the affidavit of Mr Poulopoulos. His bald statement that since December 2016 Triastra has not failed to meet any obligations on it or to make any payments to any party does not shed any light on the issue. In the absence of any evidence as to what obligations (if any) Triastra in fact had during that period, the statement has little or no value. Similarly, his assertion that Triastra is able to meet any costs award that the Court may make in this matter needs to be considered both in the context of Associate Judge Doogue’s finding to the contrary and the events since the date of that judgment.
[68]I accept and take into account the matters raised by Mr Spring referred to in
[58] above. Accordingly, I find that there is still reason to believe that Triastra will be unable to pay Taharoa’s costs if Triastra is unsuccessful in its claims. I also accept that Mr Spring raises new matters arising since the decision of Associate Judge Doogue, but I do not consider they amount to a material change of circumstances. They simply support the position that the threshold in r 5.45(1) is still met.
[69] I consider that there is substance in Mr Gustafson’s double-dipping argument. In terms of the schedule of scale costs for steps from the date of the filing of Taharoa’s application, they were all steps anticipated and taken into account by Associate Judge Doogue.
[70] The additional step of filing an amended statement of defence to the amended statement of claim (which I have permitted to be filed) is compensated for both by the absence of counterclaim having been filed and a hearing taking approximately three days instead of the five days allowed for by Associate Judge Doogue. The same could be said for responding to the now abandoned causes of action and attending to discovery.
[71] Although the proceeding has changed in character, it is in fact a less complex and shorter case.
[72] I note Taharoa’s submission that it will be seeking increased costs and the submission that Triastra has made arrangements privately for funding (but not by way of a “litigation funder” as that term is commonly used). However, I consider those two matters are relevant to the discretion I would have to exercise if there were relevant material change of circumstances. I do not consider they go to a material change of circumstance in themselves.
[73] I therefore conclude that there is no material change of circumstances justifying additional security being ordered. It is therefore not necessary to consider Mr Spring’s submissions regarding a stay. Taharoa’s application is refused.
Costs
[74] As noted in [34] above, I awarded costs to Taharoa on Triastra’s application for leave to amend its statement of claim.
[75] I heard submissions on costs on Taharoa’s application for further and better particulars. Both counsel sought costs. I consider costs should lie where they fall. I acknowledge that Mr Spring appropriately narrowed Taharoa’s application and that I granted the application, as narrowed. However, Triastra was obliged to prepare for the hearing and did so in written submissions opposing not only the parts of the application that were successful, but also the parts that were not pursued at the hearing.
[76] On the application for increased security for costs, my preliminary view is that Triastra, as the successful party, is entitled to costs. However, as I did not hear
submissions on costs on this application, I reserve the question of costs. I would hope that the parties can agree costs and thus file a joint memorandum (which should be filed within 10 working days of this judgment). If agreement cannot be reached, Triastra may file and serve its memorandum within five working days of the date for the joint memorandum and Taharoa within five working days thereafter. Memoranda should not exceed four pages.
Gordon J
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