Turner v Sigglekow
[2013] NZHC 2403
•13 September 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2006-409-1172 [2013] NZHC 2403
BETWEEN NOELINE JANE TURNER Plaintiff
ANDCHRISTELLE JANE SIGGLEKOW First Defendant
ANDNAMEL LIMITED (IN RECEIVERSHIP AND LIQUIDATION)
Second Defendant
ANDQBE INSURANCE (INTERNATIONAL) LIMITED
Third Defendant
Hearing: 13 September 2013 (On the papers) Counsel: K G Feltham - Amicus Curiae
A J Davis for First Defendant
L Adams for Second and Third Defendants
Judgment: 13 September 2013
JUDGMENT OF PANCKHURST J
Present state of proceeding
[1] Two applications have been filed; one by the plaintiff seeking leave to set aside the existing security for costs order, or alternatively defer the operation of that order until completion of discovery and inspection, and the second an application on behalf of the three defendants seeking an order striking out the proceeding and orders for payment of costs. Before turning to these applications it is necessary to record the present state of the proceeding.
[2] In a judgment dated 26 April 2013 I dismissed a review of an
Associate Judge’s decision to fix security for costs payable by the plaintiff in the sum
TURNER v SIGGLEKOW AND ORS [2013] NZHC 2403 [13 September 2013]
of $80,000. That judgment also contained directions whereby counsel assisting the Court was appointed to advise Mrs Turner in relation to an extant offer of settlement, and the proceedings was stayed in the meantime pending payment of security (or the provision of alternative security to the satisfaction of the Registrar) within
15 working days of provision of a report to the Court by counsel assisting. Leave was also reserved to the defendants to revert to the Court in light of developments, particularly if the offer of settlement was not accepted, nor security paid or otherwise provided. They have triggered this leave provision in seeking judgment and an award of costs in relation to the dismissed review application.
[3] In summary, following the April decision the proceeding was stayed to enable Mrs Turner to receive advice from the independent counsel appointed by the Court and, should she not elect to accept the settlement offer, time to pay or arrange security was allowed so the proceeding could continue.
[4] There has, however, been a further significant development. On 31 July 2013
Mrs Turner was adjudicated bankrupt on the application of one or more of the present defendants in relation to costs outstanding from an earlier interlocutory hearing. The pendency of this bankruptcy application was known to me when I took the unusual step of appointing counsel to assist the Court by providing independent advice to Mrs Turner given the predicament she was then in.
The application to set aside or defer security
[5] This application is signed by Mrs Turner and supported by an affidavit sworn by her. That said, I am in no doubt that the application was framed by her son Roderick Turner and that he instigated and filed it. It seeks to invoke the inherent jurisdiction of the Court and also relies upon the commentary to rule 5.45 in
McGechan on Procedure.[1]
[1] Andrew Beck et al McGechan on Procedure (online looseleaf ed, Brookers) at rule 5.45.
[6] I accept that this Court has inherent jurisdiction to review an existing order for security. The commentary in McGechan at HR 5.45.04 summarises
circumstances which may warrant a fresh look at a security order, including a
material change in the character of the proceeding or the plaintiff ’s financial circumstances, or more generally where mistake or the interests of justice require some form of intervention. However, I am satisfied there is no basis for intervention in this instance.
[7] This proceeding has been afoot in this Court since May 2006. It has been on the brink of being struck out, or was actually struck out but then reinstated, previously. There has been no material change in circumstances since my decision in April 2013, save for Mrs Turner’s bankruptcy. The matters raised in Mrs Turner’s affidavit in support of the present application are not new. They are a re-litigation of contentions concerning the strength of the case, an aspect which was fully debated and considered in the course of the security for costs hearing and review.
[8] I am satisfied that the application has no merit and represents, or borders upon, an abuse of process. Were it to be argued Mrs Turner would seek to have her son speak on her behalf. He would relish the opportunity to do so, and this would give rise to a continuation of the recent pattern where Mr Turner has sought to advance this claim in the name of his mother.
[9] For these reasons I consider that the application should be dismissed on the papers and I do so.
The defendants’ application for judgment and costs
[10] I directed that the Official Assignee be advised of the defendants’ initiative to have the proceeding struck out with costs awarded. Counsel representing the Official Assignee has filed a memorandum confirming that there is no prospect of meeting the order for security and therefore raised no objection to the defendants’ application. I note that the Official Assignee views are also relevant to the plaintiff’s application to set aside or defer security.
[11] I am satisfied that this proceeding is spent. Security for costs has not been paid, indeed Mrs Turner is bankrupt. There is nothing to suggest that some other form of security is, or may become, available. The proceeding is presently stayed. The Official Assignee has confirmed she does not propose to pursue the claim.
[12] In the circumstances I order that the proceeding be struck out and that the first defendant is entitled to costs of $5,174, and the second and third defendant to costs of $3,980, in relation to the failed review application.
Solicitors:
K G Feltham, Christchurch
A J Davis, Christchurch
L Adams, Christchurch
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