Walker v Henderson

[2017] NZHC 1452

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-2486 [2017] NZHC 1452

BETWEEN  ROBERT BRUCE WALKER AND JOHN MARSHALL SCUTTER

First Plaintiffs

PROPERTY VENTURES LIMITED (IN LIQUIDATION)

Second Plaintiff

FIVE MILE HOLDINGS LIMITED (in receivership and in liquidation)

Third Plaintiff

CASHEL VENTURES LIMITED (in liquidation)

TAY VENTURES LIMITED (in receivership and in liquidation) Fifth Plaintiff

LIVINGSPACE PROPERTIES LIMITED (in receivership and in liquidation)

Sixth Plaintiff

BEECHNEST VENTURES LIMITED (in liquidation)

Seventh Plaintiff

TUAM VENTURES LIMITED (in receivership and in liquidation) Eighth Plaintiff

CASTLE STREET VENTURES LIMITED (in receivership and in liquidation)

LICHFIELD VENTURES LIMITED (in receivership and in liquidation)

Tenth Plaintiff

92 LICHFIELD LIMITED (in receivership and in liquidation) Eleventh Plaintiff

WALKER v HENDERSON [2017] NZHC 1452 [28 June 2017]

ST ASAPH VENTURES LIMITED (in

liquidiation) Twelfth Plaintiff

MONTECRISTO CONSTRUCTION COMPANY LIMITED (in liquidation) Thirteenth Plaintiff

AND

DAVID JOHN HENDERSON Fourth Defendant

Hearing:	On the papers
Appearances:	JBM Smith and N Williams for Plaintiffs D Lester for Fourth Defendant
Judgment:	28 June 2017

JUDGMENT OF LANG J

[in relation to application for costs by fourth defendant]

This judgment was delivered by me on 28 June 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

[1]      The plaintiffs and the fourth defendant have not been able to reach agreement regarding the issue of costs  in  respect  of the fourth  defendant’s  application  for security for costs.   Counsel for the plaintiffs advises me, however, that agreement has been reached in relation to costs with all other defendants.

[2]      I consider the fourth defendant was the successful party, because I directed that the plaintiffs were required to provide security for costs in the sum of $150,000 in respect of their claim against him.  The order was made in circumstances where the plaintiffs had opposed any security being ordered in respect of the fourth defendant.  However, the fourth defendant had sought security for costs in the sum of nearly $900,000.  For that reason the plaintiffs were obviously entitled to defend the fourth defendant’s application.

[3]      In my view the fourth defendant’s application was clearly unrealistic.  There was no prospect that the Court would order security anywhere near the amount that he sought.  On the other hand, it appears that the plaintiffs made no offer to provide the fourth defendant with any form of security.

[4]      Having regard to those factors, I consider an appropriate outcome is for the fourth defendant to receive an award of costs on a Category 2B basis, and on the further basis that the hearing occupied three quarters of a day.   I do not consider Category 3 to be appropriate, because the application for security for costs in relation to the fourth defendant was relatively straightforward.  The fourth defendant is also entitled to disbursements as fixed by the Registrar.

[5]      I make orders accordingly.

Lang J