Wall v Wall - [2022] NZHC 331

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2020-435-000011

[2022] NZHC 331

UNDER Part 18 of the High Court Rules 2016

IN THE MATTER

of Riverside Trust

BETWEEN

MARY PATRICIA WALL

Plaintiff

AND

JOHN GARY WALL and PHILIPPA JANE

BROOM as trustees of Riverside Trust Defendants

AND

ALEXANDER CHARLES FRANCIS WALL

Interested Party

Hearing: 23 February 2022 (by VMR)

Appearances:

N Levy QC and A Jeremich for Plaintiff N J Newbery for Defendants

Judgment:

1 March 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 1 March 2022 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WALL v WALL [2022] NZHC 331 [1 March 2022]

[1]This is an opposed application by the defendants for security for costs.

[2] The plaintiff is married to Jonathan Wall (Mr Wall) but they have separated and there are proceedings between them in the Family Court for division of relationship property. Those proceedings are not being progressed pending the determination of this proceeding.

[3] The defendants are the trustees of the Riverside Trust, of which Mr Wall is a discretionary beneficiary. The plaintiff has brought this proceeding against the defendants, alleging that they hold a farm property on a constructive trust for Mr Wall. Ultimately, the plaintiff intends to claim against any entitlement Mr Wall has in the assets of the Riverside Trust on the basis it is relationship property.

[4] This proceeding was commenced on 12 June 2020, but this application for security for costs was not filed until 22 October 2021. The case is well advanced and is set down for a three day trial commencing 21 March 2022, less than one month away. I am told all the evidence is filed, and that a common bundle has been compiled. Ms Levy QC is only awaiting input from the defendants’ lawyers to complete it.

[5]The defendants’ application for security for costs is made on the grounds that:

(a)there is reason to believe the plaintiff will be unable to pay the costs of the defendants if the plaintiff is unsuccessful in this proceeding; and

(b)it is just in all the circumstances that security for costs be given.

[6] The plaintiff’s opposition to the application is made on the ground there is no reason to believe she will be unable to pay the costs of the defendants if she is unsuccessful.

The High Court Rules

[7] Relevantly to this application, under r 5.45 of the High Court Rules 2016 the Court may, on the application of a defendant, order a plaintiff to give security for costs if there is reason to believe the plaintiff “will be unable to pay the costs of the

defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding”1 and it is just in all the circumstances to order security for costs.2

[8] When considering a plaintiff’s ability (or inability) to pay costs, it is sufficient to adduce evidence of surrounding circumstances from which…

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.

Continue reading Wall v Wall

Details

AGLC: Wall v Wall [2022] NZHC 331
Case: [2022] NZHC 331
Decision Date: 1 March 2022

CaseChat Overview and Summary

In this proceeding, Mary Patricia Wall is the plaintiff and John Gary Wall and Philippa Jane Broom, as trustees of the Riverside Trust, are the defendants. The plaintiff claims that the defendants hold a farm property on a constructive trust for Mr Wall and that she intends to claim against any entitlement he has in the assets of the Riverside Trust on the basis that it is relationship property. The defendants have applied for security for costs on the basis that there is reason to believe the plaintiff will be unable to pay the costs of the defendants if the plaintiff is unsuccessful in this proceeding, and it is just in all the circumstances that security for costs be given. The plaintiff opposes the application on the basis there is no reason to believe she will be unable to pay the costs of the defendants if she is unsuccessful.

The court was required to determine whether there is reason to believe the plaintiff will be unable to pay the costs of the defendants if unsuccessful in her claim, and if so, whether it is appropriate for an order for security for costs to be made. The court found that the defendants had not shown there is reason to believe the plaintiff is unable to pay costs and dismissed the application. The court also found that the application was made at a very late stage and that any award would have been for a significantly smaller sum than the defendants have sought.

The court dismissed the defendant's application and ordered the plaintiff to receive costs on a scale 2A basis, along with reasonable disbursements.

Orders