Woolf v Kaye - [2017] NZHC 2651

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2015-404-001043

[2017] NZHC 2651

BETWEEN
VIRGINIA WOOLF

First Plaintiff

AND

VIRGINIA WOOLF AS THE

EXECUTOR OF THE ESTATE OF NOEL BERNARD WOOLF

Second Plaintiff

AND

ALWYN BERNARD KAYE

First Defendant

AND

MARK WILLIAM SYDNEY CLARK AS EXECUTOR OF THE ESTATE OF VIOLET ISABEL WOOLF

Second Defendant

Hearing: 11 August 2017

Appearances:

G A Keene for the Plaintiff

A Gilchrist for the First Defendant
No appearance for the Second Defendant

Judgment:

27 October 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 27 October 2017 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Foy & Halse, Auckland Aoraki Legal Ltd, Timaru

WOOLF v KAYE & Ors [2017] NZHC 2651 [27 October 2017]

R Wood, Auckland

A Gilchrist, Auckland

Introduction

[1] This judgment addresses the plaintiff’s application for security for costs. Three other applications at issue in this interlocutory stage are addressed in a judgment to be released early next week, or as time allows.

[2] The plaintiff, Mr Kaye seeks security in the sum $50,000 to be paid in two instalments: an immediate award of $30,000 and a further $20,000 at the time of setting down. He wants the proceedings stayed until such security is paid, and also seeks leave to review those numbers if the trial proves even more complex and expensive than anticipated.

Background

[3] The substantive proceeding concerns an action by the plaintiff, Ms Woolf, seeking enforcement of certain obligations that she says exists in respect of a property owned by the first defendant, Mr Kaye. Mr Kaye opposes the action.

[4] In February 2016, Mr Kaye applied for summary judgment; or alternatively, strike out and security for costs. In my decision of 19 July 2016, I declined summary judgment or strike out, but invited further submissions on security for costs should Mr Kaye wish to pursue the matter further (which of course he did).1

[5] I do not proceed to repeat the background facts, which are described in detail in my 19 July decision.

Security for costs

1 Woolf v Kaye [2016] NZHC 1628.

[6] Rule 5.45(1)(b) provides for the circumstances in which a Judge may order a plaintiff to give security for the defendant’s costs. The court must address the following questions:2

(a)Is there reason to believe the plaintiff will be unable to meet an award of costs against it?

(b)Is it appropriate for an order for security for costs to be made?

(c)How much security is appropriate?

(d)Should a stay be ordered?

Is there reason to believe Ms Woolf can meet an award for costs?

[7] This first question represents a jurisdictional threshold. Neither side has the onus; the court must simply come to a decision on the evidence before it as to whether this threshold is met.3 The court will not order Ms Woolf to give security unless there is credible evidence for the belief that Ms Woolf suffers an inability (as…

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 Woolf v Kaye

Details

AGLC: Woolf v Kaye [2017] NZHC 2651
Case: [2017] NZHC 2651
Decision Date: 27 October 2017

CaseChat Overview and Summary

In Woolf v Kaye, the plaintiff, Ms Woolf, sought enforcement of certain obligations concerning property owned by the defendant, Mr Kaye. The substantive dispute revolves around Ms Woolf's claim that Mr Kaye owes her certain obligations related to the property. Mr Kaye opposed the action and sought security for costs. Ms Woolf applied for security for costs in the sum of $50,000, to be paid in two installments: $30,000 immediately and $20,000 at the time of setting down. She also requested that the proceedings be stayed until the security was paid and sought leave to review the numbers if the trial proved more complex and expensive than anticipated.

The court had to decide whether Ms Woolf would be unable to meet an award of costs against her, whether it was appropriate for an order for security for costs to be made, the appropriate amount of security, and whether a stay should be ordered. The court considered the financial circumstances of Ms Woolf, including her inheritance from her late father's estate, and whether her claim was unmeritorious or oppressive to Mr Kaye's reasonable interests. The court found that there was no credible evidence that Ms Woolf would be unable to meet an award for costs, and her claim was not unmeritorious. The court also found that withholding security for costs was not oppressive to Mr Kaye's reasonable interests.

The application for security for costs was declined, and costs were reserved. The court addressed some outstanding issues relating to discovery and interrogatories and reserved costs issues for later consideration.

Orders