Yarrow v Finnigan - [2015] NZHC 1468

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2011-443-000330 [2015] NZHC 1468

BETWEEN
PAUL STEVEN YARROW

Plaintiff

AND

MICHAEL CHANEL FINNIGAN Defendant

Hearing: 25 February 2015

Appearances:

D Wu for the Plaintiff
J B Orpin for the Defendant

Judgment:

29 June 2015

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 29 June 2015 at 3.50 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors:

Dukesons Business Law, Auckland
Reeves Middleton Young Lawyers, New Plymouth
L Taylor, Wellington

PAUL STEVEN YARROW v MICHAEL CHANEL FINNIGAN [2015] NZHC 1468 [29 June 2015]

[1] In a reserved judgment delivered on 6 September 2012, Associate Judge Christiansen ordered the plaintiff, Mr Yarrow, to provide security for costs in two tranches. In terms of His Honour’s judgment:

(a) The first tranche of $25,000 was to provide security for the legal costs of the defendant, Mr Finnigan, to the point where a date for trial was fixed. It was paid shortly before the case management conference that was held on 4 December 2012.

(b)The second tranche is called for, and is for the purpose of providing security for Mr Finnigan’s costs of trial and trial preparation. Judge Christiansen indicated that it should be fixed “once the estimated trial length becomes clearer”.1

[2] The issue now before the Court is: what amount should Mr Yarrow be required to provide for the second tranche? The proceeding has reached the point where a reasonable assessment can be made of trial duration. It is appropriate therefore to fix the quantum of the second tranche.2

[3] The estimate of trial duration must be made in the light of the significantly expanded claim in the amended statement of claim that Mr Yarrow has filed, and the submissions that counsel for the parties have made on the following matters: the number of witnesses each party will call, the nature of the evidence each witness is
to give, and counsel’s own revised estimates of trial duration.3 Counsel for both sides

have helpfully contributed to the discussion on these matters, resulting in a significant degree of agreement between them.

[4] I begin with the amended claim.

1 Yarrow v Finnigan [2012] NZHC 2281 at [48].
2 In that regard there was a helpful discussion with counsel at the telephone hearing held on
25 February 2015. about the likely duration, having regard to the issues raised in the amended statement of claim and the number and nature of witnesses that each side intends to call

3 (That hearing took place by telephone with the agreement of counsel to avoid the cost to the parties of having counsel travel to New Plymouth).

[5] The amended claim is a significantly expanded claim. It contains wide-ranging factual allegations that are highly contentious.4 In its amended form it:

(a) Extends the causes of action from four to ten and expands the scope of issues of fact and law in the proceeding significantly. It comprises some 43 pages (up from…

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 Yarrow v Finnigan

Details

AGLC: Yarrow v Finnigan [2015] NZHC 1468
Case: [2015] NZHC 1468
Decision Date: 29 June 2015

CaseChat Overview and Summary

In Yarrow v Finnigan, the Court was required to determine the quantum of the second tranche of security for costs that the plaintiff, Mr Yarrow, should provide to the defendant, Mr Finnigan. The case involved a significantly expanded claim with wide-ranging and contentious factual allegations. The primary issue was whether the quantum of the second tranche should be set at the $364,000 proposed by Mr Finnigan's counsel or a more modest amount. Mr Finnigan argued that the expanded scope of the claim and the 11-year time period warranted a higher level of security, while Mr Yarrow contended that such an amount would be oppressive and stop the proceeding in its tracks.

The Court considered various factors, including the number and nature of witnesses, the contentious issues raised by the amended claim, and the potential for expert evidence. After evaluating the arguments from both sides, the Court concluded that while the quantum claimed was substantial, the issues were not overly complex. The Court aimed to balance the need to protect Mr Finnigan's position in the event of a successful defence against imposing an oppressive burden on Mr Yarrow. Consequently, the Court ordered that the plaintiff should pay a second tranche of security for costs in the amount of $80,000 plus $80,000 for disbursements, to be provided within 21 working days. If the security was not paid, the plaintiff had leave to seek an "unless" order, and the defendant's statement of defence was to be filed 25 working days after the security was paid.

The final orders included a directive for the plaintiff to pay the specified amount of security for costs within the stipulated time frame and allowed for an "unless" order if the payment was not made. Additionally, the defendant's statement of defence was to be filed after the security was paid, and costs were reserved for further consideration if either party sought costs.

Orders