Yingling v Gifford

[2019] NZHC 2310

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2015-416-000026

[2019] NZHC 2310

BETWEEN

RANDY YINGLING

Plaintiff

AND

KEN GIFFORD (aka KENNETH JOHN GIFFORD)

First Defendant

AND

DEAN WITTERS (aka DEAN JOHN WITTERS)

Second Defendant

Hearing:

(On the papers)

Counsel:

G J Thwaite for the Plaintiff

G R Webb for the First Defendant

Judgment:

13 September 2019

JUDGMENT OF CHURCHMAN J

[Security for costs]

[1]        The plaintiff, who resides in California, is seeking to register a judgment he obtained in the Superior Court of California.

[2]        The first defendant in this matter has made an application for security for costs, relying on r 23.14 of the High Court Rules (the Rules). Rule 23.14 comes within

YINGLING v GIFFORD & ANOR [2019] NZHC 2310 [13 September 2019]

pt 23 of the Rules which is entitled “Enforcement between jurisdictions” and provides as follows:

23.14   Security for costs

The court may, on any application for registration, order the judgment creditor to give security for the costs of the judgment debtor in opposing the application or in applying to set aside the registration.

[3]        It is noted that r 23.14 imports, by implication, the Court’s jurisdiction under   r 5.45 of the Rules, which relevantly provides:

5.45Order for security of costs

(1)        Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)is resident out of New Zealand; or

…

(b)         that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2)        A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)An order under subclause (2)—

(a)        requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)by paying that sum into court; or

(ii)        by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b)        may stay the proceeding until the sum is paid or the security given.

[4]        As the plaintiff is resident out of New Zealand, his financial situation is irrelevant. It is left for the Court’s discretion under r 5.45(2) to determine whether it is “just in all the circumstances” to order security for costs.

[5]        The first defendant submits that, in assessing the merits of the plaintiff’s claim, it is necessary to take into account his lack of success in the two earlier applications. While no costs were awarded in these two previous applications, it is claimed that costs will became a matter for determination after any trial judgment. It is accepted, however, that there has been delay in making this application. The plaintiff filed his synopsis of opening submissions on 23 July 2019, this application is dated 10 September 2019 (although the copy on the Court file was sent by email and registry has yet to receive a hard copy of the application) and the hearing set down for 18 September 2019. Against that, the proceeding has had a tortuous history with present counsel only being recently instructed and the sophistication of the international banking system would suggest an urgent money transfer is quite feasible.

[6]        It is my view that the delay in making this application just one week before the hearing is not excused by counsel for the first defendant having only recently been instructed. There is nothing on the facts to suggest that the plaintiff would be unable or unwilling to meet a costs award should he be unsuccessful in registering his judgment. In these circumstances, it would not be just to make such an order. Accordingly, I decline to make the order for security for costs.

Churchman J

Solicitors:

Gregory J Thwaite, Auckland Nolans, Gisborne