SISSON v IAG NEW ZEALAND LIMITED [2014] NZHC 616 [31 March 2014]

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2013-409-000989

[2014] NZHC 616

BETWEEN

THERESE ANNE SISSON

Plaintiff

AND

IAG NEW ZEALAND LIMITED

Defendant

Submissions

received:

20 March 2014

Appearances:

G D R Shand for Plaintiff/Respondent

R Coltman for Defendant/Applicant

Judgment:

31 March 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

on interlocutory applications

Introduction

[1] This judgment relates to three interlocutory applications made by the

defendant (IAG). The substantive proceeding involves insurance claims of the

plaintiff (Ms Sisson) following substantial damage caused to a Colombo Street

property caused by the Christchurch earthquakes of 4 September 2010 and 22

February 2011.

[2] The interlocutory applications which I will deal with in this order are for:

(a) further and better discovery;

(b) further particulars of claim;

(c) security for costs.

Background

The Colombo Street Property

[3] Until 2007 the Colombo Street property was in the name of David Hampton,

Ms Sisson’s former husband. In 2005 the Commissioner of Inland Revenue

(Commissioner), as a result of claims for taxation liabilities against various entities

associated with Mr Hampton and Ms Sisson (including Chesterfields Preschools

Ltd), obtained Mareva injunctions (the freezing orders) against the Colombo Street

property, and others.1

[4] In 2007 the Colombo Street property was transferred into the name of Ms

Sisson to allow refinancing. In exchange Ms Sisson provided an undertaking (the

text of which is not in evidence). At the same time the freezing orders were set

aside.2 However, in 2008, upon concerns as to Ms Sisson’s compliance with her

undertaking, the Court imposed fresh freezing orders and left her undertaking in

place.3 The orders prevented Ms Sisson and her co-plaintiffs from any further

dealings with the properties, including Colombo Street. Fogarty J recorded that he

intended the word “dealings” to be understood in its broadest sense.4

The insurance contracts

[5] Following the transfer of the property to her, Ms Sisson had the property

insured with IAG. The two relevant periods of insurance are 22 January 2010 to 22

January 2011 and 22 January 2011 to 22 January 2012.

[6] During the term of those periods of insurance the earthquakes of 4 September

2010 (the September earthquake) and 22 February 2011 (the February earthquake)

inflicted damage upon the Colombo Street property. One earthquake occurred

during the currency of each policy.

1 The freezing orders were granted in Chesterfield Preschools Ltd v Commissioner of Inland

Revenue (2005) 22 NZTC 19,500. 2 Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-

2004-409-1596, 31 October 2007. 3 Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-

2008-409-722, 28 August 2008. 4 Chesterfields Preschools Ltd v The Commissioner of Inland Revenue HC Christchurch CIV-

2008-409-722, 28 August 2008 at [7].

The loss claimed

[7] Ms Sisson claims she suffered the following losses from the earthquakes:

(a) The September earthquake: $465, 750 which consists of an expert’s

estimate of $517,500 to repair the property, less a ten per cent

allowance for deprecation; and

(b) The February earthquake: a total loss, which will “cost in excess of

$1,800,000 to rebuild. The building on the Colombo Street property

has since been demolished. The value of the property now lies in its

land.

[8] Ms Sisson has so far received the following payments in respect of the

claimed losses:

(a) The September earthquake:

(i) $20,000 from the Earthquake Commission (EQC); and

(ii) No payment from IAG.

(b) The February earthquake:

(i) $120,000 from EQC; and

(ii) $720,000 from IAG, which is calculated by reference to IAG’s

estimate of the present day value of the property, being

$840,000, less the payment from EQC of $120,000.

[9] Since receiving the above payments, Ms Sisson has repaid and discharged the

mortgage securing the loan over the property, leaving a balance of the insurance

proceeds ($180,000) invested on term. That deposit is now also the subject of the

freezing orders and/or Ms Sisson’s undertaking to the Court in the litigation with the

Commissioner.

The claim

[10] In the meantime, Ms Sisson was adjudicated bankrupt on 29 November 2011.

The Official Assignee disclaimed any interest in the Colombo Street property. Mr

Hampton was subsequently adjudicated bankrupt on 5 June 2013.

[11] Ms Sisson issued this proceeding on 15 May 2013. Her claim is in two

principal parts, and one ancillary part:

(a) First, she sues for $465,750, which she says is IAG’s liability for the

September 2010 loss.

(b) Secondly, she sues for $473,000 for the difference between what she

was paid by IAG ($840,000 less the $120,000 payment from EQC)

and IAG’s total liability under the policy of $1,313,000.

Alternatively, if there is not to be judgment for the $473,000, she

seeks a declaration that IAG is liable to pay for replacement costs up

to that sum.

(c) Finally, she sues for general damages.

The pleadings

[12] In issuing this proceeding, Ms Sisson referred to herself on the heading in

this way:

Therese Ann Sisson as trustee of 854 Colombo Street, Christchurch,

property owner

Plaintiff

[13] In its statement of defence, IAG stated that it had insufficient knowledge and

therefore denied the description of Ms Sisson in the intituling to the Claim as “a

trustee”. IAG had its solicitors write to Ms Sisson’s solicitor on 24 September 2013

requesting details as to the basis upon which Ms Sisson alleged that a trust exists. In

the letter, Mr Coltman noted that various Court judgments and minutes which had

been provided in Ms Sisson’s discovery did not make clear the nature of the

trusteeship.

[14] In the letter, Mr Coltman also sought:

information as to Ms Sisson’s financial circumstances and her ability to

effect reinstatement of the building;

details of any litigation funding arrangement; and

discovery of documents relating to the demolition payments made by

IAG and whether Chesterfields had undertaken the demolition.

[15] IAG, through John Parker gave evidence that Ms Sisson’s solicitor had not

responded to the September 2013 letter.

[16] There occurred, in the meantime, the first conference in relation to this

proceeding. Wylie J dealt with discovery as the Court is required to do at the first

conference. The reference to Ms Sisson’s trusteeship in the statement of claim was

discussed as was IAG’s request for documents in that regard. Wylie J recorded that

Ms Sisson (and Mr Hampton) did not resist making discovery to IAG. His Honour

then made a direction that general discovery take place within five weeks and also

directed:

Discovery is to extend to Ms Sisson’s position as a trustee and the ultimate

beneficiary or beneficiaries of any monies which might be paid to her.

IAG files its interlocutory applications

[17] Against this background, IAG made the three applications5 which I have now

heard.

[18] Ms Sisson filed a notice of opposition but no evidence in opposition. The

notice of opposition recorded that Ms Sisson opposes all the orders sought by IAG

and specified two grounds:

5 Above at [2].

Ms Sisson is the owner of the Colombo Street property which has a value

of $720,000; and

there are no further documents as Ms Sisson has provided discovery of all

documents available to her in a verified list.

[19] IAG’s solicitors then emailed Ms Sisson’s solicitors. They referred to the

2004 Chesterfields proceedings and also later Chesterfields proceedings issued in

2008. They noted that it was likely that documents relating to the ownership of the

Colombo Street property might be located on those files and sought Ms Sisson’s

consent to accessing the Court files.

[20] Mr Shand responded by email, attaching a copy of an affidavit sworn by Mr

Hampton on 25 October 2013 in support of an application to set aside freezing

orders. The application itself was not provided. Nor did Mr Shand explain the

outcome of the application. Shortly afterwards, Mr Shand sent some further

judgments and minutes of the High Court from a number of Chesterfields

proceedings.

[21] IAG then filed a further affidavit in support of the applications exhibiting the

correspondence just referred to. The deponent asserted that there were other relevant

documents which had clearly not been disclosed including:

the undertaking of Ms Sisson’s to the Court;

any consent of the Court to the Colombo Street property being provided

as security for costs in this proceeding; and

all judgments in the various Chesterfields proceeding which related to the

freezing orders.

[22] Ms Sisson did not provide any further evidence.

The position of the Commissioner of Inland Revenue

[23] The Commissioner became aware of these interlocutory applications.

Through counsel she filed a memorandum for the hearing. The memorandum

records:

3. The Commissioner wishes to be heard in relation to any application

which may cut across freezing orders granted in her favour and to

inform the Court of the following:

3.1 The property at 854 Colombo Street is subject to a freezing

order.

3.2 She is not aware that his Honour Justice Fogarty has

approved the use of 854 Colombo Street as security for

costs.

3.3 She does not consent to the use of 854 Colombo Street as

security for costs.

Information as to the freezing orders

[24] When IAG’s applications were allocated a hearing before me, I convened a

conference. It emerged at the conference that Mr Coltman was still without the

information which might reasonably inform him as to the current standing of

freezing orders. By agreement of counsel, I arranged for the Registrar to provide

counsel with copies of each of the judgments of Fogarty J which I had referred to in

a judgment I gave in Chesterfields Preschools Ltd v Commissioner of Inland

Revenue.6

[25] This was a peculiar situation to have developed. Ms Sisson had been

involved throughout the relevant stages of the Chesterfields litigation, having taken

over ownership of the Colombo Street property and having been involved in the

undertakings and orders made. One might have anticipated that even had she not to

hand the relevant documents she could, with reasonable enquiry, have obtained them

and been able to inform the Court and IAG both as to the current state of the freezing

orders and as to the precise arrangements of her trusteeship. In the event the matter

proceeded to the hearing before me on the basis that Ms Sisson opposed any

direction that she give any further information as to her trusteeship. To the extent

6 Chesterfields Preschools Ltd v Commissioner of Inland Revenue [2012] NZHC 2629 at [52] –

[54].

that issues relating to the freezing orders remained unclear, Mr Shand was left in the

position of having to record in his written submission:

… the property appears to be currently subject to a freezing order in the

separate Chesterfields proceedings.

[26] Quite why Ms Sisson was unable to bring Mr Shand to a clearer

understanding of the freezing order position before the hearing escapes me.

Further particulars

The application

[27] IAG seeks further and better particulars as to Ms Sisson’s representative

capacity referred to in the intituling in the statement of claim

Opposition

[28] Ms Sisson opposed such an order. The ground apparently relating to that

opposition was that Ms Sisson is “the owner of the property”.

Discussion

[29] The representative capacity of a party must be shown in the statement of

claim. Rule 5.35 High Court Rules provides:

5.35 Representative capacity of party

A party to a proceeding who sues or is sued in a representative capacity must

show in what capacity the party sues or is sued in the statement of claim.

[30] The identification of the representative capacity within the intituling to a

statement of claim (while not contained in the pleading itself) sufficiently meets the

requirements of r 5.35.7

[31] As the pleadings stand, IAG has denied Ms Sisson’s asserted representative

capacity (because it does not know whether that is correct or not). The capacity is

therefore in issue.

7 Cadman v Visini HC Auckland CIV-2009-404-7925, 30 May 2011, per Toogood J, at [40] – [46].

[32] Further particulars of the way in which the trusteeship is said to exist must be

likely to assist the resolution of this issue before trial. Counsel for IAG will, through

the Chesterfields judgments which are now available to him, be able to assess

whether a more particularised claim of trusteeship matches up with information

contained in those judgments.

[33] In their commentary on r 5.35 in McGechan on Procedure, the authors

provide an example of a satisfactorily worded heading:8

HR5.35.01 Proceedings against executors and trustees of estates

The rule has perhaps its commonest application in proceedings against

executors and trustees of estates. Such should be named in the statement of

claim in fashion recognising their capacity as such, and not simply in their

individual names. For example, description in the heading of the statement

of claim might be “AB and CD of Wellington, Solicitors as executors and

trustees of the estate of EF, late of Wellington, Retired, Deceased”. In

Cadman v Visini HC Auckland CIV-2009-404-7925, 30 May 2011 it was

held that reference to representative capacity in the intituling is sufficient,

rather than requiring the capacity to be fully pleaded in the body of the

claim.

[34] As the example from McGechan illustrates, the identification of the type or

source of trusteeship is a particular which is reasonably required. A proper

description in a case such as the present requires the plaintiff to identify not simply

(as Ms Sisson has done) that she is a “trustee” but rather to identify “trustee of

what?” It seems likely, on the limited information available, that there is no trust

instrument relevant in this case such as would apply in relation to a written inter

vivos trust or in relation to a will trust. Mr Coltman has hypothesised that it may be

suggested that there is a resulting trust. The proper particularisation of the

representative capacity of Ms Sisson will identify the nature of the trust and will

identify the general circumstances by which that trust was created. That approach is

similar to the particularity with which a caveator identifies the nature of any non-

written trust on which he or she claims an interest.

[35] There will be an order for further particulars of the “trusteeship” such as

would meet the requirements under s 137(2)(b) Land Transfer Act 1952 that the

nature of the interest claimed be stated with sufficient certainty.

8 Above.

Further and better discovery

The categories of documents sought

[36] IAG applies for three categories of documents by way of further and better

discovery:

(a) as to Ms Sisson’s trusteeship;

(b) as to the trustees’ ability to reinstate the building; and

(c) as to demolition of the building.

Mr Coltman abandoned at the hearing the application in relation to another category,

namely litigation funding.

Opposition

[37] Ms Sisson’s notice of opposition gave as the ground of resisting all discovery

orders that:

There are no further documents as the Plaintiff has provided discovery of all

documents available to it (sic) in a verified list.

Trusteeship

[38] In line with its request for further particulars of the trusteeship, IAG seeks

further discovery in relation to the trusteeship. For this purpose, Mr Coltman has

identified more specifically three sub-categories of document, namely:

(i) [those o]n the identity and creation of the purported trust including

whether there is a deed of trust or if there is a constructive or

informal trust the basis on which the plaintiff purports to act as

trustee;

(ii) Whether there is a judgment, direction or minute of a competent

court which established the existence of the purported trust of any

other records;

(iii) On ownership of the property by the purported trust of the property

…

[39] Mr Shand submitted that documents relating to Ms Sisson’s trusteeship are

irrelevant to the issues in the proceeding. Mr Shand noted that in relation to an

insurance claim such as the present, the essential facts are:

(a) Property ownership;

(b) Policy existence and terms;

(c) Insured event(s);

(d) Losses.

[40] Mr Shand submitted that the nature, duration and beneficial entitlements

under a trust are irrelevant to the claim. He submitted that they are not essential

facts and need not be pleaded.

[41] Mr Shand’s submissions overlook two matters. First, he ignores Ms Sisson’s

previous agreement (on 25 July 2013) to provide discovery of this category of

document and the consequential order made by Wylie J that day. There has been no

request to amend or rescind that aspect of the order. Secondly, Mr Shand ignores

that trusteeship is in issue in the pleadings, precisely because Ms Sisson showed in

her claim at least her trusteeship and IAG has denied it.

[42] If it had transpired that discovery of the ordered trusteeship documents would

be disproportionate in terms of time and expense, the Court may well have

favourably considered a request for amendment of the earlier order. But Ms Sisson

has not suggested discovery would include disproportionate time or expense.

Rather, Mr Shand’s submissions were addressed to the proposition that the

documents were simply irrelevant. In the course of his submissions he went on

(slightly in the alternative) to suggest that, if there were judgments and minutes

which cast light on the trusteeship, then Ms Sisson was not required to give

discovery of those as they were matters of “public record” obtainable by IAG. That

alternative submission of Mr Shand is not an answer – Ms Sisson’s obligation is to

give discovery of documents in her control or possession. Given that she is a party

(through partnership) to the key Chesterfields proceedings, the documents such as

the judgments and minutes must be taken to be within her control if not possession.

[43] The documents sought by IAG in relation to the trust referred to by Ms

Sisson in her claim reasonably relate to the existence and nature of that trust.

Additionally the discovery order made by Wylie J of 25 July 2013, which included

identification of the ultimate beneficiary or beneficiaries under the trust, remains

unmet.

[44] There will accordingly be orders as to the discovery of documents relating to

the trust in the terms sought by IAG together with a reiteration of the particular order

previously made.

Documents relating to ability to reinstate

[45] IAG seeks discovery of documents which relate to the ability of Ms Sisson or

the trust to reinstate the Colombo Street property.

[46] The grounds in Ms Sisson’s notice of opposition did not challenge the

relevance of that category of documents. Rather the simple relevant ground was that

there were no further documents as Ms Sisson had provided discovery of all

documents available. She has not explained in evidence why there are no documents

pertaining to the financial ability of herself or the trust to reinstate the property.

[47] I cannot accept, in the absence of evidence, Ms Sisson’s assertion that there

are no additional relevant documents. It is probable that she has the ability to

provide documentary evidence (including in relation to the bank statements of any

relevant funder and any correspondence relating to the financing of reinstatement).

[48] In his submissions Mr Shand noted that, in relation to the reinstatement issues

arising in relation to the insurance for the February 2011 earthquake, Ms Sisson

seeks a declaration of IAG’s liability to pay the full replacement costs to a maximum

of $473,000. The implication of his submission was that it was not necessary to

consider documents relating to Ms Sisson’s actual financial ability to reinstate,

because even were a declaration granted, she would not be immediately receiving the

insurance funds which she is then required to utilise to replace the property.

[49] Mr Shand’s submission cannot stand because Ms Sisson seeks, alternatively

to a declaration, a judgment for $473,000. In other words, one outcome of the claim

as pleaded is that IAG would be ordered to pay money to Ms Sisson as part of the

replacement costs. IAG understandably wishes to see documents which will cast

light on whether Ms Sisson is in a position or not to use such funds for replacement.

[50] There will accordingly be an order for discovery of that category of

documents.

Documents relating to the demolition of the building

[51] IAG seeks two categories of documents relating to the demolition of the

building, IAG having made two payments of $86,825 and $11,438.57 in connection

with that demolition. It is common ground that the building has been demolished.

[52] IAG has not demonstrated a satisfactory basis on which it needs to know, in

relation to the issues in the case as pleaded, how Ms Sisson spent monies paid

previously by IAG on account of demolition costs. IAG in its statement of defence

refers to its making of the demolition payments but does not assert that those

payments affect the entitlements pleaded in this proceeding by Ms Sisson.

[53] The application for documents relating to the demolition will be refused.

Security for costs

The jurisdiction

[54] The jurisdiction to grant security for costs is contained in r 5.45 High Court

Rules. Relevantly, r 5.45 provides:

5.45 Order 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

(ii) is a corporation incorporated outside New Zealand;

or

(iii) is a subsidiary (within the meaning of section 5 of

the Companies Act 1993) of a corporation

incorporated outside 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.

…

The threshold test

[55] IAG asserts that there is reason to believe that Ms Sisson will be unable to

pay an adverse award of costs to the defendant in the event Ms Sisson’s claim is

unsuccessful.

[56] IAG relies upon the fact that Ms Sisson is bankrupt. It also relies on the

bankruptcy of Mr Hampton, who has been closely associated with her in relation to

businesses and properties (having previously been the registered proprietor of the

Colombo Street property itself).

[57] IAG also relies on evidence given by Mr Hampton in other litigation which

indicates that Ms Sisson’s conduct of this litigation is being carried for the time

being by solicitors with the expectation that Ms Sisson’s costs will be recovered as

an additional entitlement under her IAG insurance policies. Mr Coltman points out

that the basis upon which the policies make such provision has not been established

by Ms Sisson – he rejects the correctness of the assumption. More relevantly to a

security for costs application, the apparent situation in relation to Ms Sisson’s own

costs serves to emphasise that, should she be unsuccessful in the litigation, there are

real doubts as to her ability to pay costs to IAG.

[58] The single ground of opposition advanced by Ms Sisson is that she is the

owner of the Colombo Street property which has a value of $720,000.

[59] It is common ground that $720,000 is the Quotable Valuation figure for the

property. It is also common ground that there is no debt secured over the property.

For these interlocutory purposes, I would be prepared to assume that the property has

a value in the region of $720,000.

[60] Were the affairs of Ms Sisson and Mr Hampton not complicated by the pre-

judgment claim of the Commissioner against the Colombo Street property (together

with the $180,000 deposit), Ms Sisson would have defeated this security application

on the threshold test.

[61] The freezing orders in relation to the Colombo Street property and the

undertaking apparently given by Ms Sisson in relation to dealing with the property

clearly take IAG across the threshold. The Commissioner of Inland Revenue has

gone to lengths to obtain, and then to keep, freezing orders against the property, so as

to protect a fund from which the Commissioner might obtain satisfaction of taxation

debts if judgment is obtained in relation to them. Through counsel The

Commissioner confirms that she does not consent to the use of the property as

security for the costs of this proceeding. There are therefore two consequences to

the orders and undertakings which effectively freeze the property:

(a) First, the property and the deposit may well remain out of reach of

IAG if it is the successful defendant in this proceeding so that the

threshold test is clearly established for the time being;

(b) Secondly, it is not realistic to anticipate that those assets will be

available to Ms Sisson for security purposes unless she can persuade a

Judge, over the Commissioner’s objection, to release some of the

frozen assets for the effective benefit of IAG.

The discretion

[62] The awarding of security for costs involves the exercise of a discretion based

upon the considerations of justice in all the circumstances.

[63] I have referred to the single ground of opposition relating to the security

application. Appreciating how limited that ground was, I had directed before the

hearing that Ms Sisson file any amended grounds of opposition prior to the hearing.

She did not do so. Nevertheless, Mr Shand at the hearing placed the emphasis of his

submissions upon the discretion. In doing so, he went so far in his oral submissions

as to accept that realistically the threshold test has been achieved in this case.

[64] That leaves me to consider the exercise of my discretion. It is not because of

any matters properly raised by Ms Sisson against the exercise to the discretion that I

consider that discretion but rather because it falls to me in any event to exercise a

discretion under r 5.45.

[65] Mr Shand invited me to exercise the discretion against an order for security

for three reasons.

[66] First, Mr Shand submitted that any order for security might bring to an end

Ms Sisson’s claim. I reject that submission because Ms Sisson elected to provide no

evidence to support it. As it happens, the level of security I propose to order at this

point is not great, particularly when regard is had to the size of the claim. Given Mr

Hampton’s explanation that Ms Sisson’s costs in this litigation are effectively being

carried for the time being, Ms Sisson may be in the unusual position of being able to

focus her need for immediate cash resources on the security sum only and not on her

legal costs.

[67] Secondly, Mr Shand invited me to place emphasis on Ms Sisson’s rights of

access to justice than the right of IAG to know that it will be able to collect any costs

awarded. Access to justice is a valid consideration in relation to security, but it will

usually be most significant when an order for security will end a plaintiff’s claim.

By reason of my finding in relation to Mr Shand’s first submission, access to justice

considerations do not weigh significantly in this case.

[68] Thirdly, Mr Shand submits that security should not be awarded because Ms

Sisson has a strong claim that IAG has breached its payments obligations, thereby

contributing to the current financial position of Ms Sisson. I find in relation to this

particular submission that Ms Sisson’s failure to identify it in her notice of

opposition as a ground for opposing an award must have a consequence. The ground

surfaced late the evening before the hearing in Mr Shand’s written submission, filed

after Mr Coltman had filed his submissions. It is unsupported by any affidavit

explanation of the facts on the part of Ms Sisson, or other analysis by those legally

advising her. Because of the way the issue was raised IAG has not had an

opportunity to respond to it by reference to the detail of the insurance policy and the

factual background. The merits of a claim and contribution to the plaintiff’s

financial position are classically viewed as matters on which the Court must form an

impression rather than being able to come to any clear view. In the circumstances of

this case the only impression I can reach which is fair to both sides is that there are

arguments to be had on both sides.

[69] Bringing the various matters raised together, the discretion in this case ought

to be exercised in favour of a grant of security.

The amount of security

[70] Counsel both accepted that it was appropriate to approach costs on a 2B basis

when considering security in this case. I agree.

[71] A solicitor employed by IAG’s solicitors firm deposed as to the Schedule

items which are likely to be recovered by IAG if it is successful after a one day

hearing. I adopt what MacKenzie J said in relation to the future-looking nature of

security in Pickard v Ambrose,9 the comments of whom were apparently accepted on

appeal by the Court of Appeal.10

In particular, MacKenzie J observed:11

It would not be appropriate now to make an order for security of costs which

have already been incurred by the defendants.

9 Pickard v Ambrose HC Wellington CIV-2003-091-143 13 August 2009, per MacKenzie J at [9].

10 Ambrose v Pickard [2009] NZCA 502.

11 Above n 9, at [30]-[32].

[72] I indicated to counsel that that was the approach I intended to adopt in this

case. Mr Coltman responsibly did not submit that there was any good reason to

depart from that approach. Counsel accepted that it was appropriate in this case, if

security is awarded, that it be dealt with in a staged manner.12

[73] There is a realistic prospect in this case that the parties will seek in the first

instance a one day trial which may focus solely on contractual interpretation issues.

Judgment on those issues may be determinative of the proceeding. If not, the

broader and factual issues may require a second trial of some days’ duration.

[74] In these circumstances, a first tranche of security covering attendances from

now to the conclusion of an (assumed) one day trial is appropriate, with the security

application to be adjourned to be brought on at the election of IAG if it transpires

that there is initially to be longer than a one day trial.

Items to be allowed in security calculation

[75] I have taken into account for the purposes of assessing an appropriate award

of security the four costs items identified by IAG from now to a one day trial, as

follows:

Item 30 (preparation of briefs) – 2.5 days $4,975.00

Item 32 (issues, authorities and bundle) – 2 days $3,980.00

Item 33 (preparation for hearing) – 3 days $5,970.00

Item 34 (hearing) – 1 day $1,990.00

Total $16,915.00

[76] I have not allowed Item 35 (second counsel) as sought by IAG. It is not

probable that that item would be allowed in relation to a one day trial.

12

Following the approach adopted in cases referred to in McGechan on Procedure (online

looseleaf ed, Brookers) at HR5.45.09.

Assessment of appropriate award of security

[77] The likelihood is that IAG would be awarded at least $16,915 by way of costs

if successful in the litigation. It does not automatically follow that that sum should

be awarded. As the authors of McGechan on Procedure note:13

Past costs awards often represent some discount on the likely award of costs

calculated under schedule 3.

[78] I view this case as slightly unusual. Ms Sisson is bankrupt. She has provided

no information whatsoever as to any assets or income outside the frozen assets. Mr

Hampton, who because of the background, may have been expected to later assist

Ms Sisson if able to do so (such as in the event she faces a court judgment for costs),

is himself bankrupt and unlikely to be able to assist.

[79] In these circumstances I do not consider it appropriate or just to award

security other than upon the basis of the full 2B calculation set out above.

Timing of security

[80] The orders I make in relation to further particulars and better discovery will

require compliance within 20 working days. Ms Sisson and her counsel will need to

have a focus on those matters of particularisation and discovery in that period.

[81] It is appropriate that there be an additional 10 working days thereafter for

security to be provided. The total time (30 working days) leaves Ms Sisson with the

opportunity to pursue some form of assistance in relation to the frozen assets either

through discussion with the parties involved in the Chesterfields litigation or through

application to the Court in that proceeding as she sees fit. At the 30 working day

time limit, security is to have been provided regardless of what assistance or

difficulties are encountered in relation to freeing up the frozen assets.

13

At HR5.45.07.

Stay of proceeding

[82] IAG’s application for an order for security did not include an application for

an order that the proceeding be stayed if security is not provided. Nor did Mr

Coltman’s submissions address that issue.

[83] I regard it as appropriate from now to order without the imposition of a

pending stay that security be provided. The Court expects the security to be

provided as ordered, particularly having regard to the limited sum involved. If for

any reason security is not provided as ordered, leave is reserved to IAG to have this

adjourned application brought back on for further direction in relation to the security

order and possible stay.

Costs

[84] Mr Shand accepted that in relation to these interlocutory applications costs

would follow the event on a 2B basis, together with disbursements.

[85] There will accordingly be such an order.

Order

[86] I order:

Particulars

(a) The plaintiff is, within 20 working days, to file and serve a

Memorandum (to be treated as a pleading) as to the representative

capacity of the plaintiff, providing:

(i) Details identifying the purported trust including the name of

the trust (if named) and whether there is a deed of trust or if

there is some other form of trust (such as resulting or

constructive trust) in which case identifying the principal

documents or events relevant to the plaintiff’s assumption of

her role of trustee; and

(ii) Further and better particulars as to whether there is another

trustee or trustees of the said trust and, if so, whether those

persons have consented to the plaintiff acting on their behalf.

Further and better discovery

(b) The plaintiff is to file and serve within 20 working days a

supplementary verified list of documents listing documents in the

following categories:

(i) Documents in relation to the identity and creation of the

purported trust including whether there is a deed of trust and

(if not) the basis upon which the purported trust came to exist;

(ii) Documents in the nature of judgments, directions or minutes

of competent courts which establish or evidence the existence

of the purported trust;

(iii) Documents which deal with any involvement of the trust in the

ownership of the plaintiff’s property at Colombo Street,

Christchurch; and

(iv) Documents which are relevant to an assessment of the ability

of the plaintiff or the purported trust to reinstate the property.

Security

(c) The plaintiff is within 30 working days to provide security to the

satisfaction of the Registrar for the defendant’s costs in this

proceeding in the sum of $16,915;

(d) The defendant’s application for security stands adjourned to be

brought on on three days’ notice by the defendant in the event either

that there is to be in this proceeding a trial lasting more than one day

or that the plaintiff fails to provide the directed security;

Costs

(e) The plaintiff is to pay in any event the costs of these applications, this

hearing and the orders thereon on a 2B basis, together with

disbursements to be fixed by the Registrar.

Solicitors: Grant Shand, Christchurch Fortune Manning, Auckland