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Cook v Kirkland [2018] NZDC 21344

Published 05 June 2019

Security for costs — duty of care — estates — party residing outside New Zealand — costs — Cox v Rice Craig Solicitors’ Nominee Company Ltd [2016] NZHC 2745 — Aquaculture Corp v McFarlane Laboratories (1984) Ltd (1987) 1 PRNZ 467 — Ross v Caunters [1979] 3 All ER 580 — District Court Rules 2014, r 5.48 — Trans-Tasman Proceeding Act 2010. The plaintiff, who resided in Australia, alleged nine causes of action against the defendants, primarily involving missing chattels from the plainitff's late mother's home, chattels sold for less than value, and failure to appoint a new trustee in the correct and legal way. The first and third defendants, who were the solicitors to the plaintiff's late mother, sought security for costs. The Judge found the plaintiff's claims weak in both fact and law and even if the plaintiff were able to attain the evidential thresholds for liability as a matter of law, he would be unlikely to recover exemplary damages. Further the plaintiff resides in Australia, which reaches the legal threshold for making an order for security of costs. For those reasons, the Judge ordered the plaintiff provide security for costs in the sum of $43,343.00, representing a five-day trial on a 2B scale. The proceeding would be stayed until security is provided and costs for the present application were granted to the defendants on a 2B basis. Judgment Date: 9 October 2018.

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