White v James Hardie: Security for costs

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE
CIV-2015-404-2981 (WHITE)
[2019] NZHC 188

[…]

[1] The defendants, collectively known as James Hardie, seek security for costs in the White proceedings in the sum of $350,000 in respect of discovery and inspection. This comprises $250,000 for costs and $100,000 for expert fees. The order is sought against the litigation funder, Harbour Fund II, L.P (“Harbour”) and the plaintiffs. Disclosure of the funding arrangements is also sought.

[2] A feature of this case is that collectively the plaintiffs are not impecunious. The central issue is whether security can and should nevertheless be made because of Harbour’s involvement. I have resolved that it should.

Background

[3] This is a large and complex case. It will be very costly. In short, the owners of 1241 properties claim James Hardie sold defective cladding products over a span of some 27 years. There are five heads of claim, including negligence, breach of duty to warn or withdraw products, negligent misstatement, breach of the Consumer Guarantees Act and or the Fair-Trading Act. Unsurprisingly, the proceedings have been staged. The first stage (Stage 1) will address specified issues1 and is subject to tailored discovery.2 Even so, the Stage 1 discovery process will exact a heavy toll in terms of resourcing and associated cost.3

Full judgment [PDF]

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