Cam Nominees Pty Ltd v Ashby Mining Ltd

[2023] VCC 1628

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CI-22-01079

CAM NOMINEES PTY LTD	Plaintiff
v
ASHBY MINING LTD	Defendant

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JUDGE:	His Honour Judge Rozen
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2023
DATE OF JUDGMENT:	13 September 2023
CASE MAY BE CITED AS:	CAM NOMINEES PTY LTD v ASHBY MINING LTD
MEDIUM NEUTRAL CITATION:	[2023] VCC 1628

REASONS FOR JUDGMENT
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Subject:Summary procedure to enforce terms of settlement

Catchwords:              Represented parties resolved commercial dispute at mediation – default by defendant – plaintiff seeks to enforce summarily – defendant raises viable defences – penalty clause – unconscionable conduct – implied term – impact on third parties – summary enforcement inappropriate

Legislation Cited:      Civil Procedure Act 2010 (Vic)

Cases Cited:Roberts v Gippsland Agricultural Earthmoving Contracting Co Pty Ltd [1956] VLR 555; Bell v Knight 34 Langdon Road Pty Ltd [2022] VSC 497; Seachange Management Pty Ltd v Giuseppe De Simone [2009] VSCA 139; Barratt v Rees and Moran [2014] VSCA 420; Australian Xinyangfeng Fertilizer Pty Ltd v Freshwater [2020] VSC 450; B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; Andrews v ANZ Banking Group Ltd (2012) 247 CLR 205; Paciocco v ANZ Banking Group Ltd (2014) 258 CLR 525

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B. Devanny	Lewis Allen Janover
For the Defendant	Ms M. Harris	Garland Hawthorn Brahe Lawyers

HIS HONOUR:

1By an email dated 7 August 2023, Cam Nominees Pty Ltd (Cam) seeks to summarily enforce the terms of a settlement agreement it reached with Ashby Mining Ltd (Ashby) on 31 January 2023.

2Ashby resists judgment being entered against it in this manner and contends that any attempt by Cam to enforce the agreement should be the subject of a trial with pleadings.

The Litigation

3Before addressing the application before the court, it is necessary to briefly set out the background litigation that preceded the agreed terms of settlement.

4The plaintiff (and applicant) Cam is a company of which Robert Finkelstein is a director.

5The defendant (and respondent to the present application) Ashby is a mining company which at all relevant times has been seeking to list on the stock exchange.

6In very brief summary, by an Amended Statement of Claim dated 25 October 2022, Cam claimed it was owed the sum of $514,098.63 by Ashby on the basis that Ashby had not honoured an agreement with it. In 2017 Cam had loaned money to Ashby and received royalty notes in return. Those notes were converted to shares in Ashby which Cam ultimately sought to redeem for cash.

7In the proceeding, Cam sought specific performance of the agreement it pleaded the parties had reached together with costs and interest.

8By an amended defence, Ashby pleaded, inter alia, that Cam had placed undue influence on it during the negotiations that led to the agreement by threatening to derail its proposed Initial Public Offering (IPO). As a result, it pleaded that the agreement was frustrated and both parties are discharged from specific performance. It also pleaded that it had paid Cam $135,027.67 and counter-claimed for this amount.

9The matter had been fixed for trial on 10 May 2023 on an estimate of 3 sitting days.

Settlement of the Litigation

10A mediation took place on 15 December 2022 and, after further negotiations, the parties reached resolution of the entire litigation by a Deed executed on 31 January 2023 (Deed).

11On 2 February 2023, Her Honour Judge Brimer dismissed the counterclaim, struck out the claim with a right of reinstatement and vacated the trial date. Order 4 made by Her Honour was in the following terms:

The plaintiff has liberty to apply to reinstate its claim in the event of default by the defendant of its obligations under the terms on which the parties settled the proceeding

12Each party was to bear is own costs.

13The key clauses of the Deed are:

Releases

2 a) On payment of the Settlement Sum in accordance with the provisions of this Deed and performance of the Defendant’s obligations under this Deed, the Plaintiff releases and forever discharges the Defendant, including any director, officeholder, employee, agent or servant of the Defendant from all claims, actions, suits, demands or liabilities whatsoever arising out of or in any way connected with the Proceeding and/or incidental to the documents, matters, allegations and things referred to in the Proceeding and arising out of or including, without limitation, the subject matter of the Proceeding, for any form of economic loss, non-economic loss or otherwise, except for any claim, action or enforcement of an action for breach of this Deed.

2 b) On the execution of the Deed, the Defendant releases and forever discharges the Plaintiff including any director, officeholder, employee, agent or servant of the Plaintiff, from all claims, actions, suits, demands or liabilities whatsoever arising out of or in any way connected with the Proceeding and/or incidental to the documents, matters, allegations and things referred to in the Proceeding and arising out of or including, without limitation, the subject matter of the Proceeding, for any form of economic loss, non-economic loss or otherwise, except for any claim, action or enforcement of an action for breach of this Deed.

…

The Settlement Sum

4 a) The Parties agree and acknowledge that, from 19 October 2020 to 6 September 2021, the Defendant paid the Plaintiff the sum of $135,027.67, which will be retained by the Plaintiff as part of the Settlement Sum.

b) The Defendant will, at its discretion, sell the Plaintiffs 1,363,115 Shares in the Defendant (the “Shares”) on or before 28 April 2023 and pay the Plaintiff, or procure the payment to the Plaintiff, of the proceeds of any sale of any of the Shares within two business days of any sale.

c) To effect the sale of the Shares, the Plaintiff will, within 7 days of the date of this Deed, provide to the Defendant’s solicitors, Garland Hawthorn Brahe Lawyers, an executed signed transfer (in proper form) of the Shares, without naming the transferee (“the Transfer”).

d) Upon provision of the Transfer to the Defendant, the Plaintiff irrevocably authorises the Defendant to sell the Shares.

e) On 30 April 2023, the Defendant: will account to the Plaintiff in respect of any sale of any of the Shares; will, if the proceeds of any sale of any of the Shares (or the sum thereof if more than one sale) paid to the Plaintiff are less than $381,979.04 (“the Shortfall”) or if no sale is made (in which case the Shortfall is $381,979.04), pay the Plaintiff the Shortfall.

f) The amounts paid and to be paid to the Plaintiff under this clause constitute the Settlement Sum under this Deed.

…

i) The Defendant’s obligations under this clause and this Deed are not conditional upon the Defendant lodging its prospectus with the Australian Securities Exchange or the Australian Securities and Investments Commission or otherwise.

Plaintiffs Right of Reinstatement

5 a) If the Defendant defaults in its payment of the Settlement Sum or its performance of this Deed, then the Plaintiff shall be entitled to reinstate the Proceeding forthwith and enter judgment against the Defendant for the Settlement Sum, interest and the costs of and incidental to such entry of judgment, less any part of the Settlement Sum paid by the Defendant.

…

Acknowledgements

7 Each of the Parties acknowledges that:

a) no promise, representation or inducement has been made to enter into this Deed, other than as set out herein;

b) they have read and understood and accepted each of the terms of this Deed;

c) they have had a reasonable opportunity to receive independent legal advice about the terms and effect of the Deed; and

d) the terms of this Deed are, in all the circumstances, fair and reasonable.

14It is common ground that Ashby failed to meet its obligations under the Deed. This led to the terms of the Deed being varied by agreement.

15There were in fact 3 variation Deeds which varied the Deed:

(a)   The first variation deed dated 4 May 2023 (FVD);

(b)   The second variation deed dated 1 June 2023 (SVD); and

(c)   The third variation deed dated 7 July 2023 (TVD)

16In summary, in each variation deed, Cam provided further time for Ashby to perform its obligations under the Deed as successively varied. The amount that Ashby was required to pay was also successively increased.

Evidence

17In an affidavit he swore on 15 August 2023, Ian Gordon Mathieson, Ashby’s chairman, deposed to conversations he had with Robert Finkelstein, Cam’s director, before Ashby agreed to the SVD and the TVD.

18Mr Mathieson deposed that on each occasion he explained to Mr Finkelstein the reason why Ashby could not pay Cam as required which he said was that the funds were needed by Ashby as part of the IPO process. He deposed that Mr Finkelstein told him that he (Mr Finkelstein) was aware that any judgment against Ashby could damage all shareholders and derail the IPO.

19Mr Mathieson explained further that, although he considered the demands by Cam to be excessive, he considered it necessary to pay them in light of the imminent IPO and advised the Board of Ashby accordingly which accepted his advice and entered into the variations.[1]

[1] Affidavit sworn by Ian Mathieson on 15 August 2023 at [14]-[18].

20Under the TVD, Ashby had agreed to pay a revised amount to Cam by 31 July 2023 which it failed to do. Cam then offered a further extension of time and further revised terms in the form of a fourth variation deed on 7 August 2023 but this was refused by Ashby on that date.

21As noted above, on 7 August 2023, Cam’s lawyers wrote to the court applying for summary judgment on breach of settlement terms. That is the application before the court.

22In support of its application, Cam relies on an affidavit of Lewis Janover, its solicitor, affirmed on 2 August 2023 which it read.

23Ashby relies on 2 affidavits which it read:

(a)   One sworn by Matthew Susic, its solicitor, on 15 August 2023; and

(b)   One sworn by Ian Mathieson, its chairman, on 15 August 2023.

24Neither party sought to cross examine the other side’s witnesses.

Legal Principles

25Before considering the evidence and the submissions of the parties, it is necessary to summarise the applicable legal principles which are uncontroversial.

26The leading Victorian authority on the summary enforcement of terms of settlement is Roberts v Gippsland Agricultural Earthmoving Contracting Co Pty Ltd.[2]

[2] [1956] VLR 555 (‘Roberts’).

27In Roberts, the Full Court of the Supreme Court of Victoria enforced terms of settlement summarily in its equitable jurisdiction. Smith J gave the leading judgment explaining that the principal question was whether justice can be done by enforcing the terms of settlement in a particular case. This necessarily involves a consideration of justice for both sides and, where relevant, third parties.

28The Roberts principles were examined by the Court of Appeal in Seachange Management Pty Ltd v De Simone[3]:

… consistently with the equitable origins of the power, [a court] must weigh among other competing considerations the extent to which enforcement would involve extraneous matters, how substantial the questions to be determined as a precursor to enforcement may be, and procedural considerations like desirability of pleadings and discovery and substantial cross-examination[4]

[3] [2009] VSCA 139 (‘Seachange’).

[4] [2009] VSCA 139 at [40].

29In the case of Bell v Knight 34[5], Daly AsJ held that, in determining an application for summary enforcement of settlement terms, a court needs to be ‘positively satisfied that the interests of justice require the enforcement of the settlement agreement’.[6]

[5] [2022] VSC 497 (‘Bell’)

[6] [2022] VSC 497 at [135] (emphasis added). An appeal against the order made by the court was dismissed: [2023] VSCA 54. While the appeal was on the narrow ground of seeking to rely on further evidence, no criticism of the primary judgment’s analysis of the law was made by the Court of Appeal.

30In Seachange, the Court of Appeal expressed the test slightly differently: that the court must be ‘clearly satisfied’ that justice can be done.[7]

[7] [2009] VSCA 139 at [40].

31Whichever form of words is used, the onus of satisfying the court of this rests on the applicant for summary enforcement.

32Daly AsJ in Bell explained the circumstances in which a court may not be prepared to exercise the discretion to summarily enforce a settlement agreement:

… it would generally be inappropriate to summarily enforce a settlement agreement if there was a real prospect that the other party or parties to a settlement agreement seeking to rescind or terminate that agreement could mount a viable defence based upon ordinary contractual or equitable principles. In such cases, generally only a full trial would be appropriate. Similarly, if a party seeking specific performance of a settlement agreement has been able to satisfy the Court, on a summary basis, that the settlement agreement was valid and enforceable, that damages would be an inadequate remedy, that the applicant was ready, willing and able to perform their obligations under the settlement agreement and had come to the Court with clean hands, and that third parties would not be unduly and unfairly prejudiced by the enforcement of the settlement agreement, then there would have to be a good reason not to enforce the settlement agreement[8]

[8] Bell at [89].

33Her Honour approached the question of whether the claims raised by the parties opposing summary judgment met the test in ss 63 and 64 of the Civil Procedure Act 2010 (Vic) (the CPA) – that is whether they had ‘any real prospect of success’.[9]

[9] Bell at [87].

34Further, in Bell, Daly AsJ held that a court considering a defence raised by the respondent to an application for summary enforcement should assess whether the defence has, on the material before the court, a real prospect of success within the meaning of ss 62 and 63 of the CPA.[10]

[10] Bell at [87]. See also Seachange at [69].

35Her Honour expanded on this, noting that ‘…where there was evidence to suggest that there was a serious question to be tried that a settlement agreement had been procured by duress or fraud, or had been tainted by unconscionable conduct one would expect a court, all other things being equal, to exercise its discretion not to enforce the settlement agreement concerned’.[11]

[11] Bell at [88] (emphasis added).

36The authorities make clear that it will generally be inappropriate for a court to use the summary procedure in circumstances where contested questions of fact arise.

37Further, while there is undoubtedly strong public interest in enforcing agreements made by legally represented parties at a mediation, where there is suggestion of the occurrence of events that vitiate either the mediation or the terms that resulted, the courts will be hesitant to use that procedure.[12]

[12] Barratt v Rees [2014] VSCA 327 at [54].

38Finally, as Sloss J explained in Australian Xinyangfeng Fertilizer P/L v Freshwater,[13] the application of the principle from Roberts that justice can be done in the case before the court needs now to be understood and applied in light of the ‘overarching purpose’ in s 8(1) of the Civil Procedure Act being ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.

[13] [2020] VSC 450 at [74] (‘Freshwater’).

Submissions of the Parties

39Cam submits that the Deed is an ‘enforceable unambiguous Deed of Settlement’ and it has given extensions of time to Ashby to comply. It seeks judgment and statutory interest from the date of default being 1 August 2023.

40Ashby raised several arguments in support of its overall contention that Cam should not be permitted by the court to summarily enforce the Deed. Cam responded that none of the objections raised by Ashby ‘have any merit and ought to be dismissed’.[14]

[14] Submissions of Plaintiff in Support of Judgment dated 24 August 2023 at [24].

41It is therefore necessary to deal with each argument in turn bearing in mind that the question presently before the court is whether one or more meet the relatively low threshold of providing Ashby with a viable defence to Cam’s claim.[15]

[15] Seachange at [69].

Unconscionability

42Ashby submits that throughout the negotiations for the variations to the Deed, the company was in a ‘particularly vulnerable commercial position as it sought to advance its IPO in a very difficult IPO market’. It further claims that, as Cam (through its director Mr Finkelstein) was aware of this, Cam took advantage of that vulnerability ‘by threatening to enforce judgment or issue a statutory demand each time the defendant has not been able to meet all its obligations because of those marketing conditions’.[16]

[16] Defendant’s amended outline of submissions dated 31 August 2023 at [33].

43It relies on the evidence of Mr Mathieson, its Chairman who explained that he considered that Ashby had little choice but to agree to Cam’s ‘excessive’ claims made on 2 May 2023 ‘in light of the imminent IPO’.[17] These negotiations led to the SVD.

[17] Affidavit sworn by Ian Mathieson on 15 August 2023 at [14].

44Similarly, on 5 July 2023, after Ashby had defaulted on its obligations under the SVD, during a further conversation that led to the TVD, Mr Mathieson considered that the ‘terms being demanded’ were not reasonable but ‘acquiesced to them in the interests of protecting shareholder funds and progressing the IPO, which at that stage, appeared set for imminent completion’.[18]

[18] Affidavit sworn by Ian Mathieson on 15 August 2023 at [18].

45Cam’s response to this aspect of the case is that it is a relatively unsophisticated investor that was dealing with a legally represented listed company. It describes Ashby’s claim of unconscionability as ‘audacious’.[19]

[19] Submissions of Plaintiff in Support of Judgment dated 24 August 2023 at [23].

46While I do not consider this to be a particularly strong argument, I accept that it would likely survive a strike out application under s 63 of the CPA.[20] It is seriously arguable.

[20] Seachange at [69].

Penalty Clauses

47The defendant argues that, properly construed, clause 4(aa) of the SVD and the TVD are penalty clauses.

48Under cl 4(aa), as varied by clause 1 of the SVD, the Defendant agreed to pay the plaintiff ‘an additional Base Amount of $381,979.04 plus $635.00 for each day or part of a day from and including 1/6/2023 that the payment of these amounts remains unpaid… on or before 30/6/2023’.

49Under cl 4(aa) as varied by the TVD, the Defendant agreed to pay the plaintiff ‘an additional Base Amount of $536,056.69 plus $1,250.00 for each day from and including 1/7/2023 that the payment of these amounts remains unpaid…’.

50Ashby contends that the daily amounts (and the incorporation of the daily amount of $650 into the ‘Base Amount’ in the TVD) are punitive as they bear no reference to a genuine pre-estimate of loss and, in the case of $1,250 ‘represents interest at about 93.86% per year on $486,056.69’.[21]

[21] Defendant’s objections to Judgment dated 15 August 2023 at [3](b)(iii)(C).

51The High Court has explained that a clause requiring payment of a sum of money will be characterised as a penalty if ‘it bears no relation to the possible damage to or interest of the innocent party’.[22] Another formulation that emerges from the authorities asks whether the sum stipulated is ‘extravagant and unconscionable’.[23] I note the observation by Kiefel J that this test should not be lightly applied and that ‘the criterion of exorbitant or unconscionable should prevent the enforcement of only egregious contractual provisions’.[24]

[22] Andrews v ANZ Banking Group Ltd (2012) 247 CLR 205 at [32].

[23] Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 at 87.

[24] Paciocco v ANZ Banking Group Ltd (2014) 258 CLR 525 at [53] (Paciocco); see also Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd (2014) 45 VR 79 at [54].

52The policy rational for the rule was explained by Kiefel J:

… a sum may not be stipulated for payment on default if it is stipulated as a threat over the person obliged to perform; it may not be stipulated where the purpose and effect of requiring payment is to punish the defaulting party[25]

[25] Paciocco at [32].

53If a contractual clause imposes a penalty it was historically thought to be entirely unenforceable. That is no longer the case since the High Court’s decision in Andrews v ANZ Banking Group Ltd[26]:

In general terms, a stipulation prima facie imposes a penalty on a party ("the first party") if, as a matter of substance, it is collateral (or accessory) to a primary stipulation in favour of a second party and this collateral stipulation, upon the failure of the primary stipulation, imposes upon the first party an additional detriment, the penalty, to the benefit of the second party. In that sense, the collateral or accessory stipulation is described as being in the nature of a security for and in terrorem of the satisfaction of the primary stipulation. If compensation can be made to the second party for the prejudice suffered by failure of the primary stipulation, the collateral stipulation and the penalty are enforced only to the extent of that compensation. The first party is relieved to that degree from liability to satisfy the collateral stipulation[27]

[26] (2012) 247 CLR 205 (‘Andrews’).

[27] (2012) 247 CLR 205 at [10], references omitted.

54Applying those principles to the case at hand, the primary stipulation in clause 4(aa) of the Deed as amended was the payment of the Base Amount. Any failure by Ashby to pay the Base Amount in full by the stipulated day attracted the additional detriment of the daily fee. It is at least arguable that the daily fee was in the nature of a penalty.

55If this analysis is correct, Cam will only be able to be compensated, in accordance with Andrews, for the prejudice it suffered by Ashby’s failure to pay the Base Amount. As Gordon J later explained in Paciocco,[28] the party harmed by the breach or the failure of the primary stipulation ‘may only enforce the stipulation to the extent of that party’s proved loss’.[29]

[28] On remitter from the High Court of Australia.

[29] (2014) 309 ALR 249 at 258, [15.6] (emphasis added).

56The application of the rule in Andrews is rarely easy and will certainly not be a straightforward matter in this case. It will require pleadings, discovery and possibly expert evidence. It provides a discretionary reason why summary enforcement of the Deed as varied cannot be achieved in a way that does justice to the parties.

57I am satisfied that there is a real prospect of success that the defendant could defend this claim on the basis that these clauses are penalty clauses. As the Court of Appeal recognised in Seachange, where a defendant has a viable defence, a full hearing of the case will be necessary.

58I am also satisfied that the clauses described by Ashby as ‘punitive’ are extraneous to the original litigation in the sense explained in the cases cited earlier.

Implied Term

59Ashby submitted that, properly construed, the Deed includes an implied term that ‘payment of an Settlement Sum, howsoever varied, would be paid upon the IPO being completed, and the date inserted into each Variation Deed was the defendant’s best estimate at the time of the Variation Deed was entered into’.[30]

[30] Defendant’s Amended Outline of Submissions dated 31 August 2023 at [27].

60Ashby contends that such a term is to be implied into the Deed as varied in accordance with the principles espoused in B.P. Refinery (Westernport) Pty v Shire of Hastings.[31] Specifically, it argues that:

(a)   the parties were mutually aware that funds from the IPO were needed for the defendant to pay the Settlement Sum;

(b)   such a term gives business efficacy to the Variation Deeds;

(c)   it was obvious in light of (a);

(d)   it was capable of clear expression; and

(e)   it did not contradict any express terms.

[31] (1977) 180 CLR 266 at 280.

61Cam opposed the implication of such a term. It argued that such a term is not obvious as it may have the effect of delaying indefinitely payment by the defendant of the Settlement Sum. It is not obvious to me why Cam would have agreed to such a term. Further, the proposed term is contradicted by the express terms in the Variation Deeds which prescribe the dates by which payments are to be made by Ashby.

62Cam also refers to clause 4(i) of the Deed under which the parties agreed to de-couple the lodging by Ashby of its prospectus on the one hand from fulfilling its obligations under the Deed. While not necessarily inconsistent with the proposed term, it does militate against the parties mutually agreeing a term such as that proposed by Ashby.

63I do not accept that this defence has any real prospect of success.

Impact on third parties

64A further discretionary consideration against summary enforcement upon which Ashby relies is the possible impact on third parties that would result from summary enforcement of the deed. Ashby contends that it has other shareholders who could be impacted. The court is not currently well placed to assess the force of this contention but has taken it into account as part of the overall assessment of the circumstances.

Other arguments

65Ashby also relied on a possible defence related to ownership of its own shares under the Deed. It argued that this would contravene of the Corporations Act.[32]

[32] Section 259A.

Consideration

66Considerations which in my view favour the exercise of the discretion in this case include:

(a)   The substantive dispute was resolved at a mediation at which both parties were legally represented;

(b)   The parties are sophisticated commercial entities;

(c)   They agreed on further terms of settlement in the three variations to the deed earlier this year; and

(d)   The parties expressly agreed that in default in payment the plaintiff would be at liberty to apply to reinstate the proceeding and seek summary enforcement of the compromise.

67As explained in Freshwater, generally in such circumstances, ‘the exercise of the power to enforce summarily the compromise will… further the overarching purpose and demonstrably promote the objects of the efficient conduct of the business of the court and the efficient use of judicial and administrative resources, and the just determination of the civil proceeding’.[33]

[33] [2020] VSC 450 at [76].

68On the other hand, the Court of Appeal has held that it will often be inappropriate for a court to use the summary procedure in circumstances where contested questions of fact arise or where a party is alleging that a settlement agreement is vitiated by fraud or other similar conduct.[34]

[34] Barrattv Rees [2014] VSCA 327 at [54],[60].

69One of the circumstances identified by Smith J in Roberts as being inappropriate for the summary procedure is where there is a ‘substantial question to be determined’ as to whether the agreement was valid or specifically enforceable … as for example where a substantial case was put forward of mistake or other circumstances such as would afford a defence to a suit for specific performance.[35]

[35] [1955] VLR 555 at 563.

70Not without some difficulty I have concluded that this is such a case.

71On balance, I have concluded that Ashby has raised viable defences as outlined earlier in these reasons. It follows that I am not clearly satisfied that justice can be done by the court summarily enforcing the Deed. Put another way, I do not accept that the interests of justice require the enforcement of the Deed in a summary manner.

72The court makes the following orders:

1.     The application be dismissed.

2.     Subject to order 3, the plaintiff pay the costs of the defendant as agreed or assessed.

3.     If any party wishes to seek a different order as to costs:

(a)That party is to file written submissions of no more than 5 A4 pages in support of the order it seeks by 27 September 2023;

(b)Each other party may file written submissions in response of no more than 5 A4 pages by 11 October 2023;

(c)The parties have liberty to apply to vary the dates in (a) and (b) above.

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Certificate

I certify that these 18 pages are a true copy of the ruling of His Honour Judge Rozen delivered on 13 September 2023.

Dated: 13 September 2023

Andrew Morrison

Associate to His Honour Judge Rozen