Lantouris v Mutavdzija
[2021] VCC 141
•23 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-01142
| MARIA LANTOURIS & ORS | Plaintiffs |
| v | |
| BORIS MUTAVDZIJA & ORS | Defendants |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 19 February 2020 | |
DATE OF RULING: | 23 February 2021 | |
CASE MAY BE CITED AS: | Lantouris & Ors v Mutavdzija & Ors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 141 | |
REASONS FOR RULING
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| Subject: | SUMMARY JUDGMENT - PERMANENT STAY |
| Catchwords: | Permanent stay – Rule 23.01(1) – Anshun estoppel – Summary Judgment – Rule 22.16 |
| Legislation Cited: | County Court Civil Procedure Rules 2018 (Vic); Civil Procedure Act 2010 (Vic); National Consumer Credit Protection Act 2009 (Cth); Transfer of Land Act 1958 (Vic); Wrongs Act 1958 (Vic) |
| Cases Cited: | Henderson v Henderson (1843) 3 Hare 100; Jams 2 Pty Ltd v Stubbings [2020] VSCA 200; Jelson (Estates) Limited v Harvey [1983] 1 WLR 140; Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993; Mango Boulevard Pty Ltd v Spencer [2010] QCA 207; Mutton v Baker [2014] VSCA 43; Perpetual Trustee Co Ltd v Burniston (No 2) [2020] WASC 383; Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; Yat Tung Investment Co. Limited v Dao Heng Bank Ltd [1975] AC 581 |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ribbands | Melbourne Legal |
| For the Defendant | Mr M Ravech | Spigler & Schwarcz Solicitors |
HIS HONOUR:
Application
1By summons filed 15 September 2020, the second to seventh defendants sought orders that:
(a) the proceeding be permanently stayed pursuant to Rule 23.01(1) of the County Court Civil Procedure Rules2018 (Vic) (“the Rules”); and/or
(b) there be summary judgment pursuant to Rule 22.16 of the Rules against the plaintiffs on the grounds that the claim has no real prospect of success.
Permanent stay arising from Anshun estoppel
2In broad terms, the plaintiffs in their statement of claim seek damages against the second to seventh defendants for alleged misleading and deceptive conduct and unconscionable conduct. It is said that as a result of the alleged conduct, one or more of the plaintiffs borrowed from, or acted as guarantor in respect of a loan by, the defendants to the third plaintiff, such loan being secured by a mortgage over the property located at 22 Park Street, Abbotsford, being the land more particularly described in Certificate of Title Volume 3624 Folio 754 (“the Abbotsford property”). Subsequently, when the terms of the loan were not met, the defendants sold the Abbotsford property thereby causing the plaintiffs loss and damage.
3The second to seventh defendants deny the allegations made against them and raise a number of positive defences:
· the lenders relied upon certificates of independent legal advice signed by a solicitor who advised both the first plaintiff and the third plaintiff;
· the lenders relied upon a certificate of independent financial advice where a person certified that he had given financial advice to the first and third plaintiffs, as guarantor and mortgagor respectively, in connection with the Abbotsford property;
· the National Consumer Credit Protection Act 2009 (Cth) did not apply to the borrowing because the loan in relation to the Abbotsford property was to a company and was for business purposes, not for personal, domestic or household purposes.
4Further, and in particular for the purposes of this application, the second to seventh defendants pleaded:
· when the mortgagor and/or guarantor breached their obligations to the defendants, the defendants issued proceedings in the Supreme Court of Victoria in which they claimed payment of the loan, together with interest and possession of the Abbotsford property pursuant to s78(1) and s81(1) of the Transfer of Land Act 1958 (Vic);
· the defendants obtained judgment in default of appearance and an order for possession of the Abbotsford property;
· the defendants sold the Abbotsford property as mortgagees in possession;
· the current plaintiffs did not raise in the Supreme Court litigation the matters now sought to be raised against the defendants;
· the claims relied upon by the plaintiffs in this proceeding were so relevant to the subject matter of the Supreme Court proceeding that it was unreasonable not to have raised them as a defence in that proceeding so as to enable all relevant issues to be determined in the one proceeding.
5In their submissions, the defendants noted that various factual matters were not disputed by the plaintiffs, namely: in November 2017, the defendants as registered mortgagees over the Abbotsford property issued a writ in the Supreme Court against the third plaintiff for repayment of the loan and for possession of the property; on 1 December 2017, the defendants obtained judgment in default of appearance by the third defendant for recovery of the Abbotsford property; the defendants subsequently sold the property to a third party as mortgagees in possession; the defendants served the writ on the registered office of the third plaintiff, being the office of a firm of accountants; the default judgment remains in place.
6The defendants contend that the third plaintiff ought to have raised the matters now the subject of this proceeding as a defence and counterclaim in the Supreme Court proceeding. They argue that the Anshun principle does not establish a bar to the later proceeding but operates where the subsequent proceeding involves points which properly belonged to the earlier proceedings or unreasonably were not included in it.[1]
[1] Defendants’ submissions, at paragraph [11].
7The defendants argue that:
“….there will inevitably be conflicting judgments if the current proceeding is not stayed and the claims succeed, because the default judgment is founded upon facts pleaded in the statement of claim in the Supreme Court proceeding and taken to be admitted by the third plaintiff by reason of the default….”.[2]
[2] Defendants’ submissions, at paragraph [12].
8The defendants submit that the Anshun principle may be applied where the party obtains a default judgment. The rationale is that the party in default has explicitly admitted, or is implicitly taken to have admitted, the allegations made against them in the claim.
9In their submissions, the plaintiffs argue that, in the present context, there are three main forms of estoppel. The first is issue estoppel. There, a party is prevented from raising issues of fact or law which have already been the subject of final determination in previous proceedings. Secondly, with res judicata, the right or cause of action claimed in the proceedings has become a judgment so that it is merged in the judgment and no longer has any independent existence. Thirdly, there is Anshun estoppel. With this form of estoppel, a party may be estopped from raising a claim if, through negligence, inadvertence or even accident, they failed to raise that issue in prior proceedings when, given the relevance of the claim and the identity between the parties in the earlier proceedings, that failure is unreasonable.
10A common feature of the three forms of estoppel is that the party against whom an estoppel is now sought to be raised was party to the earlier proceeding, either directly or through a privy.
Legal principles
11The doctrine of Anshun estoppel derives its name from the High Court judgment in Port of Melbourne Authority v Anshun Pty Ltd.[3] In that case, the Port of Melbourne Authority (“the Authority”) hired a crane to Anshun. While Anshun was using the crane, a load of steel girders handled by the crane struck a worker and severely injured him. The worker sued both the Authority and Anshun for damages for personal injury for negligence. The worker claimed that he was injured as a result of Anshun exposing him to unnecessary risk and/or as a result of the negligence of its servants or agents. In addition, he alleged that he was injured as a result of the negligence or breach of statutory duty by the Authority, its servants or agents.
[3](1981) 147 CLR 589.
12The Authority and Anshun claimed contribution from each other under the Wrongs Act 1958 (Vic) (“Wrongs Act”). Although the hiring contract between the Authority and Anshun included a clause pursuant to which Anshun agreed to indemnify the Authority in respect of any claims, the contribution notice served by the Authority claimed only contribution, but no indemnity.
13At trial, the worker succeeded in his damages claim. Both the Authority and Anshun were found liable in negligence. It was held that the Authority should be liable for 90 percent of the damages and that Anshun was liable for 10 percent of the damages.
14Subsequently, the Authority commenced a proceeding against Anshun claiming, in reliance upon the indemnity, the amount which the Authority paid to the worker. Anshun defended this claim on the basis that the Authority could have, and should have, raised its indemnity claim against Anshun in the initial proceeding. Although the primary judge held that it was not a case of res judicata or issue estoppel, he granted a perpetual stay on the ground that the claim was a matter which ought to have been raised in the earlier proceeding. The Full Court dismissed the appeal. The High Court also dismissed the subsequent appeal.
15The High Court agreed that this was not a case of res judicata. That doctrine was applicable whenever a party attempted in a second proceeding to litigate a cause of action which had merged into judgment in a prior proceeding. In the Anshun case, the indemnity cause of action was not litigated in the initial proceedings. Thus, the judgment did not address that cause of action.
16The High Court also agreed that it was not a case of issue estoppel in the strict sense. The plurality said that the Full Court of the Supreme Court was correct in deciding that the existence of an indemnity was a defence to a claim for contribution under s24(1)(c) of the Wrongs Act and that the absence of an indemnity was not an ingredient in the cause of action for contribution. It was not a necessary step in the decision that Anshun was entitled to contribution for the court to decide that the Authority was not entitled to an indemnity against Anshun. Because the defence of indemnity had not been raised, the judgment for Anshun did not involve a determination of that issue.
17The plurality examined various authorities and quoted with approval from the judgment of Viscount Radcliffe in Kok Hoong v Leong Cheong Kweng Mines Ltd[4] where he delivered the judgment of the Privy Council. Viscount Radcliffe said that a party is estopped only from asserting something which, if pleaded in the earlier action, would have amounted to a direct traverse of what was asserted. He said that if what the party wishes to set up in the second proceeding would have been something only for a plea by way of confession and avoidance, or possibly a special plea in the first proceeding, there was no estoppel.
[4][1964] AC 993.
18The plurality also noted that it was generally accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. This would include judgments which are contradictory or which appear to declare rights which are inconsistent in respect of the same transaction.
19In his separate judgment, Brennan J was influenced by both public policy and the interests of the litigants which required that there should be an end to litigation on a particular subject matter once judgment had been given determining the rights and liabilities of the parties. His Honour considered that the courts should not entertain subsequent proceedings which declared rights or liabilities between parties inconsistent with an earlier judgment.
20It is well established that a default judgment or order can give rise to a res judicata.[5]
[5]Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at [1010] and Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [55], [93] and [116].
21The Privy Council decision is also important for certain observations made with respect to default judgments in the context of estoppel. Viscount Radcliffe said that:
“… a judgment by default speaks for nothing but the fact that a defendant for unascertained reasons, negligence, ignorance or indifference, has suffered judgment to go against him in the particular suit in question. There is obvious and, indeed, grave danger in permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default”.[6]
…
…
“… default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham LC, they can estop only for what must “necessarily and with complete precision” have been thereby determined.’”[7]
[6] [1964] AC 993, 1010.
[7] Ibid, at 1012.
22The case of Kok Hoong is itself instructive in how a court might approach the kind of issue which arises in the present application. Kok Hoong alleged that under an agreement made in June 1952, he hired certain machinery to the respondent company for 12 months at an agreed monthly rent. On the expiry of the 12 months, the company continued the hiring on the same terms. Kok Hoong brought an action against the respondent claiming arrears of rent from 20 September 1953 and for subsequent months. In November 1954, he obtained judgment by default. Subsequently, in June 1957 in an action between the same parties, Kok Hoong, after pleading the agreement made in June 1952 and that, by arrangement with the company, he had retaken possession of two items of machinery in 1955 and that the hiring of the remainder was to continue on the terms and conditions of the initial agreement (subject to the variation that the hiring was to commence from 20 April 1955), claimed arrears of rent from April 1955 and subsequent months.
23The respondent company pleaded that Kok Hoong was a moneylender within section 3 of the Moneylenders Ordinance 1951 (Malaysia); that the transaction was a moneylending transaction and that, in circumstances were Kok Hoong had not complied with provisions of the Ordinance, the loans were not recoverable. The company also contended that the hire agreement was complementary to a written agreement under which they purported to sell the machinery to the appellant. The company alleged that the two agreements were to be read together and that the hire agreement was, on its true construction when regard was had to all the surrounding circumstances, a bill of sale which, not being in the requisite form, nor registered, was in fact void and unenforceable. The company alleged that the ownership of the machinery had always remained in them and that the hire charges were really charges by way of interest.
24In reply, Kok Hoong claimed that the company was estopped by the default judgment of November 1954 from contending either that he was a moneylender, that the transaction was a moneylending transaction, or that the documents were other than what they purported to be.
25The estoppel argument was heard as a preliminary point. The trial judge upheld the point and found that the company could not raise these new arguments in view of the initial judgment. The Court of Appeal decided there was no estoppel. The Privy Council affirmed the decision of the Court of Appeal.
26The Privy Council decided that the judgment of November 1954 established that Kok Hoong was entitled to recover from the company a sum of money by virtue of a written agreement under which machinery and equipment were hired at a monthly rent, together with a subsequent oral continuation of that agreement. The Privy Council understood the appellant to be arguing that the company, as part of its defence, contended that the original agreement was not really a hiring agreement but a form of borrowing money on security. To that extent, it might be said that the company was seeking to contradict the record in the earlier proceeding.
27However, in their Lordships’ opinion, that interpretation of events did not express the true nature of the company’s proposed defence. The company did not deny that it entered into the written agreement which spoke of “rent” and “hire”. Rather, it maintained that when that agreement was read in conjunction with another contemporaneous agreement, the obligation to pay money, as claimed by Kok Hoong, would be seen to be part of a transaction the real nature of which was the borrowing of money on the security of goods. The Privy Council said that this was an issue which was not raised in the first proceeding. As a defence, it was more like a plea by way of confession and avoidance than a denial. The Privy Council concluded this part of the judgment by saying:
“On the whole their Lordships think it is impossible to say that there was anything in the first judgment which ‘necessarily and with complete precision’ decided this issue against the respondent and they hold consequently that the estoppel claim cannot be maintained against it.”[8]
[8] [1964] AC 993, 1014.
Analysis
28While the second to seventh defendants here insist that the Anshun doctrine prevents the plaintiffs from making the allegations in the statement of claim, I am not satisfised that this is correct. Firstly, in their submissions, the defendants relied specifically upon the doctrine of Anshun estoppel. They did not invoke or rely upon res judicata or issue estoppel. In Tomlinson v Ramsey Food Processing Pty Ltd[9] French CJ, Bell, Gageler and Keane JJ described Anshun estoppel in the following terms:
“That third form of estoppel is an extension of the first and of the second. estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding.”[10]
[9] (2015) 256 CLR 507.
[10] Ibid, at [22].
29In the context of Anshun estoppel, it appears that there is some doubt about whether it can apply where there has been no examination of the merits of the claim in the earlier proceeding.
30A relevant case is Jelson (Estates) Limited v Harvey.[11] There, the plaintiff company sought the committal of the defendant to prison for contempt of a court order forbidding the obstruction of land by the deposit of industrial waste or rubbish. The plaintiff’s notice of motion was accompanied by an affidavit setting out the alleged breaches of the order but the notice of motion failed to state the grounds of the application by specifying the breaches complained of as required by the court rules. At the hearing of the motion, Warner J, without reading the evidence or considering the merits, made no order on the motion. The plaintiff served a second notice of motion, which complied with the court rules by setting out in detail the alleged infringements by the defendant. The accompanying affidavit was the one produced at the earlier hearing. The defendant raised a preliminary objection that the court should not entertain a second motion founded on the same contempt. Goulding J held that the objection failed because the rule against double jeopardy did not prevent an applicant from renewing a complaint of contempt when the first application to the court had failed due to a procedural defect with no investigation of the merits. The judge found the defendant guilty and fined him £5,000.
[11] [1983] 1 WLR 140.
31The defendant argued before Goulding J that generally, it was an abuse of the court’s process to attempt to relitigate facts which could have been brought before the court on an earlier occasion. Thus, he contended that it was an abuse to attempt the second application for contempt.
32Goulding J held the defendant’s argument misconceived the doctrine put forward in cases such as Henderson v Henderson[12] and Yat Tung Investment Co. Limited v Dao Heng Bank Ltd.[13]
[12] (1843) 3 Hare 100.
[13] [1975] AC 581.
33The defendant appealed to the Court of Appeal. The main ground of appeal concerned the application of the criminal law doctrine of 55. The Court of Appeal was unanimous in finding that, although the doctrine applied to proceedings for civil contempt to prevent a person being punished twice for the same offence, it did not apply here because the defendant was not in peril in the initial hearing before Warner J. Due to the problems with the notice of motion, and the judge’s decision not to entertain the application, the merits of the case were never addressed.
34No ground of appeal more specifically addressed any comments by Goulding J about the estoppel doctrine canvased in Henderson v Henderson.[14]
[14] (1843) 3 Hare 100.
35If it is correct that the Anshun doctrine can only apply where a decision is made on the merits, the defendants’ application cannot succeed. Where the plaintiffs were unaware of the Supreme Court proceeding and the default judgment until around June 2020, after the commencement of this proceeding it cannot be said that they intentionally withheld some part of their case or that they chose not to bring forward some allegations in the Supreme Court proceeding. The evidence indicates that they were unaware of the Supreme Court litigation, and accordingly, did not enter an appearance or file a defence.
36Secondly, even if the Anshun doctrine can apply to a default judgment, the defendants’ application should nonetheless fail because the parties in the Supreme Court case and this proceeding are not identical.
37Thirdly, the defendants submitted that the effect of a default judgment meant that the primary allegations in the Supreme Court litigation must be taken to be admitted. Thus, it was said that there was a valid loan agreement and mortgage, a breach of the loan agreement and mortgage and an entitlement in the defendants to the possession of the Abbotsford property. The defendants insisted that to allow the plaintiffs to conduct the present case would inevitably involve the risk of conflicting findings and contradictory judgments.
38In my opinion the plaintiffs’ allegations, if established, would not necessarily entail contradicting the default judgment. The plaintiffs do not dispute the validity of the loan or mortgage, the breach, the order for possession of the Abbotsford property or the mortgagee sale of that property. It seems to me that the plaintiffs’ point is that there was conduct by the defendants which caused or induced the plaintiffs to become involved in the loan and mortgage transaction relating to the Abbotsford property and that they have suffered loss as a result of that involvement. To allege that the defendants engaged in misleading or deceptive conduct or unconscionable conduct does not necessarily challenge the validity of the loan or the security or the consequences of the breach of the loan and or mortgage. On the contrary, it is quite the opposite. The plaintiffs accept these matters because they say that their loss stems from entering into the transaction regarding the Abbotsford property. To that extent, I consider the plea in the statement of claim is analogous to the “confess and avoid” scenario referred to by Viscount Radcliffe in Kok Hoong.
Summary judgment application
39The second to seventh defendants sought summary judgment against the plaintiffs pursuant to Rule 22.16 of the Rules and section 62 of the Civil Procedure Act 2010 (Vic) on the basis that the plaintiffs’ claim had no real prospect of success.
40The second to seventh defendants submitted that the misleading and deceptive conduct allegations must fail. The statement of claim alleges in paragraph 40 that Jordanou and Cefala were agents for and on behalf of the lenders. It was said that this could not be legally correct, at least in relation to Jordanou, because he was a mortgage broker and deemed to act for the borrower not the lender.[15]
[15] See Perpetual Trustee Co Ltd v Burniston (No 2) [2020] WASC 383 at [243] and [247].
41Next, the defendants contended that the lenders could not be liable for failing to warn the plaintiffs about various matters such as that Jordanou was a gambler facing serious criminal charges, Cefala was an undischarged bankrupt who was not working as an accountant in April 2017 and that Damorstar, one of the lenders in relation to the Abbottsford property, was a related party to Tony Falbo who valued the properties in Abbottsford and Northcote. The defendants argued that:
· the plaintiffs had their own legal and financial advisers who assisted them;
· the lenders were entitled to rely upon certificates of independent legal and financial advice which these advisers produced.
42The defendants argued that the Victorian Court of Appeal in Jams 2 Pty Ltd v Stubbings[16] decided that a lender could properly rely upon such certificates without being fixed with knowledge of other matters which might compromise the enforceability of the loans.
[16] [2020] VSCA 200.
43The defendants made the same argument in relation to the claim of unconscionable conduct which the plaintiffs raised. They contended that due to the certificates provided to them, they were not fixed with knowledge of the borrower’s circumstances which might otherwise support a claim for unconscionable conduct.
44The defendants submitted the claim about the application of the National Credit Code must fail because the Code applied only to natural persons or strata corporations. If the debtor were a company like the third plaintiff or the loan was made for business purposes, it was said the claim was hopeless. There was documentation in which the first plaintiff acknowledged, in her capacity as the sole director and secretary of the third plaintiff, that the loan was for business purposes.[17]
[17] Exhibit PS-10 to Affidavit of Peter Schwarcz, 7 September 2020.
45The plaintiffs submitted that this was not a proper case for summary judgment. They emphasised that:
·the power of summary judgment should be exercised with great care;
·summary judgment should only be granted when there was no real question to be tried;
·courts would more readily grant summary judgment when the dispute concerned an issue of law rather than fact.
46The plaintiffs argued that there were significant factual disputes between the parties. In particular, the plaintiffs contended that the case involved asset based lending – that is lending where the focus is upon the value of the borrower’s security rather than the borrower’s capacity to service the loan. Courts have held that such loans can constitute unconscionable conduct. Each case depends upon its own particular facts.
47The plaintiffs’ claim included allegations that:
(a) Bochrinis, Jordanou, Cefala and AJ Lawyers (the solicitors for the lenders) acted as agents on behalf of the second to seventh defendants when making the loan in relation to the Abbotsford property;
(b) the first and third plaintiffs were not aware;
(i)of the relationship between, inter alia, Bochrinis, Jordanou, Cefala and AJ Lawyers;
(ii)of the involvement of Jordanou and Cefala in procuring the loan relation to the Abbotsford property;
(iii)that Jordanou was a gambler facing serious criminal charges;
(iv)that Cefala was an undischarged bankrupt who was not working as an accountant in April 2017; and
(v)that Cefala had provided the so called independent financial advice certificates to the lenders.
(c) the first plaintiff had limited education, a limited ability to read and understand legal documents and suffered from mental health issues. Her only income was from a carer’s pension;
(d) the second plaintiff, being the mother of the first plaintiff, had limited education, a limited understanding of the English language and limited ability to read and understand legal documents. Her sole income was the aged pension.
(e) The defendants knew or should have known at the time of making the loan in relation to the Abbotsford property that the plaintiffs suffered from the disabilities referred to in paragraph 47(c) and (d).
48The plaintiffs argued that, if they proved the allegations in the statement of claim, they were likely to succeed at the trial. There is some substance to that contention.
49Prima facie, the defendants have strong evidence in support of at least part of their position. For example, the documents suggest that the loan was made to a company and was for business purposes. Hence, the National Credit Code could not apply.
50However, the plaintiffs’ material raises a range of important factual issues. I have referred in paragraph 47 to some of the contentious allegations made in the statement of claim. In my opinion, while the plaintiffs will not necessarily succeed at trial, I do not consider that their chances of success are so fanciful that the case should not be permitted to go to trial.
51Even if my finding on this issue is incorrect and the defendants have established that the plaintiffs have no real prosects of success, it is my view that the plaintiffs’ claim should not be disposed of summarily because it is not in the interests of justice to do so. There are factual disputes between the parties that are best resolved at trial. Courts are more inclined to determine proceedings summarily where the resolution of the case depends upon a question of law rather than fact.[18] Also, while I accept the authority of the decision of the Court of Appeal in Jams 2 Pty Ltd v Stubbings[19] relied upon by the defendants, cases about asset based lending and unconscionable conduct ultimately depend on their own facts. The fact that the lender in Jams 2 succeeded does not mean that the plaintiffs in this case must necessarily fail.
[18] See for example Mutton v Baker [2014] VSCA 43 at [19].
[19] [2020] VSCA 200.
Conclusion
52For the reasons set out, I find that the summons of the second to seventh defendants filed 15 September 2020 should be dismissed. I will hear the parties on the issue of costs.
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