Matthews v Capital Choice Australia Pty Ltd
[2024] QSC 236
•30 October 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Matthews v Capital Choice Australia Pty Ltd [2024] QSC 236
PARTIES:
SHAUN MATTHEWS, SAM KASO AND RAHUL GOYAL
(first applicant)
BESFARM PTY LTD (RECEIVERS AND ADMINISTRATORS APPOINTED)
(second applicant)v
CAPITAL CHOICE AUSTRALIA PTY LTD(first respondent)
ZHENYAO WANG(second respondent)
FILE NO/S:
BS No 9698 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at BrisbaneDELIVERED ON:
30 October 2024
DELIVERED AT:
Brisbane
HEARING DATE:
22 August 2024, further submissions 26 September 2024,
2 October 2024 and 14 October 2024JUDGE:
Martin SJA
ORDERS:
1. Part 1 of the Originating Application filed 24 July 2024 is dismissed.
2. The balance of the Originating Application is adjourned to 5 November 2024.
3. Each party bear its own costs.
CATCHWORDS:
CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – POWERS – TO APPLY TO COURT FOR DIRECTIONS – where the first applicants were appointed as receivers to the assets of the second applicant – where the applicants seek directions under s 424 of the Corporations Act 2001 (Cth) concerning their power to sell a working farming property and associated water allocations – where all parties with an interest in the property, other than the second respondent, are indifferent or do not oppose the sale – where the second respondent asserts that he holds a charge and an equitable interest in the property – where the second respondent foreshadows a dispute concerning the priority of securities between itself and Bizcap, the entity which appointed the first applicants as receivers – where the second respondent does not dispute the validity of the appointment of the first applicants as receivers – where the second respondent argues that the first applicants do not have the power to sell the property “free from a higher interest” – whether the first applicants have power under s 420 of the Corporations Act 2001 (Cth) to cause the second applicant to take steps to market, sell, and convey the property
CORPORATIONS – RECEIVERS, CONTROLLERS AND MANAGERS – POWERS – TO SELL COMPANY’S PROPERTY – where the first applicants are receivers and managers of the property of a corporation – where the applicants seek directions concerning their power of sale – where the applicants did not make an application under s 420B of the Corporations Act 2001 (Cth) – where the second respondent argues that the presence of the power under s 420B suggests that a receiver would not otherwise have the power under s 420 to sell property of a corporation where it is subject to a security interest that has priority over the security interest that the controller is enforcing – whether the receivers have capacity to proceed with the sale under s 420 or should have proceeded under s 420B
Corporations Act 2001 (Cth), s420, s 420B, s 424
Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1, applied
King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076, considered
Korda v Silkchime Pty Ltd (2010) 243 FLR 269, cited
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, cited
Re Ansett Australia Ltd (No 3) (2002) 115 FCR 409, cited
Re Mirabela Nickel Ltd (recs and mgrs apptd) (in liq); ex parte Madden [2018] WASC 335, cited
Re Sandalwood Properties Ltd; ex parte Preston [2018] FCA 547, cited
Re Sportsman’s Leisure & Hobby Warehouse Pty Ltd [1990] 2 Qd R 93, cited
Revroof Pty Ltd v Taminga Street Investments Pty Ltd [2023] FCA 543, cited
Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407, cited
White v Huxtable (2006) ACSR 435; [2006] FCA 559, cited
Woodhouse v Francis [No 2] [2022] WASC 318, citedCOUNSEL:
S L Philippou for the applicants
No appearance for the first respondentJ K Mee for the second respondent
SOLICITORS:
Kingston & Partners for the applicants
No appearance for the first respondentAylward Game Solicitors for the second respondent
The first applicants are the receivers of the second applicant (Besfarm). They seek directions under s 424 of the Corporations Act 2001 with respect to their power to cause the sale of a farming property at Mutchilba and associated water allocations owned by Besfarm. All interested parties (apart from the second respondent) either do not oppose the sale or are indifferent.
Mr Wang was joined as a respondent at the hearing of this application. At the hearing he argued that the first applicants’ power does not extend to a sale of the property “free from a higher interest without that party’s consent.” In his written submissions, Mr Wang does not oppose the first applicants being granted possession of the property or having the power to sell it provided that his interests are protected.
The first applicants seek directions under s 424 Corporations Act 2001 that they may take possession or control of the Mutchilba property and the water allocations and sell them.
Appointment of the first applicants as receivers
Besfarm is a guarantor of loan security agreements dated 21 November 2023 and 14 December 2023 (the Bizcap agreements) involving, among others, Bizcap AU Pty Ltd and Southern Cross Produce (Sydney) Pty Ltd (SCPS). The Bizcap agreements defined secured property as property of a transaction party (which includes Besfarm) and that Besfarm was a guarantor in its own capacity and as trustee for the Besfarm Trust. In clause 7.1 Besfarm unconditionally guaranteed the due performance of SCPS’s obligations. Clause 8.3 provided that, in the event of default, Bizcap could appoint a receiver to any secured property. Clause 8.3(d) provides:
“(d)Receiver’s Powers
Subject to any express limitation in the Receiver’s appointment, a Receiver may, in the Receiver’s reasonable discretion, exercise any power conferred on the Receiver by any applicable law.”
On 10 May 2024 Bizcap appointed the first applicants as receivers to the assets of Besfarm. Administrators were appointed on 29 May 2024 and, as a consequence, the first applicants retired and were re-appointed as receivers of Besfarm. The Besfarm administrators have withdrawn and the first applicants have now assumed possession and control of the property.
Besfarm Trust – its property
The Besfarm Trust is the registered owner of the Mutchilba property and the associated water allocations. It does not own any other real property. As trustee, Besfarm is entitled to an indemnity against the Mutchilba property, equipment used on the property and the water allocations.
The Mutchilba property is a working farm. The receivers must maintain the property and that incurs considerable expense. Further, the crops must be harvested soon which will incur further work and expense.
The secured creditors
The first applicants have identified two secured creditors:
(a)the ANZ Bank - it holds a registered mortgage over the Mutchilba property and has registered security interests; and
(b)Bizcap - it has lodged a caveat based upon an equitable mortgage and it holds registered security interests over chattels.
The other creditors
Mr Wang lodged a caveat over the Mutchilba property in December 2023. It has now lapsed. There has been correspondence between Mr Wang and the first applicants. He asserts that he holds a charge and an equitable interest in the property and foreshadows a dispute relating to the priority of security between him and Bizcap. It appears that he no longer challenges the receivers’ appointment or their ability to deal with the Mutchilba property.
SXP Farming has provided the applicants with an unregistered lease over the Mutchilba property purportedly between Besfarm and SXP Farming, as well as a purported notice of termination dated 20 April 2024.
Ivy League Capital Pty Ltd asserts an interest in the Mutchilba property and the farming business.
The attitude of the creditors to a sale of the Mutchilba property
The first applicants have sought the consent of each of the above creditors for the sale of the Mutchilba property.
ANZ Bank neither opposes nor consents to the sale. Bizcap consents. SXP Farming and Ivy League do not oppose the sale of the property.
In the oral submissions made on Mr Wang’s behalf it was contended that the first applicants did not have the power to sell the property “free from a higher interest” without that party’s consent. That submission was made on the basis that Bizcap would have to have the power to sell the property first, before it could grant it to the first applicants as receivers.
What power do the receivers have?
The debenture under which the receivers were appointed confers the powers available under “any applicable law”. One such law is s 420 of the Corporations Act 2001. Section 420(1) gives a receiver of property the power to do all things necessary or convenient to be done for or in connection with, or as incidental to, the attainment of the objectives for which the receiver was appointed, that is, to realise the assets of the company so that the monies secured by the debenture may be repaid. Section 420(2) sets out a series of specific powers in addition to any other powers the receiver might have. They include the power to “enter into possession and take control of property of the corporation”, to “dispose of property of the corporation” and to “convert property of the corporation into money”.
The powers conferred by s 420 are plenary in nature and reflect the general character of a receiver. That character was indicated in these passages which were adopted by the majority in Sheahan v Carrier Air Conditioning Pty Ltd:[1]
“[A] person appointed as receiver and manager is concerned, not for the benefit of the company but for the benefit of the mortgagee bank, to realise the security; that is the whole purpose of his appointment; and the powers which are conferred upon him, and which I have to some extent recited, are … really ancillary to the main purpose of the appointment, which is the realisation by the mortgagee of the security.”[2]
and
“Although nominally the agent of the company, his primary duty is to realise the assets in the interests of the debenture holder and his powers of management are really ancillary to that duty.”[3]
[1](1997) 189 CLR 407; [1997] HCA 37.
[2]Re B Johnson & Co (Builders) Ltd [1955] Ch 634 at 644–5, per Evershed MR.
[3]Gomba Holdings v Homan [1986] 1 WLR 1301 at 1305 per Hoffman J; affd [1988] 1 WLR 1231.
Mr Wang did not oppose possession of the property and the power of sale being granted to the receivers but only, as Ms Mee put it, “in the correct way”. One matter which was raised was whether the creditors needed to be made parties to the proceeding. All had been served with the relevant documents and, apart from Mr Wang, none opposed the making of the orders sought and none evinced any desire to be a party to this application.
Ms Mee submitted that her client and the registered proprietor of the property needed to be made a party. On Mr Wang’s application, and with the consent of the applicants, Mr Wang was made a party to this proceeding during the hearing.
Part of Ms Mee’s argument was based upon the reasons of Campbell J in King Investment Solutions v Hussain.[4] In that case, his Honour was dealing with an appeal against an order by an Associate Judge granting summary judgment to a mortgagee. The mortgage was unregistered and the mortgagee did not seek to exercise a power of sale out of court. Rather, it sought orders: (a) for possession of the land, (b) enabling it to sell the land, and (c) for judgment for the principal and interest.
[4][2005] NSWSC 1076, reported at (2005) 64 NSWLR 441 but only on the capacity of the Supreme Court to make orders without giving reasons at the time.
Campbell J considered, in considerable detail, the applicability of the relevant New South Wales legislation relating to orders for possession and sale. He did not, because it would have been irrelevant, consider the powers available to a receiver under the Corporations Act. In his conclusions on the order for sale and possession which had been granted he considered the inherent power of a court to make such an order at the suit of an unregistered second mortgagee. He noted significant shortcomings in the exercise of that power, in particular, the absence of the first mortgagee from the suit and that the inherent power to enforce the second mortgage enabled the court to only order a sale of the interest of the mortgagor which had been mortgaged to the second mortgagee. None of those matters are relevant to this case. This litigation concerns the powers of a receiver and how they might be exercised.
Is the Personal Property Securities Act 2009 (Cth) relevant?
The first applicants argue that Mr Wang does not hold a perfected security interest over the Mutchilba property and the water allocations because that interest has not been perfected in accordance with the ways prescribed under the Personal Property Securities Act 2009 (Cth) (the PPSA).
That is misconceived. The PPSA applies to personal property, not real property or water allocation rights. Section 8 of the PPSA excludes (among other things): the creation or transfer of an interest in land, payments in connection with interests in land, and rights in connection with the control, use or flow of water.
Directions under s 424 Corporations Act
Section 424 provides:
(1)[Controller may apply to Court for direction] A controller of property of a corporation may apply to the Court for directions in relation to any matter arising in connection with the performance or exercise of any of the controller's functions and powers as controller.
(2)[Receiver appointment under instrument may apply] In the case of a receiver of property of a corporation, subsection (1) applies only if the receiver was appointed under a power contained in an instrument.
A “controller”, in relation to property of a corporation, includes a receiver – s 9 Corporations Act.
Directions given under s 424 are in the form of personal guidance or advice for a receiver. They do not involve adjudications of claims, rights or entitlements of third parties – see Re Sandalwood Properties Ltd; ex parte Preston.[5]
[5][2018] FCA 547.
The power to make directions under s 424 is a broad one, intended to facilitate the work of receivers[6] and should be interpreted as widely as possible to give effect to that intention.[7] The power is not to be used supplant a receiver’s commercial judgement.[8]
[6]Korda v Silkchime Pty Ltd (2010) 243 FLR 269 at [30].
[7]Re Mirabela Nickel Ltd (recs and mgrs apptd) (in liq); ex parte Madden[2018] WASC 335 at [86].
[8]White v Huxtable (2006) ACSR 435; [2006] FCA 559.
The circumstances in which the power might be used was described as “well-established” by Hill J in Woodhouse v Francis[No 2][9] when she adopted the words of Goldberg J in Re Ansett Australia Ltd(No 3):[10]
“There must be something more than the making of a business or commercial decision before a court will give directions in relation to, or approving of, the decision. It may be a legal issue of substance or procedure, it may be an issue of power, propriety or reasonableness, but some issue of this nature is required to be raised.”
[9][2022] WASC 318.
[10](2002) 115 FCR 409; [2002] FCA 90 at [65].
The receivers wish to sell the Mutchilba property and the water allocations and then pay out the secured creditors in order of priority. They are aware of the position of the secured creditors. The basis upon which they seek directions arises out of uncertainty about the position of putative creditors:
(a)Ivy League Capital Pty Ltd asserts an interest in the Mutchilba property but has not provided reliable support for that proposition.
(b)SXP Farming asserts the existence of an unregistered lease over the Mutchilba property but there is uncertainty as to whether or not it remains in existence or the circumstances of its termination.
(c)Mr Wang asserts an equitable interest in the Mutchilba property but has only recently provided documentation and has, in earlier correspondence, challenged the appointment of the receivers. That challenge was not pursued.
The direction sought by the receivers would provide them with comfort about the sale of the secured properties and they, understandably, wish to be provided with some protection. The receivers have provided evidence of their negotiations with all relevant entities and, as a result, I am satisfied that none of those entities oppose the sale of the properties. I am also satisfied that the steps proposed by the receivers are reasonable. The concern expressed on Mr Wang’s behalf about the priority of the payment of the ANZ Bank as mortgagee can be resolved. The ANZ Bank is not a party to this application and cannot be the subject of any directions. It is doubtful that parties to this type of application can be bound in a sense that can give rise to an issue estoppel.[11] In any event, a sale of the mortgaged property could not proceed unless the ANZ’s interest was satisfied.
[11]Re Sportsman’s Leisure & Hobby Warehouse Pty Ltd [1990] 2 Qd R 93.
Should the receivers have proceeded under s 420B?
The parties, at the request of the court, made submissions about the applicability (or otherwise) of s 420B of the Corporations Act. It provides that a court may authorise a managing controller to dispose of property despite a prior security interest. That authorisation is subject to many tests and conditions. It is necessary that the whole section be set out:
“420B Court may authorise managing controller to dispose of property despite prior security interest
(1)On the application of a managing controller of property of a corporation, the Court may by order authorise the controller to sell, or to dispose of in some other specified way, specified property of the corporation, even though it is subject to a security interest (the prior security interest) that has priority over a security interest (the controller’s security interest) in that property that the controller is enforcing.
(2)However, the Court may only make an order if satisfied that:
(a) apart from the existence of the prior security interest, the controller would have power to sell, or to so dispose of, the property; and
(b) the controller has taken all reasonable steps to obtain the consent of the secured party in relation to the prior security interest to the sale or disposal, but has not obtained that consent; and
(c) sale or disposal of the property under the order is in the best interests of the corporation’s creditors and of the corporation; and
(d) sale or disposal of the property under the order will not unreasonably prejudice the rights or interests of the secured party in relation to the prior security interest.
(3)The Court is to have regard to the need to protect adequately the rights and interests of the secured party in relation to the prior security interest.
(4)If the property would be sold or disposed of together with other property that is subject to the controller’s security interest, the Court may have regard to:
(a) the amount (if any) by which it is reasonable to expect that the net proceeds of selling or disposing of that other property otherwise than together with the first‑mentioned property would be less than so much of the net proceeds of selling or disposing of all the property together as would be attributable to that other property; and
(b) the amount (if any) by which it is reasonable to expect that the net proceeds of selling or disposing of the first‑mentioned property otherwise than together with the other property would be greater than so much of the net proceeds of selling or disposing of all the property together as would be attributable to the first‑mentioned property.
(5)Nothing in subsection (3) or (4) limits the matters to which the Court may have regard for the purposes of subsection (2).
(6)An order may be made subject to conditions, for example (but without limitation):
(a) a condition that:
(i)the net proceeds of the sale or disposal; and
(ii)the net proceeds of the sale or disposal of such other property (if any) as is specified in the condition and is subject to the controller’s security interest;
or a specified part of those net proceeds, be applied in payment of specified amounts secured by the prior security interest; or
(b) a condition that the controller apply a specified amount in payment of specified amounts secured by the prior security interest.”
The Act also relevantly defines “security interest” and “charge”:
“security interest means:
(a)a PPSA security interest; or
(b)a charge, lien or pledge.
…
charge means a charge created in any way and includes a mortgage and an agreement to give or execute a charge or mortgage, whether on demand or otherwise.”
The Act provides the following definitions for “controller” and “managing controller”:
“controller, in relation to property of a corporation, means:
(a)a receiver, or receiver and manager, of that property; or
(b)anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;
and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).
…
managing controller, in relation to property of a corporation, means:
(a)a receiver and manager of that property; or
(b)any other controller of that property who has functions or powers in connection with managing the corporation;
and has a meaning affected by paragraph 434G(b) (which deals with 2 or more persons appointed as managing controllers).”
The Act provides that “receiver and manager has a meaning affected by section 90 and has a meaning affected by paragraph 434E(b) (which deals with 2 or more persons appointed as receivers and managers).” Section 90 provides the following:
“90 Receivers and managers
A receiver of property of a body corporate is also a manager if the receiver manages, or has under the terms of the receiver’s appointment power to manage, affairs of the body.”
The first applicants are receivers and managers. As is noted above, their appointment allowed them to "exercise any power conferred on the Receiver by any applicable law.” One of those powers is to “carry on any business of the corporation” – s 420(2)(h). They have been exercising that power. They are managing controllers.
The applicants did not make an application under s 420B. In her submission in reply, Ms Philippou referred to the powers of the court under r 156 and r 658 of the Uniform Civil Procedure Rules 1999 to make an order even if there is no claim for that relief in the originating process. That power exists, but the grounds for exercising it do not. Before an order could be made under s 420B all relevant parties would have to be joined. That has not occurred and no application was made to join, for example, ANZ. It follows, then, that I do not need to consider the submissions which were made touching upon the exercise of power under s 420B.
There is another point which arises. Ms Mee argues that the presence of s 420B – with its express limitation to managing controllers and its prescription of threshold matters – strongly suggests that a receiver would not otherwise have such powers under s 420.
Section 420B has not received the degree of judicial attention which, if Ms Mee’s submission is correct, might have been expected. The facts of this case are not unusual and registered mortgagees often stand by while a receiver under another security sells a mortgaged property subject to satisfaction of the mortgage debt.
The section was introduced by the Corporate Law Reform Act 1992 (Cth) following a recommendation in the Harmer Report.[12] The Explanatory Memorandum for the Corporate Law Reform Bill 1992 provided:
“408. The Harmer Report observed that a charge under which a receiver is appointed will often embrace all, or nearly all, the assets of a company. However, there was the possibility that another secured creditor may have security in priority to the chargeholder over a crucial part of the property of the company. In such a case, the receiver could be effectively prevented from disposing of all of the saleable property of the company, particularly the business of the company as a going concern, at the most favourable price.” (emphasis added)
[12]Australian Law Reform Commission, General Insolvency Inquiry (Report No 45, 13 December 1988).
The relevant recommendations made in the Harmer Report were taken up, but with a wider application. The legislation enacted following the Harmer Report went further than the problem which had been identified:
“210. … The problem may be that the debt owed to the other secured creditor exceeds the market value of the property held as security for the debt. The receiver will not, in those circumstances, be able to sell that property unless the other secured creditor is prepared to discharge the security upon payment of a sum less than the debt for which the property is security.”
There was no evidence of the value of the property or of the amounts owed to the various other creditors. The problem envisaged in the Harmer Report may not exist, but s 420B is not confined to a situation where that problem exists. It has been drawn in a much wider way.
There are few published judgments applying s 420B. Only two decisions have given more than passing reference to the operation of s 420B. For completeness they are briefly discussed below.
The decision of Jackman J in Revroof Pty Ltd v Taminga Street Investments Pty Ltd[13] has been cited in some commentaries. In that case the receivers sought orders under s 420B “permitting them to sell assets over which they are appointed, where there may be an issue as to the priority of the security interests pursuant to which the Receivers were appointed”. The parties were in dispute as to the operation of various deeds of priority and the associated order of priority of payment between the parties.
[13][2023] FCA 543.
The receivers had entered into an Asset Sale Deed which was conditional upon an order being made for the sale to proceed pursuant to s 420B. In essence, the receivers wished to cause the company to complete its obligations under the Asset Sale Deed, and in order to do so they were required to convey clear title to the company’s assets. By the time the proceeding was before Jackman J it appears that the defendants had indicated their consent to orders being sought under s 420B. Jackman J ultimately made the order under s 420B and made an order under s 424 which, among other things, provided for the balance of the proceeds of the sale to be held in the solicitor’s trust account pending resolution of the priority dispute.
In the matter of Boulos Holdings Pty Ltd v Edwin Davey Pty Ltd,[14] Ward CJ in Eq, in considering the proper operation of the PPSA, stated:
“[305] … Indeed, the commentary at [4.18] above indicates a legislative intention that the provisions of the Corporations Act 2001 (Cth) (Corporations Act) are comprehensive and ought to be applied where a receiver is appointed.
[306] Section 420B of the Corporations Act is noteworthy. It provides a process for a court to authorise a managing controller to sell or dispose of property even though it is subject to a higher-ranking security interest. In effect, then, the Corporations Act contains procedures which operate where a lower ranking security holder appoints a receiver. This points against the interpretation proffered by Edwin Davey. Indeed, if Parliament's intention is to allow the “comprehensive” procedures of the Corporations Act to operate as they have done, it would appear to be contrary to that intention to adopt a construction of the PPSA which precludes the operation of the Corporations Act in circumstances which it specifically contemplates and makes provision for (by way of s 420B).”[14][2021] NSWSC 689.
While that decision was reversed on appeal,[15] the Court of Appeal did not comment upon her Honour’s description of the effect of s 420B.
[15]Edwin Davey Pty Ltd v Boulos Holdings Pty Ltd [2022] NSWCA 65.
The circumstances of this case fall within the provisions of s 420B. What is the effect?
In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[16] Gavan Duffy CJ and Dixon J said:
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”
[16](1932) 47 CLR 1 at 7.
That decision, and others which followed it, were considered in the judgment of Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[17] where they said:
“[59] Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.”
[17](2006) 228 CLR 566.
The provisions of s 420B are confined to a specific set of circumstances which impose obligations upon receivers to proceed in a particular way. The section confers a power in those limited circumstances provided that the pre-requisites of the section are satisfied. It falls within that category of case referred to in Nystrom and so should be read as confining the generality of what would otherwise be the applicable power in s 420. To read it otherwise would be to render s 420B otiose.
In order to obtain the resolution sought by the receivers they should have proceeded under s 420B.
Disposition
The receivers sought advice under s 424 about their capacity to proceed under s 420. I have held that they should have proceeded under s 420B. Their application must be dismissed.
Orders
The application is dismissed.
I will hear the parties on costs.
Varied orders
After brief submissions from the parties, including on the issue of costs, the order above was varied to read as follows:
(a)part 1 of the Originating Application filed 24 July 2024 is dismissed;
(b)the balance of the Originating Application is adjourned to 5 November 2024; and
(c)each party bear its own costs.
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