Peta Anne Gischus v Simons Dean Gischus and Nizpro Turbo Charging Pty Ltd
[2018] VCC 787
•7 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
EXPEDITED LIST
Case No. CI-17-01198
| Peta Anne Gischus (as representative of the estate of the late Martin Lindsay Gischus) | Plaintiff |
| v | |
| Simon Dean Gischus and Nizpro Turbo Charging Pty Ltd | Defendants |
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JUDGE: | His Honour Judge Woodward | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 May 2018 | |
DATE OF RULING: | 7 June 2018 | |
CASE MAY BE CITED AS: | Peta Anne Gischus v Simons Dean Gischus and Nizpro Turbo Charging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 787 | |
REASONS FOR RULING
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J K Arthur | Mackinnon Jacobs Lawyers |
| For the Defendants | Mr R B C Wilson | Baker Jones Lawyers |
HIS HONOUR:
1 This application concerns whether or not Peta Gischus should be appointed by the court to represent her father Martin Gischus’s estate in a proceeding against Simon Gischus. Simon is Martin’s son and Peta’s brother. Until his death in September last year, the proceeding was being prosecuted in Martin’s name by Peta as Martin’s litigation guardian. The issue comes before the court as an application by the defendants under s17V of the County Court Act 1958 (Vic) and r84.02 of the Rules, for review by the court, constituted by a Judge, of the orders of Judicial Registrar Burchell made 6 April 2018 that:
“1.Pursuant to Rule 16.03(1)(b) of the County Court Civil Procedure Rules 2008, Peta Anne Gischus be appointed to represent the estate of the Plaintiff for the purposes of this proceeding.
2. The title to the proceeding is amended accordingly.
3.The costs of the Plaintiff’s application up to 6 March 2018 be the Defendants’ costs in the cause, and the costs after 6 March 2018 be the Applicant’s costs in the cause.”
2 Although the issue is not entirely free from doubt, the practice of the Commercial Division is to hear any review of a decision of a Judicial Registrar de novo, subject to the limitation on further evidence under r84.02(6)(a).[1] I proceeded accordingly. Having heard the parties’ submissions on 10 May 2018, I pronounced orally my decision that the defendants’ application was dismissed with the result that the Judicial Registrar’s orders stood. I explained at the time that I would provide written reasons in due course, but was concerned to ensure that the matter was brought to trial as soon as possible and wanted to avoid any delay in re-fixing the matter for trial while my reasons were pending. I made orders accordingly, including by fixing the proceeding for hearing on 20 August 2018 and providing for the remaining interlocutory steps. These are my foreshadowed reasons, including on the question of costs of the application for review.
[1]See, for example, David Gurupatham v Jim Lim [2017] VCC 948
Application and outcome
3 The application in more precise terms is for Peta to be appointed to represent Martin’s estate pursuant to r16.03 in this proceeding against Simon and Simon’s company, the second defendant (“Nizpro”). Martin died on 28 September 2017. Simon opposes the application essentially on the basis that Peta is not an appropriate or suitable person to represent Martin’s estate. He relies both on matters in Peta’s past that he says reflect poorly on her integrity as well as on her conduct of the proceeding to date – both the fact that the costs of the proceeding under her stewardship have denuded Martin’s estate of funds and her lack of full and frank disclosure in this application. He seeks in the alternative, orders imposing conditions on Peta’s representation of Martin’s estate; in particular, an order that Peta provide security for Simon and Nizpro’s costs.
4 Despite some reservations, I am satisfied that Peta is a suitable person to represent Martin’s estate and will exercise my discretion to appoint her pursuant to r16.03(1)(b) of the Rules to do so, by not disturbing the Judicial Registrar’s orders. I also decline to impose any conditions on her representing the estate. A factor I have taken into account in exercising my discretion is that the allegations against Simon and Nizpro that Peta seeks to agitate in this proceeding are serious and warrant examination at trial, including by evidence viva voce and cross-examination of relevant (surviving) witnesses. Further, given the parlous state of the estate’s finances, Peta is the only person with a sufficient interest in the outcome to continue to pursue the claims to trial. Thus, acceding to Simon’s submissions by refusing to appoint Peta to represent the estate will effectively and permanently stultify the proceeding.
Evidence and background
5 Peta’s application as originally brought was supported by her affidavit sworn 29 January 2018. She also relies on the affidavit of her solicitor Richard Kent sworn 4 April 2018. Simon relies on a total of four affidavits sworn by his solicitor Cameron Groppi dated 1 February, 29 March, 5 April and 9 May 2018. The latter was not before the Judicial Registrar, but seeks only to correct a date in his affidavit of 1 February. No objection to the 9 May affidavit was taken on behalf of Peta and I agreed to receive it. Simon also relied on a letter from his solicitors to Peta’s solicitors dated 16 October 2015, which was an exhibit to an affidavit sworn in the proceeding by Mr Kent on 7 November 2016, when it was still in the Supreme Court (it was transferred to this court in March 2017). Despite apparently having had ample opportunity to do so, Simon himself has not sworn an affidavit to verify directly the facts on which he relies.
6 The summary of the factual background that follows is based on the totality of that evidence, to the extent it is relevant to the determination of this application. I have identified where matters of particular relevance to the current application are in dispute.
7 Until 9 July 2013, Martin and his wife Margaret were joint registered proprietors of the property at 28 Joy Avenue, Mount Evelyn, Victoria (“the Mount Evelyn property”). Margaret was diagnosed with Parkinson’s disease in the early 1990s and later developed dementia. In November 2010, Margaret was placed into an aged care facility in Montrose. She died on 14 June 2014. Peta and Simon are the only surviving children of Martin and Margaret. Their brother Mark died in 1986. Simon asserts that Peta left the family home in around the mid-1970s when Peta was 18 and Simon was eight, and had only limited contact with her parents in the ensuing years. He says that he, in contrast, remained living at home until the age of 36 and remained close to his mother and father thereafter. Apparently despite this, Martin made a will dated 25 February 2004 in which he appointed State Trustees Limited (“STL”) as executor and trustee and left his residuary estate to Peta (40%), Simon (40%) and his deceased son Mark’s daughter (20%). I note in passing that Mark’s daughter is aware of the proceeding and has made clear that she does not wish to take any part in it.
8 In early 2013, Simon arranged for Nizpro to purchase a factory at 8 Turbo Drive, Bayswater (“Bayswater factory”). The Bayswater factory incorporated living accommodation. Simon asserts that Martin was personally involved in decision-making about the design and layout of that living accommodation, which required structural alterations to the existing factory office area. Martin moved into the living accommodation at the Bayswater factory in about April 2013. The Mount Evelyn property was sold at about the same time, with settlement occurring on 20 June 2013. The net proceeds from the sale in the sum of $470,800.02 were paid into two bank accounts, one in Martin’s name and the other in Martin and Margaret’s names. In July 2013, a sum totalling $510,000 was withdrawn from those accounts. $10,000 of that sum was paid directly to Nizpro and the balance of $500,000 was used to repay Nizpro’s liability under a mortgage over the Bayswater factory.
9 It is common ground that Margaret’s death in June 2014 had a significant impact on Martin. Simon’s solicitor asserts on information and belief that Martin’s “behaviour became uncharacteristic: he became erratic and aggressive”. Peta describes him as becoming depressed and overwhelmed. It appears that during a visit to Melbourne from her home in Sydney in October 2014, Peta arranged, or assisted Martin to arrange, for Martin to appoint Peta as Martin’s enduring power of attorney (financial), enduring power of attorney (medical treatment) and enduring guardian. Martin also signed a new will at this time (dated 21 October 2014) again appointing STL as executor and trustee, but this time leaving his residuary estate as to 50% each to Peta and Simon. Peta has been advised by her solicitors that this will is likely to be invalid, because Martin did not have the requisite capacity at the time it was made.
10 In November 2014, Martin moved from the Bayswater factory to live with Peta in Sydney. On 21 November 2014, Mrs Maria Stefanou, a Victorian social worker who had been assessing Martin in Victoria, made application to NSW Civil & Administrative Tribunal (“NCAT”) for a guardianship order for Martin. NCAT provided reasons for its decision dismissing the guardianship application and appointing Peta as Martin’s financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian. Those reasons include a useful summary of a number of the facts and issues relevant to this application, as follows:
“At the hearing, Simon conceded that his father had no legal interest in the [Bayswater] factory. The transfer of the $500,000 to Simon’s company was akin to a gift which was willingly made by Martin. Simon’s evidence is that his parents always intended that their assets would pass to Simon after their death, and he believes he is entitled to the $500,000.
As a result of Martin’s loss of memory, he is not able to provide the Tribunal with his version of the basis on which he provided the $500,000 to Simon’s company.
The Tribunal was provided with a copy of an AVO taken out by the Victorian Police against Simon. It is stated in the AVO that Simon attempted to punch Martin in an incident at the factory on 23 October 2014 and that Martin fears Simon.
…
Martin told the Tribunal that he is very happy living with Peta and does not want to move anywhere else.
Simon told the Tribunal that he has no objection to his father living with Peta. He believes that Martin and Peta will fall out and that Martin will wish to return to Melbourne sometime in the future.
…
The Tribunal was satisfied that Peta had been appointed as enduring guardian for Martin and may make decisions on his behalf in accordance with that appointment.
…
The Tribunal was provided with a letter dated 19 November 2014 prepared by Dr Kuc, psychiatry registrar at the Eastern Health in Victoria. Dr Kuc states that Martin has very significant memory deficits suggestive of a mixed dementia with Alzheimer’s. Dr Kuc does not believe that Martin has capacity to make decisions about his living arrangements or finances.
…
Martin has small amounts in two of his bank accounts and he has a term deposit of an excess of $100,000. He is in receipt of the aged pension.
Peta stated that she has sought legal advice in relation to recovering the $500,000 that Martin had provided to Simon’s company.
…
Peta told the Tribunal that she and her husband had been bankrupted in approximately 2003 and that she had been discharged a couple of years ago. She also told the Tribunal that she had been caught by the authorities for unlawfully obtaining the dole when she was in her twenties, over 30 years ago.
Peta had identified a conflict of interest with Martin’s finances. She had recently signed a lease on a house in Sydney which would accommodate her family and Martin. Receiving a financial contribution from Martin was essential in allowing her to meet the rental commitments on the property.
Determining whether Martin has a claim in relation to the $500,000 provided to Simon’s company is a major and very important part of managing Martin’s financial affairs. The Tribunal determined that Peta is the most appropriate person to investigate and, if appropriate, pursue that claim on behalf of Martin.
Although the Tribunal is concerned about the risk to Martin in appointing Peta due to her bankruptcy, past financial dishonesty and current conflict of interest, the Tribunal determined that it was in Martin’s best interest that Peta be appointed in preference to the NSW Trustee.
The Tribunal decided that Peta would most likely be very active and diligent in resolving the issue regarding the $500,000 and would be better placed than the NSW Trustee in providing instructions to any lawyers engaged in the matter. In making this appointment, the Tribunal was mindful that the NSW Trustee would have a role in supervising Peta’s actions as financial manager.”
11 Peta as Martin’s litigation guardian brought this proceeding in the Supreme Court of Victoria in December 2015. Martin was the named plaintiff and there were originally five defendants, namely, Simon, Nizpro and three other parties, one or all of whom were alleged to be recipients of the $500,000 used to repay Nizpro’s liability under a mortgage over the Bayswater factory. Martin was given leave to discontinue the claim against those three parties by order made on 9 November 2016. Peta’s solicitor has deposed that Peta was duly authorised in writing by the NSW Trustee to commence and continue the proceeding. He further deposed that all legal costs paid to his firm by Martin before his death including $32,000 paid to the third to fifth defendants following the discontinuance of the proceeding against them, were also the subject of written approvals by the NSW Trustee.
12 The substance of the claim against Simon and Nizpro in the proceeding is that by an agreement made in or about February 2013, Simon and Nizpro agreed that Martin would sell the Mount Evelyn property and use the proceeds of sale to buy into, and become a co-owner of, the Bayswater factory. There are alternative claims relying on broadly the same factual allegations alleging misrepresentation, estoppel, non est factum, unconscionability, undue influence and breach of fiduciary duty. The relief sought includes orders for the avoidance or setting aside of the transaction, declaring that Nizpro holds the property on a constructive or resulting trust to the extent of Martin’s contribution and/or damages or compensation of $510,000 plus interest. Simon disputes the claims, alleging in substance that the payments by Martin totalling $510,000 were a gift.
13 Simon’s solicitor asserts on information and belief that when Peta took Martin to Sydney in November 2014, he had assets including a Bendigo Bank account with approximately $105,000, two ANZ accounts with approximately $17,000 in total and a 2008 Mercedes-Benz worth approximately $40,000. In a letter dated 16 November 2017 from Peta’s solicitors to STL, Peta’s solicitor discloses that the assets of Martin’s estate comprised three ANZ bank accounts with total funds of $1,028.24 and that there was a sum of $11,104.70 unpaid in respect of Martin’s residential care fees up to the date of death. Simon makes a number of allegations of unauthorised expenditures by Peta in the period before Martin’s death, as referred to below.
14 However it does not appear to be in dispute that a significant proportion (and possibly all) of whatever funds Martin had at the time this proceeding was commenced, had been exhausted on legal costs and disbursements associated with the proceeding by the time of Martin’s death in September 2017. On 6 December 2017, STL wrote to the solicitors for both parties confirming their understanding that Martin’s estate was insolvent, except for potential recovery in this proceeding. The letters state that (errors in original):
“It seems that if Peta Gischus wishes to do so, that she ought be permitted to pursue the action. That if the action is ultimately successful and there are to be funds available to estate, that State Trustees could seek a Grant at that time.”
15 By letter dated 10 January 2018 to the court, STL noted that they had been advised by Peta that the estate was insolvent and that there are therefore no funds available to the estate to investigate issues, engage counsel to advise and/or conduct the litigation. The letter continues:
“We understand Peta Gischus would intend to make application under rule 16.03(1) to be permitted to continue to conduct the litigation. We would have no objection to such an order being made. If the action ultimately succeeds and there is an estate to administer, State Trustees could seek a Grant of Probate at that time.”
The law
16 Rule 16.03 of the Rules permits the representation of the estate of a deceased person in circumstances where the deceased person was interested in any question in a proceeding, but the deceased person has no personal representative. Rule 16.03(1) provides that in such circumstances the court may: “by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding”: r16.03(1)(b). Where an order is made under r16.03(1), that order and any judgment or order subsequently given or made in the proceeding “binds the estate of the deceased person as it would had a personal representative of the deceased been a party”: r16.03(2).
17 I cannot improve on the analysis of the operation of the rule by Sloss J in Talacko & Ors v Talacko [2015] VSC 624 (“Talacko”) (reversed on appeal but not on this point, see Bennett v Talacko [2016] VSCA 179) at [165]ff, omitting footnotes:
“There is a dearth of authority on r 16.03(1)(b), and what factors should guide the exercise of the court’s discretion to appoint a person to represent the estate of the deceased for the purposes of an application or the trial of a proceeding. In Hewitt v Gardner; Hewitt v Gardner, a decision concerning the counterpart provision in New South Wales, r 7.10(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW), Ward J examined the procedural history of the rule. Her Honour noted that the predecessor to the present rule is found in Pt 8 r 16 of the old Supreme Court Rules and dates back to s 44 of the Chancery Procedure Act 1852 (15 & 16 Vic c 86), but she added ‘many older variants of the rule do not include an equivalent of r 7.10(1)(b)’.
Her Honour then turned to consider what r 7.10 contemplates, stating:
‘Although the present service of Ritchie’s Uniform Procedure NSW when addressing r7.10 appears to contemplate that normally the appointment will be of an administrator ad litem…on my reading of Dean & Chapter of Ely v Gayford, while that case supports the proposition that the person appointed under such a rule ‘ought, as nearly as possible, to be the same as would have been appointed administrator ad litem’ (at 896–897), it does not support the proposition that an appointee under the rule must necessarily (or would normally) be appointed as an administrator ad litem.’
Justice Ward was also satisfied that the rule could be used to appoint a personal representative to act as plaintiff, even though the reported cases suggest that historically it has rarely been done. Her Honour summarised the position, stating:
‘The usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances.’
Accordingly, her Honour concluded that she was satisfied that ‘r 7.10 does empower the appointment of a personal representative to act as a plaintiff in appropriate cases’ but recognizing, however, that ‘[u]ltimately, the question whether a personal representative should be appointed is an exercise of discretion’ (Tarratt v Lloyd; Green v Green(1989) 17 NSWLR 343 at 350 per Gleeson CJ).”
Submissions and analysis
18 Simon argues that an applicant for appointment by the court under the rule should properly put before the court all material known to the applicant that may be relevant to the court’s assessment of the applicant’s “suitability” for appointment to represent the estate in accordance with the principles set out in Talacko. He submits that Peta is an unsuitable candidate based on the matters set out in the affidavits sworn by his solicitor, including:
· Peta’s affidavit does not make full and frank disclosure of all matters that may be relevant to the court’s assessment of her suitability
· her affidavit does not disclose that the deceased estate is now insolvent or why it has become insolvent under her financial management of Martin’s affairs;
· she has refused to provide any financial information to Simon;
· her affidavit does not inform the court that she was bankrupted in 2003 or that in the past she has falsely claimed employment benefits;
· she did not provide the court with NCAT’s ruling dated 19 December 2014;
· her affidavit did not disclose the directions or authorities to which she was subject from the NSW Trustee and Guardian;
· she does not disclose the amount of Martin’s money she has spent in her former capacity as litigation guardian pursuing this proceeding; and
· she has not put any information before the court that she has capacity to continue to run this litigation through to conclusion at trial.
19 On the question of the adequacy of disclosure in Peta’s original affidavit, I am not persuaded that Peta had made a calculated decision to omit the matters referred to in Simon’s submissions and his solicitor’s affidavits. Her suitability to act in the matter as Martin’s litigation guardian had been fully agitated in the NCAT proceeding. In my view, it was not unreasonable for her and her advisers to consider it sufficient to rely primarily on the fact of her status as litigation guardian over several years to support her application under r16.03. I agree that it would have been preferable for her at least to have exhibited the NCAT reasons, but I do not ascribe any nefarious motivation for her failure to do so. Among other things, a moment’s reflection would have identified that Simon would seek to agitate all these matters on the current application, so any perceived tactical advantage in withholding it would have been very short-lived.
20 As to the insolvency of the estate (and thus the amount of Martin’s money Peta had spent in pursuing the proceeding), in my view this was adequately ventilated in the correspondence exhibited to Peta’s affidavit (for example, the letter from Simon’s solicitors to STL at “PAG.13”). Turning to her disclosures of money spent as litigation guardian, this was subject to oversight by the NSW Trustee and Guardian. Accordingly, I do not accept that the details of this spending was something Peta and her advisers should have identified as requiring disclosure on this application. I also accept Peta’s submission that directions, authorities and correspondence involving the NSW Trustee and Guardian were appropriately withheld as privileged. And I see no reason why Peta is under any obligation to disclose to Simon details of her capacity to run the litigation to trial. The only relevant consideration under the rule is whether she is both suitable and willing to do so.
21 Simon’s solicitor’s second affidavit of 29 March 2018 includes a very detailed analysis of bank statements and other documents produced in the course of discovery in the proceeding. Simon appears to rely on this material not only as relevant to Peta’s management of Martin’s financial and other affairs and thus her suitability under r16.03, but also in relation to certain issues in the substantive proceeding (for example, paragraph 16(d) of Groppi’s 29 March affidavit which seems to concern only the issue of Martin’s capacity). Peta’s solicitor responded to these matters by his affidavit dated 4 April and Simon’s solicitor replied to that affidavit by his further affidavit dated 5 April 2018. The matters raised by Simon’s solicitor range from asserting identified withdrawals of $3,000 to evidence of two transactions on Martin’s account in sums of $29.99 and $31.99 at “Dan Murphy”. In relation to the latter, Simon’s solicitor deposes that “I am advised by Simon and believe that Martin did not drink alcohol”. Peta’s solicitor’s affidavit includes a response to this allegation.
22 I say two things about this material. First, it is impossible for me to make anything of it in the absence of cross-examination on each alleged issue. Unsurprisingly, it is clear on the material that there are two sides to every story. There was no application to cross-examine Peta on her affidavit. And, as mentioned above, Simon did not swear an affidavit on the application and thus avoided exposure to cross-examination. Second, it is not obvious to me how the significant costs undoubtedly involved in generating this detailed material, were justified. To the extent it might be said to reflect on Peta’s management generally of Martin’s finances, it is at best peripherally relevant and at worst petty. To the extent that it concerns the substantive issues in the proceeding, it is entirely irrelevant to this application.
23 Peta submits that the preconditions for an order under r16.03(1)(b) have been met in this case and the orders should be made. She says that she cannot be substituted for Martin under r9.09(2) of the Rules as the estate does not devolve to her. She is not named as an executor under either of Martin’s wills. She notes that STL is not proceeding to seek probate, as there is at present no Victorian estate to administer, and whether there will be will depend on the success of this proceeding. She submits that this case therefore fits within the “usual circumstance in which a personal representative would be appointed under the rule” as referred to by Sloss J in Talacko, namely, where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate.
24 I agree. I am satisfied that Peta is a suitable person for appointment to represent the estate under r16.03. There are aspects of her conduct both historically and in relation to her management of the proceeding to date that may have weighed against her if there was another person who was willing to conduct the proceeding. However (unlike in Talacko), this is not a competition between two or more possible candidates, where an assessment of relative suitability may be appropriate. I am satisfied that the aspects of her conduct referred to do not make her unsuitable. This is also not a case where the estate will continue to be depleted as the proceeding continues under Peta’s control, to the detriment of Martin’s other potential beneficiaries (including Simon). For better or for worse, the funds of the estate have now been exhausted. The proceeding will only continue to trial if Peta is prepared to fund it (or make other arrangements to cover future costs and disbursements).
25 Moreover, like the NCAT panel, I consider that determining whether Martin’s estate has a claim in relation to the $510,000 provided to Simon’s company is “a major and very important part” of finalising Martin’s estate. To my mind there is a real question of whether the funds were a gift. In particular, Simon asserts in his defence that, in offering to give Simon the money from the sale of the Mt Evelyn property, Martin said to the effect “you are going to get it anyway, you may as well have it now”. This does not sit comfortably with the terms of the 2004 will, which was at the time of the alleged conversation Martin’s last will. The words attributed to Martin would only be factually accurate if Martin then had an intention to change his 2004 will. Further, that will comprises objective evidence that at least in 2004 Martin intended to treat his two surviving children equally, notwithstanding that (according to Simon), Martin and Peta had by then been estranged for 25 or so years.
26 In my view, it is relevant to my discretion to find on the material (as I do), that this important question will only be fully exposed if Peta’s application is granted. There is no other party (including, notably, STL) that is willing to pursue the matter to trial, including by funding any costs of doing so. I note in this regard that Peta has formally consented to her appointment to represent Martin’s estate, as required by r16.03.
27 I turn finally to Simon’s submission that if (as I have determined) I am inclined to make the appointment, I should impose conditions. The condition sought is that I order that Peta provide security for costs to and including the trial in the sum of $186,700. Accepting for the moment that I have power to impose a condition of the kind sought (or, indeed, any condition), I decline to do so. This is not a case (unlike Ambridge Investments Pty Ltd v Baker & Ors [2016] VSC 616 relied on by Simon) where there is a need for a proper contradictor and funds available in the estate should be released to cover the costs of that contradictor. The circumstances of this proceeding are more in the nature of a dispute between two private litigants with competing claims to a fund. Thus an order for security for costs in this case would be akin to ordering a natural person plaintiff to give security.
28 Peta submitted that I should also be satisfied that the order sought would stultify the proceeding. Simon rightly pointed out that there was no evidence on which I could base such a finding. While I strongly suspect that this would be the effect of an order for security, I consider that the order should not be made regardless. There are important issues to be resolved in this case and those issues should be ventilated at trial at the earliest opportunity.
29 On the question of the costs of the application for review, on further reflection, I consider that those costs should follow the event. I will therefore order that the defendants’ application for review dated 19 April 2018 be dismissed and that the defendants’ pay the plaintiff’s costs of and incidental to the application on the standard basis, in default of agreement.
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Certificate
I certify that these 15 pages are a true copy of the reasons for decision of His Honour Judge Woodward delivered on 7 June 2018.
Dated: 7 June 2018
Simone Karmis
Associate to His Honour Judge Woodward
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