Body Corporate 307730 v Registrar of Companies

[2012] NZHC 3085

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-399 [2012] NZHC 3085

BETWEEN  BODY CORPORATE 307730, A BODY CORPORATE CONSTITUTED UNDER THE UNIT TITLES ACT 1972, 36

VICTORIA ROAD, MT. MAUNGANUI First Plaintiff

ANDNOEL LEWIS MCLEOD AND MARILYN ANNE MCLEOD OF 301/35 VICTORIA ROAD, MT. MAUNGANUI

Second Plaintiffs

ANDTHE REGISTRAR OF COMPANIES First Defendant

ANDTHE SECRETARY TO THE TREASURY Second Defendant

AND  GRAHAM FRANK ROGERS OF 1/24

THE MALL, PILOT BAY, MT. MAUNGANUI

Third Defendant

Hearing:         6 November 2012

Appearances: Mr G Brittain for Plaintiffs

Mr C Light for Third Defendant

Judgment:      23 November 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

23.11.12 at 5 pm, pursuant to

Rule 11.5  of the High Court Rules. Registrar/Deputy Registrar

Date……………

Mr G Brittain, Tauranga – [email protected]

Stace Hammond, P O Box 19-101, Hamilton – [email protected]

BODY CORPORATE 307730 & ORS V THE REGISTRAR OF COMPANIES HC TAU CIV-2012-470-399 [23

November 2012]

ANDTHE SECRETARY TO THE TREASURY Second Defendant

AND  GRAHAM FRANK ROGERS OF 1/24

THE MALL, PILOT BAY, MT. MAUNGANUI

Third Defendant

Background

[1]      The plaintiffs seek an order restoring Mount Lifestyles Ltd (“the company”) to the Companies Register (“the Register”), under s 329 of the Companies Act 1993 (the Companies Act).  The plaintiffs own apartments in The Anchorage development at Mt Maunganui. The apartments are non-weathertight. The plaintiffs are seeking an order under s 329 because they consider that they have a claim against the company for the loss they have suffered as a result of the weathertightness issues.

[2]      The defendant company commissioned Mainzeal Property & Construction Limited (“Mainzeal”) to build the apartment complex in 2002.  In the construction contract, Mainzeal gave warranties for workmanship in respect of elements such as the waterpoof coatings, the exterior cladding, the sheet tanking and the like. When the construction was completed, the Tauranga City Council declined to provide a Code Compliance Certificate because of weathertightness issues.   Pursuant to its warranties, Mainzeal carried out substantial repairs over 2007-2008.   In 2009, the Tauranga City Council issued a Code Compliance Certificate.  In that same year, the company distributed the profits that it had earned on the development to its shareholders.   In September 2009, the company resolved to enter into a solvent liquidation.  Liquidators were duly appointed.  The liquidators filed their final report on 29 January 2010.  In the same year, the company was struck off the Register.  The apartments have subsequently been found to still have weathertightness issues.

[3]      The plaintiffs to the present proceeding have commenced proceedings against the defendants seeking to recover damages.  They wish to have the company restored to the Register so that they can proceed against it..  They therefore seek:

a)        an order under s 329 of the Companies Act restoring the company to the Register;

b)an order under s 284 of the Companies Act  reversing the liquidators' final report dated 29 January 2010;

c)       an order under s 241 of the Companies Act appointing new liquidators for the company, and

d)an order under s 248 of the Companies Act granting leave to the plaintiffs and registered proprietors of the units to commence a proceeding in the High Court against the company.

[4]      The plaintiffs wish to have the company placed in liquidation because the repairs that were carried out to the building in 2007-2008 did not allegedly remedy the problems of weathertightness.   Further repairs will be necessary.   While there was no agreement about even the approximate cost of those repairs, Mr Light for the third defendant was prepared to accept that they would cost at least $1 million.  It would appear that the company does not have any assets from which it would be able to satisfy a judgment for damages.

[5]      The third defendant, as a former director of the company, does not oppose the restoration of the company to the Register.  However, he opposes the company being placed in liquidation.

[6]      The plaintiffs propose to proceed against the company on the ground that as a developer of the apartment complex, the company owed a non-delegable duty to the purchasers.   Of particular interest to the plaintiffs is the fact that the company obtained warranties from Mainzeal.  The plaintiffs consider that it would be in their interests for the company, on their behalf, to claim on those warranties.  However, they are concerned that the company will not be obliged to invoke the warranties. Notwithstanding  that  Mr  Light  for  the  company  said  that  the  company  would consider invoking the warranty, Mr Brittain for the plaintiffs submitted that there would be a better chance of the company in liquidation acting to protect the interests of the plaintiffs, than if it were to be left under the control of Mr Rogers as director of the company.

[7]      There is a dispute as to the terms upon which the liquidation should occur. The  plaintiffs  submit  that  the  Court  is  required  to  make  an  order  appointing

liquidators or, alternatively, that the Court in its discretion ought to appoint liquidators.  This application raises the following issues:

a)       whether, on restoration of the company to the Register, it should be placed in liquidation;

b)if  not,  whether  liquidators  should  be  appointed  to  the  restored company and, if so, by what means (i.e. by means of directions under s 284 or by order under s 241), and

c)       if  liquidators  are  to  be  appointed  by  order  under  s  241  of  the Companies Act, whether the plaintiffs have the necessary standing under that section.

The status of company on restoration

[8]      The usual authority on the question of the status of a company following re- instatement onto the Register is the judgment of Fisher J in Re Ocean Shipping Limited.[1]    In Ocean Shipping, the liquidation of the company was voluntary, which is the equivalent of the shareholders’ liquidation that occurred in the present case. Fisher J, having determined that an order should be made restoring the company, considered the question of whether the company should be returned to the state of liquidation that it was in prior to it being removed from the Register of Companies. In that regard, the Judge commented:

The next question is whether I should take the second step of effectively reinstating the liquidators and the liquidation. It does appear that following the completion of the liquidation brought about by the filing of the final report (ss 219, 231 and 253) there is a status in which the company is no longer in liquidation but awaits removal from the Register. I could, as I understand it, reinstate the liquidation under s 258. The powers under that provision may be exercised after removal of a company from the Register and whether or not liquidators have ceased to act: see s 258(2). The jurisdiction includes the power to reverse any act of the liquidator: see s

25(1)(b). If I reverse the filing of the final report which did de facto take place in this case that in turn would seem to abrogate the completion of the

liquidation.

[1] Re Ocean Shipping Limited HC Auckland M348/96, 16 July1996 at 2.

[9]      I respectfully agree with Fisher J’s conclusion.  I consider that the liquidators in this case vacated their office on the filing of the final report to creditors.   The company, not being in  liquidation at the point where it was  removed  from the Companies Register, would not resume its former status of a company in liquidation for the reason only that an order has been made restoring it to the Register.

Whether liquidators should be appointed to the restored company and, if so, by what means

[10]     In Ocean Shipping, the Judge, having concluded that liquidators ought to be appointed,  adopted  the  mechanism  of  setting  aside  the  final  liquidator’s  report which, in accordance with the Act, is the event that leads to the vacation of office by the liquidators.[2]   Later in this judgment, I shall consider whether that approach is the appropriate one to adopt in the circumstances of this case if renewed appointment of liquidators is warranted, or whether the Court ought to proceed under s 241.

[2] Companies Act 1993, s 249(a).

[11]     In the present case, Mainzeal has given warranties concerning the quality of its work over the building to the company.  The plaintiffs consider that if they are able to access those warranties, Mainzeal will be indirectly obliged to meet the damages claims.  That is, the plaintiffs cannot claim directly against Mainzeal on the warranties.  But if they are able to establish liability against the company, then the company could pass on the claims to Mainzeal under the warranties.  The plaintiffs say  that  there  is  doubt  whether  the  company,  while  it  is  under  the  control  of Mr Rogers, would make the warranties available or otherwise cooperate so as to allow  the  plaintiff  to  take  advantage  of  the  warranties.    They  say  that  those difficulties would be avoided if liquidators were to be appointed.  The second ground is that they say that there may have been insolvent transactions carried out by the company prior to the shareholders’ resolution to liquidate in 2010.   A further and related ground is that distributions that were apparently carried out prior to the liquidation of the company might be the basis of claims that the director, Mr Rogers, breached his duty as such.

[12]     In the Ocean Shipping case, Fisher J based his decision to appoint liquidators on the ground that it was necessary to investigate possible insolvent transactions for misconduct on the part of the directors.  The Judge stated:[3]

I then turn to see what competing interests might warrant protection. The only opposition has come from Mr Bourgogne. I do not understand what substantial interest he would have to protect in this matter. If, as he says, there is no substance behind the allegations then it could not result in any significant detriment to him. If on the other hand there is substance in them then he would have no legitimate interest to protect. I appreciate that the process of further investigation could cause additional time and trouble to Mr Bourgogne but I am unable to place great weight upon that compared with the interests of Orient Shipping. It should not be lost sight of that Mr Bourgogne's company has caused major loss to Orient Shipping. It does not lie readily in the mouth of the director or proprietor of a company in those circumstances to attempt to forestall further investigation. For those reasons I take the  view  that  the  further  orders  should  be  made  to  the  general  end  that  the liquidation will be reinstated as will the original liquidators.

[3] Re Ocean Shipping, above n 1, at 3.

[13]     The Judge also noted:[4]

There is therefore, in my view, jurisdiction in that regard but of course the question is whether it should be exercised in this case. In that regard Orient Shipping argues that there has never been full and adequate exploration of the financial history of the company with a view to maximising the possible returns of creditors. Two examples are given. One is the possibility of reckless trading in respect of which Mr Bourgogne, a former director, may have been a party. That is said to arise from the circumstances in which Ocean Shipping elected to take a charter from Orient Shipping based upon the financial security of another company, Translink which turned out to be ill placed. Another allegation is that when Ocean Shipping sub-chartered two ships to another company, Great Ocean Lines, that may have represented the disposition of valuable rights at an under-value.

[4] Ibid, at 2.

[14]     Fisher J next considered a submission that the re-appointment of liquidators was unnecessary because the parties who claimed that there may have been insolvent transactions were on a fishing expedition.  The Judge said however:[5]

It does seem to me, however, that there is a very strong presumption that the creditors of a failed company are entitled to a full and thorough investigation of the financial history and status of the company. That is especially the case where they are prepared to fund the exercise. Orient Shipping have been denied that opportunity in the present case. It may be that at the end of the day, as Mr Bourgogne alleges, the further investigation will prove fruitless but for my part I would be very slow to see a creditor denied at least the opportunity.

[5] Ibid.

[15]     The director of the company in this case, Mr Rogers, similarly opposes the further appointment of liquidators.  It is necessary to briefly consider the merits of his position.

[16]     In this case, the creditors have brought a claim for damages in excess of

$1,000,000.  They say that the defendant company was the developer of the property, and as such, owed a non-delegable duty of care to the purchasers of the units.  In some cases (for example that concerning the third plaintiff), the plaintiff has a claim based on a contractual warranty against the company.  The actions of the director in

2009 in distributing the company’s remaining capital to the shareholders effectively left it without any resources with which to meet either of these potential claims. Mr Light for Mr Rogers was dismissive of the claim based upon the company’s status as a developer.  Whatever the truth of that is, there can be little doubt that the apartment owners have suffered  financial loss  through water ingress  that would probably not have occurred, had Mainzeal met the terms of the warranties it gave to the company.  It may be that Mr Rogers did not appreciate that notwithstanding the attempted repairs that took place in 2007-2008, latent claims against the company still existed because it had not appreciated that the repairs had apparently not been successful.   However, it would appear that for the purposes of s 292 of the Act (which deals with insolvent transactions), knowledge on the part of the company’s directors is not required.  I do not overlook that Mr Rogers has given a deposition as follows:

There were no voidable transactions.   [The company] was solvent during the period preceding the liquidation in that it was able to pay its debts.

[17]     There may be an argument available to the company that the company was, at the  time  of  the  liquidation,  able  to  pay its  “due  debts”  within  the  meaning  of s 292(2).   Such a view could be reached on the assumption that a potential claim available to the plaintiffs to sue the company for damages in tort or contract did not constitute a due debt which the company should have paid.   On the basis of the arguments and evidence before the Court, I would not go so far as to say though that any distributions to shareholders could not have contravened the section.

[18]     The  most  weighty consideration,  though,  concerns  the  warranties  against Mainzeal to which the company is entitled.  Mr Rogers has stated that the company may take steps if necessary to invoke the warranties against Mainzeal in the context of claims brought by the plaintiffs against the company.  Mr Brittain characterises this stance as being unsatisfactory.   He says that the position of the unit owners would be better secured  by the appointment  of liquidators,  who would  take an unbiased and neutral approach to the question of whether or not the warranties should be invoked.   It  was the substance of his submission that given that the apartment owners are potential creditors of the company, the liquidators who are bound to have regard to the interests of the creditors would be more likely to take action against Mainzeal under the warranties than would be the case if Mr Rogers remained in control of the company.

[19]     On the ground relating to the warranties alone, I agree with Mr Brittain’s submission that there is good reason why liquidators ought to be appointed to the company.

[20]     The  next  issue  concerns  the  means  by  which  liquidators  ought  to  be appointed.  Mr Brittain submitted to me that I ought to follow the course that Fisher J took in Ocean Shipping.   In summary, Fisher J made an order invoking the jurisdiction under s 284 to supervise the actions of liquidators, and   reversed the decision on the part of the liquidators to file their final report, that event triggering the discharge as liquidators.  This effectively reversed the ending of the liquidation and the discharge of the liquidators.

[21]     Mr Light opposed such a course being taken.  He submitted that before the Court can make an order to set aside a liquidators’ decision, the decision must be shown to be “wrong or unreasonable”.[6]   In the Ocean Shipping case, the liquidators took steps to end the liquidation, notwithstanding the dissatisfaction of a major creditor, Orient. Orient also objected to the removal of the company from the Register, but the Registrar ignored the notice of objection.  Whether the liquidators knew about Orient’s dissatisfaction before they filed their final report is not clear.

[6] Trinity Foundation (Services No. 1) Ltd v Downey (2006) 3 NZCCLR 401 (CA) at [31].

However, in this case, there is no evidence that the liquidators knew about the

potential claim arising out of the weathertightness issues.  I therefore agree that the liquidators did not apparently make any error.  I do not consider that it is justified to unwind the liquidation under a section of the Companies Act headed “Court supervision of liquidation”, so that the liquidators can be re-instated for the convenience of one of the parties.

[22]     That, however, is not  the end  of matters,  because it  is  still open  to  the plaintiffs to seek the appointment of liquidators under s 241 of the Companies Act.

[23]     In order to obtain a winding up order the plaintiffs in the present case must negotiate a number of steps.  The first is establishing that they have standing to apply for the liquidation of the company.   The classes of persons who are able to apply include prospective creditors of the company.[7]

[7] Companies Act 1993, s 241(2)(c)(iv).

[24]     The plaintiffs relied upon the decision of Holland J in Re Austral Group Investment Management Ltd.[8]   In that case, the plaintiffs sought to sue the directors of the company for negligence, default, and breach of duty or trust in regard to the operation of the company’s superannuation scheme.  The plaintiffs were trustees of the  scheme.    In  considering  whether  the  plaintiffs  were  prospective  creditors, Holland J noted that whether or not the company would be liable could not be determined  without  a  full  scale  hearing  that  was  estimated  to  take  six  weeks. Holland J concluded that the plaintiffs were prospective creditors of the company in

[8] Re Austral Group Investment Management Ltd [1993] 2 NZLR 692 at 698-699.

the following passage:

Just as the majority of the House of Lords in Re Sutherland found it unnecessary  to  attach  any  connotation  of  certainty  of  liability  to  a "contingent liability", I see no necessity to attach any notion of certainty of liability to the definition of "prospective creditor". Clearly the word "prospective" requires the future to be considered. The word can be used in many contexts and I have not found dictionary definitions to be helpful. When the classes of contingent creditor and prospective creditor were added to the general class of creditor I do not accept that the intention was merely to include persons to whom a debt was certainly payable but payment was not due until the future. I am of the opinion and I hold that the addition of prospective creditors was intended to include persons in respect of whom there is a real prospect of their becoming creditors.

It is significant that in the description of debts provable in the winding up under s 306 of the Companies Act 1955 the adjective "prospective" is not used. The debts are described as "all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages . . .".

It is quite clear that if the company were wound up on the application of some other person the plaintiffs would be able to prove in the winding up. It seems to me that by including prospective creditors as being in the class of persons who can commence proceedings for winding up, it must have been contemplated that persons with claims against a company even for unliquidated damages could have a genuine interest in winding up on the basis that a company was dissipating its assets, or for other good reason.

Obviously the plaintiff in proceedings for winding up must establish in the winding-up proceedings that it is a prospective creditor. The mere fact that the plaintiff had made a claim would be insufficient. It should not, however, be necessary for the plaintiff to prove in those proceedings that such claim will be successful if it can prove that there is a real prospect of it becoming so.

[25]     I respectfully agree with the requirement that there be a “real prospect” of the

plaintiffs in this case becoming creditors of the company.

[26]     Determining whether there is a real prospect that the plaintiffs might obtain a judgment for damages against the company requires some further examination of the causes of action.

[27]     In  this  case,  the  causes  of  action  against  the  company  stem  from  the construction of defective apartments which are non-weathertight.   There is little ground for disputing that some or all of the apartments in the complex have such defects.  The second point is that the defendant company was the developer of the Anchorage development.  Mr McLeod, who is one of the unit owners and a member of the committee of the Body Corporate, has given sworn evidence to that effect.

[28]     Mr Rogers, commenting on whether the company was the developer, said:

In  a  contract  of  this  nature  there  is  very  little  role  for  Mount Lifestyles    as  the  principal.  While  Mount  Lifestyles  has  been referred to as a “developer”, this description is under the circumstances inaccurate.  The contract contains detailed plans and specifications. The architect represents the principle and supervises the work.  There was therefore no need for Mount Lifestyles to take a hands-on approach to the project and it did not.   I would occasionally attend monthly meetings on behalf of Mount Lifestyle

where representatives of Mainzeal, Babbage and Rider Hunt were present. ...

[29]     It appears from the evidence that Mainzeal was the contractor.  Babbage were responsible for the Design and specifications of the project.  Babbage used experts such as chartered engineers, planning consultants, landscape architects and quantity surveyors in designing the project and applying for a building consent and a resource consent.

[30]     However, given that a number of the plaintiffs obtained warranties directly from the vendor, and given that there does not seem to be any dispute that the apartments are suffering from weathertightness issues, I have come to the view that at least some of the plaintiffs must have a good chance of establishing liability on the contractual basis.   In my view, this case is not one where the applicants are, as Holland  J  stated  in  the  above  excerpt,  depending upon  the  “mere  fact  that  the plaintiff has made a claim”.  I consider, therefore, that the plaintiffs, or at least some of them, must be regarded as prospective creditors of the company.  As such they have standing to seek to wind up the company.

[31]     The next issue is whether orders to appoint liquidators should be made.   I consider that a liquidator ought to be appointed under s 241(4)(d) of the Act – that is, if the Court is satisfied that it is just and equitable that the company be put into liquidation.  I set out my reasons for that determination briefly.  The central factual consideration is that there is no dispute that the company has contractual rights under the warranty contained  in the contractual arrangements that it entered into with Mainzeal.

[32]     Mr Light said that his instructions were that if Mr Rogers were to so decide, the company would probably agree to assist the plaintiffs to enforce the warranty. Given that the company has nothing to gain from being anything other than cooperative with the plaintiffs, that would seem to be a sensible approach.  But the fact that the company (or more accurately its director) is unable to commit to this course of action does raise questions as to whether it may use its ability to facilitate the use of the warranty as a bargaining chip.  It is difficult to see what the company would have to gain from that course.  If it is a shell company, it could save expense

and trouble by disclosure to the plaintiffs and obtaining a discontinuance, or alternatively, not  opposing the proceedings.    It  may be that  the director of the company is intending to use the issue of making the warranty available as a negotiating point to protect his personal position or that of the shareholders.  The fact that the company’s counsel was unable to explain matters more fully seems to me to invite speculation that this might indeed be the case.   Be that as it may, it would make discussions about the warranty more straightforward if the liquidator, who is entirely neutral on the matter, was to be appointed to represent the company.

[33]     Mr Light referred to various authorities that indicate that the point of placing a company in liquidation is primarily to enable the liquidator to realise the assets of the company and distribute the funds to the creditors.  Mr Light submitted that while the plaintiff has agreed to fund the costs of the liquidation:

... The purpose of the funding is not so that Mount Lifestyles (as a defendant to the plaintiffs’ claim) can mount a full defence to the plaintiffs’ claim, but instead to enforce the guarantee against Mainzeal. The liquidator is not being funded by the plaintiffs to determine if the plaintiffs’ claim is valid and whether it should be fully defended or not.  The liquidator will in effect not be acting in Mount Lifestyle’s interest but instead in the plaintiffs’ interest. This places the liquidator into an impossible conflict of interest, which as an officer of the court is in principle wrong.

[34]     I agree that Mr Light’s description of the conventional reasons for placing a company in liquidation represents an accurate statement of the position in the generality of cases.   However I do not consider that they are not necessarily exhaustive.  If the plaintiffs are prospective creditors of the company, as I find they are, and if it seems clear that the company will not be able to meet their damages claim, then it must be legitimate for the creditors to expect that the company under the control of the liquidator will examine any alternative means of assisting them as creditors.  In this case, there are such available means, namely making available to the  plaintiffs  the  rights  under  the  guarantee  against  Mainzeal.  No  doubt  the liquidator, pursuant to the agreement by the Body Corporate to fund his or her costs, will obtain advice, and come to an objective conclusion as to whether his duties as a liquidator are to do what the plaintiffs seek.  The fact that they are paying his costs does not mean that the decision will be automatically in their favour.   The independence of the liquidator will not be compromised by such an arrangement.

No doubt the liquidator will enquire whether there are any countervailing reasons why he or she should not make available to the liquidators a contractual right that the company owns for the benefit of those creditors.   He may enquire whether it is unnecessary to do that because there is some other source from which the claims of the creditors against the company can be satisfied.   It will be a matter for the liquidator to decide, but from the present standpoint, it seems to the Court unlikely that there will be any other practical means of assisting those prospective creditors.

[35]     If these observations are correct, there is nothing at all objectionable about appointing a liquidator in these circumstances.

[36]     One further observation I make is that it is implicit in Mr Light’s submission that it will always be the obligation of the liquidator to resist court proceedings brought against the company.  I do not consider that is correct.  To the contrary, it may well be the liquidator’s duty not to oppose a claim, but to abide the decision of the Court.  In pursuance of the objective of using the company’s property rights for the benefit of creditors, it may be that the liquidator concludes that he should restrict himself to passing on any liability that might attach to the company by means of third party claims to Mainzeal.   Alternatively, the liquidator may wish to short- circuit matters by assigning the rights under the Mainzeal warranties to the plaintiffs. None of this in my view would place the liquidator in a position where he is subject to conflicting duties.  Nor will it put him in a position where he is embarrassed as an officer of the Court.

[37]     I next consider the issue of whether the plaintiffs ought to have leave to proceed against the company pursuant to s 248 of the Companies Act.

[38]     The main principle governing the exercise of the discretion under s 248 is the cardinal principle that there must be equality amongst the various creditors and the bringing  of  proceedings  should  not  produce  a  comparative  advantage  to  any particular creditor.[9]    There is no evidence that the proceedings would have such an effect.  Indeed there is no evidence that there are other creditors of the company.  A

[9] Steel and Tube Co of New Zealand Ltd v Barker & Pollock Ltd [1973] 2 NZLR 30 at 32.

further consideration is that in this case, the plaintiffs are not primarily or solely

concerned with seeking monetary compensation from the company.  Normally, such a claim will be resolved by the liquidator accepting or declining the claim.   The relief sought in this case is of a different category.  What is sought here is access to the company’s contractual entitlements vis-à-vis Mainzeal.

[39]     I see no reason why leave should not be granted for the plaintiffs to bring proceedings against the company.  I therefore grant leave.

[40]     In summary, the Court makes the following orders:

a)        an  order pursuant  to  s  329  of the Companies  Act  1993  restoring

Mount Lifestyles Ltd to the Register;

b)        an order under s 241 of the Companies Act 1993 appointing Anthony

Charles Harris liquidator of Mount Lifestyles Ltd;

c)       an order pursuant to s 248 of the Companies Act 1993 granting leave to the plaintiffs and the registered proprietors of the units in The Anchorage  to  commence  a  proceeding  in  the  High  Court  against Mount Lifestyles Ltd.

d)       Costs are reserved pending receipt of counsel’s memoranda.

[41]     The final matter concerns costs.  The parties should confer on the matter of costs and if they are not able to agree should file memoranda limited to no more than five pages concerning the matter of costs within 10 working days of the date of this

judgment.

J.P. Doogue

Associate Judge