Broadhurst v Broadhurst
[2016] NZHC 85
•9 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-441 [2016] NZHC 85
BETWEEN JACQUELINE HELEN BROADHURST
Plaintiff
AND
MARK HARTLEY BROADHURST First Defendant
MAUREEN BROADHURST AND ALAN BROWN
Second Defendants
ORCHID LIMITED Third Defendant
CHERUB CHOIR LIMITED Fourth Defendant
LEMON LIMITED Fifth Defendant
Hearing: 26 November 2016 Appearances:
Mr R Smith for Plaintiff
Mr K McDonald for First and Second Defendants
Mr R Collis for Third to Fifth DefendantsJudgment:
9 February 2016
JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
This judgment was delivered by me on
09.02.16. at 4.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
BROADHURST v BROADHURST [2016] NZHC 85 [9 February 2016]
Introduction and background
[1] The plaintiff and the first defendant met in or about 1993 and began cohabiting that year. Before he met the plaintiff, the first defendant had acquired a property at 36 Alberta Road, Pt Chevalier in 1988. The parties began living together at that property.
[2] On 10 February 1995, the first defendant established a trust called the Brutus Trust (the Trust). He was the primary beneficiary under the Trust. The definition of the class of discretionary beneficiaries under the Trust included his spouse for the time being. Approximately eight days after the date on which the Trust was established the parties were married.
[3] The Alberta Road property had earlier been subdivided by cross-leasing and one of the resulting units had been sold off in 1993. The other unit was transferred to the Trust on 3 March 1995, the month after the parties were married. It was eventually sold by the Trust later that year. On the argument which the first and second defendants have put forward in this application (which I will describe in more detail subsequently), the acquisitions of the property at Alberta Road by the first defendant prior to his marriage, and even prior to co-habitation, was the fount from which the substantial property holdings subsequently aggregated by the Trust flowed.
[4] The parties began living apart in April 2010 and their marriage was dissolved on 17 January 2014. The first defendant and the trustees of the second defendant do not accept that the plaintiff is entitled to participate in any of the properties which the Trust acquired. The position those parties take is that these properties never came within the ambit of the relationship property.
[5] Two properties have assumed particular importance in the circumstances of the dispute between the parties and they are mentioned next.
[6] The Trust acquired a property at 8 Faith Grove in which the plaintiff and the first defendant and their children lived, and which was regarded as their family home. The Trust acquired this property in August 2003. A document has been provided in evidence which evidences an agreement on the part of the Trust to the first defendant and his family occupying the property subject to payment of certain expenses.
[7] The other property is located at 24 Tauhinu Road. That was acquired in
2007. That was the same year that the plaintiff’s mother died and it is her case that the substantial purchase monies for this property were paid in by her from an inheritance that her mother left to her. Perhaps surprisingly, the first and second defendants have not been able to recognise that the plaintiff is likely to have an interest in that property which the second defendant may hold subject to a resulting trust in her favour or on some other basis.
[8] The other properties can be mentioned briefly. A property at 24 Clifton Road was purchased by the Trust in December 1995 and then sold again in 2004 at a substantial profit. It is the profit from this property which the first and second defendants say largely funded the purchase of 8 Faith Grove, which was the parties’ family residence.
[9] The 8 Faith Grove property was eventually sold to another trust of the first defendant, the Orchid Trust which was established in July 2011 and which acquired the property at a price of $1,500,000 some two months after its establishment. The Orchid Trust in turn sold part of 8 Faith Grove to a neighbour in 2012 for the price of $630,000 and retained the remnant.
[10] A further property was acquired at Brandon Road, Whangaparaoa which the second defendant, the Trust, brought in March 1995. This was transferred to another trust which the first defendant had established, the Lemon Trust, in August 2011.
[11] As well as these properties, the first defendant had incorporated a company called Hartley Investments Ltd in 1992 and, in 1995, he transferred the shares in that company to the Trust. This company at one point borrowed $350,000 from Westpac
to fund its business activities which, I understand, comprised a car retailing business. The borrowings were secured over 8 Faith Grove.
[12] The plaintiff commenced proceedings in the Family Court at the North Shore in 2010. I interpolate that it is a matter of considerable concern that, five years on, little progress has been made in resolving the property dispute between the parties. I can understand the submission that Mr Kevin McDonald made on behalf of the first and second defendants; that very substantial costs have been incurred by the parties that he represents to this point. He points out that even now, the plaintiff still has not settled the final form of her statement of claim following the transfer of the proceedings into this Court.
[13] I understand that there was a change of counsel at some point in the proceeding and therefore it should not be assumed that the remarks I have just made are critical of counsel. However, this brief reference to the history of the matter makes it plain that it is vital that prompt action is taken to resolve this case. That may involve imposing further case management requirements in addition to orders made in this Court to expedite the hearing of the matter. The point is that the approach that the Court must adopt to the future management of this proceeding is that steps must be taken to schedule a trial and that, notwithstanding the wishes of any one or more parties, there will be a limit to how much more interlocutory manoeuvring there will be time for.
[14] To resume the narrative, the plaintiff, through counsel, has recently submitted to the Court a draft amended statement of claim which adds additional parties to the proceeding over and above the third to fifth defendants (the recipients of property from the Trust) which Mr Robert Collis represents. The proposed additional defendants have, to this point, not been joined although there was an application before the Court to be dealt with at the hearing before me on 25 November which sought joinder. Joinder is not opposed and I make the following orders joining the following as parties to the proceeding as defendants:
a) 12A Trustee Company Limited
b) Mint Advisors Trustees – Brutus Trust Limited c) Gardenia Limited
d) Hartley Investments Limited e) In the Park Limited.
[15] As well as seeking to join further defendants, the plaintiff, as I have noted, is also intending to file an amended statement of claim and directions will be given with respect to that document further on in this judgment.
[16] Prior to the proceeding being transferred into this Court, the first and second defendants filed an application for “a preliminary hearing”. The application sought the making of the following order:
An order that:
A preliminary hearing be held to determine whether the transfers of the properties located at 6/17 Brandon Road, Whangaparaoa, 8 Faith Grove, Greenhithe and 24 Tauhinu Road, Greenhithe (“the Properties”) to the trustees of the Brutus Trust were:
Dispositions intended to defeat the claims or rights of the Applicant contrary to Section 44 of the Property (Relationships) Act 1976; or
Dispositions of relationship property to a Trust that had the effect of defeating the claim or rights of the Applicant contrary to Section 44C of the Property (Relationships) Act 1976.
[17] It does not appear that any notice of opposition has been filed in respect of that application. However, Mr Rod Smith, appearing for the plaintiff, made submissions in opposition to the making of the order sought.
Applications for a separate trial - authorities
[18] The application is made pursuant to r 10.15 of the High Court Rules (Rules)
which provides as follows:
10.15 Orders for decision
The court may, whether or not the decision will dispose of the proceeding, make orders for—
(a) the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding; and
(b) the formulation of the question for decision and, if thought necessary, the statement of a case.
[19] Both parties accepted that there were two leading cases to which the Court should have reference to when deciding the present application. The first is Clear Communications Ltd v Telecom Corporation of New Zealand Ltd, where Fisher J stated:1
Split trials risk a number of difficulties. It is often difficult to define with sufficient precision the demarcation between those issues to be addressed at the first trial and those left for the second (see, for example, the Arklow litigation). It is not always easy to see what matters have become the subject of issues estoppel. It may be necessary to prepare issue estoppel schedules and hear argument as to their scope. A Judge may inadvertently disqualify himself or herself by expressing views on matters yet to be fully addressed at the second hearing (Winton). Findings might be inadvertently made without the benefit of evidence and argument envisaged by a party as appropriate only for the second hearing. The second hearing can require the recalling of the same witnesses with needless extra time and cost to the parties and the public. There is duplication of time spent by counsel and the Court in re- acquainting themselves with issues imperfectly remembered from an earlier trial and the time spent retraversing those matters in Court. There can be multiple appeals (in extreme cases taking the matter to the Privy Council as in Ryde v Sorenson) before returning to the Court of first instance to embark upon the second phase of the case. Even without appeals, there can be delay in embarking upon a second round of discovery and other interlocutory matters and amended pleadings following the first trial and then the delay of obtaining a fixture for the second hearing. There can be difficulties in ensuring that the same Judge is available for the second hearing, bearing in mind the usual commitments, sabbaticals, retirements and deaths which are the unhappy lot of the judiciary. If a different Judge has to preside at the second hearing there can be difficulties over earlier views as to credibility and the status of the notes of evidence from the first hearing. In my view these and other difficulties together place a heavy onus on any party seeking split trials.
[20] The second decision is Haden v Attorney General, in which Kos J identified three separate questions which were the most important to pose when considering an
1 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd (1998) 12 PRNZ 333 (HC) at 395.
application under this Rule. The questions that the Judge considered in Haden were these:2
Will there be difficult demarcation questions between those issues to be addressed at the first trial and those left for the second?
Will the separate question bring the proceedings to an end? What potential time saving does the separate question offer? How will appeals be dealt with?
Are there any other practical considerations tending one way or the other?
[21] I intend to follow the principles outlined in those decisions in the judgment in this case.
Submissions of parties
The applicant’s submissions
[22] Mr McDonald submitted that the questions to be determined at the preliminary hearing, in broad terms, are:
6. …
(a) Whether the transfers of the properties located at 6/17 Brandon Road, Whangaparaoa, 8 Faith Grove, Greenhithe and 24 Tauhinu Road, Greenhithe (“the Properties”) to the trustees of the Brutus Trust were:
(i) Dispositions intended to defeat the claims or rights of Mrs
Broadhurst contrary to Section 44 PRA;
(ii) Dispositions of relationship property to a Trust that had the effect of defeating the claim or rights of the Applicant contrary to Section 44C PRA; and
(b) Whether pursuant to Section 182 FPA, a post-nuptial agreement or settlement regarding the Properties existed between Mr Broadhurst and Mrs Broadhurst.
…
8. It is submitted that:
(a) Put very simply, Mrs Broadhurst alleges, inter alia, that:
2 Haden v Attorney-General (2011) 22 PRNZ 1 (HC).
(i) 6/17 Brandon Road, 8 Faith Grove and 24 Tauhinu Road were transferred to the trustees of the Brutus Trust in breach of Mrs Broadhurst’s rights;
The transfer of 6/17 Brandon Road occurred in 1995; The transfer of 8 Faith Grove occurred in 2004;
The transfer of 24 Tauhinu Road occurred in 2008;
(ii) In 2011, the trustees of the Brutus Trust then allegedly
breached Mrs Broadhurst’s rights by:
Transferring 6/17 Brandon Road to the trustees of the
Lemon Trust;
Transferring 8 Faith Grove to the trustees of the Orchid
Trust;
Transferring 24 Tauhinu Road to the trustees of the Cherub
Trust;
(iii) The three transfers by the trustees of the Brutus Trust in
2011 all involved vendor finance loans. Mrs Broadhurst alleges that the trustees of the Brutus Trust breached her rights further by assigning the benefit of the vendor loans to the Gardenia Trust;
(iv) The trustees of the Orchid Trust are then alleged to have
breached Mrs Broadhurst’s rights in 2014 by subdividing 8
Faith Grove and selling the subdivided lot now known as 6A Faith Grove to G & N Wallace for $630,000.00, and
disbursed the proceeds of sale to Hartley Investments
Limited, In the Park Limited and the trustees of Gardenia
Limited;
(v) The Orchid Trust, Cherub Trust, Lemon Trust and Gardenia Trust are alleged to be sham trusts and the assets the trusts are holding are held in breach of Mrs Broadhurst’s rights;
(vi) Mr Alan Brown and Mrs Maureen Broadhurst allegedly dishonestly assisted the trustees of the Brutus Trust to transfer 24 Tauhinu Road to the trustees of the Cherub Trust in breach of Mrs Broadhurst’s rights;
(vii) The trustees of the Cherub Trust allegedly dishonestly received 24 Tauhinu Road from the trustees of the Brutus Trust in breach of Mrs Broadhurst’s rights; and
(viii) The Properties are alleged to be subject to a post nuptial agreement or settlement pursuant to Section 182 FPA, and the transfers of the Properties detailed above were allegedly in breach of Section 184 FPA.
9.It is submitted that the various claims against the trustees of the Brutus Trust and the subsequent dealings with the Trust’s assets by the Trustees must fail as a question of law if;
(a) The Court determines that the transfers of the Properties to the trustees of the Brutus Trust were not in breach of Sections 44 and 44C PRA; and
(b) The Court determines that the Properties were not a subject of a post-nuptial settlement or agreement pursuant to Section
182 FPA.
10.It is submitted that a finding that the Properties were not transferred to the trustees of the Brutus Trust in breach of Mrs Broadhurst’s rights will remove the need for the following Defendants to be a party to the proceedings being:
(a) Orchid Limited (being the trustee of the Orchid Trust); (b) Lemon Limited (being the trustee of the Lemon Trust);
(c) Gardenia Limited (being the assignee of the vendor finance loans and a recipient of the proceeds of sale from 6A Faith Grove);
(d) Hartley Investments Limited (being a recipient of the proceeds of sale from 6A Faith Grove); and
(e) In the Park Limited (being a recipient of the proceeds of sale from 6A Faith Grove).
[23] I should note, at this point, that the applicant does not contend that if the order for trial of the preliminary question is directed, that could be a complete end to the proceeding. Rule 10.15 does not, though, require the court to be satisfied that the decision will dispose of the proceedings. Mr McDonald submitted that the granting of the order would achieve significant reductions in the overall hearing time required and would be less than it would be if the court simply set all issues down for trial in one hearing. If the latter approach is taken, Mr McDonald submitted that 21 hearing days would approximately be required. Mr Collis did not dissent from this estimate. Mr Smith did not accept it.
The respondent’s submissions
[24] Mr Smith, on the other hand, summarised the opposition as follows in his synopsis of submissions:
a. Discovery has not been completed. In particular:
(i) there has been no discovery from Mr Broadhurst concerning how he generated his income throughout the course of the marriage or during the time the parties were living together for 18 months prior to the marriage.
(ii) There has been little discovery of the steps taken by the second defendants in their dealings with the mortgagees of the properties transferred in 2011, namely ASB concerning 8 Faith Grove, and Westpac concerning 24 Tauhinu Road.
(iii) The pleadings are not finalised. The submission of the defendants is based on the draft amended statement of claim. It presupposes there will be no further causes of action, when, once discovery is completed, the plaintiff anticipates a further cause of action based on the Brutus trust being declared a sham.
(iv) There has been no discovery of how the ASB
mortgage was met, no explanation as to why the 8
Faith Grove was being and continues to be used as security for loans to companies operated by Mr
Broadhurst such as Hartley Investments Limited and
In the Park Limited.
b. The grounds in Haden v Attorney General are not satisfied.
[25] Before considering the dispute in detail, I observe that so far as the submissions which were made for the respondent are concerned, they did not so much focus on why the grounds that Mr McDonald put forward were incorrect but rather raised the possibility that if additional discovery was made available, there would be an answer to the submissions that he made. It should be noted, though, that given the extensive delays in this case already, any application for additional discovery would be closely scrutinised and any order made is likely to closely confine additional discovery.
[26] In other parts of his submissions, though, Mr Smith made it clear that the thrust of the case which the plaintiff brings is as follows. She alleges that the various property transactions amounted to dispositions that contravened s 44 of the Property (Relationships) Act 1976 (PRA) which provides as follows:
(1) Where the High Court or a District Court or a Family Court is satisfied that any disposition of property has been made, whether for value or not, by or on behalf of or by direction of or in the interests of any person in order to defeat the claim or rights of any person (party B) under this Act, the Court may make any order under subsection (2) of this section.
(1A) The Court may make an order under this section on the application of party
B, or (in any proceedings under this Act or otherwise) on its own initiative.
(2) In any case to which subsection (1) of this section applies, the Court may, subject to subsection (4) of this section,—
(a) order that any person to whom the disposition was made and who received the property otherwise than in good faith and for valuable consideration, or his or her personal representative, shall transfer the property or any part thereof to such person as the Court directs; or
(b) order that any person to whom the disposition was made and who received the property otherwise than in good faith and for adequate consideration, or his or her personal representative, shall pay into Court, or to such person as the Court directs, a sum not exceeding the difference between the value of the consideration (if any) and the value of the property; or
(c) order that any person who has, otherwise than in good faith and for valuable consideration, received any interest in the property from the person to whom the disposition was so made, or his or her personal representative, or any person who received that interest from any such person otherwise than in good faith and for valuable consideration, shall transfer that interest to such person as the Court directs, or shall pay into Court or to such person as the Court directs a sum not exceeding the value of the interest.
(3) For the purposes of giving effect to any order under subsection (2) of this section, the Court may make such further order as it thinks fit.
(4) Relief (whether under this section, or in equity, or otherwise) in any case to which subsection (1) of this section applies shall be denied wholly or in part, if the person from whom relief is sought received the property or interest in good faith, and has so altered his or her position in reliance on his or her having an indefeasible interest in the property or interest that in the opinion of the Court, having regard to all possible implications in respect of other persons, it is inequitable to grant relief, or to grant relief in full, as the case may be.
[27] The alternative principal argument the claimant puts forward is that the trusts were illusory trusts which were open to attack and that, if they were set aside, the court would be able to conclude that it was the first defendant personally who acquired the properties rather than the trust which would open the way for orders to be made against the first defendant under the PRA. It may also be the case that the
plaintiff is intending to argue that her rights as a beneficiary under the Trust3 had been contravened.
[28] The plaintiff is now intending to add other statutory claims to her statement of claim such as an assertion of rights under s 182 of the Family Proceedings Act, but it is unlikely that they will add any substance to her claims and may be viewed as make-weight claims.
[29] The defendants are of the view that it is beside the point for the claimant to plead, as she does, that she is entitled to relief under, amongst other sections, ss 44 and 44(c) of the PRA. The essential point which the applicant put forward is that there never was any relationship property disposed of by the first defendant or his trusts, including the second defendant. He had begun acquiring this property before he even met the plaintiff. It was contended, in effect, that he had established the second defendant trust and endowed it with resources in the form of the initial property in which it began life with, the Alberta Road property, out of separate property acquired by him before he married the plaintiff. From that point on, I understand it will be argued, the second defendant became an autonomous trading entity which generated its own capital gains and profits. The fact that the second defendants subsequently disposed of all or part of its property, the applicant contends, is neither here nor there. It does not result in the property being impressed with the character of relationship property. Because there could be no relationship property which was disposed of to the Trust or the successor trusts which acquired it, s 44 and s 44C are therefore not engaged. Section 44 could not be engaged because any transactions by way of disposition of property could not have been in order to defeat the claim or rights of the plaintiff because she had no rights in that property. Further, s 44C, which provides for compensation for property disposed of to a trust, is not engaged because that section, it was argued, only has application where either or both of the spouses:
… have disposed of relationship property to a trust.
3 The plaintiff fell into the class of discretionary beneficiaries described as being the spouse the first defendant for a period of time. Any rights that she had came to an end when the marriage between her and the first defendant was dissolved.
[30] On the other hand, Mr Smith pointed to the chronological consequence of the second defendant’s Trust being established approximately a week before the parties married. They had been living together previously but de facto relationships did not generate relationship property rights at that time.4 Mr Smith summarised the case for the plaintiff (that the actions which the first defendant took in establishing the trust and transferring one of the cross-leased units at 36 Alberta Road to it in March
1995) as being one that pointed to a pattern of the first defendant, in concert with the trustees of the second defendant, over a number of years, taking steps to ensure that the plaintiff did not enjoy any relationship property interest in the various residential properties which the second defendant acquired.
[31] He also drew attention to the fact that the second string of transactions which involved the Trust (the first defendant) disposing of properties onward to the other trusts, including the third to fifth defendants, occurred from approximately 2011 onwards after the plaintiff had commenced her proceedings in the Family Court. The timing was significant, in Mr Smith’s submission.
[32] I have mentioned the issues that the parties have identified. On the way that the plaintiff is apparently formulating the case, it is going to be alleged that there has been a continuing course of dealing since 1995 up until 2011, during which period the first defendant’s marriage came to an end and was dissolved and in which further steps were made to put property out of reach. The plaintiff considers that this factual setting provides inferential evidence which has retrospective effect, establishing that the first and second defendants from the outset were engaged in attempts to defeat
the claim or rights of the plaintiff.5 While it may be correct that all of this begs the
question whether there is any relationship property in the first place, the point is not without merit so far as s 44(c) is concerned.
[33] The concern that I have, though, is that all of the evidence, as a whole, should be before the court when it comes to making a decision on the question of whether s 44 is engaged. The proposed separate trial would focus on the first part of the
chronology only.
4 The Property (Relationships) Act 1976 came into force on 1 February 2002.
5 Property (Relationships) Act 1976, s 44(c)(1)(b).
[34] It should also be mentioned that Mr Smith raised the question of whether the second defendant is a sham or illusory trust. He accepts that this issue appears to have been resolved against the contentions of the plaintiff in this case by the Court of Appeal decision of Clayton v Clayton.6 I note that the assertions of a sham trust are not apparently directed at the founding trust, if I may call it that, of the second defendant but only at the second generation’s trusts, being the Orchid Trust, the
Cherub Trust, the Lemon Trust and the Gardenia Trust, which are said to have received property belonging to the second defendant.
[35] There are also allegations that the trustees of the second generation’s trusts dishonestly assisted the trustees of the Trust by cooperating in the transfer of property formally belonging to the second defendant to those trusts. Whether the concept of dishonest assistance can be invoked, where the type of interest claimed is a statutory entitlement under the Relationship Property Act, is a matter which at this point is moot.
[36] There may be more substance to a claim that the trustees of the Cherub Trust may have dishonestly assisted the trustees of the Trust arising from the circumstances of the receipt of 24 Tauhinu Road which seems to have been substantially paid for by property belonging to the plaintiff and not to the first or second defendant.
Conclusion
[37] The claim which the plaintiff brings seeks orders that she should participate in property that was settled on the second defendant trust by a process which began as long ago as 1995. There are grounds for the first and second defendants believing that if they can show at a separate or preliminary hearing that the property which was the seed from which all the trusts’ subsequent properties stemmed, that will stop in its tracks any claim which the plaintiff may chose to bring in regard to later-acquired property. But that ignores whether the purchase of later properties might have been
wholly or in part contributed to by different property than what might be described
6 Clayton v Clayton [2015] 3 NZLR 293 (CA). An appeal against that decision has been discontinued.
as the “seed” property so that there may be a different basis justifying relation property claims by the plaintiff in regard to such properties. As well, while I consider that the application for an order for decision has merit in that it could have the effect of resolving an aggregation of issues that are of considerable importance to the case, namely whether there was ever any relationship property involved, it cannot be assumed that a negative answer to that question is a foregone conclusion so that a further hearing will be required. I appreciate that the authorities only require the court to be satisfied that the separate question would potentially bring the proceedings in their entirety to an end. Further, when the court is considering the latter part of the dispute between the parties that it should have the chronology of the entire dispute before it and not just the early years. Further, the potential for duplicated hearing time and expense that would be incurred if the preliminary question did not resolve the case, represent a risk. The potential advantages flowing from a separate hearing do not so significantly outweigh the risk that the court ought to make the order sought.
[38] I do not consider the application to decide the separate question ought to be ordered. There are real demarcation problems that would result from the separated hearings that would follow from the making of such an order.
[39] I appreciate the very real concerns that the defendants have about the unacceptably long period of time that has been taken for the plaintiff to get its case ready for Court. In my view, those concerns are best addressed by firm case management directions following up on the orders that have already been made to date and also the allocation of a trial date.
Additional directions
[40] In regard to the last matters, I intend to issue some additional directions as suggested by Bell AJ in his minute dated 10 November 2015.
[41] The orders are these:
a) The amended statement of claim is to be filed and served not later than 22 February 2016. That statement of claim is not to be further amended without leave of the Court;
b) The defendants are to file and serve their statement of defence by 21
March 2016.
[42] The next mention of this matter will be in the Chambers List at 2.15 p.m. on
15 April 2016. Prior to that date, the parties are to confer on what, if any, additional discovery is going to be required and are generally to conform with their obligation in r 8.2 to cooperate in regard to discovery. The parties should either be in a position to file a joint memorandum concerning discovery at the Chambers mention or, alternatively, have proposals available for the Judge as to when an application for directions is likely to be filed together with notices of opposition and provision. It is essential that prompt attention is given to discovery so that that issue does not cause difficulties with the trial date which is mentioned below.
[43] Prior to the Chambers List mention, the parties should also confer on the question of what date should be the close of pleadings date and the pre-trial programme.
[44] A 12 day trial is allocated for this proceeding commencing 7 November
2016. The parties should note that adjournments of trials are only infrequently granted and, in the circumstances of the major delays that have already occurred in disposing of this case, it is unlikely that any adjournment application would be considered sympathetically.
Costs
[45] The parties agreed that the appropriate costs category in this case is 2B. They further agreed that costs should follow the event and, in accordance with r 14.2(a), there will therefore be an order that the first and second defendants are to pay the costs of and incidental to the application pursuant to r 10.15. There will be no order for costs in relation to the application for joinder. Even though the defendants did
not oppose the making of that order, it has been sought at such an advanced point in the life of this proceeding that I do not consider that an order for costs is justified for
that part of the application.
J.P. Doogue
Associate Judge
1
1