Browning v Jones
[2020] NZHC 2308
•7 September 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-2
[2020] NZHC 2308
BETWEEN ROBERT BROWNING
Plaintiff
AND
SUSAN ANN JONES
Defendant
Hearing: 7 September 2020 at 2:15pm Appearances:
Katerina Wendt for the Plaintiff No appearance for the Defendant
Judgment:
7 September 2020
ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL
Solicitors:
Palmer Macauley (Rick Palmer), Kerikeri, for the Plaintiff
Copy for:
Katerina Wendt, Richmond Chambers, Auckland, for the plaintiff and
Susan Jones, Waimate North (defendant)
BROWNING v JONES [2020] NZHC 2308 [7 September 2020]
[1] Mr Browning and Ms Jones own a 1.5 hectare residential property at 15 Waikuku Road, Waimate North, as tenants-in-common in unequal shares. She owns 60 per cent; he owns 40 per cent. He lent her the money to buy her share of the property. His loan is secured by a mortgage over the property.
[2]Mr Browning sues Ms Jones on four causes of action:
(a)In the first, he claims repayment of a loan to her, $394,800, default interest under the loan, rent for her exclusive use of his interest in the property, her share of the legal costs on the purchase of the property, her share of the rates that he had paid for the property, and her share of expenses he incurred in repairing and maintaining the property.
(b)In the second, he sues in quantum meruit for his work in rectifying defects and damage in the property.
(c)In the third cause, he seeks the sale of the property under s 339 of the Property Law Act 2007.
(d)In the fourth, as an alternative to the third, he seeks specific performance of an agreement made in 2016 under which the property was to be put on the market and sold.
[3] Mr Browning has applied for summary judgment. He recognises that not all of his claims are suitable for summary judgment. He has applied for summary judgment only for some parts – repayment of the loan and interest on the loan, and the application under s 339 of the Property Law Act 2007 for the sale of the property.
[4] He began this proceeding in January this year, but did not apply for summary judgment until June 2020. Associate Judge Smith gave leave to apply for summary judgment after the start of the proceeding.
[5] At the outset, Ms Jones had legal representation. Later, her lawyers sought leave to withdraw. Their application for leave to withdraw was served on her. She did not oppose. I gather that she may not wish to actively defend the proceeding. She has not appeared today.
[6] Mr Browning has also applied to strike out parts of Ms Jones’ statement of defence. Those parts are affirmative defences to causes of action in which he seeks summary judgment. Accordingly, for this decision, it is more convenient to deal with the summary judgment application and then see whether there are any residual strike- out issues which need addressing.
Facts
[7] Mr Browning is some 76 years of age. He is retired. Before retirement he worked in construction contracting and commercial and industrial building. He was a civil engineer and a registered general builder in Queensland. He owns a property Waikaramu Road, also in Waimate North.
[8] Ms Jones is also retired, but her background is in real estate. She used to live at Hahei, near Mangonui. In late 2006/2007 she was living in Mr Browning’s property at Waikaramu Road. In early 2007, she made an agreement to buy the Waikuku Road property for $633,000. Mr Browning says that the property is 1.5 hectares in area, it is a semi-rural lifestyle block with three buildings – a large two-storey four-bedroom house, garage, and a 40 square metre one-bedroom cottage. Ms Jones told Mr Browning that she had arranged second-tier lending of $200,000 on the basis that she would also contribute $250,000 toward the purchase price. She asked if she could borrow $185,000 from Mr Browning. Mr Browning agreed to help but did so on different terms. They agreed that he would also take an interest in the property himself, a 40 per cent interest, and he would pay $253,200. Ms Jones would have a 60 per cent interest and would pay $379,800. The 60/40 interest would be recorded on the title. He would lend her the money to pay the $379,800.
[9] They made a mortgage agreement dated 8 March 2007. He is the mortgagee and she is the mortgagor. The principal sum under the mortgage agreement is
$394,800. The extra $15,000 was other money he lent her. The interest payable was 8 per cent per annum, with a default interest rate of 12 per cent per annum. The mortgage agreement is in registrable form and is subject to the general terms and conditions in mortgage form 2005/4179. The loan was to be repaid by 7 March 2008. The mortgage is in the form of a deed.
[10] They also entered into another deed on 8 March 2007. This recorded arrangements between them, including his loan to her. They agreed to pay contributions on a 40/60 split, including legal expenses and disbursements on the purchase of the property, rates and insurance premiums, the costs of maintaining the property and any valuation fees. They agreed to use the property residentially and for residential tenancies only. The agreement also provided for Ms Jones to seek help for her hearing as she was having difficulties at that time. Under the deed, she was to make mortgage payments to Mr Browning as required. She would be in default if she failed to do so. She was to buy out his interest in the property by 7 March 2008 at an agreed current market value. She was to repay the loan at the same time.
[11] The agreement also provided for unilateral termination. One party could give notice to the other, requiring the other to buy them out on one month’s notice. If the non-terminating party did not buy them out, the terminating party had the option to purchase the interests of the other – again for another month. And if neither side exercised the options, the property would be put on the market and sold, with Mr Browning being repaid the mortgage out of his share of the proceeds. It is clear from the agreement that they had separate and independent legal advice before signing.
[12] Ms Jones has lived in the property ever since. Mr Browning lived in his property at Waikaramu Road, but he sold that in 2016 and moved into the cottage on the Waikuku Road property.
[13] From 2008 neither took any steps to buy out the other and the property was not put on the market for sale. They found that there were building defects in the house that needed fixing. Another reason for not selling the property was that the global financial crisis had struck and property values fell. They set to work fixing the defects in the property. Mr Browning said that he had health problems which slowed his
progress in doing the remedial work. Ms Jones had tenants living in the cottage, at least up until when he moved in in October 2016. She also had boarders in the house. His evidence is that she has not paid him as required under the deed and under the mortgage agreement. He says that she paid him $1,590.67 which was recorded in his tax return for the year ending 31 March 2008, but he has not received any payments from her since. He also says that he paid the rates on the property and she did not contribute to them. Whenever he approached her about payment, she always said that she did not have any money.
[14] In 2016, he sold the Waikaramu Road property with a view to moving back to Australia once the repairs were carried out in Waikuku Road and that property was sold. He moved into Waikuku Road because he thought that would incentivise him to carry out the repairs more quickly and easily.
[15] They made a new agreement in September 2016, which provided for him to move into the property and for her to make the cottage vacant for him to live there. She would allow him reasonable access to carry out the repairs and renovations with a view to selling the property. Once the repairs had been carried out, the property would be put on the market for sale. The final repairs were completed in April 2018. There was then a six-month trial period to check that leaks would not recur. He then started taking steps to have the property sold.
[16] When he raised the matter of sale with Ms Jones, she provided him with a list of more matters requiring maintenance before the property would be in a good state to sell. She did identify an agent with a suitable background for selling the property. He found that she was not otherwise co-operative in having the property put on the market for a sale, so he put the matter in the hands of lawyers.
[17] It appears from correspondence in evidence that the lawyers who acted for Ms Jones accepted on her behalf that the loan of $379,800 is repayable. However, they did not accept the extra $15,000 was repayable.
[18] In an updating affidavit, Mr Browning has put in evidence a report from local reputable registered valuers, giving the property an estimated current market value of
$1,125,000 as at 24 August 2020. The valuer has not, however, sworn an affidavit. There is a wariness about accepting unsworn expert evidence without the procedural requirements for expert evidence being satisfied.1 Importantly, the valuer has qualified his report by stating that as a result of the COVID-19 pandemic there is significant market uncertainty.
The summary judgment application
[19] The principles on which summary judgment applications are decided are well- established. The Court of Appeal re-stated them in Krukziener v Hanover Finance Ltd:2
[67] The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at
341. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it:
Bilbie Dymock Corp Ltd v Patel.3
[20] This means that to give a plaintiff summary judgment the court must be satisfied that judgment can be entered now, without the need for further interlocutory steps such as discovery and interrogatories, or a full hearing with witnesses giving evidence in person and being cross-examined. In a typical summary judgment application based on the common law, the court applies rules of law and considers whether a defendant has an arguable defence when those rules are applied.
1 Evidence Act 2006, s 26, and the High Court Rules 2016, r 9.43 and schedule 4.
2 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].
3 Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
Repayment of the principal amount of the loan
[21] There is no challenge to the validity of the mortgage agreement of 8 March 2007 and the deed made on the same date. Both documents meet the formal requirements for a deed. The parties had independent legal advice when these documents were made. The deed records the loan amount of $394,800. Ms Jones was to repay Mr Browning by 7 March 2008. The cause of action for the repayment of the loan arose on 7 March 2008 for the money that had fallen due but had not been paid. I mention that to address a limitation question.
[22] Limitation is governed by the Limitation Act 1950, which still applies to causes of action that arose before 1 January 2011.4 Under s 4(3)of the Limitation Act 1950:
an action upon a deed shall not be brought after the expiration of 12 years from the date on which the cause of action accrued.
In this case, the 12 years expired on 7 March 2020. Mr Browning began this proceeding on 6 January 2020 and accordingly he is within time to sue on both deeds.
[23] Ms Jones has pleaded an affirmative defence of waiver and estoppel but has not given any evidence in support of the defence. She says that Mr Browning waived his rights, and the waiver can be inferred from his conduct. Essentially, she relies on his inactivity in not making demand for payment for nearly 12 years. She pleads that Mr Browning was sympathetic to her in her circumstances which included a loss of hearing, the loss of a niece, and her loss of employment because of the deterioration in her hearing. They had been friends and had at one stage been in an intimate relationship. She did not find it odd that Mr Browning did not make any demands. He was a man of wealth, with no family. Registration of the mortgage was adequate protection for him. Nowhere in her pleading does she allege that Mr Browning made any positive assertions or representations to her that she need not worry about the loan being called up for payment or that he would not seek sale of the property.
4 Limitation Act 2010, s 59.
[24] Mr Browning has relied on provisions in the mortgage memorandum. Importantly, clause 20(b) says this:
(b)Delay does not affect powers:
The mortgagee’s rights under this mortgage will not be affected by delay in exercising them (whether or not the mortgagee knows that they have become exercisable). The mortgagee may only be held to have acquiesced in or waived any matter in relation to this clause if and to the extent that the acquiescence or waiver is expressed in writing.
Mr Browning’s point is that there is no evidence that he has given any waiver or acquiescence in writing. It was also submitted on his behalf that any silence on his part cannot amount to a waiver.
[25] The Court of Appeal’s decision in Infinity Enterprises NZ Ltd v Kinara Trustee Ltd5 was cited for the proposition that while the law is in general reluctant to impose liability in cases of silent acquiescence, sometimes the law does recognise that silence may give rise to estoppel if it can be considered to amount to a genuine representation, or because the silent party was under a duty to speak. I am satisfied that this case does not have any of the circumstances which the Court of Appeal contemplated in Infinity Enterprises NZ Ltd v Kinara Trustee Ltd. I can see nothing in the case that would suggest that the silence on Mr Browning’s part could amount to a representation that he would not exercise what he is entitled to. The circumstances point to patience on his part and forbearance, but without giving away his rights. That is also supported by the absence of any writing showing any waiver. He was not under any duty to speak. I find that the waiver defence is not reasonably arguable.
[26] Ms Jones does not have an arguable defence to the claim for repayment of the principal sum. There will accordingly be judgment for Mr Browning on the principal sum of $394,800.
The claim for interest
[27] Under the mortgage agreement, the interest rate is 8 per cent per annum but is increased to 12 per cent on default. Mr Browning seeks interest at the default rate for
5 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd [2020] NZCA 309 at [99].
six years. That amounts to $284,256. There is a limitation issue for the interest claim. Under s 20(4) of the Limitation Act 1950:
No action to recover arrears of interest payable in respect of any sums secured by a mortgage or other charge … shall be brought after the expiration of 6 years from the date on which the interest became due: …
Asher J applied that in Debt Buyers Ltd v Hancox:6
[43] It is clear therefore that the lender is entitled to recover the interest falling due in the six year period prior to the issue of proceedings. This was the view of the English Court of Appeal again in relation to the provision of the same wording in the English Act in Scottish Equitable Plc v Thompson.7
Mr Browning has claimed only six years’ interest and is therefore not statute-barred for that claim, as it is within s 20(4).
[28] Ms Jones has raised a defence of re-opening under Part 5 of the Credit Contracts and Consumer Finance Act 2003. For Mr Browning it was submitted that the Act does not apply because of the limitation under s 125 (1)(c):
125 When reopening proceedings may be commenced
(1) Proceedings seeking the reopening of a credit contract, consumer lease, or buy-back transaction may be commenced in the court by … any party to the contract, lease, or transaction, or any guarantor under a guarantee relating to the credit contract, at any time earlier than, —
…
(c)in any other case, 1 year after the due date for the performance of the last obligation required to be performed under the contract or lease.
[29] It was submitted that the principal was repayable on 6 March 2008, and accordingly the one year period had expired before this proceeding was started. The Court of Appeal’s decision in Watherston v PGW Rural Capital Ltd was cited.8 In that case, the Court of Appeal held that a borrower could not begin a proceeding to reopen a credit contract more than one year after the payments fell due under the credit contract. But the court also referred to s 120 of the Act, which provides:
6 Debt Buyers Ltd v Hancox [2015] NZHC 2484 at [43].
7 Scottish Equitable Plc v Thompson [2003] EWCA 225 at [35].
8 Watherston v PGW Rural Capital Ltd [2020] NZCA 329.
120Reopening of credit contracts, consumer leases, and buy-back transactions
The court may reopen a credit contract, a consumer lease, or a buy-back transaction if, in any proceedings (whether or not brought under this Act), it considers that—
(a)the contract, lease, or transaction is oppressive; or
(b)a party has exercised, or intends to exercise, a right or power conferred by the contract, lease, or transaction in an oppressive manner; or
(c)a party has induced another party to enter into the contract, lease, or transaction by oppressive means.
The Court of Appeal recognised that other cases have held that s 120 may be raised as a defence in any enforcement action by a creditor.9 Given that re-opening under s 120 is available in any enforcement action by a creditor, the time limit under s 121 does not apply.
[30] Ms Jones has pleaded reopening as a defence in a claim by the creditor but has not started a fresh proceeding. Her defence is not subject to a time bar. Instead, I will deal with it on its merits.
[31] Mr Jones pleads oppressiveness by Mr Browning because he did not exercise his powers in a timely manner and allowed interest to accrue to almost triple the principal amount. It is oppressive now to seek 12 years of interest.
[32] Her claim of oppressiveness has been addressed by the time bar under s 20(4) of the Limitation Act 1950. Mr Browning’s claim for interest is limited to the six years’ interest that accrued before the start of this proceeding and amounts to $284,256
– not the triple amount alleged by Ms Jones. Once it is appreciated that Mr Browning is able to recover only six years’ interest on the money he lent her in 2007, it cannot be oppressive for him to recover that amount of interest for the entire period of the loan. The 12 per cent default rate is not objectionable. When she bought the property, Ms Jones’s alternative was second-tier lending where the interest rate would undoubtedly have been much more than the default rate of 12 per cent per annum in this case. That rate is commonly used in agreements for sale and purchase as a penalty
9 Watherston v PGW Rural Capital Ltd [2020] NZCA 329 at [64].
interest rate when a purchaser fails to settle. I see nothing oppressive in Credit Contracts and Consumer Finance Act 2003 terms with an interest rate of 12 per cent. If anything, Ms Jones has benefited from the limitation period. I see no reasonable basis for any oppressiveness issue under the Credit Contracts and Consumer Finance Act 2003.
Property Law Act 2007 s 339
[33] In seeking summary judgment under s 339 of the Property Law Act 2007, Mr Browning seeks detailed orders: for the sale of the property, for the appointment of a land agent for the marketing and sale of the property. He wants to be authorised to sign any contracts to sell the property on behalf of them both and to sign all documents to transfer ownership on behalf of them both. His solicitors will be authorised to act on the sale and on the conveyancing. He also proposes detailed orders for the distribution of the proceeds of sale.
[34] I note a preliminary point that under s 341 of the Property Law Act 2007 Ms Jones is the only person who needs to be served.
[35]Section 339 of the Property Law Act 2007 says:
339 Court may order division of property
(1) A court may make, in respect of property owned by co-owners, an order—
(a)for the sale of the property and the division of the proceeds among the co-owners; or
(b)for the division of the property in kind among the co-owners; or
(c)requiring one or more co-owners to purchase the share in the property of one or more other co-owners at a fair and reasonable price.
[36]The considerations under s 342 are relevant:
342 Relevant considerations
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
(a)the extent of the share in the property of any co-owner by whom, or in respect of whose estate or interest, the application for the order is made:
(b)the nature and location of the property:
(c)the number of other co-owners and the extent of their shares:
(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f)any other matters the court considers relevant.
[1] Care is required with summary judgment applications in proceedings under s 339 of the Property Law Act 2007. In Bayly v Hicks the Court of Appeal recognised that the court now has a broader discretion, and said:10
… the summary judgment procedure is not so well suited to s 339 applications.11
[37] Because the court’s powers to grant relief under s 339 require a range of matters to be considered, and because there is a range of potential outcomes, to grant summary judgment the court has to be satisfied on the evidence in the summary judgment application that there can be only one possible outcome. If other outcomes are arguable, the court cannot grant summary judgment. So the plaintiff must negate all outcomes except that sought in the statement of claim.
[38] In a proceeding under s 339, the court starts with general questions and then moves on to more particular matters. The first question is whether to make an order under s 339. If it decides that there should be an order, it must decide which order should be made, and then it will give further directions how any orders ought to be implemented. As the court goes further into detail, invariably a range of possibilities are open and it is hard to say that any one possibility is the only right one. For an example, see Carey-Venable v Carey.12
10 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401.
11 At [31].
12 Carey-Venable v Carey [2016] NZHC 2646, [2016] 18 NZCPR 289.
[39] The first question is whether the court ought to make an order under s 339. Mr Browning’s case is that he and Ms Jones should be able to separate their interests in the property and go their separate ways. He bought an interest in the property and advanced funds to Ms Jones on the basis that he would be able to realise his interest and be repaid after a year. Ms Jones has pleaded (and again has not given evidence) that she also contributed numerous hours and money to the property over the years and she has an emotional attachment to the property. Selling the property would cause her significant emotional distress. She says that her contributions, improvements and maintenance, have added value to the property. She is now retired and has limited earning capacity, and would suffer if she were required to move out. In short, her proposition is that she should be entitled to carry on living in the property on an indefinite basis because of her emotional attachment to the property and because of the difficulties to her if she were required to move.
[40] Mr Browning, on the other hand, does not say that he is in any financial distress. His evidence shows that he lives in the cottage and he has health problems. He would rather have his funds released so that he can build a house elsewhere.
[41] In my judgment, a strong factor requiring a separation of their interests is that Mr Browning funded the purchase of the property, with his loan to Ms Jones and by buying a 40 per cent interest in the property. He has continued to make contributions to the property including paying joint expenses and carrying out repairs and maintenance. He has had very little benefit barring living on the property since 2016. That is to be compared with Ms Jones, who acquired the property without putting any funds of her own into it and has enjoyed the property for an extended period. The fact that Mr Browning did not insist on the sale of the property once his one year was up does not make it unfair or unjust to have his interest realised now. The factors favouring a separation of interests far outweigh any hardship to Ms Jones.
[42] The next question is what sort of order should be made. No one has suggested that there should be any subdivision of the property. To the extent that I can refer to the valuers’ report, I note that it does refer to subdivision standards. The property is in the Rural Production Zone. For a controlled activity subdivision there is a minimum lot size of 20 hectares. The report also refers to the standards for a restricted
discretionary activity subdivision. Going by that description, it does not seem that a subdivision would be viable. Certainly a resource consent would be required. The resource consent process is likely to be arduous. The valuers do not suggest that the property could be enhanced by subdivision. Partition in kind is not reasonably arguable.
[43] There is no evidence that Ms Jones has the means to buy out Mr Browning. Consistently, she has lacked funds. When Mr Browning has approached her for payment she has always said that she was without funds. He assisted her into the property because she did not have funds in 2007. She has retired, and there is nothing to suggest that she now has the funds to buy him out. With partition and buy-out eliminated, sale is left. There should accordingly be an order for the sale of the property.
[44] The parties agree on one aspect of the sale: the property should be listed with Mr Baguley of the local branch of Bayleys Real Estate to market and sell the property. When there was discussion for the sale of the property, Ms Jones proposed him. There is nothing in the evidence to suggest that she has withdrawn her view that he is the appropriate person to market the property. On his side, Mr Browning has been content to take up that suggestion. Accordingly, because the parties agree that Bayleys Real Estate should undertake the marketing and sale of the property, I direct that they be appointed. Ms Wendt said that a listing agreement had been provided. It has not been put in evidence
[45] There are other matters to decide on selling the property. It can be done by different ways – by listing it with Bayleys Real Estate exclusively or not exclusively; by marketing it for sale by negotiation, by tender, or by auction. In the case of tender and auction there is a question whether any reserves ought to be set. How the property should be marketed needs to be sorted out. Means need to be found to work out how to deal with any offers and whether to make any counter-offers. These are matters on which I cannot give a summary judgment decision on the present evidence. In most cases, once the court indicates a property should be sold, the parties are able to negotiate sensible arrangements. I trust that the parties will be able to do so here.
[46] I cannot give summary judgment as to the more detailed mechanisms for the sale of the property and the division of the proceeds. I cannot resolve those matters in the absence of agreement. Those matters will need to be decided by a justice in a formal proof hearing, as I cannot deal with them in a summary judgment application.
[47] By 21 September 2020 Mr Browning is to file and serve a document setting out proposed orders, accompanied by any submissions in support of those orders, plus evidence to show that the matters sought are appropriate in these circumstances.
[48] Ms Jones will have until 12 October 2020 in which to file and serve any response, which may include a memorandum setting out her counter-proposals and evidence supporting those counter-proposals.13
[49] The matter should be set down for a short hearing in front of a justice. I expect that no more than two hours would be required for the judge to give final directions. Hopefully that step will not be required and the parties will be able to agree.
[50]I sum up:
(a)Mr Browning has judgment against Ms Jones for the principal amount of the loan of $394,800;
(b)he has judgment against her for $284,256 for interest;
(c)I make an order under s 339 of the Property Law Act 2007 for the sale of the Waikuku Road property;
(d)Bay of Islands Realty Limited is to be appointed to market the property, but other terms for the marketing and sale of the property and division of the proceeds of sale are to be decided later in accordance with my directions above.
13 In the hearing I said 5 October, but it has taken longer to send this written version of the judgment, so I have extended the time to give Ms Jones enough time to respond.
[51] As I have given judgment, it is not necessary to deal with the strike out application.
[52] For the rest of the case, the matters on which Mr Browning has not sought summary judgment, there will be a telephone case management conference on Monday 19 October 2020 at 12 noon.
[53] I ask Ms Wendt to file her memorandum for the conference by Monday 12 October 2020.
[54] I direct Ms Jones to file any memorandum in response by Friday 16 October 2020. In particular, I want to find out from Ms Jones whether she still wishes to defend this proceeding. If she does not file any memorandum by 16 October 2020, I may assume that she is no longer actively defending the case, and may give directions on that assumption.
[55]Leave is reserved to apply for further directions.
[56]Mr Browning is entitled to costs on his summary judgment application.
………………………………
Associate Judge R M Bell
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