Business Control (Schweiz) AG v Shibalova
[2023] NZHC 3278
•20 November 2023
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV 2021-488-1
[2023] NZHC 3278
BETWEEN BUSINESS CONTROL (SCHWEIZ) AG
Plaintiff
AND
INNA SHIBALOVA
Defendant
On the papers Counsel:
S Wroe for the plaintiff
M Phillipps for the defendant
Judgment:
20 November 2023
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 20 November 2023 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
BUSINESS CONTROL (SCHWEIZ) AG v SHIBALOVA [2023] NZHC 3278 [20 November 2023]
Introduction
[1] In February 2012, the defendant’s former partner, Andrey Ivanov, was convicted by a court in Italy of embezzling almost USD 10 million from the defendant. The plaintiff was part of a team of investigators who worked both to secure Mr Ivanov’s conviction and to recover the funds. The funds were traced to a bank in Italy, and EUR 7,038,072 was frozen pending conclusion of criminal and civil proceedings against Mr Ivanov. After Mr Ivanov’s conviction and an unsuccessful appeal in 2015, restitution orders were made for the return of the frozen amount to the defendant.
[2] The plaintiff claims commission on the recovered funds. It relies on an assignment of the written contract between the defendant and the lead Australian firm of investigators, MPOL Group Pty Ltd (MPOL and the contract). The contract provided that 35 per cent of all monies collected on the defendant’s behalf that were returned to her directly or to a family member or bank account would be payable as a fee (the commission). The plaintiff claims a commission of EUR 2,864,938.61.
[3] The defendant denies liability for the commission. She says there was an additional oral term to the contract providing that if the money went to a family member, she would only be liable for the commission if it was able to be deducted from the collected amount before it was paid to the family member. She says she did not receive, either directly or indirectly, any of the funds recovered. She says the funds were received by her father, Alexander Shibalov.
[4] This proceeding was scheduled to be heard at a five-day trial commencing 17 April 2023. On 28 March 2023, counsel advised by joint memorandum that seven to eight days would be needed. The court was unable to accommodate the extra time, and therefore vacated the April 2023 fixture. An eight-day trial has been scheduled to commence 7 October 2024.
Application by plaintiff in relation to waiver of privilege
[5] This judgment deals with an application by the plaintiff for orders that the defendant has waived privilege and confidentiality in relation to communications with her Italian lawyer, Nino Grippaldi.
Background
[6] According to the defendant, the funds that were embezzled originated from her father. She says she was not meant to deal with the funds except with her father’s permission. She says that, without her father’s permission, she transferred the funds to Mr Ivanov in 2006. At that time, the defendant was living in Melbourne.
[7] The defendant became aware that Mr Ivanov had defrauded her in mid-2007. At about that time, she engaged MPOL to assist her to recover the funds.
[8] MPOL traced some of the funds to a bank account in Sicily, Italy. Italian Police began to investigate. The defendant says MPOL recommended that she engage a Sicilian lawyer to assist in communications with Italian Police and prosecutors. The defendant engaged Mr Grippaldi, a lawyer practising in Sicily, in about October 2007.
[9] In about November 2007, an order was made freezing funds in the Sicilian bank account. The plaintiff says that, following the conviction of Mr Ivanov, a restitution order was made by an Italian court in 2012 directing that half the frozen funds be paid to the defendant or on her behalf to her attorney Mr Grippaldi. The plaintiff says a further restitution order in the same terms for the other half of the frozen funds was made in 2015.
[10] In a brief of evidence that the defendant served prior to the scheduled April 2023 trial, the defendant said that in about mid-2012 Mr Grippaldi emailed her and asked her to go to Italy and provide him with a power of attorney so he could receive the frozen funds. The defendant was by then living in New Zealand. She went to Italy. She said Mr Grippaldi said to her that the Italian prosecutor “asked him to organize for money to be returned to where it originally came from”. She said she
signed the power of attorney for Mr Grippaldi. She said that thereafter she did not speak to or communicate with Mr Grippaldi.
[11] In her brief of evidence, the defendant also said she did not receive any of the funds from the frozen bank account. She said she assumed that some funds were paid to Mr Grippaldi but she does not know when or to what particular account. She said that Mr Grippaldi never gave her those details and that she did not need to know “because I understood from [Mr Grippaldi] that any funds released from the bank would be paid to my father”.
[12] The defendant has, as part of further disclosure, provided to the plaintiff an email chain between her and Mr Grippaldi from 29 to 30 May 2012. The email chain deals with, among other things, instructions by the defendant to Mr Grippaldi for the disbursement of the first half of the frozen funds.
Alleged waiver of privilege and orders sought
[13] The plaintiff claims that the defendant has, by providing the email chain between her and Mr Grippaldi, and by referring in her brief of evidence to certain communications with Mr Grippaldi, waived privilege in relation to the following categories of information:
(a)The circumstances around the power of attorney being given by the defendant to Mr Grippaldi including the reasons for it and its terms.
(b)What information and instructions Mr Grippaldi was given in relation to using the power of attorney to obtain and distribute the funds including any communications from the defendant or her family members.
(c)Information about the steps that Mr Grippaldi took under the power of attorney in relation to acting on the restitution orders and distributing the funds.
[14] The plaintiff says the waiver in relation to these matters was under s 65 of the Evidence Act 2006. The plaintiff acknowledges that the defendant engaged Mr Grippaldi in Italy in relation to proceedings in the Italian courts. But the plaintiff submits that under conflict of law principles, issues of privilege are procedural issues governed by the domestic law of the forum.
[15] The plaintiff also says that the third category of information is in any case not privileged.
[16] The plaintiff wishes to question Mr Grippaldi about these matters and, if necessary, call him to give evidence. The plaintiff’s representatives have contacted Mr Grippaldi. Plaintiff’s counsel advises that Mr Grippaldi has confirmed that he is “available to discuss the case subject to any privilege or confidentiality”. Counsel says that Mr Grippaldi requires, before speaking with the plaintiff’s representatives on these matters, either confirmation that the defendant consents to him answering the plaintiff’s questions and that he is not bound by privilege or confidentiality on these matters, or a court order confirming the same.
[17] The plaintiff wrote to the defendant’s solicitors shortly before the trial that was scheduled for April 2023 asking for written confirmation that the defendant consented to Mr Grippaldi discussing these matters with the plaintiff and acknowledging that, for the purposes of this proceeding, he is no longer bound by his duty of confidentiality in relation to those matters. The defendant’s solicitors responded as follows:
Our client does not maintain privilege in respect of the provision of a power of attorney to Nino Grippaldi and her enquiry of Nino Grippaldi regarding the distribution of the funds held by the bank. There is no property in a witness and you are free to approach Mr Grippaldi if that is what you wish to do.
[18] However, after further discussion between the parties’ solicitors, the defendant’s solicitors stated the next day that:
We do not consent to Mr Grippaldi talking directly or providing information directly to you or your client about our client’s matters and we (on behalf of [the defendant]) do not release him from his obligations of privilege and confidentiality to our client. He must contact us in the first instance if he wishes to be released from his obligations. If he has any relevant information he must provide it to us in the usual way and we will provide further discovery accordingly. This will include the usual exercise in relation to claims of
privilege and confidentiality, which we have already foreshadowed in our previous correspondence. We note that we had previously sought such information from Mr Grippaldi without success.
[19] In these circumstances, the plaintiff sought, by memorandum,1 orders that the defendant has waived privilege and confidentiality in relation to the categories of information set out in [13] above.
Defendant’s response
[20] The defendant resists the orders sought by the plaintiff. She says the parties have already dealt with this issue in the context of discovery and that the parties agreed in July 2021 that the defendant would take steps to request documents from Mr Grippaldi. The defendant’s steps met with no response from Mr Grippaldi. The defendant says the plaintiff is therefore seeking to re-open a discovery issue.
[21] The defendant confirms that she does not maintain privilege in respect of the provision of a power of attorney to Mr Grippaldi and her inquiry of Mr Grippaldi regarding the distribution of funds held by the bank. The defendant says this waiver of privilege relates to “the particular communication, information or document pertaining to the provision of the power of attorney and the specific inquiry regarding the distribution of the funds held by the bank”. The defendant says she does not otherwise release Mr Grippaldi from his obligations of confidentiality and privilege.
[22] The defendant says there is no jurisdictional basis for the orders sought by the plaintiff. Any such orders “must be made under the rules of discovery”. The defendant proposes that documents should be listed and discovered and claims of confidentiality or privilege made in the usual way. The defendant also submits that the plaintiff has not made any submissions on Italian law regarding legal privilege and that the court cannot make a binding order regarding Mr Grippaldi’s obligations under Italian law which govern the relationship between the defendant and Mr Grippaldi.
1 When vacating the April 2023 fixture, Andrew J referred to the plaintiff’s memorandum and made timetable directions for further submissions.
Does New Zealand or Italian law govern?
[23] The plaintiff contends that New Zealand law, as the law of the forum, governs the issues that arise on this application. The defendant submits that Italian law governs.
[24] Determining the governing law depends on identifying and then characterising the issue that arises on the application. The plaintiff wants to obtain evidence for this proceeding from a potential witness, Mr Grippaldi, on matters that would, were it not for the alleged waiver, be protected from disclosure (that is, privileged) by reason of Mr Grippaldi’s duty of confidentiality to the defendant. I consider the issue therefore is:
To what extent has the defendant, by providing to the plaintiff the email chain and by making reference in her brief of evidence to some of her communications with Mr Grippaldi, waived her privilege over her communications with Mr Grippaldi, in respect of any questions the plaintiff wishes to ask Mr Grippaldi for the purposes of obtaining evidence in this proceeding?
[25] The italicised words are important. The plaintiff is not merely some inquisitive third party wishing to speak to Mr Grippaldi for purposes unconnected with this proceeding. The plaintiff wishes to question Mr Grippaldi only for the purposes of obtaining evidence in this proceeding. This suggests that the issue that arises on this application is properly characterised as procedural and evidential.
[26] I acknowledge that the privilege protecting communications with legal advisers is not merely a rule of procedure and evidence. It is a substantive rule, not confined to the context of legal proceedings, that means that a client’s confidential communications with a lawyer cannot be disclosed without the client’s consent.2 This might indicate that the scope of the privilege, and of any waiver of privilege, should be governed by the proper law of the defendant’s engagement of Mr Grippaldi, which
2 B v Auckland District Law Society [2004] 1 NZLR 326 (PC). Section 53(5) of the Evidence Act 2006 provides that the Act does not affect this substantive rule of law. This underlines that the rules in the Evidence Act are (unsurprisingly) rules of evidence.
is likely to be Italian law. But I consider the position is different where the scope of that privilege (and any waiver) arises in relation to procedural and evidential issues in a proceeding conducted in a New Zealand court.
[27] If the alleged waiver of privilege were to be advanced in relation to a dispute over the defendant’s discovery obligations (and such a dispute appears possible), that dispute would be resolved by applying New Zealand law relating to discovery, privilege and waiver of privilege. This is contemplated by the Evidence Act. Section 54 confers a privilege for communications with legal advisers. “Legal advisers” are defined in s 51 to include overseas lawyers. The privilege in s 54 therefore extends to the defendant’s communications with Mr Grippaldi. Likewise, the waiver rules in s 65 apply to the defendant’s privilege in respect of those communications. One effect of the privilege conferred by s 54 is stated in s 53(1): the defendant has the right to refuse to disclose, in this proceeding, her privileged communications with Mr Grippaldi.
[28] If Mr Grippaldi were called as a witness at the trial (by either party), the privilege conferred by s 54 would also mean that the defendant could require that Mr Grippaldi not disclose her privileged communications in his evidence: s 53(3). The extent to which the defendant could assert that privilege would depend on whether she had waived any privilege, and any waiver would be determined in accordance with the rules in the Evidence Act. These are quintessentially matters of the law of evidence that would be governed by New Zealand law, not Italian law.
[29] I consider the position is the same where, as here, the plaintiff wishes to question Mr Grippaldi for the purposes of obtaining evidence in this proceeding. There is, as the defendant’s solicitors properly acknowledged in correspondence, no “property” in a witness. Neither party can (questions of privilege and confidentiality aside) prohibit the other party from seeing a witness of fact, from getting the facts from that witness and from calling the witness to give evidence or from issuing the witness with a subpoena.3 Lord Denning said this was because “the primary duty of
3 Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 (CA) at 1384.
the court is to ascertain the truth by the best evidence available”.4 This is, in my view, a matter of procedure and evidence that is governed by New Zealand law.
[30] For these reasons, I consider that the issue I have identified above is properly characterised as procedural and evidential. Issues of procedure and evidence, including the role of privilege in relation to them, are governed by the law of the forum.5
[31] It would be odd if it were otherwise. New Zealand law would undoubtedly govern the position if Mr Grippaldi gave evidence as a witness. I see no reason why a different system of law should govern the position if the plaintiff questions Mr Grippaldi for the purposes of obtaining evidence in this proceeding. I acknowledge that Mr Grippaldi is not subject to the jurisdiction of this court. This does not mean that the orders that I make below are futile. The orders bind the defendant and determine the extent to which, for the purposes of this proceeding, her communications with Mr Grippaldi are, or remain, privileged.
To what extent has the defendant waived privilege?
Express waiver of privilege
[32] The defendant expressly accepts that she does not maintain privilege in respect of two communications:
(a)The first is the provision of a power of attorney to Mr Grippaldi. The defendant says her waiver relates to “the particular communication … pertaining to the provision of the power of attorney”. It is unclear what is meant by the “particular communication”. In her brief, the defendant referred at [50] both to an email from Mr Grippaldi asking for a power of attorney and to Mr Grippaldi saying that the Italian prosecutor asked
4 Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 (CA) at 1385.
5 Lord Collins and Jonathan Harris (eds) Dicey, Morris and Collins on the Conflict of Laws (16th ed, Sweet & Maxwell, London, 2022) vol 1 at 4R-001 and 4-023; Martin Davies, Andrew Bell, Paul Brereton and Michael Douglas Nygh’s Conflict of Laws in Australia (10th ed, LexisNexis Butterworths, Chatswood, 2020) at 16.26.
him to organise for the money to be returned to where it originally came from.
(b)The second is her inquiry of Mr Grippaldi regarding the distribution of funds held by the bank. The defendant says her waiver relates to the specific inquiry regarding the distribution of the funds. I take that to be a reference to the email chain of 29 to 30 May 2012, already disclosed to the plaintiff.
[33] There is, therefore, uncertainty as to the scope of the first express waiver. In any event, the plaintiff submits that the defendant has impliedly waived privilege over a broader range of communications.
Implied waiver of privilege: s 65(2)
[34] The plaintiff first submits that the defendant has waived privilege under s 65(2). This provides:
A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.
[35]There are two limbs to s 65(2):
(a)There must have been voluntary disclosure of any significant part of a privileged communication. Whether a “significant part” of a privileged communication has been disclosed depends on the substance rather than the quantity of what has been disclosed.6
(b)That disclosure must have happened in circumstances that are inconsistent with a claim of confidentiality.
[36] As to the first limb, the plaintiff said that the defendant had disclosed a significant part of her “communications” with Mr Grippaldi in relation to what
6 Houghton v Saunders (2009) 19 PRNZ 476 (HC) at [55].
Mr Grippaldi told her about where the money needed to go and why, and what Mr Grippaldi told her about where the money would go. The plaintiff also said that the defendant had produced the email chain of 29 and 30 May 2012 but that this disclosed only a “partial reply” by Mr Grippaldi to the defendant’s queries. The plaintiff submitted that in these circumstances it would be unfair for the defendant to rely on parts of her “communications” with Mr Grippaldi when “all of it” is relevant to the issues in this case. The plaintiff said the defendant should not be able to prevent the plaintiff from making inquiries on the “full extent” of her communications with Mr Grippaldi on these issues.
[37] Section 65(2) focuses on the communication in issue. It follows that the effect of s 65(2) is that voluntary disclosure of any significant part of a privileged communication, in circumstances that are inconsistent with a claim of confidentiality, will waive privilege in that communication. Section 65(2) does not, by itself, lead to waiver of privilege in respect of other communications.7
[38] However, the principle of collateral waiver overlays s 65. This principle prevents a party from presenting the court with a selective view of the relevant evidence. The principle arises where a party has waived privilege in relation to a communication that is helpful to the party’s case on an issue, while asserting privilege over other communications on the same issue that may be unhelpful to its case. In such circumstances there is a collateral waiver of privilege over those other communications.8
[39] There may, therefore, be a primary waiver of privilege (whether under s 65(2) or otherwise) and then a collateral waiver of privilege that arises from it. The defendant’s submission that any express waiver of privilege relates only to “particular” communications overlooks this principle.
7 Financial Markets Authority v Hotchin [2014] NZHC 2732 at [57]; and Everest Serviced Apartments Ltd v Body Corporate 511909 [2022] NZHC 1925 at [50(a) and (b)].
8 NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 241; and Capital + Merchant Finance Ltd v Perpetual Trust Ltd [2015] NZHC 1233 at [29]. The collateral waiver principle overlays s 65 because the Act does not purport to be a complete code as to waiver of privilege.
[40] As to the second limb, the plaintiff appears to have assumed that reference to significant parts of privileged communications in a brief served before trial is inconsistent with a claim of confidentiality. That is not necessarily so. As Katz J explained in Capital + Merchant Finance Ltd v Perpetual Trust Ltd,9 reference to privileged communications in a served brief is not necessarily inconsistent with a claim of confidentially, given that the brief might be amended or might not be read at trial. Katz J went on to explain, however, that injustice can arise if a party is able to defer until trial the decision whether to retain the reference to privileged communications.10 Her Honour therefore required the party in that case to elect, well before trial, whether to retain the reference to privileged communications (and therefore waive privilege) or remove it. I shall do the same. Given that the brief was served some time ago and that the plaintiff will face some practical issues in interviewing Mr Grippaldi, I will require the plaintiff to elect by 15 December 2023.
[41]I now turn to the possible waivers of privilege by the defendant.
[42] First, the defendant voluntarily produced the May 2012 email chain in discovery (rather than merely referring to it in her brief). That was a primary waiver of privilege. It appears the defendant will rely on this in relation to the issue of what (if any) instructions she gave to Mr Grippaldi about the distribution of the recovered funds. This means she has collaterally waived privilege over any other communications between her and Mr Grippaldi relevant to that issue.
[43] Secondly, at [50] of her brief, the defendant says she recalls that in mid-2012 Mr Grippaldi emailed her asking her to go to Italy to provide him with a power of attorney so he could receive the frozen funds from the bank. This discloses a significant part of that email (which may or may not be one of the emails in the May 2012 email chain). If this remains in the brief, it will therefore be a primary waiver of the entire email. It appears the defendant will rely on this email in relation to the issue of what reasons Mr Grippaldi gave her for requesting a power of attorney from her. The defendant will therefore collaterally waive privilege over any other communications between her and Mr Grippaldi relevant to that issue.
9 Capital + Merchant Finance Ltd v Perpetual Trust Ltd [2015] NZHC 1233 at [22].
10 At [25].
[44] Thirdly, later in the same paragraph, the defendant says that Mr Grippaldi said that “the Italian prosecutor asked him to organize for money to be returned to where it originally came from”. It is unclear whether this communication was oral or was in writing (though the former appears more likely). In any event, if this remains in the brief, it will be a primary waiver of the communication. It appears the defendant will rely on this communication in relation to the issues of whether Mr Grippaldi told the defendant that the money needed to be returned to her father and whether the recovered funds were paid by Mr Grippaldi to her father. The defendant will therefore collaterally waive privilege over any other communications between her and Mr Grippaldi relevant to those issues.
[45] Fourthly, at [66] the defendant says she “understood from [Mr Grippaldi] that any funds released from the bank would be paid to my father”. By necessary implication, the defendant is saying that her understanding arises from some communications with Mr Grippaldi, though it is unclear whether these communications were oral or in writing. In any event, if this remains in the brief, it will be a primary waiver of those communications. It appears the defendant will rely on these communications in relation to the issues of whether Mr Grippaldi told the defendant that the money would be returned to her father and whether the recovered funds were paid by Mr Grippaldi to her father. The defendant will therefore collaterally waive privilege over any other communications between her and Mr Grippaldi relevant to those issues.
Implied waiver of privilege: s 65(3)(a)
[46] The plaintiff also says there has been an implied waiver of privilege under s 65(3)(a). This provides:
(3)A person who has a privilege waives the privilege if the person—
(i)acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding …
[47] The plaintiff says that the defendant has put two matters in issue. The first is what Mr Grippaldi told her as to the reasons for the power of attorney. I have already concluded that, under s 65(2) and the principle of collateral waiver, there will be
a waiver of privilege over communications relevant to this issue if the brief remains in its current form. I need not consider this matter under s 65(3)(a).
[48] The plaintiff says the second matter that the defendant has put in issue is who communicated with Mr Grippaldi about the distribution of funds. I consider that this submission does not engage with s 65(3)(a). The provision applies when a party puts a privileged communication in issue. This is not the same as putting a matter in issue.11
Is the third category of information privileged?
[49] The plaintiff wishes to ask Mr Grippaldi questions about the steps that he took under the power of attorney in relation to acting on the restitution orders and distributing the recovered funds. The plaintiff submits that this information and any documents relating to it are not privileged. The defendant does not dispute this, other than to say that this issue is one of discovery. The defendant proposes that any information and documents be provided by Mr Grippaldi to the defendant, who can discover the documents in the usual way.
[50] I generally agree with the plaintiff that information about the steps that Mr Grippaldi took under the power of attorney in relation to acting on the restitution orders and distributing the funds, and any documents relating to that information, are not subject to a privilege enjoyed by the defendant. This is subject to the exception that the defendant would ordinarily enjoy a privilege in respect of her communications with Mr Grippaldi relating to these steps. However, that exception does not apply because I have held, at [42] above, that the defendant has waived privilege over any communications between her and Mr Grippaldi relevant to the issue of what (if any) instructions she gave to Mr Grippaldi about the distribution of the recovered funds.
[51] I accept the defendant’s point that discovery obligations may be engaged. But discovery is not the exclusive means by which a party to a proceeding can obtain relevant documents, let alone information. The plaintiff wants to speak to Mr Grippaldi and is entitled to do so. It will assist that process if it is clear to the plaintiff and Mr Grippaldi what information and documents are subject to privilege in favour
11 Shannon v Shannon [2005] 3 NZLR 757 (CA) at [47].
of the defendant. For these reasons, I also consider that my conclusions on the extent of the defendant’s waiver of privilege should be reflected in orders that are made now, rather than awaiting a discovery process.
Result
[52]I make the following orders:
(a)The defendant has waived privilege over any communications between her and Mr Grippaldi relevant to the issue of what (if any) instructions she gave to Mr Grippaldi about the distribution of the recovered funds.
(b)Information about the steps that Mr Grippaldi took under the power of attorney in relation to acting on the restitution orders and distributing the funds, and any documents relating to that information, are not subject to a privilege enjoyed by the defendant.
[53] Unless by 15 December 2023 the defendant serves an amended brief removing the material referred to in [43]–[45] above, I will make a further order that the defendant has waived privilege over:
(a)The email that Mr Grippaldi sent the defendant in mid-2012 asking her to go to Italy to provide him with a power of attorney so he could receive the frozen funds from the bank, and any other communications between the defendant and Mr Grippaldi relevant to the issue of what reasons Mr Grippaldi gave her for requesting a power of attorney from her.
(b)The communication in which Mr Grippaldi said to the defendant that “the Italian prosecutor asked him to organize for money to be returned to where it originally came from”, and any other communications between her and Mr Grippaldi relevant to the issues of whether Mr Grippaldi told the defendant that the money needed to be returned to her father and whether the recovered funds were paid by Mr Grippaldi to her father.
(c)Any communication that gave rise to the defendant’s understanding from Mr Grippaldi that any funds released from the bank would be paid to her father, and any other communications between her and Mr Grippaldi relevant to the issues of whether Mr Grippaldi told the defendant that the money would be returned to her father and whether the recovered funds were paid by Mr Grippaldi to her father.
Costs
[54]The plaintiff is entitled to costs on the application on a 2B basis.
Campbell J
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