Chen v Lin
[2014] NZHC 1727
•23 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-000665
CIV-2014-404-00942 [2014] NZHC 1727
BETWEEN YANG CHEN
Applicant/Plaintiff
AND
JIN ZHU LIN
As administrator of estate of Qiming Lin(deceased) Respondent/Defendant
Hearing: 24 June 2014 Appearances:
Mrs R Reed and Mrs S Rohde for Y Chen - Applicant
Mr A Kashyap for J Z Lin - RespondentJudgment:
23 July 2014
JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
This judgment was delivered by me on
23.07.14 at 4 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
CHEN v LIN [2014] NZHC 1727 [23 July 2014]
Background
[1] On 23 April 2014, the applicant/plaintiff applied for an order to sustain a caveat, on the grounds that he had an equitable interest in a property owned by the respondent. The application relates to whether the caveat 9563704.1, lodged by the applicant/plaintiff over the property at 171 Murphys Road, Flatbush, Auckland (“the Flatbush Property”), should be sustained.
[2] The applicant/plaintiff also applied for summary judgment as per paragraph
1(a) of the interlocutory application for summary judgment:
a.Summary judgment order for the enforcement of the Chinese Judgments (from the Fuzhou Intermediate People’s Court and the Fujian Higher People’s Court, both of which were upheld by the Supreme Court of the People’s Republic of China) in New Zealand.
[3] The factual contentions which are not disputed are that, Qiming Lin, now deceased, was the owner of the Flatbush Property. The defendant, Jin Zhu Lin, is the successor of Qiming Lin’s estate.
[4] On 10 July 2007, the applicant/plaintiff and the deceased entered into an oral agreement (“the Agreement”) where the applicant/plaintiff agreed to pay RMB 20 million in consideration for a 30 per cent share in the Flat Bush Property (“shares”). I interpolate that another party owned a share in the property as well.
[5] On 16 July 2007, the applicant/plaintiff transferred RMB 20 million to the deceased’s nominated bank account. There seems to be no argument that this amount was transferred to the deceased by way of payment of the agreed price for the interest in the Flatbush Property. The applicant/plaintiff alleges that the transfer of shares was to take place in October 2007. The applicant/plaintiff alleges that he made several requests to the deceased to transfer the shares but that did not occur.
[6] The applicant/plaintiff has established that on 20 October 2008, he did in fact send a letter to the deceased requesting him to transfer the shares by the end of October 2008, failing which he requested a full refund of the purchase price plus
compensation for any losses.1
1 Annexure C, affidavit of Long Chen dated 20 March 2014. In her affidavit of 28 May 2014, the
[7] The next development was that on 14 May 2009, the applicant/plaintiff initiated proceedings in China, seeking:
a. Termination of the Agreement as a result of the breach by the deceased;
b. A refund of the purchase price;
c. Interest on the amount owed (RMB 20 million), to be calculated from the date when the plaintiff initiated proceedings in China to the date when the amount is repaid in full.
[8] The deceased died on 2 July 2009. His mother, wife, daughter and son (Chen Shuqin, Lin Jin Zhu, Lin Tingting, and Lin Feiteng respectively) became the defendants in the Chinese proceedings.
[9] The defendants in those proceedings defended the claim, arguing that:
a. The deceased never refused to assist the plaintiff in the transfer of the Shares;
b. As the case concerned land in New Zealand, the Fuzhou Intermediate People’s
Court has no jurisdiction to deal with it.
[10] It will be observed that the defendants in the Chinese proceedings did not dispute that there was an agreement for purchase of the interest in the Flatbush Property and that the plaintiff had paid the sum of RMB 20 million which was the price.
[11] On 10 March 2011, the Fuzhou Intermediate People’s Court made the
following orders:
I. Terminate the share transfer agreement on the land parcel at “171 Murphys Rd Flat Bush Auckland New Zealand” concluded between the Plaintiff Chen Yang and Lin Qiming on July 10, 2007;
II. The Defendants Chen Shuqin, Lin Jinzhu, Lin Tingting and Lin Feiteng should refund the transfer amount RMB 20 million and corresponding interest (to be calculated according to the overdue loan interest rate of the same kind in the same period of the People’s Bank of China based on RMB
20 million from May 14, 2009 to the date of repayment confirmed by this Judgement) to the Plaintiff Chen Yang within the scope of inheritance of Ling Qiming’s heritage in 10 days since the effective date of this Judgment.
defendant says she had never seen this document prior to the court hearings in China. However, at first instance in the Fuzhou Intermediate People’s Court, the defendant admitted that she had received this letter and the court confirmed its authenticity.
If failed to perform, the repayment obligation within the time limit specified in this Judgment, double liabilities and interest should be paid for the delay period in performance according to Article 229 of the Civil Procedure Law of People’s Republic of China.
The litigation fee for this case, i.e. RMB 141,800, should be assumed by the
Defendants Chen Shuqin, Lin Jinzhu, Lin Tingting and Lin Feiteng.
[12] The party referred to as Lin Jinzhu in the above extract is the defendant in the New Zealand proceedings. She is the widow of the person named as Lin Qiming in the above extract from the judgment of the first instance court in China. Because the children of the deceased waived their rights of inheritance, and the mother of the deceased’s estate had passed away, the court proceedings went ahead against Ms Jin Zhu Lin as the remaining legal representative of the deceased's estate.
[13] The defendant appealed the decision to the Fujian Higher People’s Court and then to the Supreme Court of China, the latter of which upheld the lower courts’ judgments and made the following findings on 26 April 2012:
(a) As the case only concerns the return of the purchase price, rather than the transfer of real property, and both the plaintiff and the Deceased are Chinese citizens, China is deemed to be the correct jurisdiction for the proceedings;
(b) As Ling Tingting and Lin Feiteng have applied to abandon their inheritance, they are no longer liable for the repayment;
(c) The lower courts’ finding that there was an oral agreement between the plaintiff and the deceased for the transfer of the shares is correct.
(d) The address of the property is corrected to “171 Murphys RD, Flat Bush, Auckland, New Zealand”;
(e) Appeal is unsuccessful.
[14] The uncontradicted evidence is that the applicant/plaintiff sought enforcement of the judgments in China and the Fujian City People’s Court ordered attachment orders for some properties registered in the deceased’s and/or the respondent/defendant’s name in China. I also accept that it is established, in the absence of evidence to the contrary, that these properties do not have any substantial value and fall well below the sum of RMB 20 million owed by the respondent/defendant.
[15] The judgment for the return of the amount that the applicant/plaintiff paid to acquire an interest in the Flatbush Property has not been satisfied at the point where the plaintiff took steps to enforce the Chinese judgment in the New Zealand High Court or subsequently.
[16] The applicant/plaintiff seeks summary judgment to enforce the judgments of the Chinese Courts. It is to that application which I will next turn.
Summary Judgment Application
[17] Under r 12.2 of the High Court Rules, the plaintiff is required to satisfy the Court that a defendant has no defence to a cause of action in the statement of claim or to a particular part of a cause of action. The applicable principles are well settled and are set out by the Court of Appeal in Krukziener v Hanover Finance Ltd:2
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. 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. 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. 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.
[18] I intend to be guided by this statement.
[19] I refer to the grounds of opposition on which the respondent/defendant opposes the summary judgment application. At paragraph 3(b), the respondent/defendant says that “the applicant has successfully brought proceedings in China to cancel the agreement relating to 17 Murphys Road, Flat Bush, Auckland”. This statement, if anything, is confirmatory of the validity of the Chinese judgement. But accepting as I do that the real issue is whether the Chinese
Courts had jurisdiction recognisable in New Zealand to make the judgments, I would
2 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26] per Miller J (citations omitted).
take the view that the ground stated in this part of the notice of opposition is irrelevant.
[20] The respondent/defendant’s next ground of opposition at paragraph 3(c) states that the applicant has not attempted to enforce the foreign judgment in the foreign jurisdiction. That ground in my view is also irrelevant. It is not a factor that is referred to in any of the authorities which are concerned with jurisdiction to enforce judgments of overseas courts at common law. Those authorities will be considered subsequently.
[21] At paragraph 3(d), a further ground of opposition by the respondent/defendant is that, she is “capable of defending the cause of action in the statement of claim”. That is not a separate ground and does not state any matter upon which the court could base a refusal to decline summary judgment.
Enforcement in New Zealand of the judgments of the courts in China
[22] The first step that must be negotiated by the applicant/plaintiff if he wishes to enforce the judgments of the Chinese courts is to establish that those courts had jurisdiction to enter the judgment that it did against the respondent/defendant.
[23] The legal position was stated in the following way in Emanuel v Symon:3
In actions in personam there are five cases in which the Court’s of this
country will enforce a foreign judgment:
(1) Where the defendant is a subject of the foreign country in which the judgment has been obtained;
(2) Where he was resident in the foreign country when the action began;
...
[24] The relevant New Zealand rules were stated by the Court of Appeal in Von
Wyl v Engeler:4
3 Emanuel v Symon [1908] 1 KB 302 (CA) at 309 per Buckley LJ.
4 Von Wyl v Engeler [1998] 3 NZLR 416 (CA) at 420-421. The Court referred to pages in Lord Collins of Mapesbury (ed) Dicey, Morris & Collins on the Conflict of Laws (15th ed, Sweet & Maxwell, London, 2012).
Jurisdiction in personam exists where the debtor was present in the foreign country at the time the proceedings were instituted; or where the judgment debtor was plaintiff or counterclaimed in the foreign court; or where, being defendant in the foreign court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings; or before the commencement of the proceedings agreed in respect of the subject-matter of the proceedings to submit to the jurisdiction of that Court or of the Courts of that country (pp472-473), and an agreement to submit may take the form of an agreement to accept service at a designated address (p483).
[25] I consider that it is established that the respondent/defendant was present in the foreign country at the time the proceedings were instigated. The judgments of the various Chinese courts record that she has an address in China.
[26] In the affidavit which the respondent/defendant has filed in these proceedings, she herself speaks of owning property in China. She together with the other defendants took part in the proceeding before the Chinese courts. There is no evidence that she ever lived anywhere else. She does not provide any evidence disputing that she was present in China and no submissions were made to me to the effect that she was not present there when the proceedings commenced. I conclude therefore that she was present in China at the time when the court proceedings commenced.
[27] The Chinese courts must be taken to have had jurisdiction which ought to be recognised under New Zealand law when they dealt with the case between the parties. They therefore had jurisdiction to deal with the applicant/plaintiff’s claim to seek judgment against the respondent/defendant in the sum of RMB 20 million together with interest.
Conclusion
[28] In my view the New Zealand Court has jurisdiction to enforce the judgments entered against the respondent/defendant in the three courts in China.
Procedural unfairness
[29] While it is not expressly referred to in the notice of opposition to the summary judgment application, the respondent/defendant through her counsel,
Mr Kashyap, raised the question of whether there had been a breach of natural justice.
[30] Two points were raised. The first was that it was unjust for the respondent/defendant to be served by way of substituted service. The point was raised before Venning J when he conducted a callover at which the summary judgment application and the application for order sustaining caveat were both dealt with. Venning J expressed the view that there had been proper service. He noted:
4.Mr Kashyap has taken the point that the defendant has not been served in the summary judgment proceedings. I confirm that the Court is satisfied that the documents have been served in accordance with the previous order for substituted service made by the Court and accordingly service has been effect [sic]. If the defendant chooses not to respond on the basis that she does not consider service has been effected on those proceedings then that is a matter for her but as noted the Court considers service has been effected.
[31] It would appear that no further application has been made to seek a review of the original order for substituted service which Associate Judge Christiansen made. Although Mr Kashyap did not express matters in these terms, I understand that the contention for the respondent/defendant is that substituted service of the respondent/defendant out of New Zealand ought not to have been permitted, as there was inadequate evidence before the Court of attempts to serve her personally. That being so, I understand that the contention of the respondent/defendant is that the Court ought to decline to make any summary judgment order. Such an outcome could only result from the Court exercising its residual discretion to decline summary judgment because of the requirements of justice. Given that the issue has already been pronounced upon by a High Court Judge and that no attempt has been made to apply for review of the decision which the Associate Judge made, I do not consider that there are adequate grounds for the Court to decline to enter summary judgment.
[32] The second point relating to what was said to be procedural defects with the proceedings arises from the fact that the respondent/defendant was, at some point restricted from leaving China because of the unsatisfied civil judgment that had been entered against her as the administrator of the estate of the deceased, that judgment
being the one that is now sought to be enforced in this Court. It was grossly unfair, Mr Kashyap submitted, that the case against her in New Zealand should proceed in these circumstances.
[33] I will assume that in some circumstances the Court could take the view that there ought to be a stay of proceedings in circumstances where a litigant is unable to travel from her home country to New Zealand to participate in a court hearing. Even if that is so, this is not a case where such an outcome is required. The hearing of the summary judgment application and the caveat application were not oral hearings. They were conducted on the basis of affidavit evidence. Included in the evidence before the Court was an affidavit which the respondent/defendant swore and filed. The respondent/defendant was represented at the hearing, as I have indicated, by Mr Kashyap. He did not point to any material which would justify a conclusion that the restriction order on the respondent/defendant hampered his ability to represent his client effectively at the hearing. I accept that because the respondent/defendant lives in a country which is quite distant from New Zealand that communication of instructions may not be straightforward. That however, if not commonplace, is a problem that litigants and their lawyers encounter and successfully overcome in quite a number of cases that come before the courts. It is a problem that exists quite independently of the question of the respondent/defendant’s inability to leave China.
[34] I do not accept therefore that this ground is a proper basis for declining to enter summary judgment.
[35] Mr Kashyap renewed the submission that he made before Venning J
concerning service at the hearing of the summary judgment application on 24 June
2014. It appears that the nature of his objection is not so much that substituted service had not taken place in accordance with the order, but that an order for substituted service ought not to have been made in the first place.
[36] As I have already noted, no steps were taken to review the order for substituted service which Associate Judge Christiansen made in the proceeding. Further, the respondent/defendant has filed a notice of opposition and affidavits in the proceeding and, as is obvious, has appeared through her counsel. It would be an
odd result if, as Mr Kashyap submitted, in those circumstances the Court could conclude that there had been a breach of natural justice, because the proceedings had not been served. While I have not investigated the position in any more depth, it may well be the case that where a respondent/defendant wants to take a point about service then that would have to be dealt with by way of a protest to jurisdiction – assuming that it is possible at all to take such a point. However, I am satisfied that there is no basis upon which to revisit the matters that Venning J discussed in his minute. Like him, I am satisfied that service had occurred.
[37] Mr Kashyap did not submit to me that because of the difficulties with service, additional time was required for the respondent/defendant to file documents in opposition.
[38] It follows that the applicant/plaintiff has established that the respondent/defendant has no defence to the summary judgment application.
Caveat proceedings
[39] The following statement of principles governing the circumstances in which the Court will make orders sustaining caveats is taken from the judgment of Faire J, then Associate Judge Faire in the case of Chen v ANZ National Bank Ltd.5
The applicable principles which apply when considering applications pursuant to s 143, 145 and 145A of the Land Transfer Act 1952 are well known and can be shortly stated. They are:
(a) Ss 143, 145 and 145A of the Land Transfer Act 1952 give no guide as to the circumstances in which the court may make an order that a caveat be removed: Catchpole v Burke;
(b) If it is clear that there was no valid ground for the lodging of a caveat, or that the interest which in the first place justified the lodging of the caveat no longer exists, such a caveat should be removed: Sims v Lowe;
(c) The onus under s 143 of the Land Transfer Act 1952 lies on the caveator to show that he has a reasonably arguable case for the interest he claims: Castle Hill Run Ltd v NZI Finance Ltd;
5 Chen v ANZ National Bank Ltd [2012] NZHC 1083 at [7] (footnotes omitted).
(d) The caveat, being a creature of statute, may be lodged only by a person upon whom a right to lodge it has been conferred by statute. It is not enough to show that the lodging and continued existence of the caveat would be in some way advantageous to the caveator: Guardian Trust & Executor Co of New Zealand Ltd v Hall;
(e) What the caveator must establish is an arguable case for claiming an interest of the kind referred to in s 137 of the Land Transfer Act 1952; and
(f) Even if the caveator establishes an arguable case for the interest in the land claimed, the court retains a discretion to make an order removing the caveat although it will be exercised cautiously: Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd.
[40] I intend to be guided by the statements of principle contained in that excerpt from the judgment.
[41] On 6 November 2013 the applicant/plaintiff lodged a caveat against the title to the Flatbush Property. The interest which the caveat was said to provide was stated in these terms in the caveat:
Estate or Interest claimed
Pursuant to the Agreement for Ownership of Property as Tenants in Common dated 10 July 2007 as entered into by the now deceased proprietor named QIMING LIN and the Caveator, which confirms the Caveator’s equitable interests in the property affecting the said land.
The caveator is one of the equitable owners of the property, as he has provided NZD $3,600,000.00 of funds to the said QIMING LIN for his share of the property as tenant in common.
[42] It would seem to be obvious that the grounds stated for the caveat in that it refers to the caveator being an equitable owner of the property was referable to the Agreement for purchase of a share of the Flatbush property which the applicant had contracted to buy.
[43] The originating application that was filed to sustain the caveat under s 145A
of the Land Transfer Act 1952 stated:
…
(f) The applicant lodged the caveat to protect his interest in the property, which arose out of the cancelled agreement.
(g) The applicant never intended to give away his beneficial interest in the monies he paid under the agreement (being RMB
20,000,000.00); approximately NZD $4,000,000.
(h) The applicant retains an interest in those monies and has an equitable interest in the property to the amount of RMB 20,000,000.00 plus interest.
[44] Counsel for the applicant/plaintiff asserts that a resulting trust is the source of the applicant/plaintiff’s rights to the Flatbush Property. At paragraph 8.11 of the applicant/plaintiff’s submissions, the following submission was made which explains the way in which the alleged equitable interest came into being:
However, it is notable that in Westdeutsche Landesbank what was referred to was a presumption of resulting trust, which is considerably easier to rebut than a resulting trust itself. In the present case, the plaintiff contends that a resulting trust has arisen in his favour – it is clear that he did not intend to give beneficial interest in the money to the defendant. The money was provided to him with the express intention that it would be the purchase price for a 30% share of the Property; once that agreement is cancelled there is no basis for the defendant to hold on to that money and a resulting trust arises in favour of the plaintiff.
[45] The formulation of the grounds upon which the caveat should be sustained are rather different from the grounds that were stated in the caveat itself in the first place.
[46] Section 137(2) of the Land Transfer Act requires that a caveat must contain information including the following:
…
(b) The nature of the land or estate or interest claimed by the caveator, which must be stated with sufficient certainty; and
(c) How the land or estate or interest claimed is derived from the registered proprietor;
…
[47] The Court may make an order sustaining a caveat. As a matter of statutory intention it seems to me that the caveat that is to be sustained must refer only to the caveat lodged and therefore to the interest described in that caveat. It could not be contended that the Court can take into account grounds upon which a different
caveat might be sustained from that which was actually filed when it considers an application under s 145A.
[48] I have given consideration to the question of whether in this case, the applicant/plaintiff has sought orders for sustaining the caveat on a different basis from the grounds which were stated in the caveat itself. The ground that now appears to be argued is that the equitable interest in the land does not arise from the fact that the applicant/plaintiff has an enforceable agreement for sale and purchase relating to the land but as the beneficiary of a resulting trust arising from the advance to the deceased of the sale price in circumstances which were recognised as giving rise to such a trust in Westdeutsche Landesbank Girozentrale v Islington London
Borough Council.6
[49] I will therefore consider next whether the caveat that was actually lodged can be supported on the grounds in the application to sustain the caveat.
[50] It is now submitted in the applicant/plaintiff’s submissions:
8.6 The original basis of the payment was the agreement/contract.
However, once the contract was cancelled for breach, the defendant failed to return the money to the plaintiff.
8.7There is no other basis to support the payment from the plaintiff to the defendant. The money is therefore held on trust by the defendant, in favour of the plaintiff.
8.8The plaintiff retains a beneficial interest in the money that he provided; put another way, he did not intend to divest his interest in that money to the defendant once the agreement was cancelled. The plaintiff therefore has an interest in the Flat Bush Property to the extent of the amount he paid to the defendant, being RMB 20,000,000.00.
8.9For the sake of completeness, the plaintiff relies on the case of Westdeutsche Landesbank Girozentrale v Islington London Borough Council, and especially the first type of trust described by Lord Browne-Wilkinson:
“… (A) where A makes a voluntary payment to B or pays (wholly or in part) for the purchase of property which is vested in either B alone or in the joint names of A and B, there is a presumption that A did not intend to make a gift to B; the money or property is held on trust for A…”
6 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (HL).
8.10An analogy can be drawn to the present case, where the plaintiff has voluntarily paid the Deceased for the purchase of a share of the Flat Bush Property, and the plaintiff has not been put on the title as an owner of the property. The transfer was never completed.
[51] I do not however agree that His Lordship's remarks are on point in this case. The dictum in question was concerned with the position where funds were provided to acquire a property. In this case, the deceased already owned the property. This was not a case of his acquiring property on behalf of himself and the applicant/plaintiff. In my assessment, invocation of the principle outlined in the passage in the judgment in question does not assist the applicant/plaintiff. That is because the money which the applicant/plaintiff advanced was not used to acquire property.
[52] Such being the case, the only basis upon which it could be contended that the applicant/plaintiff has an entitlement to an interest in the land is one that arises out of an enforceable contract for the sale of the interest in the Flatbush Property. This is the interest claimed under the caveat instrument itself. I next consider that issue.
[53] The applicant/plaintiff’s conduct makes it clear that he no longer intends to enforce the contract or to be bound by it. That conduct includes seeking what in effect was a declaration from the Chinese courts that the contract between the parties is at an end. The Chinese courts’ decision amounted to an order recognising that the contract was cancelled. Under New Zealand law, the effect of a valid cancellation under s 8(3)(a) of the Contractual Remedies Act 1979 is that neither party is obliged or entitled to perform the contract further. Regarding the Chinese courts’ order for the repayment of money, this is equivalent to an order that a New Zealand Court could make under s 9 of that Act in granting relief. In the absence of any submissions by counsel as to the effect of the Chinese courts’ declarations in New Zealand, I propose to take the interpretation that I have above.
[54] It has been determined that a valid cancellation of an agreement for sale and purchase means that the equitable interest of the purchaser in the land comes to an
end because the interest is dependent upon the continuing existence of a contract which can be specifically enforced: See Whitehead v Gunn Corporation.7
[55] As the Chinese courts have declared that the Agreement is now cancelled, there is no caveatable interest in the Flatbush Property pursuant to the Agreement dated 10 July 2007 between the deceased and the applicant/plaintiff. The applicant/plaintiff may have had a valid ground for lodging the caveat when the Agreement was still enforceable. However, now that it is cancelled, the equitable
interest that justified the lodging of the caveat in the first place no longer exists.8
Therefore, I do not accept that it is reasonably arguable that the applicant/plaintiff has the type of equitable interest that he claims in the Flatbush Property.
[56] For the foregoing reasons, I conclude that the application under s 145A ought to be dismissed and I make an order accordingly.
Summary
[57] I now set out my conclusions in summary form.
a) The courts in China had jurisdiction to make the orders that it did establishing that the respondent/defendant is indebted to the applicant/plaintiff in the sum of RMB 20 million.
b)The applicant/plaintiff is entitled to enforce those judgments in New Zealand. On that basis I enter judgment for the applicant/plaintiff in the sum of RMB 20 million.
c) The applicant/plaintiff does not have a reasonably arguable case that he has an equitable interest in the Flatbush property and accordingly the application for an order under s 145A of the Land Transfer Act
shall be dismissed.
7 Whitehead v Gunn Corporation HC Nelson M1/01, 27 March 2001 (HC).
8 See Sims v Lowe [1988] 1 NZLR 656 (CA) at 660.
[58] The parties are to confer on the question of costs and if they are unable to agree, they are to file memoranda not exceeding four pages on each side within 10
working days of the date of this judgment.
J.P. Doogue
Associate Judge
3