Chen v Tawa Trade Finance Limited
[2024] NZHC 410
•1 March 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-427
[2024] NZHC 410
BETWEEN LIYUN CHEN
First Plaintiff
LC1521319 DEVELOPMENT COMPANY LIMITED
Second PlaintiffAND
TAWA TRADE FINANCE LIMITED
Defendant
Hearing: 27 November 2023 Appearances:
First Plaintiff is self-represented
Joseph Chen and Dillon Tan for the Second Plaintiff
David Chisholm KC and Catherine Pendleton for the DefendantJudgment:
1 March 2024
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application for defendant’s summary judgment;
application for summary judgment on defendant’s counterclaims]
This judgment was delivered by me on 1 March 2024 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
Chen Sandhu Lawyers (Joseph Yuese Chen), Flat Bush, Auckland, for the Second Plaintiff Turner Hopkins (M J Robinson/C J Pendleton), Takapuna, for the Defendant
Copy for:
David Chisholm KC, Auckland, for the Defendant Liyun Chen, the First Plaintiff
CHEN v TAWA TRADE FINANCE LIMITED [2024] NZHC 410 [1 March 2024]
INDEX
Paragraph no.
Introduction [1]
Background [2]
Tawa’s application [5]
Affidavit of Yizhong (Allen) Xu dated 26 June 2023 [7]
Affidavit of Siyu (Winnie) Deng dated 26 June 2023 [20]
Updating affidavit of Yizhong (Allen) Xu dated 6 September 2023 [25]
Ms Chen and DevCo’s opposition [31]
Affidavit of Liyun Chen dated 13 October 2023 [32]
Reply affidavit of Yizhong (Allen) Xu dated 20 October 2023 [37]
Representation at the hearing [45]
Filings subsequent to the hearing [46]
Legal principles [50]
Defendant’s summary judgment [50]
Summary judgment on counterclaim [54]
Analysis [57]
Tawa’s summary judgment [57]
Tawa’s counterclaim [58]
Ms Chen’s and DevCo’s causes of action/defences [60]
Tawa verbally agreed to extend the loans on “reasonable rates”
for another six months [60] Conclusion in respect of the alleged representations [66] The first loan agreement is a credit contract under the CCCFA [69] Tawa’s conduct was oppressive under the CCCFA [75] Conclusion in respect of the CCCFA issues [81] Breach of s 176 of the PLA [83] Conclusion in respect of s 176 [89] Breaches of the FTA and the AML/CFT Act [91] Conclusion in respect of breaches of the FTA and AML/CFT Act [95] Result
[97]
Orders
[98]
Introduction
[1] Tawa Trade Finance Ltd (Tawa) seeks defendant summary judgment against a claim by Liyun Chen (Ms Chen) and LC1521319 Development Co Limited (DevCo). Tawa further seeks summary judgment on its counterclaim against Ms Chen and DevCo.
Background
[2] This proceeding relates to enforcement action taken by Tawa under two loan agreements dated 17 June and 5 August 2022 with DevCo as the borrower and Ms Chen as the guarantor both in her personal capacity and as sole trustee of the Royall Family Trust (the Agreements). Tawa says $1,120,180.34 is owing under those agreements as at 27 November 2023.
[3] Ms Chen and DevCo, with Ms Chen as its sole director and majority shareholder, has brought claims against Tawa for breach of an oral agreement to extend the term of the loan, breaches of the Credit Contracts and Consumer Finance Act 2003 (CCCFA), Property Law Act 2007 (PLA), Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act) and the Fair Trading Act 1986 (FTA). Tawa seeks defendant summary judgment against these claims.
[4] Tawa also counterclaims in debt against Ms Chen and DevCo under the Agreements seeking summary judgment for the amount outstanding.
Tawa’s application
[5]Tawa seeks orders:1
a. Summary Judgment is granted to the defendant against the plaintiffs in respect of the plaintiffs' cause(s) of action pleaded in their amended statement of claim ("statement of claim").
b. Summary Judgment is granted to the defendant against the plaintiffs in respect of the defendant's cause(s) of action pleaded in the defendant's amended counterclaim as follows:
1 Amended notice of application by the defendant for summary judgment against the first and second plaintiffs dated 6 September 2023 at [1].
i. Judgment in the sum of $1,050,5114.51 [sic $1,050,514.51]being the sum due under the two loan agreements dated 17 June 2022 and 5 August 2022, as at 31 August 2023.
ii. Default interest at the rate of 28% per annum on the outstanding sum from 31 August 2023 until payment of the principal sums in full pursuant to sections 22 and 23 of the Interest on Money Claims Act 2016.
c. Costs of enforcement on a solicitor and client basis
[6]The grounds on which the orders are sought are:2
None of the causes of action pleaded in the plaintiffs' statement of claim can succeed.
a. The second plaintiff is a property developer, and the first plaintiff is the director of the second plaintiff.
b. The first plaintiff is the guarantor of a loan of $1,766,000 made to the second plaintiff by the defendant ("Tawa") by term loan agreement dated 17 June 2022 for a period of six months to 17 December 2022 ("the first loan agreement').
c. The first plaintiff is also the guarantor of a loan of $442,000 made to the second plaintiff by Tawa by term loan agreement dated 5 August 2022 for a period of six months to 5 February 2023 ("the second loan agreement”).
d. The first loan agreement was executed following the first and second defendants accepting the terms of a written loan offer dated 10 June 2022 ("the first loan offer"). Tawa never agreed or represented that the first loan was subject to renewal at "reasonable rates". The term of the first loan was for six months only.
e. The terms of the first loan offer included a term that the first plaintiff was obliged to grant "first ranking obligations and exclusive mortgage" over her property at 92 Jeffs Road, Flat Bush, Auckland.
f. The first plaintiff failed to disclose to Tawa that she had already granted a mortgage agreement dated 3 February 2022 over the properties at 92 Jeffs Road and 4 Tipu Road to another financier, General Finance Limited.
g. The plaintiffs were accordingly in breach of the conditions to obtaining the loan under the first loan agreement at the time that Tawa advanced funds to the second plaintiff on 17 June 2022.
h. Tawa would never have advanced any funds to the second plaintiff if it was aware that the first plaintiff had already agreed to grant a mortgage over the property at 92 Jeffs Road.
2 At [2].
i. The second loan agreement was executed following the first and second defendants accepting the terms of a written loan offer dated 28 July 2022 ("the second loan offer").
j. In the plaintiffs' original statement of claim, the plaintiffs pleaded that a renewal was verbally agreed with "the mortgage broker" and that the first loan was subject to renewal on reasonable rates.
k. Tawa, whether by its director or employees, has never agreed to or represented that the first loan was subject to renewal on "reasonable rates". The term of the second loan was for six months only.
l. The mortgage broker utilised by the plaintiffs was not Tawa's agent and no mortgage broker had Tawa's actual or ostensible authority to make a representation on behalf of Tawa regarding the terms of possible rollover in the future. Rather, the mortgage broker was the agent for the second plaintiff as a borrower, if which is denied it made any such representation.
m. Tawa was under no obligation to roll over or extend the loans and the loans remained unpaid by the plaintiffs. However, in December 2022, Tawa offered terms to the plaintiffs for the extension of the first loan. These terms were not accepted by the plaintiffs.
n. Tawa was never in a position to refinance the loans because it had agreed to grant mortgages over the properties to General Finance Limited. General Finance Limited had caveats lodged against at least two of the properties.
o. Tawa is not and has never been in breach of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 ("AMLCFTA"), the Credit Contracts and Consumer Finance Act 2003 ("CCCFA"), the Fair Trading Act 1986 ("FTA") and/or s176 of the Property Law Act 2007 ("the PLA").
p. The plaintiffs' statement of claim does not disclose a cause of action whether in duress, breach of the AMLCFTA, breach of the CCCFA, breach of the FTA, and/or breach of s176 of the PLA.
The Plaintiffs have no defence to the cause(s) of action pleaded in Tawa's counterclaim.
q. Pursuant to the first loan agreement dated 17 June 2022, Tawa agreed to lend and did lend $1,766,000 to the second plaintiff for a term of six months.
r. The drawdown date for the first loan agreement was 17 June 2022 with the loan expiring on 17 December 2022.
s. Default interest under the first loan agreement is at the rate of 28% per annum.
t. Pursuant to clause 12(a) of the loan conditions under the first loan agreement, the second plaintiff agreed to pay costs on default on a solicitor and client basis.
u. Pursuant to the second loan agreement dated 5 August 2022, Tawa agreed to lend and did lend $442,000 to the second plaintiff for a term of six months.
v. The drawdown date for the second loan agreement was 5 August 2022 with the loan expiring on 5 February 2023.
w. Default interest under the second loan agreement is at the rate of 28% per annum.
x. Pursuant to clause 12(a) of the loan conditions under the second loan agreement, the second plaintiff agreed to pay costs on default on a solicitor and client basis.
y. The first plaintiff guaranteed the obligations of the second plaintiff under both the first loan agreement and the second loan agreement both in her personal capacity and as the sole trustee of the Royall Family Trust. Pursuant to clause 9(b) of the guarantees executed by her, the first plaintiff is liable to pay Tawa's costs of enforcement on a solicitor client basis.
z. The plaintiffs failed to repay the sums due under the loan agreements and are liable to pay Tawa the outstanding principal, default interest at the rate of 28% per annum, and costs on a solicitor client basis.
aa. In March 2023, Tawa served notices under sections 119 and 121 of the PLA on the plaintiffs. The notices expired by 9 May 2023 with the plaintiffs' breaches under the loan agreements remaining unremedied.
bb. Tawa has since sold two of the properties by mortgagee sale after making its original application for summary judgment, namely 4 Tipu Road and 92 Jeffs Road. The net proceeds have been applied against the outstanding balances due under the loan agreements.
cc. The plaintiffs accordingly have no defence to the causes of action pleaded in Tawa's amended counterclaim.
Affidavit of Yizhong (Allen) Xu dated 26 June 2023
[7] Mr Yizhong (Allen) Xu (Mr Xu), Tawa’s sole director and shareholder, has made an affidavit in support of Tawa’s application.3 He says that Tawa is primarily a trade and commercial lender, including providing second tier lending to property developers. He then explains how second tier lenders work and that Tawa’s terms are industry consistent.
[8] In around June 2022, Mr Xu says DevCo approached Tawa to secure a loan. He says ultimately two loans, each with six-month terms, were made to DevCo and
3 First affidavit of Yizhong (Allen) Xu in support of notice of defendant’s application for summary judgment dated 26 June 2023.
were guaranteed by Ms Chen. As per Tawa’s practice, written offers were made on 10 June 2022 for the first loan of $1,766,000 and on 28 July 2022 for the second loan of $442,000. In each case, Mr Xu says Ms Chen executed the offer and the guarantee before the funds were advanced. He notes security documentation to support the mortgages over the relevant properties were also executed.
[9]On 17 June 2022, Mr Xu says in accordance with the first loan agreement,
$1,612,472 was advanced after deducting interest and fees.
[10] On 5 August 2022, Mr Xu says $400,038 was advanced after deducting interest and fees, and in accordance with the second loan agreement. He denies that Tawa ever agreed before this drawdown to extend the second loan’s terms without specific conditions being agreed and recorded in advance.
[11] Mr Xu admits that Tawa was prepared to extend the first loan for two months to 17 February 2023, however Ms Chen never accepted that offer.
[12] On 17 December 2022, Mr Xu says the first loan expired, without extension or repayment, and Mr Xu then understood that DevCo was attempting to refinance in early 2023. He says on 23 January 2023, Tawa’s lawyers notified DevCo’s that it was in default of the first loan with default interest payable from the expiry date. DevCo’s lawyers replied on 26 January 2023 advising that it was refinancing and intended to repay once that arrangement was approved.
[13] Mr Xu says DevCo’s lawyers attempted to use questions over anti-money laundering, that had allegedly been asked by the new financier, as a delay tactic. He says Tawa’s lawyers responded that Tawa was under no obligation to respond to their questions because any new financier was responsible for their own anti-money laundering due diligence. However, Tawa’s lawyer reinforced that DevCo could plainly disclose the purpose of their loan and provided a link for the new financier to obtain Tawa’s information.
[14]On 5 February 2023, Mr Xu says the second loan expired, without repayment.
[15] In mid to late February 2023, Mr Xu says Tawa discovered General Finance Limited (General Finance) had registered a caveat over Ms Chen’s property at 92 Jeffs Road, Flat Bush. Mr Xu says this was based on an agreement to mortgage to General Finance that Ms Chen did not disclose when Tawa agreed to the first loan agreement. Mr Xu deposes the undisclosed financing and security granted by Ms Chen to General Finance breached Tawa’s terms, so DevCo and Ms Chen were in breach of the first loan’s terms prior to the funds being advanced.
[16] On 23 February 2023, Mr Xu says Tawa’s lawyers sent DevCo and Ms Chen a letter of demand, expiring 2 March 2023, for the outstanding amount $2,306,394 (principal of first and second loans plus outstanding and default interest) and legal fees of $1,381.40.
[17] When the demand expired unremedied, Mr Xu deposes Tawa’s lawyer prepared a PLA notice, which was served on General Finance and DevCo on 8 March 2023 and on Ms Chen on 9 March 2023. On 31 May 2023, the Court declined DevCo and Ms Chen’s application to set aside the demand and PLA notice on 31 May 2023.4 An application against General Finance was similarly unsuccessful on 31 May 2023.5
[18] Mr Xu deposes that DevCo and Ms Chen are currently seeking leave to appeal their loss against Tawa asserting that Mr Xu was party to a verbal renewal or extension of the loan. Mr Xu denies any such agreement and says Tawa still intends to proceed to mortgagee sale to repay or reduce its exposure.
[19] Overall, Tawa calculates as at 30 June 2023 the amount outstanding under both loans is $2,521,339.18 alongside expenses in enforcement which are currently at
$24,197.87.
4 Chen v Tawa Trade Finance Ltd [2023] NZHC 1333.
5 Chen v General Finance Ltd [2023] NZHC 1329.
Affidavit of Siyu (Winnie) Deng dated 26 June 2023
[20] Ms Siyu (Winnie) Deng (Ms Deng), Tawa’s financial adviser assistant, has made an affidavit in support of Tawa’s application.6
[21] She confirms that in or around June 2022, DevCo obtained the two six-month loans in agreements dated 17 June 2022 and 5 August 2022 respectively. She then attaches the relevant executed documentation, including Ms Chen’s guarantees, and then sets out the terms, interest rates and security of each loan. Ms Deng makes clear that Ms Chen was the guarantor in both her personal capacity and as sole trustee of the Royall Family Trust.
[22] Ms Deng confirms the drawdown amounts and dates from Mr Xu’s affidavit and deposes that under neither loan agreement, there was a clause indicating automatic extension. She says, there was no verbal extension discussion in August 2022 or at any other time in which agreement was reached to extend either loan. She admits shortly before the first loan’s expiry, Ms Chen expressed that she wished to extend the loan. However, she says that the offer of a two-month extension first offered by Tawa on 6 December 2022 was never accepted.
[23] Ms Deng then confirms what Mr Xu deposes about General Finance’s caveat and Ms Chen’s non-disclosure before obtaining the first loan, in breach of the agreement.
[24] Finally, she confirms that no funds have been repaid by either DevCo or Ms Chen as at 26 June 2023.
Updating affidavit of Yizhong (Allen) Xu dated 6 September 2023
[25] Mr Xu has made an updating affidavit as DevCo and Ms Chen’s counterclaim has now been amended to refer to the PLA notice and Tawa has proceeded to sell two of the three properties over which it was granted mortgages.7
6 First affidavit of Siyu (Winnie) Deng in support of defendant’s application for summary judgment dated 26 June 2023.
7 Second affidavit of Yizhong (Allen) Xu in support of amended notice of application by the defendant for summary judgment against the first and second plaintiffs dated 6 September 2023.
[26] Mr Xu says General Finance lodged caveats against 92 Jeffs Road on 3 February 2023 and 4 Tipu Road on 3 May 2023. He says, therefore, that DevCo and Ms Chen were never able to refinance Tawa’s loans without repaying both Tawa and General Finance.
[27] On 8 and 9 March 2023, Tawa served PLA notices on DevCo and Ms Chen, which expired on 9 May 2023. Mr Xu says Tawa proceeded to market 4 Tipu Road and 92 Jeffs Road for auction on 5 July 2023 and 27 Living Stream Road for sale by tender on 4 July 2023. Mr Xu says valuation reports were obtained for all properties and Barfoot & Thompson were engaged to market the properties.
[28] Mr Xu outlines a conditional offer for 4 Tipu Road procured by Ms Chen, which Tawa declined to accept, instead selling it by mortgagee sale on 10 July 2023. He further says 92 Jeffs Road was sold by mortgagee sale on 5 July 2023. On 17 August 2023, Mr Xu says settlement occurred for both properties. Only 27 Living Stream Road remains unsold.
[29]As at 31 August 2023, the remaining amount outstanding is said to be
$1,050,514.51, which excludes litigation costs but includes the 10 August 2023 costs award.8 Mr Xu notes that costs and interest continue to accrue under the Agreements.
[30] In response to Ms Chen and DevCo’s claims, Mr Xu says Tawa has never been involved in money laundering and has only followed correct process to attempt to obtain repayment of the amount outstanding under the Agreements.
Ms Chen and DevCo’s opposition
[31]Ms Chen and DevCo oppose Tawa’s application on the following grounds:9
The defendant has no defence to the causes of action pleaded in the plaintiffs' claim
a. The amount of $1,050,514.51 is incorrect.
8 Chen v Tawa Trade Finance [2023] NZHC 2156.
9 Notice of opposition by the plaintiffs to the application by the defendant for summary judgment dated 11 October 2023 at [3].
b. The defendant, as first mortgagee of the secured properties, did not remove the caveats from third party General Finance Limited before putting the properties on mortgagee sale.
c. The plaintiffs were not in breach of the loan agreement because the loan agreement with third party General Finance Limited was null and void, for the following reasons:
i. A clause was subsequently added to the loan agreement;
ii. The first plaintiff did not initial that particular clause; and
iii.The third-party General Finance Limited did not allow the first plaintiff to seek legal advice before signing the loan offer.
d. Before the loan drawdown, the director of the defendant and the assistant of the director together with the defendant's representative, the mortgage broker, Ms Fiona Chen, agreed verbally to extend the loan with reasonable interest rates on the condition that the plaintiffs not claim GST on the loan and for all of the secured properties.
e. The defendant was under an obligation under the verbal agreement to refinance the properties.
f. The defendant never disclosed any of its financial reports as part of disclosure of the company.
g. The defendant did not obtain any valuations before any of the properties were listed for mortgagee sale.
h. The properties were sold significantly below the capital valuation of the properties.
i. The defendant did not obtain the best obtainable price for all properties as at the time of sale.
None of the causes of action pleaded in the defendant's counterclaim can succeed
j. The defendant did not obtain any valuations before any of the properties were listed for mortgagee sale.
k. The properties were sold significantly below the capital valuation of the properties.
l. The defendant did not obtain the best obtainable price for all properties as at the time of sale.
Affidavit of Liyun Chen dated 13 October 2023
[32]Ms Chen has made an affidavit in support of her and DevCo’s opposition.10
10 Affidavit of Liyun Chen in support of opposition by the plaintiffs to the application by the defendant for summary judgment dated 13 October 2023.
[33] As background, Ms Chen says she met Mr Xu, his assistant and Tawa’s mortgage broker, Fiona Chen, at Tawa’s office prior to the drawdown. She says if the loan was of a commercial nature, Tawa never provided a business manager nor any business support. She further says, she was told by Mr Xu she could not claim GST despite it being a business loan. She says the sole purpose of Tawa’s loan was for refinancing from previous lenders and so, it was not a real business loan otherwise she would have developed the properties. She finally remarks that the business loan designation was to impose high interest rates and fees onto what was a private refinancing loan to purchase residential properties.
[34] On the mortgagee sales, Ms Chen says she obtained registered valuation for the properties, however, Tawa never obtained any registered valuations prior to sale. She says 92 Jeffs Road was sold for $1 million at mortgagee sale but it was valued at
$1.4 million. For 4 Tipu Road, she has a valuation of $795,000 when it was put on the market at $565,000 and subsequently sold for $665,000. She says, she had a conditional agreement to sell the Tipu Road property at $705,000 with $100,000 to be deducted by her agent but Tawa declined it. She said if she had known about the final sale price offer, she would have convinced her agent not to take any fee.
[35] On 27 Living Stream Road, she says the valuation is $1.6 million but that her debt owing is only $1 million. She accuses Tawa of delaying sale to accrue more penalty interest to wipe out the equity in that property.
[36] Overall, she deposes that Tawa did not obtain the best price reasonably obtainable for all properties at the time of sale.
Reply affidavit of Yizhong (Allen) Xu dated 20 October 2023
[37]Mr Xu has made an affidavit in reply to Ms Chen’s.11
[38] Mr Xu reasserts that no verbal agreement to an extension was ever made by Tawa or Mr Xu and that the loan agreements were clearly for six months only. Again,
11 Third affidavit of Yizhong (Allen) Xu in support of amended notice of application by the defendant for summary judgment against the first and second plaintiffs dated 20 October 2023.
he says while a two-month extension was offered for the first loan, it was never accepted and both Agreements expired accordingly.
[39] Mr Xu says Tawa would never have advanced the loans if they had known about General Finance’s security. As a breach of the loan offers, Tawa was also entitled to seek recovery of the sums advanced even prior to the loans’ expiry.
[40] Mr Xu says Tawa always understood the purpose of the loan as refinance, but notes that the second loan was also for pre-development work. He says Tawa was under no obligation to provide a business manager nor to provide development assistance. He further says the loans were not designated as business loans to impose high interest and fees, but that the terms were those appropriate to the circumstances and that DevCo and Ms Chen were free to accept or decline.
[41] Regarding GST, Mr Xu says he did not make statements about her being unable to claim GST but does not understand how this could be claimed as the loans were financial transactions. He anticipates she was instead referring to the loan to value ratio (LVR). Tawa was concerned about the LVR being impacted if Ms Chen subsequently registered for GST. Both agreements provided that she not register for GST.
[42] Regarding the mortgagee sales, Mr Xu notes Ms Chen only used 2021 valuations and failed to consider decrease in property values over the last two years, the value of the properties at the time of sale, that the sale was mortgagee sale, that the sale price of the properties reflected Tawa’s registered valuations, and that Tawa instructed reputable real estate agents.
[43] Mr Xu says Tawa is not delaying selling 27 Living Stream Road as the market remains depressed. He asserts the inability to sell this property is placing serious financial pressure on Tawa.
[44]On Ms Chen’s proposed conditional offer, Mr Xu says he was unaware of the
$100,000 agent fee which would have made the sale even more unattractive, even if it were bona fide. Tawa’s concern was the condition that Tawa pay Ms Chen’s former
partner in exchange for release of a caveat, a condition which Tawa would not accept. Instead, Tawa invited the purchaser to attend the mortgagee sale, which Mr Xu does not believe happened.
Representation at the hearing
[45] At the hearing Ms Chen was self-represented (with Mr Lau as an interpreter/McKenzie friend). Mr Chen represented DevCo and Mr Chisholm KC represented Tawa.
Filings subsequent to the hearing
[46]On 27 November 2023 Ms Chen sought to file the following documents:
(a)a further written submission;
(b)a copy of an affidavit sworn in a proceeding between General Finance Ltd and Mr Lau (CIV-2023-404-1506); and
(c)a copy of a valuation dated 9 February 2022 in respect of the Living Stream Road property owned by DevCo.
[47] The defendant filed a submission on 28 November 2023 opposing the further documents filed by Ms Chen being relied on by the Court. Mr Chisholm submits:
(a)if Ms Chen wished to rely on further grounds of opposition, for example relating to the particular identity of a particular agent that she might have used, then she should have pleaded that earlier;
(b)if Ms Chen wished to rely on further evidence, further affidavits should have been filed a considerable time ago. He notes an extension for filing evidence was given to the plaintiffs on 13 October 2023, given their failure to comply with an earlier timetable;
(c)Ms Chen’s further written submissions make factual assertions which are not supported by affidavit evidence (and possibly contradicted by existing evidence).
The defendants have then provided responses to submissions filed by Ms Chen.
[48] I have reviewed the additional submissions made by Ms Chen, and I will allow them to be read by the Court but I am of the view that they do not add any further material arguments to those already advanced by Ms Chen and Mr Chen on behalf of the DevCo at the hearing. Given I have allowed Ms Chen’s further submissions to be read I have also taken into consideration the defendant’s responses in the memorandum of 28 November 2023. I will not, however, accept the affidavit of Mr Lau sworn on 15 August 2023 or the valuation submitted with Ms Chen’s submissions as these should have been put in evidence well before the hearing, giving Tawa the opportunity to respond.
[49] Finally, Ms Chen attempted to file a second amended statement of claim dated 31 January 2024 after the hearing. This amended statement of claim is not accepted by the Court and will not be read.
Legal principles
Defendant summary judgment
[50] Rule 12.2(2) of the High Court Rules 2016 provides that the Court may enter judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[51] The test for defendant’s summary judgment was set out by the Court of Appeal in Stephens v Barron:12
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.
12 Stephens v Barron [2014] NZCA 82 at [9] (footnotes omitted).
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
[52]In Westpac Banking Corp v M M Kembla New Zealand Ltd,13 Elias CJ said:
[63] Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff's claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff's case prematurely before completion of discovery or other interlocutory steps and before the plaintiff's evidence can reasonably be assembled.
[64] The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.
[53] In Bernard v Space 2000 Ltd,14 Thomas J, referring to the predecessor of r 12.2(2), described the onus on the defendant as requiring a “king hit”:
[21] Rule 136(2), as indicated in Kembla (at 313), is only appropriate where the defendant has a “clear answer to the plaintiff which cannot be contradicted”. Summary judgment for a defendant “will arise where the
13 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).
14 Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA).
defendant can offer evidence which is a complete defence to the plaintiff's claim”. (Emphasis added). The requirement that there be a clear answer which cannot be contradicted and a complete defence before judgment is entered for a defendant under r 136(2) is not to be disregarded. Examples which are given of appropriate cases for summary judgment under the subrule are where the wrong plaintiff has proceeded (Coastal Tankers Ltd v Southport NZ Ltd 17/5/99, Master Venning, HC Invercargill, CPI4/96) or where the situation is clearly one of qualified privilege (Ferrymead Tavern Ltd v Christchurch Press Ltd 11/8/99, Master Venning, HC Christchurch, CPI84/98). Thus, the subrule contemplates an answer which is clear-cut; what in colloquial language would be described by counsel as a “king hit”.
Summary judgment on counterclaim
[54]Rule 12.2(1) of the High Court Rules provides:
12.2 Judgment when there is no defence or when no cause of action can succeed
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[55] The relevant principles governing a summary judgment application are well established:15
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. 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. 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. 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.
[56] The wording of r 12.2 “may give judgment” indicates a residual discretion. Having regard to the various authorities, the position appears to be as follows:16
15 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).
16 Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].
(a) The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.
(b) The residual discretion may be invoked to avoid oppression or injustice to the defendant where:
(i)The proceeding involves the actions or possible liability of a third party which is not before the court;
(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;
(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or
(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.
(c) Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.
Analysis
Tawa’s summary judgment
[57] The issue to be determined in respect of Tawa’s application for defendant’s summary judgment against Ms Chen and DevCo is whether any of Ms Chen’s and DevCo’s causes of action can succeed. These causes of action are:
(a)Tawa verbally agreed to extend the loans on “reasonable rates” for another six months;
(b)the first loan agreement is a consumer credit contract and Tawa is in breach of the disclosure provisions in the CCCFA;
(c)Tawa’s conduct was oppressive under the CCCFA;
(d)in breach of s 176 of the PLA, Tawa did not take reasonable care to obtain the best price reasonably obtainable at the time of sale for the
properties at 92 Jeffs Road and 4 Tipu Road including by obtaining prices very much under the registered valuation; and
(e)breaches by Tawa of the FTA and the AML/CFT Act.
Tawa’s counterclaim
[58] Tawa’s counterclaim is in debt against Ms Chen and DevCo under the Agreements. Tawa seeks judgment for the amounts outstanding under the Agreements on the basis that:
(a)as borrower, DevCo is in default under the Agreements, having failed to repay the principal on expiry and the default interest as it falls due; and
(b)as guarantor, Ms Chen has failed to ensure payment by DevCo of amounts owing by DevCo under the Agreements.
[59] No statement of defence to Tawa’s counterclaim has been filed by Ms Chen and DevCo. However, the notice of opposition which outlines the claims made against Tawa on which Tawa seeks defendant’s summary judgment are effectively the defences to Tawa’s counterclaim.
Ms Chen’s and DevCo’s causes of action/defences
Tawa verbally agreed to extend the loans on “reasonable rates” for another 6 months
[60] Ms Chen, for the plaintiffs asserts that before the first loan was drawn down, Mr Xu and the assistant of Mr Xu, Ms Deng, together with Tawa’s representative, the mortgage broker, Ms Fiona Chen, verbally agreed to extend the loan at reasonable interest rates on the condition that Ms Chen not claim GST on the loan for all of the secured properties. Ms Chen also asserts that Tawa was under an obligation under a verbal agreement to re-finance the properties.
[61] Mr Chisholm submits that the alleged verbal agreement to extend the loans lacks credibility given the terms of the written loan offers and the loan agreements.
He also notes that Ms Chen initially claimed that this verbal agreement was with the mortgage broker, however, this pleading changed after it was pointed out that the mortgage broker was the plaintiff’s agent. Mr Chisholm also submits that Ms Chen did not assert such verbal representations when the first loan expired in December 2022.
[62] Mr Chisholm submits that the alleged oral agreement, even if it existed, does not take the plaintiff’s case any further as:
(a)the plaintiffs were always in breach of the two loan offers and the loan agreements, as a result of their existing agreement to grant security to General Finance Ltd over both the Tipu Road and Jeffs Road properties;
(b)the loan agreements could never have been refinanced in early 2023 because that would have required repayment of both Tawa and General Finance Limited; and
(c)the claim that Tawa should have removed the General Finance Ltd caveats before selling the Tipu Road and Jeffs Road properties is untenable.
[63] The plaintiffs allege that they were not in breach of the loan agreement because the loan agreement with General Finance Ltd was null and void for the following reasons:
(a)a clause was subsequently added to the loan agreement;
(b)Ms Chen did not initial that particular clause; and
(c)General Finance Ltd did not allow Ms Chen to seek legal advice before signing the offer.
[64] Accordingly, the plaintiffs submit that General Finance Ltd had no right to lodge a caveat against the properties.
[65] Mr Chisholm submits that Tawa had no obligation to remove the General Finance Ltd caveats and refers to the judgment of Davison J who found that General Finance Ltd had a caveatable interest over both properties and it was not obliged to remove its caveats until it was repaid in full.17
Conclusion in respect of the alleged representations
[66] I am of the view that the alleged representation that Tawa would extend the loans on “reasonable rates” for another six months lacks credibility and is unsupported by evidence. It is based merely on Ms Chen’s assertion that the representation was made. The representation is inconsistent with the written loan offers and the Agreements.
[67] I also take Mr Chisholm’s point that even if the alleged oral agreement could be substantiated, the plaintiffs were always in breach of the two loan offers and the Agreements by reason of their existing agreement to grant security to General Finance Ltd over both the Tipu Road and the Jeffs Road properties. Thus, the plaintiffs would not have been entitled to any extension. The allegations that the loan agreement with General Finance Ltd was null and void for the reasons put forward by Ms Chen do not have any credibility, in the light of the judgment of Davison J finding that General Finance Ltd had a valid caveatable interest in both properties.
[68]Accordingly I am of the view that this claim by the plaintiffs cannot succeed.
The first loan agreement is a credit contract under the CCCFA
[69] Mr Chen submits that the first loan agreement is a consumer credit contract and Tawa has failed to comply with the disclosure requirements for consumer credit contracts under the CCCFA, in particular s 17 of the CCCFA. The result of this is that Tawa is unable to enforce the term loan agreement nor retain any interest charged.
[70] Mr Chen refers to the definition of a consumer credit contract in s 11 of the CCCFA as having four requirements:
17 Chen v General Finance Ltd [2023] NZHC 1758 ad [32]-[35].
(a)the debtor is a natural person (s 11(1)(a));
(b)the credit is to be used, or is intended to be used, wholly or predominantly for personal, domestic or household purposes (s 11(1)(b));
(c)either interest charges or credit fees may be payable or a security interest is or may be taken under the contract (s 11(1)(c)); and
(d)as to the creditor’s business practice, focused on whether it provides credit (s 11(1)(d)).
[71] It is common ground that the requirements of s 11(1)(c) and (d) are met. Mr Chen submits that in respect of the requirement under s 11(1)(a), Ms Chen in her personal capacity is the guarantor under the loan. While it is accepted that the debtor, DevCo is a company, he submits that the debtor in s 11 of the CCCFA should be read as including the guarantor, for the reason that the guarantor is put in the same position as the debtor if the debtor is in default. Mr Chen submits that s 5 of the CCCFA defines the debtor as meaning the person to whom the credit has been provided, or may be provided, under the credit contract. In this case, the actual person to whom the credit is provided is Ms Chen. He submits that as sole director and shareholder of DevCo, Ms Chen has effective control of the credit and therefore, to the extent the loan is effectively to Ms Chen, it is a consumer credit contract.
[72] Mr Chen submits the loan meets the criteria in s 11(1)(b) because the purposes of the loan was to refinance the Jeffs Road and Living Stream Road properties. Accordingly, the loan was intended to be used for a domestic purpose in respect of that property. Mr Chen submits the loan would meet the predominance test in s 11(1)(A) of the CCCFA which requires that more than 50 per cent of the credit is intended to be used for personal, domestic or household purposes (the intention being that of the borrower). He submits to the extent the first loan to Ms Chen was to refinance the Jeffs Road and Living Stream properties, 100 per cent of the credit was intended to be used for personal, domestic or household purposes in relation to the Jeffs Road and Living Stream properties.
[73] Finally, on this point, Mr Chen submits that the fact that DevCo was not registered for GST, or did not seek a GST input in respect of the properties, is relevant to show that the loan was not for commercial use.
[74] Mr Chisholm submits that the plaintiffs’ claim that the loans were a consumer contract is untenable for the following reasons:
(a)the second plaintiff borrowed as a company, not a natural person; and
(b)the conditions of the loan expressly confirmed that the funds were to be used for corporate purposes and not individual or personal use.
Tawa’s conduct was oppressive under the CCCFA
[75] The plaintiffs allege that Tawa has acted in an oppressive manner in breach of s 118 and s 120 of the CCCFA. The plaintiffs allege Tawa’s oppressive conduct was:
(a)charging an interest rate at commercial business rates on the first loan which was domestic in nature, without providing a business manager, a business plan, and preventing the plaintiffs from claiming GST; and
(b)failure to provide financial information at the request of a potential new lender preventing the plaintiff’s from obtaining financing.
[76] Tawa allege that failing to provide the financial information at the request of a potential new lender prevented the plaintiffs from obtaining finance to settle with Tawa to mitigate the losses of both parties. The plaintiffs allege that Tawa’s failure to provide this information to the new lender is oppressive because it traps the plaintiffs with Tawa while exacerbating the plaintiffs’ costs of borrowing. The plaintiffs allege this was a case of Tawa subjecting them to unfair pressure and tactics.
[77] Mr Chen submits that the Court has jurisdiction under s 120 of the CCCFA to re-open a contract of its own volition, which is not subject to the time-frame in s 125,
citing Real Finance Ltd v Setefano.18 Mr Chen notes that the time-frame for the plaintiffs to bring proceedings alleging oppression has expired. He submits it is another factor that goes to the exercise of the Court’s discretion under s 124, in addition to the circumstances already referred to above. He submits the plaintiffs were not inordinately late in filing the proceeding and thus, it should count as a neutral factor rather than a factor against the Court exercising its discretion to re-open the contract.
[78] Mr Chisholm submits that the claim for oppression under the CCCFA must fail as the contract is not a credit contract and, in any event, the plaintiffs have put no evidence of oppressive conduct before the Court.
[79] As to the plaintiffs’ assertion that Tawa had an obligation to remove General Finance Ltd’s caveat before selling the properties, Mr Chisholm submits that such a claim is untenable. This is on the basis that General Finance Ltd had a caveatable interest in the properties based on an unregistered security, granted by the plaintiffs which was confirmed by this Court. He submits such conduct cannot be oppressive.
[80] As to the GST issue, Mr Chisholm submits that there was no reason why Tawa could not procure Ms Chen’s agreement as guarantor that GST would not be claimed on the sale of any property. He submits it was to preserve the LVR position and did not restrict DevCo (as borrower) in respect of its business activities in any way.
Conclusion in respect of the CCCFA issues
[81] I am of the view that the plaintiffs’ claim under the CCCFA cannot succeed. It seems clear to me that the loan was to DevCo, guaranteed by Ms Chen, and was for business purposes. I do not accept Mr Chen’s argument that Ms Chen should be treated as the effective debtor so the loan qualifies as a loan to a natural person. The stated purpose of the loan was for corporate purposes and not individual or personal use. Accordingly, the criteria that the loan be used for or is intended to be used wholly or predominantly for personal, domestic or household purposes is not met.
18 Real Finance Ltd v Setefano [2016] NZHC 2293 at [41] to [55].
[82] Also, in my view, there is no evidence that Tawa behaved oppressively in relation to the plaintiffs. The caveats lodged by General Finance Ltd have been held to be valid and Tawa was under no obligation to remove these caveats before selling the properties. There is no evidence of any oppression by Tawa in relation to the agreement that GST would not be claimed on the sale of the property. The interest rates which were applied to the loan, which was expressly designated for business purposes, could be accepted or rejected by the plaintiffs and do not demonstrate oppression. Tawa was under no obligation to provide financial information to any proposed new lender and its refusal to do so does not demonstrate oppression.
Breach of s 176 of the PLA
[83] The plaintiffs allege that Tawa breached its duty under s 176 of the PLA. Section 176 provides:
176. Duty of mortgagee exercising power of sale
(1)A mortgagee who exercises a power to sell mortgaged property, including exercise of the power through the Registrar under section 187, or through a court under section 200, owes a duty of reasonable care to the following persons to obtain the best price reasonably obtainable as at the time of sale:
(a)the current mortgagor …
[84] The applicable principles are set out in Public Trust v Ottow19 in which the Court observed that a mortgagee is “not a trustee of the power of sale of the mortgagor” and relevantly:
(a)it does not matter that the time may be unpropitious and that by waiting to sell a higher price could be obtained;
(b)a mortgagee is under no obligation to improve the property or increase its value;
19 Public Trust v Ottow (2009) 10 NZCPR 879 at [17].
(c)a mortgagee sale price for less than the current market value assessed by valuers does not, of itself, establish a breach of duty although a large discrepancy may indicate a failure to take reasonable care;
(d)upon the service of a PLA notice, there is no duty on a mortgagee to keep a guarantor informed of the sales activities;
(e)a mortgagee is not entitled to sell in a hasty way at a knock-down price sufficient to pay the debt, which because of the speed of sale leads to a lower price than could otherwise be obtained; and
(f)proper care must be taken to expose the property to the market and obtain the best price reasonably obtainable.
[85] The plaintiffs submit that Tawa did not take reasonable care to obtain the best price reasonably obtainable for the Jeffs Road and Tipu Road properties at the time of sale, being 5 July 2023 and 10 July 2023 respectively, for the following reasons:
(a)Tawa did not obtain registered valuations before the auctions;
(b)Tawa did not lapse the caveat of General Finance before marketing the properties;
(c)Tawa did not accept the conditional agreement to sell the Tipu Road property at $705,000 put forward by Ms Chen; and
(d)the properties should have been marketed by an international firm such as Bayleys, rather than a local firm such as Barfoot & Thompson, which limited exposure of the market to local buyers only.
[86] Mr Chisholm rejects the allegations that Tawa has breached s 176 of the PLA. He submits that the plaintiffs have failed to lead substantive evidence of any breach
and are seeking to raise arguments that have already been raised by Ms Chen’s former partner, Mr Lau, and rejected by Davison J in Tawa Trade Finance Limited v Lau.20
[87] Mr Chisholm submits that Tawa instructed reputable real estate agents (Barfoot & Thompson) to market the property and it obtained sale prices within the range for distressed sales in the registered valuations obtained prior to the sale:
(a)The Jeffs Road property was sold for $1 million and Tawa’s registered valuation of the property dated 7 June 2023 assessed the market value at $1,090,000, and a likely realistic price of $935,000 in the circumstances of a mortgagee sale;
(b)4 Tipu Road was sold for $668,000 and Tawa’s registerd valuation of the property dated 2 June 2023 assessed the market value at $720,000, but with a likely realisable range of $605,000-$630,000 in the circumstances of a mortgagee sale.
[88] Mr Chisholm submits that Tawa was not obliged to accept the conditional agreement presented to it by Ms Chen in June 2023 for the 4 Tipu Road property. He notes that even if Tawa’s concerns about the bona fides of the offer were put aside, the conditional agreement was presented on the basis that Tawa would be obliged to pay
$100,000 to Mr Lau for release of his notice of claim and caveat. This would have provided a lesser return to Tawa, as a mortgagee, than it ultimately received at a mortgagee sale.
Conclusion in respect of s 176
[89] I am of the view that the plaintiffs’ claim that Tawa has breached s 176 of the PLA cannot succeed. None of the allegations made at [80] can be sustained as:
(a)Tawa did obtain registered valuations before the auctions and achieved prices in line with the valuations;
20 Tawa Trade Finance Limited v Lau [2023] NZHC 2220 at [19]-[21],[34] and [36]-[37].
(b)there was no breach by Tawa in failing to lapse the General Finance caveats which have been held by this Court to have protected caveatable interests held by General Finance;
(c)Tawa was under no obligation to accept a conditional agreement to sell Tipu Road, as presented by Ms Chen, for valid reasons relating to the condition requiring a payment of $100,000 to Ms Chen’s former partner;
(d)Barfoot & Thompson is a reputable real estate agent which was engaged to sell the properties.
[90] In addition, I note these arguments have already been rejected by Davison J as noted at [81].
Breaches of the FTA and the AML/CFT Act
[91] Mr Chen submits that the plaintiffs are not barred from bringing a claim for breach of the AML/CFT Act, but they would not enjoy the immunities and advantages afforded to a supervisor under the AML/CFT Act.
[92] The grounds on which the plaintiffs allege that Tawa was involved in money- laundering are:
(a)Tawa was recently incorporated in 2019 and it advanced the loan in 2022;
(b)Tawa has only one director and one shareholder; and
(c)there was a huge amount of money involved.
[93] As to breach of the FTA, Mr Chen submits that Tawa has engaged in conduct that is misleading and deceptive because Tawa charged commercial business interest rates on a domestic purpose loan but did not provide a business manager, a business plan, and did not allow the plaintiffs to claim GST.
[94] Mr Chisholm submits that the plaintiffs’ statement of claim does not disclose any tenable cause of action, whether in breach of the AML/CFT Act or breach of the FTA. He submits that a general assertion of breach without particulars or supporting evidence is not enough to sustain the claim against Tawa or constitute a defence to Tawa’s claim for repayment under the Agreements.
Conclusion in respect of breach of the FTA and AML/CFT Act
[95] In my view, neither of these claims by the plaintiffs can succeed. No evidence has been put before the Court by the plaintiffs of any breach of the AML/CFT Act by Tawa, only some speculation by the plaintiffs and therefore, this claim is unsustainable.
[96] As to breach of the FTA, the allegation that commercial business rates were charged on the loan does not create any misleading or deceptive conduct as the loan was described for business purposes. The plaintiffs always had the option to accept or decline the rates. Not allowing the guarantor to claim GST on the sale of the properties, given the reason was to protect the LVR of the properties, does not amount to misleading or deceptive conduct by Tawa.
Result
[97] As a result of the conclusions, I have reached at [62]–[64], [77]–[78], [85], and [91]–[92] I am of the view that:
(a)Tawa is entitled to defendant’s summary judgment against the plaintiffs in respect of the plaintiffs’ claims;
(b)Tawa is entitled to summary judgment on its counterclaims for the amounts as sought.
Orders
[98]I make the following orders:
(a)Summary judgment is granted to Tawa against the plaintiffs in respect of the plaintiffs’ causes of action pleaded in their amended statement of claim dated 31 October 2023.
(b)Summary judgment is granted to Tawa against the plaintiffs in respect of Tawa’s causes of action pleaded in Tawa’s amended counterclaim as follows:
(i)Judgment in the sum of $1,111,939.06, being the sum due under the Agreements dated 17 June 2022 and 5 August 2022, as at 27 November 2023 (in accordance with the schedule attached to Mr Chisholm’s submissions after deducting the costs award of
$8214.48 in proceeding 2023-404-492).
(ii)Default interest at the rate of 28 per cent per annum on the outstanding sum from 27 November 2023 until payment of the principal sums in full, pursuant to ss 22 and 23 of the Interest on Money Claims Act 2016.
(c)As to costs, pursuant to r 14.6(4)(e) of the High Court Rules 2016, Tawa is entitled to indemnity costs pursuant to the terms of the Agreements and the guarantees. Counsel for Tawa is invited to submit a memorandum as to costs, quantifying these costs together with disbursements, and then the costs order will be made.
…………………………….. Associate Judge Taylor
0
6
1