Chick v Blackwell HC Auckland CIV 2010-419-707

[2011] NZHC 842

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2010-419-707

BETWEEN  LEITH ROGER CHICK AND ROSEMARY CHICK Plaintiffs

ANDROSS WINSTON BLACKWELL Defendant

ANDEDMONDS JUDD Third Party

Hearing:         12 July 2011

Counsel:         KA McDonald and SJ Garmonsway for plaintiffs

CT Gudsell QC for defendant

Judgment:      14 July 2011 at 4:30 PM

JUDGMENT OF ASSOCIATE JUDGE FAIRE

[on applications with regard to the position of litigation guardians]

Solicitors:           Gallie Miles, PO Box 170, Te Awamutu 3840

Brent Kelly & Associates, PO Box 149, Te Awamutu 3840

CHICK V BLACKWELL HC HAM CIV 2010-419-707 14 July 2011

The application

[1]      The plaintiffs’ amended application seeks orders:

(a)      Determining whether Derek Nicholas Blackwell and Charles Basil Blackwell have been validly appointed as litigation guardians for Ross Winston Blackwell;

(b)If  they  have  been  appointed  validly,  removing  Derek  Nicholas Blackwell  and  Charles  Basil  Blackwell  as  litigation  guardians  for Ross Winston Blackwell; and

(c)       Appointing Elliott Hudson as litigation guardian for Ross Winston

Blackwell.

[2]      The plaintiffs no longer seek the fourth order that was originally sought in the application.  That is because the plaintiffs accept, for the purpose of this application, that the defendant does not have capacity to conduct the proceedings on his own behalf.   The plaintiffs  accept that it is necessary that someone be appointed to conduct the proceedings on his behalf.

The cross-application in the notice of opposition

[3]      Derek Nicholas Blackwell and Charles Basil Blackwell seek orders, if the court finds it necessary, that they be appointed litigation guardians of the defendant pursuant to High Court Rules, r 4.35.

The statement of claim

[4]      The plaintiffs sue the defendant. They plead that:

(a)       They  entered  into  a  lease  as  lessee  with  the  defendant  of  the

defendant’s farm property on 16 November 2000 for a term expiring

on 30 April 2004.  That lease contained a right of renewal for a further three years, exercisable subject to terms referred to in the lease;

(b)On 8 April 2004 the plaintiffs entered into a renewal of the lease and a variation of it. The renewal varied the lease by:

(i)Granting a further right of renewal for three years, exercisable from 30 April 2007;

(ii)Varying the area leased to include a dwelling, surrounds and access way; and

(iii)Granting an option to purchase on the terms defined in the deed;

(c)      On 5 April 2005 the plaintiffs entered into a second deed of variation of lease with the defendant. That extended the time for the exercise of the option to 30 April 2010;

(d)On 13 April 2007 the plaintiffs entered into a second renewal of lease with the defendant which:

(i)Renewed the term of the lease for a further three-year period from 1 May 2007;

(ii)      Increased the rent payable; and

(iii)Granted a further right of renewal for three years, exercisable from 30 April 2010;

(e)      On 17 March 2010 the plaintiffs and the defendant had discussions on certain terms that were neither accepted or rejected by the defendant;

(f)      On 26 March 2010 the plaintiffs gave notice to the defendant of their intention to purchase the property pursuant to the option and set a

settlement date of 30 April 2010 and advised that they were ready, willing and able to purchase, but the defendant failed to settle; and

(g)The plaintiffs seek specific performance of the option or, in the alternative, judgment for a sum to be quantified before hearing.

[5]      A statement of claim was filed on 10 June 2010.

The statement of defence

[6]      A statement of defence was filed, which records in paragraph 2:

[O]n 14 July 2000 he [the defendant] appointed Derek Nicholas Blackwell and Charles Basil Blackwell as his attorneys for the purpose of Part IX of the Protection of Personal and Property Rights Act 1988, with general authority to act on his behalf in relation to the whole of his property, pursuant to an Enduring Power of Attorney and that for the purposes of these proceedings they are representing his interests.

[7]      Without setting out the pleading in full, for the purposes of this application,

there is pleaded on the defendant’s behalf that:

(a)      In June 2000 he was a person of limited intellectual capacity;

(b)He was diagnosed with a brain tumour in June 2000 and underwent a radical  course  of  radiotherapy  which  impacted  on  his  cognitive abilities and that in April 2004 he did not possess the mental capacity to understand either the terms or legal effect of the purported first renewal;

(c)      The plaintiffs knew of his illnesses;

(d)That the option contained in the first renewal of lease reflected a price well below market value and that the plaintiffs took advantage of the defendant in securing the option to purchase when they knew of his mental incapacity;

(e)      By April 2005 his mental condition had further deteriorated and his cognitive abilities were impaired so that he did not possess the mental capacity to  understand  either  the  terms  of,  or  legal  effect  of,  the second variation and that the plaintiffs knew about his deteriorating condition;

(f)      The renewal of lease signed on 13 April occurred at a time when he had suffered a further continuing decline in his cognitive abilities and that he did not possess the mental capacity to understand the terms or legal effects of the second renewal; and

(g)In respect of the documents received in March 2010 he had prior to that time suffered a series of strokes, had been hospitalised and was, as from March 2010, a resident in a rest home under full medical care and that his mental capacity had suffered decline and that he was unable to understand any legal discussion or contents of any legal documents and that the plaintiffs knew of his condition.

[8]      There is also pleaded an affirmative defence of unconscionable bargain.

[9]      The statement of defence puts in issue the defendant’s capacity at the time the

documents, which are relied upon by the plaintiffs, were executed by the defendant.

The central issue raised by the pleadings

[10]     The central issue in this case is whether the defendant had the capacity to understand the terms or legal effect of the lease and option documents that were signed; and whether, as an alternative defence, equity should intervene because of the unconscionable bargain that was entered into.   The question of value of the property does not arise in respect of the first and principal defence raised.  It does arise, however, in respect of the alternative affirmative defence.

Background

[11]     The  defendant  owns  a  farm  property  of  approximately  324  hectares  in

Arohena, near Te Awamutu.  He has farmed in the area since 1979.

[12]     The defendant’s current medical circumstances are unfortunate.   Following the filing of this application, arrangements were made for the defendant to see Dr Gil Newburn, a neuropsychiatrist who practises in Rotorua.  The consultation took place on 18 November 2010.  Following that consultation and the report that was released, counsel for the plaintiffs advised the Court at a conference on 10 February 2011 that the plaintiffs accept that the defendant does not have capacity to conduct this proceeding.

[13]     Dr Newburn’s report of 8 December 2010 has been annexed to an affidavit

signed by the defendant’s brothers, Derek Nicholas and Charles Basil Blackwell.

[14]     Dr Newburn describes the medical history as follows:

Mr Blackwell presents with a history of brain pathology.  He has sustained three probable types of brain insults.

Firstly, he has suffered from a right frontoparietal astrocytoma, diagnosed in

2001.

Secondly, there has been a probable influence of radiotherapy used in treatment of the astrocytoma.

Thirdly, there have been issues with recurrent cerebrovascular accidents, or strokes.  While it is difficult to get an absolutely clear history, the material perused suggested that there was probably an initial event in 2006, and then three probable further events in March, again in March, and June of 2008.

[15]     Dr Newburn, in his report, describes the earlier medical reports to which he has had access, which disclosed a period of hospitalisation at Waikato Hospital in

2008.  The defendant was later discharged and went home to live with his wife.  The report recounts that the defendant’s wife was no longer able to manage the level of care required at home.  In September 2008, the defendant was admitted as a resident at the Radius Windsor Court Resthome in Ohaupo, where he currently resides.

[16]     Dr Newburn’s summary discloses that the defendant had been healthy up

until the time of the diagnosis of astrocytoma in 2001.

[17]     Dr Newburn’s  assessment  of  the  position  as  recorded  in  his  report  of

8 December 2010 is that the defendant has a moderate degree of dementia.  He was unable to specifically apportion the cause for this; but considered it arose from a combination of the defendant’s brain tumour, radiotherapy treatment for the brain tumour  and  the  subsequent  cerebrovascular  events.    He  considered  that  it  was possible that hypoxic episodes consequent upon previous seizures may also play a role in his condition.   The consequence of his condition is that the defendant’s memory is severely impaired.  He is unable to meaningfully engage with any current issues.  He cannot hold any memory of them.  He cannot use information in order to consider issues.  Dr Newburn then comments:

His ability to understand information in his environment, to make use of this, and then to meaningfully deduce consequences is markedly impaired.  He is clearly not able to draw inferences about issues as simple as his residen[ce] in a geriatric facility and the reasons for this.

[18]     Dr Newburn concludes that the causes of the defendant’s dementia lead him to the view that it is unlikely that he will ever show any improvement.  Further, he considered there would be ongoing deterioration.  He was unable to offer treatment for the condition.  Dr Newburn then concluded:

Opinion

Given the above, the following can be stated.

1.While  Mr Blackwell,  in  a  carefully  structured  discussion,  may express some awareness of the nature and function of the Court, he lacks the ability to understand the procedures within that Court.

2.As a result of his cognitive impairments, he is not able to instruct Counsel.  He is not able to do this either in directing him, or at any stage through the Court procedure in response to any information that might be raised within that procedure.

3.Should he be required to appear before the Court, he would not readily understand the processes involved, and this is likely to have an adverse [a]ffect on his health.

[19]     The defendant married  in 1993.   He has no  children.   He moved to Te Awamutu with his wife in 1996 and from then travelled out to his farm in Arohena daily until the brain tumour diagnosis in 2000.

[20]     The defendant was born in Ötorohanga.  He is the youngest of three brothers. He was fortunate to receive considerable help, guidance, and financial assistance from his father over the years, which assisted him with both his farming and his acquisition of farm lands.   His father died in 1994.   It is apparent that his close relatives are his wife, his two brothers and their families.  His wife is currently aged

59 years.  His two brothers are older than the defendant.

[21]     I  have  set  out  in  some  detail  the  medical  position  because  it  is  clearly apparent from the information placed before the Court that the plaintiffs’ concession in the conference of 10 February 2011 that the defendant does not have the capacity to conduct this proceeding was properly made and remains the position.

[22]     Following the diagnosis of the brain tumour in June 2000, the defendant executed an enduring power of attorney, which is dated 14 July 2000.  The attorneys are his brothers, Derek Nicholas Blackwell and Charles Basil Blackwell.

[23]     On 16 November 2000 the defendant entered into the agreement to lease his farm  to  the  plaintiffs  for  a  three-year  term  commencing  on  1 March  2001  and terminating on 30 April 2004.

[24]     On 8 April 2004 the plaintiffs and the defendant signed a further document entitled Renewal of lease (reviewable rent).  This document renewed and varied the lease of the farm.  It created an option to purchase for $1.5 million, excluding GST, if settlement took place prior to 1 April 2007.

[25]     On 5 April 2005 the plaintiffs and the defendant entered into a document entitled  Deed  of  variation  of  lease.    That  document  amended  the  time  for  the exercise of the option to purchase to 1 April 2010.

[26]     The lease was renewed again 2007.  The renewal provided for a further right of renewal for three years, exercisable from April 2010.

[27]     The defendant’s brothers, Derek and Charles Blackwell, say that they became aware that the leases of their brother’s farm contained an option to purchase in February or March 2009.  They say they went to see the solicitor who was acting for their brother.   They say that they were advised by the solicitor that the option to purchase clause in the lease was to expire in April 2009.

[28]     In March 2010 the plaintiffs sought to vary the date by which the option had to be exercised to 30 April 2016.  There was no provision to alter the price at which the option was to be exercised.   The defendant’s brothers became aware of this development. They did not agree to the proposed variation.

[29]     On 26 March 2010 the plaintiffs gave notice of their intention to exercise the option to purchase the defendant’s farm.  They subsequently issued the settlement notice referred to in the pleadings.  The defendant did not settle and the proceedings were issued.

[30]     As I have already recorded, the defendant’s brothers, in the exercise of the power of attorney, have filed a statement of defence pleading that the defendant lacked capacity at the time he signed the contractual documents granting the option. They have also pleaded a defence of unconscionable bargain.

[31]     The attorneys have also issued a third party notice and statement of claim against the solicitors who acted on the defendant’s behalf in the transactions.  That firm has filed a statement of defence.  The third party, however, has taken no part in this application.  The third party notice alleges negligence and breach of contract in relation to the advice provided to the defendant at the time of entry into the various documents that have been referred to.

Analysis

[32]     High Court Rules, r 4.30(1) provides:

4.30     Incapacitated person must be represented by litigation guardian

(1)       An incapacitated person must have a litigation guardian as his or her representative in any proceeding, unless the court otherwise orders.

[33]     High Court Rules, r 4.29 provides:

4.29     Incapacitated person, litigation guardian, and minor defined

For the purposes of these rules,—

incapacitated   person   means   a   person   who   by   reason   of   physical, intellectual, or mental impairment, whether temporary or permanent, is—

(a)       not capable of understanding the issues on which his or her decision would be required as a litigant conducting proceedings; or

(b)      unable to give sufficient instructions to issue, defend, or compromise proceedings

litigation guardian

(a)       means—

(i)        a person who is authorised by or under an enactment to conduct proceedings in the name of, or on behalf of, an incapacitated person or a minor (but only in a proceeding to which the authority extends); or

(ii)      a person who is appointed under rule 4.35 to conduct a proceeding; and

(b)      has the same meaning as the expression “guardian ad litem”

minor means a person who has not attained the age of 18 years; and a person is of full age if he or she has attained the age of 18 years.

[34]     High Court Rules, r 4.35 provides:

4.35     Appointment of litigation guardian

(1)       This rule applies if an incapacitated person does not have a litigation guardian within the meaning of paragraph (a)(i) of the definition of litigation guardian in rule 4.29.

(2)       The court may appoint a litigation guardian if it is satisfied that—

(a)   the person for whom the litigation guardian is to be appointed is an incapacitated person; and

(b)   the litigation guardian—

(i)    is able fairly and competently to conduct proceedings on behalf of the incapacitated person; and

(ii)   does not have interests adverse to those of the incapacitated person; and

(iii) consents to being a litigation guardian.

(3)       In deciding whether to appoint a litigation guardian, the court may have regard to any matters it considers appropriate, including the views of the person for whom the litigation guardian is to be appointed.

(4)       The court may appoint a litigation guardian under this rule at any time—

(a)   on its own initiative; or

(b)   on the application of any person, including a person seeking to be appointed as litigation guardian.

[35]     The material that I have reviewed and the plaintiffs’ concession disclose that the defendant is an incapacitated person in terms of the High Court Rules.  He must have a litigation guardian as his representative in the proceeding unless the Court otherwise orders.

[36]     There   are   four   questions   that   arise   in   determining   the   appropriate arrangements for the representation of the defendant in this proceeding. They are:

(a)      Does  the  power  of  attorney  granted  in  favour  of  the  defendant’s brothers authorise the brothers to act on the defendant’s behalf in the defence of this proceeding so that they can be regarded as litigation guardians for the purpose of High Court Rules, r 4.29(a)(i)?

(b)If  the answer to  the  first  question  is  “yes”,  do  the circumstances justify the removal of the brothers as litigation guardians of the defendant?

(c)      As an alternative to the first question, should the defendant’s brothers be appointed the defendant’s litigation guardians and thereby act as his representatives in this proceeding pursuant to High Court Rules, r 4.35?

(d)Alternatively,  should  Mr Elliott  Hudson,  barrister  of  Hamilton,  be appointed   the   defendant’s   litigation   guardian   to   act   as   his representative in this proceeding?

[37]     Although I have listed the four questions, I start with an examination of whether there is a basis for either not appointing the brothers as litigation guardians or, if they are appointed, for removing them.  The inquiry in both cases is essentially the same.   Particular guidance as to the relevant factors is set out in High Court Rules, r 4.35(2)(b), namely, whether the litigation guardian:

(i)       is able fairly and competently to conduct proceedings on behalf of the incapacitated person; and

(ii)      does not have interests adverse to those of the incapacitated person;

and

(iii)     consents to being a litigation guardian.

[38]     In summary, Ms McDonald submitted:

(a)      The defendant’s brothers do not meet the test set out in High Court Rules, r 4.35(2)(b)(i) and (ii) because they are named in the will of the defendant  signed  by  him  on  17 September  2001  as  both  income beneficiaries and residuary beneficiaries in the defendant’s estate;

(b)The  defendant’s  brothers  cannot  be  said  to  be  conducting  the proceedings fairly and competently because they do have self-interest in the outcome because the effect of a successful defence would prevent a sale of what the brothers have said is at “significantly below market value” and because the rent is also below market rent.   The successful defence would preserve greater value to the assets of the

defendant’s estate which, in terms of his will, might ultimately benefit the defendant’s brothers;

(c)      That the self-interest outcome is contrary to what the defendant has said  he  wanted  and  to  what  is  expressed  in  the  documents  the defendant signed, which granted the renewal of lease and the option to purchase; and

(d)There  is  no  risk  of self-interest  if Mr Elliott  Hudson,  barrister,  is appointed litigation guardian.

[39]     In summary, Mr Gudsell submitted:

(a)      The brothers had conducted the proceedings in a responsible manner and had engaged a solicitor to act on the defendant’s behalf, who in turn had engaged senior counsel;

(b)The defence raised is that of a lack of capacity to enter into the transactions.   No submission has been advanced that that principal defence is unarguable;

(c)      Should the defendant die and his current will be admitted to probate, his brothers are the appointed trustees and executors and would, by that appointment be responsible for the conduct of the defence of this proceeding; and

(d)The defendant’s solicitors cannot take instructions from the defendant because of his condition.  That applies regardless of who is instructed to act on the defendant’s behalf.  The defendant’s brothers are familiar with the subject-matter and the defendant’s position, in particular matters pertaining his health and his capacity.  The defendant trusted his brothers to look after his interests, as is evidenced by their appointment  as  his  attorneys.    The  brothers  are  the  appropriate persons to act at litigation guardians.

[40]     I am concerned at the reliance placed on the defendant’s will.  My reason for

this is the same as that expressed by Grieg J in Scott v Wise:1

[A] will is subject to revocation at any time and parties who claim some expectation under a will during the life of the testator can have no standing because, if nothing else, the question can be hypothetical only.

I add to that comment that the law in New Zealand has been developed in relation to persons who are subject to property orders under Part 5 of the Protection of Personal and Property Rights Act 1988.  Sections 54, 55 and 56 deal with the testamentary position of persons who are subject to such orders.   If a person is subject to a property order the Court may, in respect of a person who lacks testamentary capacity, authorise the manager acting for that person to execute a will on behalf of that person, in such terms as the court directs.   At this stage, no application has been under the Protection of Personal and Property Rights Act 1988.  I simply mention the position to indicate the possibility of a further will being made.

[41]     I am satisfied that there are proper grounds for either:

(a)       Appointing the brothers as the litigation guardians; or

(b)Not removing them if their position under the power of attorney is that of litigation guardian.

[42]     My reasons, in summary, are these:

(a)      The central issue in the proceeding is the defendant’s capacity.  The challenge to the agreements that are the subject of the proceeding cannot be viewed as advancing an interest contrary to the defendants. It is property which the defence seeks to preserve.  The fact that there might, at some future time after the defendant’s death, be a benefit to the brothers is, in my view, inconsequential in the scheme of things because  they  would  then  simply  take  an  interest  that  has  been

preserved in their brother’s estate;

1  Scott v Wise HC Wanganui A5/82, 26 August 1982.

(b)The best persons to provide instructions to lawyers to conduct this defence will be the close relatives of the defendant.  They would have to be involved irrespective of who is the litigation guardian;

(c)      There is no suggestion that the defence raised is unarguable.  Indeed, the medical evidence made available discloses some foundation for it. Ultimately, only a trial can test that position.  However, the material placed before me indicates that there has been instruction of a solicitor who  has  properly  and  competently  prepared  the  initial  defence. Senior counsel has been instructed and is clearly in control of the running of the defence.  That all leads me to the view that the brothers have  demonstrated  that  they  are  able  fairly  and  competently  to conduct the proceedings on behalf of their brother;

(d)Although I discount reliance on the will, the plain fact is that the defendant has displayed a trust in his brothers by, in the first place, appointing them his attorneys under the power of attorney and, in the second place, by appointing them as his trustees and executors in the current will; and

(e)      As mentioned, the position taken by the defendant’s brothers is aimed at protecting his property.   I see nothing in this that would indicate that the brothers’ interests are adverse to those of the defendant.  Quite the contrary.   Their actions are designed to protect the defendant’s property.

[43]     To summarise the position:

(a)       Because of the defendant’s incapacity a litigation guardian is required.

I do not see any justification for otherwise ordering in terms of High

Court Rules, r 4.30;

(b)The defendant’s brothers are the appropriate persons to act as the defendant’s litigation guardian and to represent him in the proceeding;

(c)      The  defendant’s  brothers  can  either  be  appointed  his  litigation guardians  pursuant  to  High  Court  Rules,  r 4.35.    They  are  not disqualified   by  the   matters   referred   to   in   High   Court   Rules, r 4.35(2)(b).   Alternatively, the brothers already hold the status of litigation guardian by the combined operation of the power of attorney granted  by  the  defendant,  s 97  of  the  Protection  of  Personal  and Property Rights Act 1988, and the definition of litigation guardian in High Court Rules, r 4.29(a)(i); and

(d)If there is some doubt as to authorisation for the purposes of High Court Rules,  r 4.29,  the  position  is  easily covered  by making  the appropriate order under High Court Rules, r 4.35.

[44]     My conclusion makes it unnecessary to separately determine the questions raised in paragraph 36(a) and (d) of this judgment.  I record that Ms McDonald did not wish to contest the actions of the defendant’s brothers to date, if the Court concluded that they should be appointed his litigation guardians pursuant to High Court Rules, r 4.35.

[45]     I comment briefly on the first question set out in paragraph 36(a) of this judgment.  The question is whether the combined operation of a general power of attorney granted  for the  purposes  of Part  IX of the Protection  of Personal  and Property Rights Act 1988, with general authority to act on the grantor’s behalf in relation to the whole of the grantor’s property in s 97 of that Act and High Court Rules, r 4.29, authorise the recipient of the power of attorney to conduct proceedings in the name of, or on behalf of, the grantor of the power of attorney.

[46]     Counsel could find no determinative New Zealand case.   The point is of academic interest as far as this application is concerned, because the defendant’s brothers are, as I found, the appropriate persons to appoint pursuant to High Court Rules, r 4.35; or alternatively, they qualify as the litigation guardians pursuant to High Court Rules, r 4.29(a)(i).  I suspect, in many cases, the situation that is before me will not arise and the point will be therefore of academic interest only.  In short, the real question will be the one that I have analysed in this judgment.  Purely and

simply taking a pragmatic approach and having regard to the fact that the commentators in New Zealand have suggested that perhaps the enduring power of attorney under the Protection of Personal and Property Rights Act 1988 may not authorise the taking or defending of proceedings, I will make an order pursuant to High Court Rules, r 4.35 that the defendant’s brothers are appointed as litigation guardians for the purpose of defending this proceeding.

[47]     I took the opportunity during the course of counsel’s addresses to canvas the position of costs.  Counsel agreed that the successful party should be ordered costs in relation to an opposed interlocutory application based on Category 2, Band B plus disbursements as fixed by the Registrar.  I therefore adopt that approach in the orders that I make below.

[48]     It  is  not  possible,  in  this  judgment,  to  give  directions  for  the  further management  of  this  proceeding  because  the  solicitors  for  third  party  were  not present.  For that reason, I am convening an early case management conference to deal with the next step in the proceeding.

Orders

[49]     I order as follows:

(a)      Derek Nicholas Blackwell and Charles Basil Blackwell are appointed litigation guardians in respect of Ross Winston Blackwell for this proceeding;

(b)The plaintiffs shall pay the defendant’s costs in relation to a defended interlocutory application based on Category 2, Band B together with disbursements as fixed by the Registrar.

Case management conference

[50]     A case management conference by telephone shall be held with counsel at

8:30am on 10 August 2011. The following matters will be addressed:

(a)      the issues requiring resolution at trial;

(b)      settlement   and   whether   a   mediation   or   a   Judicial   Settlement

Conference should be ordered;

(c)      trial duration, the fixing of the trial date and the making of any special trial directions that are required.  In respect of these matters counsel should have available the number of witnesses to be called and the general  scope  of  the  evidence  to  be  covered  by  them  so  that  an accurate  assessment  can  be  made  of  trial  duration.    In  addition, counsel should be in a position to indicate if any order should be made in relation to the experts pursuant to r 9.44.

Because the issues  requiring resolution at trial  will be considered  at the conference, memoranda shall be filed on a sequential basis so that the defendant has the opportunity of commenting upon the plaintiffs’ summary of the trial issues.  To achieve this, the plaintiffs’ memorandum dealing with the above matters shall be filed and served by 1 August 2011 and the defendant’s and  third  party’s  memoranda  dealing  with  the  above  matters  and,  in particular, commenting upon, conceding or adding to the list of issues shall

be filed and served by 4 August 2011.

JA Faire

Associate Judge