Cummins v Body Corporate 172108
[2022] NZHC 774
•13 April 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-002170
[2022] NZHC 774
UNDER Section 142 of the Land Transfer Act 2017 and Part 19 of the High Court Rules BETWEEN
ROBERT JAMES CUMMINS
Applicant
AND
BODY CORPORATE 172108
First Respondent
AND
MANCHESTER SECURITIES LIMITED
(in liquidation) Second Respondent
AND
FLAT BUSH FINANCE LIMITED
Third Respondent
Hearing: 2 February 2022 Appearances:
K P Sullivan for the Applicant
T J G Allan and K M Wakelin for the Respondents
Judgment:
13 April 2022
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 13 April 2022 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Reeves Lawyers Limited, Wellington Port Nicholson Chambers, Wellington Grove Darlow & Partners, Auckland Stout Street Chambers, Wellington
CUMMINS v BODY CORPORATE 172108 [2022] NZHC 774 [13 April 2022]
Introduction
[1] Mr Cummins applies under s 142 of the Land Transfer Act 2017 for the removal of a caveat registered in December 2019 by the first respondent, Body Corporate 172108, against the title to Unit 12A of the unit development at 196 Hobson Street, Auckland, known as Hobson Apartments. Unit 12A comprises the whole of Level 12 of the apartment building.
[2] Mr Cummins applies in his own name. He is the settlor and trustee of the Manchester Securities Trading Trust (the Trust) which is the beneficial owner of Unit 12A. However, Mr Cummins has not taken legal title to Unit 12A. The Unit remains the property of the second respondent, Manchester Securities Ltd (Manchester), a trustee company in liquidation, of which Mr Cummins is the sole director and shareholder.
[3] Mr Cummins is also the sole director and shareholder of the third respondent, Flat Bush Finance Ltd (Flat Bush), which registered a caveat against the title to Unit 12A in March 2017. Flat Bush’s caveat seeks to protect its interest under a mortgage granted by Manchester in return for funding from Flat Bush for the renovation works to Level 12.
[4] Flat Bush has previously applied, unsuccessfully, for the removal of the Body Corporate’s caveat. In a judgment delivered in November 2020, Gwyn J upheld an application by the Body Corporate that its caveat not lapse (Caveat Judgment).1
[5] Sage Investments Ltd (Sage) is a registered first mortgagee on the title to Unit 12A. Until recently, Sage was the primary funder of the remediation works to Level 12. According to Mr Cummins, Sage is no longer willing to continue to provide funding. It has agreed, however, to provide a limited amount of interim funding to enable work to continue until a new funder is found.
[6] Mr Cummins says the Body Corporate’s caveat must be removed to enable him to raise sufficient finance to advance the renovation and rebuilding of Level 12 to the
1 Body Corporate 172108 v Flat Bush Finances Ltd [2020] NZHC 3135, (2020) 21 NZCPR 622 [Caveat Judgment].
point that the units he has been constructing on Level 12 can be sold. He says completion of the building works is in the interests of the owners of the units in the levels below.
[7] The Body Corporate opposes the application. It cross-applies to strike out the application on the basis that Mr Cummins is seeking to revisit issues already decided in the Caveat Judgment and seeks an order for indemnity costs.
[8] More generally, the Body Corporate says that it does not trust Mr Cummins. It says he has prevented entities he has controlled from complying with a succession of Court orders to pay sums ordered by the Court.
[9] The liquidator for Manchester does not oppose Mr Cummins’ application and takes no part in the proceeding. Flat Bush is not separately represented and also takes no part in the proceeding. Sage is not a party.
Questions for decision
[10] The application by Mr Cummins and the cross application by the Body Corporate require the following questions to be decided:
(a)Should the Body Corporate’s caveat be removed?
(b)Should Mr Cummins’ application be struck out?
[11] The answer to the second question is necessarily dependent, to an extent, on the answer to the first.
Relevant background
[12] This application is the most recent skirmish in a long-running dispute over the repair of Hobson Apartments which was found to be a leaky building. The dispute has been the subject of a number of High Court and Court of Appeal judgments. In order to understand and address the various submissions made by the parties, it is necessary to set out the history in some detail.
The origins of the dispute
[13]As the Court of Appeal said in one of its judgments:2
[5] Hobson Apartments is a 12 storey unit title development in Central Auckland with an unusual feature. The exterior of levels 1–11 is common property owned by the Body Corporate but not the exterior of the 12th floor. Almost all of the 12th floor is private property owned by Manchester. This came about because the 12th floor which is aesthetically and physically different from the rest of the building was constructed separately after the rest of the building had been completed. The 12th floor has a penthouse, Unit 12A, which covers the entire floor. The only common property on the 12th floor comprises the lift and stairwell shafts, ducts and a small recessed area at the rear on the eastern side.
[6] Unit 12A is the largest and most valuable unit in the complex. The ownership interest or unit entitlement of unit 12A is 11.88 per cent.
[7] As at October 2009, the building had suffered damage as a result of severe water ingress. The Body Corporate applied under s 48 of the Unit Titles Act [1972] for a scheme of remediation empowering it to carry out repairs under a single building contract to the whole of the complex, including private property as well as common property. …
…
[10] The terms of the scheme were settled in four judgments issued by Heath J between 3 March 2010 and 10 February 2011.
…
Approval of scheme of remediation
[14] The remediation scheme eventually sanctioned by Heath J provided for Manchester to repair Level 12 and for the Body Corporate to repair the other levels. It capped Manchester’s liability for the Body Corporate’s repair costs on the understanding that Level 12 had been damaged less extensively than the units on the other levels.
[15] Any dispute over whether the Body Corporate or the other owners benefitted from repairs paid for by Manchester was to be determined by the dispute resolution provisions in the scheme. Those provisions provided for reference to arbitration in specified circumstances.
2 Manchester Securities Ltd v Body Corporate 172108 [2017] NZCA 527, (2017) 19 NZCPR 65 [Variation Appeal].
[16] The remediation scheme did not go according to plan. Among other things, the understandings on which the scheme had been sanctioned proved not to be correct or had not been carried out. By 2017, the Body Corporate had completed the repairs to Levels 1 – 11 but Manchester had made little, if any, progress with the repairs to Level 12. In addition, Manchester had not paid any of the amounts levied by the Body Corporate for the repairs to the common property on Levels 1 – 11.
[17]As a consequence, the Body Corporate applied to vary the remediation scheme.
Variation Judgment
[18] In a judgment issued on 3 March 2017, Fogarty J varied the terms of the remediation scheme (Variation Judgment).3 The variation removed the cap on Manchester’s liability for the Body Corporate’s repair costs and required Manchester to pay its share of the costs of repair to the common property in accordance with its unit entitlement under the Act. Fogarty J also ordered Manchester to pay the Body Corporate the sum of $321,264.79 (plus GST) for the benefit of the unit holders of Levels 1 – 11 (Judgment Sum). Fogarty J recorded that the Judgment Sum was a provisional sum which would be adjusted upon completion of the remediation to Level 12.4
Flat Bush lodges caveat against title to Unit 12A
[19] On 21 March 2017, Flat Bush lodged a caveat against the title to Unit 12A to protect its interests under an agreement to mortgage it had concluded with Manchester to secure funds advanced for the repair of Level 12.
Variation Appeal
[20] In November 2017, the Court of Appeal dismissed Manchester’s appeal against the Variation Judgment and upheld Fogarty J’s order that Manchester immediately pay the Judgment Sum (Variation Appeal).5 The Court noted that the remediation scheme
3 Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 329 [Variation Judgment].
4 At [157].
5 Variation Appeal, above n 2, at [68] – [69].
had gone badly awry. There had been huge cost increases and fault on both sides.6 However, the Court considered that Manchester had to take the lion’s share of the blame for the disputes with the Body Corporate. The Court found that Manchester’s conduct had been “dilatory and prevaricating”.7
[21] The Supreme Court declined Manchester’s application for leave to appeal the decision in the Variation Appeal.8
Statutory Demand Judgment and Statutory Demand Appeal
[22] Manchester did not pay the Judgment Sum, despite the orders of the High Court and Court of Appeal. The Body Corporate made a statutory demand for payment of
$550,226.98, being the Judgment Sum, interest to that date, $226,679 for unpaid Body Corporate levies, less an amount previously paid by Manchester.
[23] In February 2018, Associate Judge Doogue declined Manchester’s application to set aside the Body Corporate’s statutory demand (Statutory Demand Judgment).9 The Associate Judge rejected Manchester’s claim for set-off and its cross claim against the Body Corporate.
[24] In June 2018, the Court of Appeal dismissed Manchester’s appeal against the Statutory Demand Judgment (Statutory Demand Appeal).10 The Court noted its previous findings regarding Manchester’s conduct.11 It rejected Manchester’s argument that, because Manchester claimed a right of set-off of $604,942 for costs said to have conferred a benefit to the other owners or to the Body Corporate, and because that amount exceeded the amount of the statutory demand, the dispute about the existence or quantum of benefit had to be arbitrated before the statutory demand could be enforced. The Court held that the arbitration clause in the remediation scheme did not apply to the statutory demand.12 It accepted that Manchester had an
6 At [43] – [44].
7 At [44], [50] and [61].
8 Manchester Securities Ltd v Body Corporate 172108 [2018] NZSC 19.
9 Manchester Securities Ltd Body Corporate 172108 [2018] NZHC 169 [Statutory Demand Judgment].
10 Manchester Securities Ltd v Body Corporate 172108 [2018] NZCA 190, [2018] 3 NZLR 455 [Statutory Demand Appeal].
11 At [13].
12 At [31].
arguable claim for set-off but said that the claim was not strong and that, because of the lack of detail provided, the Court was not able to evaluate. It did not accept, therefore, that Manchester had shown a sufficient set-off for the Court to set aside the statutory demand.13 The Court also observed that it would be premature for there to be an arbitration because work was continuing on Level 12 and the amount of costs had not been finalised.14
[25] Manchester did not pay the Judgment Sum and other sums ordered by the Courts. Rather, the day after the Court of Appeal had issued its judgment in which it said arbitration would be premature, Manchester initiated an arbitration under the dispute settlement provisions in the remediation scheme.
Body Corporate applies to vary remediation scheme, to liquidate Manchester and to halt the arbitration
[26] In July 2018 the Body Corporate applied to vary the remediation scheme to require that any dispute in relation to Level 12 was not referred to arbitration until completion of all repairs to that Level. It also applied for orders restraining the arbitration initiated by Manchester from proceeding.
[27]The Body Corporate also applied to liquidate Manchester.
[28] Manchester cross-applied to vary the remediation scheme and applied to stay the liquidation.
[29]In December 2018, following parallel hearings on the same day:
(a)Jagose J made interim orders restraining the parties from continued participation in the arbitration commenced by Manchester pending further order of the Court (Injunction Judgment);15 and
13 At [41] – [43].
14 At [59].
15 Body Corporate 172108 v Meader [2018] NZHC 3356 [Injunction Judgment].
(b)Associate Judge Johnston dismissed Manchester’s application to stay the liquidation proceeding (Stay Judgment).16
[30] Both judgments recorded that the arbitrator had already heard a preliminary jurisdictional argument and that the award was available upon payment of the arbitrator’s fees by both parties. Manchester had paid its share of the fee, but the Body Corporate had not. As a consequence, the outcome of the arbitration was unknown.17
[31] Associate Judge Johnston considered that Manchester’s arguments for stay were essentially the same as those argued twice without success in the High Court and Court of Appeal. He declined to stay the liquidation application.18
[32]Manchester appealed that decision.
Mr Cummins becomes trustee of the Trust
[33] In December 2018, Mr Cummins, as settlor of the Trust, appointed himself an additional trustee. The trust deed was also amended to allow for the appointment of a single trustee who was not a corporate trustee.
[34] In February 2019, Manchester assigned to Mr Cummins as the Continuing Trustee all of Manchester’s interests in proceedings then underway and in the arbitration that Manchester had initiated. No provision was made for the transfer of title to Unit 12A.
[35] In March 2019, Manchester retired as trustee of the Trust and undertook to hold all trust property to the order of the Continuing Trustee pending transfer to the Continuing Trustee.
Arbitration award issued / Body Corporate applies to appeal award
[36] On 24 June 2019, the initial award in the arbitration commenced by Manchester was issued. While the award is not in evidence, it is understood the
16 Body Corporate 172108 v Manchester Securities Ltd [2018] NZHC 3307 [Stay Judgment].
17 At [5]; Injunction Judgment, above n 15, at [9].
18 At [14].
arbitrator held that he had jurisdiction to consider the dispute Manchester had referred to arbitration.
[37] On 18 July 2019, the Body Corporate applied to appeal the arbitrator’s award on the basis that the alleged dispute was in substance an attempt to vary or modify the remediation scheme and was wholly within the jurisdiction of the High Court.
[38] The Body Corporate’s application to appeal is being case-managed with the applications to vary the remediation scheme. As discussed below, the hearing of the applications to appeal and vary the scheme was stayed pending determination of Mr Cummins’ applications to be joined to those proceedings.
Court of Appeal dismisses appeal against stay judgment
[39] In September 2019, the Court of Appeal dismissed Manchester’s appeal against the Stay Judgment and ordered Manchester to pay the Body Corporate’s costs on an indemnity basis (Stay Appeal).19 The Court dismissed Manchester’s argument that it was required, under cl 8 of sch 1 to the Arbitration Act 1996, to stay the liquidation proceeding. It said to do so would be to entertain argument on issues that had been resolved with finality and to circumvent orders of the High Court and the Court of Appeal that the judgment sum ordered by Fogarty J be paid immediately.20
[40] The Court observed that Manchester’s actions continued to be dilatory and prevaricating and that Manchester continued to ignore the Courts’ previous decisions that it must pay the sums ordered and argue later. The Court said that Manchester was seeking to achieve by a side route what it had failed to achieve directly – to have the dispute over its liability to pay referred to arbitration. The Court said the appeal was an exemplar of a collateral challenge to final decisions of the Court and an abuse of process.21
19 Manchester Securities Ltd v Body Corporate 172108 [2019] NZCA 408 [Stay Appeal].
20 At [27] – [30].
21 At [39].
Body Corporate lodges caveat
[41] In December 2019, the Body Corporate lodged a caveat against the title to Unit 12A.
[42] In February 2020, Flat Bush applied to register a mortgage against the title to Unit 12A and applied for the lapse of the Body Corporate’s caveat. In response, the Body Corporate applied for an order that its caveat not lapse.
Liquidation Judgment and Liquidation Appeal
[43] In February 2020, Associate Judge Johnston ordered the appointment of liquidators for Manchester, with the order to take effect on 11 March 2020 if Manchester had not by that date paid the Judgment Sum, plus interest and unpaid levies owed to the Body Corporate (Liquidation Judgment).22
[44]Manchester did not pay by the due date and liquidators were appointed.
[45] The Court of Appeal dismissed Mr Cummins’ appeal of the Liquidation Judgment (Liquidation Appeal).23
Further demand by Body Corporate
[46] Following delivery of the Liquidation Judgment, the Body Corporate made further demand for the amount owing to it, then being $1,039,671.03. That amount comprised the Judgment Sum and accrued interest, unpaid body corporate levies and interest, and unpaid costs ordered by the Courts and interest.
Caveat Judgment
[47] Following a hearing in June 2020, in a judgment issued on 27 November 2020, Gwyn J ordered that the caveat lodged by the Body Corporate not lapse pending further order of the Court.24
22 Body Corporate 172108 v Manchester Securities Ltd [2020] NZHC 198 [Liquidation Judgment].
23 Body Corporate 172108 v Manchester Securities Ltd [2021] NZCA 145, [2021] 3 NZLR 17 [Liquidation Appeal].
24 Caveat Judgment, above n 1, at [78].
[48] Gwyn J accepted that both Flat Bush and the Body Corporate had claims to an equitable interest in Unit 12A. As a creditor of Manchester, the Body Corporate was subrogated to Manchester’s rights in an equitable lien over the assets of the Trust to support its right of indemnity for liabilities to the Body Corporate that Manchester had incurred as trustee. Gwyn J recorded that, while Flat Bush had lodged its caveat before the Body Corporate, the Body Corporate asserted that its interest arose first in time; in March 2012 when Manchester had first failed to pay the body corporate levies.25 However, Flat Bush contended that the Body Corporate’s right of subrogation and thus its right to lodge a caveat did not arise until Manchester became insolvent which, according to Flat Bush, was after 31 March 2017.
[49] On the evidence before her, Gwyn J held that it was not possible to reach a concluded view on which of the two equitable interests was first in time or on which party had a better equity.26 Gwyn J also held that the right of set-off claimed by Manchester could not be determined at that juncture.27
[50] Gwyn J considered the submissions of counsel for Manchester that, even if the Body Corporate had a caveatable interest, the Court should exercise its discretion to allow the caveat to lapse, in accordance with the Court of Appeal’s decision in Pacific Homes (in Receivership) v Consolidated Joineries Ltd.28 Counsel submitted that the Body Corporate’s position was adequately protected by ss 142 and 147(4) of the Unit Titles Act 2010.29
[51] Gwyn J said s 147(4) of the Unit Titles Act did not create any security interest and, therefore, did not improve the priority of the Body Corporate over that of Flat Bush. Gwyn J also noted that there had been no sale and there was no assurance there would be a sale. Her Honour also noted advice from Flat Bush’s counsel that Flat
25 At [40] – [42].
26 At [58].
27 At [57].
28 Pacific Homes Ltd (in Receivership) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA).
29 Under s 124(2) of the Unit Titles Act 2010, the amount of any unpaid levy is recoverable as a debt due to the body corporate by the owner of a unit. Under s 147(4), a body corporate may withhold a certificate required to be obtained by a vendor of a unit if any debt due by the owner of the unit is unpaid.
Bush had no current intention to sell. Gwyn J was satisfied that this was not an appropriate case for the exercise of the Court’s discretion to let the caveat lapse.30
Minute by Gwyn J
[52]Following post-judgment applications by the Body Corporate and Flat Bush,
Gwyn J issued in a minute dated 22 December 2020 in which she stated:31
[6] The effect of the order I made on 27 November 2020 is that the caveat remains in place and until removed by further order of the Court after a hearing of the substantive merits. …
[53] Gwyn J directed that if either of the parties sought to advance a hearing of the substantive issues, they should file an application.
Joinder Judgment
[54] On 3 March 2021, Powell J issued his judgment on the applications by Mr Cummins to be joined to the Body Corporate’s application to vary the remediation scheme and the Body Corporate’s appeal of the arbitrator’s award (Joinder Judgment).32
[55] Powell J was satisfied that while Manchester was still in existence and continued to hold ownership of the property, it remained properly joined to the proceedings. He considered that the attempt by Mr Cummins to be joined as a party only in his capacity as a trustee amounted to an attempt to continue to participate in the proceedings while continuing to attempt to delay payment of the sums that go with ownership of the property and which the Courts had consistently directed be paid. Powell J concluded that this was an abuse of process and that it was neither necessary nor desirable that Mr Cummins be made a party at that time.33
[56] However, Powell J concluded that to dismiss Mr Cummins’ application would not assist the ultimate disposal of the proceedings. He considered that the best course
30 Caveat Judgment, above n 1, at [65] – [66].
31 Body Corporate 172108 v Flat Bush Finance Ltd HC Auckland CIV 2020-404-423, 22 December 2020 (Minute of Gwyn J).
32 Body Corporate 172108 v Manchester Securities Ltd [2021] NZHC 365 [Joinder Judgment].
33 At [13].
was to give Mr Cummins the opportunity to effect the transfer of the trust assets to himself, at which point he would become personally liable for the amounts currently outstanding from Manchester to the Body Corporate.34 Powell J ordered that, within 14 days of his judgment, Mr Cummins was to register a transfer of the title to Unit 12A from Manchester to himself and to pay all amounts owed by Manchester to the Body Corporate. If Mr Cummins completed those steps withing the 14-day timeframe, he was to be joined to the two proceedings. If he did not, his application for joinder was dismissed.35
[57] Mr Cummins did not take the steps ordered by Powell J. Rather, he sought leave to appeal Powell J’s judgment.
[58] On 30 March 2021, Powell J granted leave to appeal the Joinder Judgment.36 When granting leave, Powell J stayed the five-day fixture that was to have commenced on 19 April 2021 to hear the applications to appeal the arbitration award and to vary the remediation scheme.
Body Corporate commences substantive caveat proceeding
[59] By statement of claim dated 9 June 2021, the Body Corporate initiated the substantive caveat proceeding. Manchester (in liquidation), Flat Bush and Mr Cummins are named as first, second and third defendants respectively.
[60]The Body Corporate has applied for:
(a)a declaration that the assets of the Trust, including Unit 12A, stand charged in favour of the Body Corporate to the extent of a debt of
$1,318,674.28, comprised of unpaid levies, unpaid judgment orders and costs orders made by Courts in the various proceedings concerning Level 12;
34 In accordance with s 124(2) of the Unit Titles Act 2010, see n 29 above.
35 At [14] – [17].
36 Body Corporate 172108 v Manchester Securities Ltd [2021] NZHC 686.
(b)a declaration that the Body Corporate’s equitable proprietary interest in the Trust’s assets ranks ahead of that of Flat Bush; and
(c)a final order that its caveat not lapse.
Minute and judgment of Associate Judge Bell
[61] On 3 September 2021, Associate Judge Bell made timetable directions to ascertain whether the liquidator of Manchester consented to the substantive caveat proceeding continuing against Manchester while it was in liquidation and, if not, for an application to be made for an order under s 248(1)(c) of the Companies Act 1993.37 In his minute, the Associate Judge stated:
[8] This case is a separate proceeding from the caveat application. That was concerned with whether the body corporate had a caveatable interest, for which it had to make out an arguable case. That case is over. In this proceeding it is seeking a final determination on the merits that [Manchester’s] property is subject to an equitable lien that takes priority over the interest claimed by Flat Bush Ltd.
[62] The Associate Judge directed the parties to provide proposals for further directions to advance the proceeding.
[63] The newly appointed liquidator refused consent to the substantive caveat proceeding continuing against Manchester. Accordingly, by judgment dated 29 September 2021, Associate Judge Bell granted consent under s 248(1)(c) of the Companies Act to the Body Corporate to bring the proceeding.38 The Associate Judge held that the Body Corporate and Flat Bush were not ordinary unsecured creditors and that the contest between them over their claims over Manchester’s assets was better resolved by the substantive proceeding than by requiring the parties to try to fit the dispute into the procedures under pt 16 of the Companies Act.39 The Associate Judge also recommended that Flat Bush should amend its pleadings in the substantive proceeding to include a claim for removal of the Body Corporate’s caveat if it established its priority.40
37 Body Corporate 172108 v Manchester Securities Ltd (in liq) HC Auckland CIV 2020-404-1066, 3 September 2021 (Minute of Associate Judge Bell).
38 Body Corporate 172108 v Manchester Securities Ltd (in liq) [2021] NZHC 2580.
39 At [5].
40 At [6].
[64] Flat Bush did not take up the Associate Judge’s recommendation to amend its pleadings in the substantive application. Instead, Mr Cummins brought the present application.
Joinder Appeal upholds Joinder Judgment
[65] Although the judgment had not been issued at the time of hearing Mr Cummins’ application, it is relevant to record that on 22 March 2022, the Court of Appeal issued its judgment dismissing Mr Cummins’ appeal against the Joinder Judgment (Joinder Appeal).41
[66] The Court of Appeal considered that the joinder of Mr Cummins as a party to the Body Corporate’s applications would be appropriate only if the conditions imposed by Powell J had been complied with. The Court stated:42
The attempt by Mr Cummins to be joined to the proceeding, and be heard in opposition to the applications made by the Body Corporate, represents a continuing attempt on his part to exercise the rights of a proprietor of a unit while avoiding the obligations of a proprietor. He cannot have it both ways. His attempt to do so represents an abuse of the processes of the court.
[67] The Court rejected the argument advanced on behalf of Mr Cummins that Manchester’s obligation to pay the sums owed to the Body Corporate and the question of whether payment could be deferred while cross claims were pursued were no longer live issues because of the liquidation of Manchester and the operation of s 310 of the Companies Act. It held that, even if s 310 had the effect contended for (which the Court doubted but did not decide), it would be an abuse of court processes for Mr Cummins and the Trust’s beneficiaries to circumvent the courts’ “pay now, argue later” rulings by seeking to argue now while deferring payment.43
[68] The Court of Appeal awarded indemnity costs against Mr Cummins. It recalled its previous description of Manchester’s actions as “dilatory and prevaricating” and observed that Mr Cummins was throughout the relevant period the controlling mind and will of Manchester. It considered the joinder application and the appeal to be a
41 Cummins v Body Corporate 172108 [2022] NZCA 26 [Joinder Appeal].
42 At [7].
43 At [64].
continuation of that course of conduct. It observed that Mr Cummins continued to attempt to deploy procedural strategies to defer the payment of levies while he pursued his set-off arguments. It held this was a clear abuse of process.44
The evidence on the application for removal of the caveat
Evidence in support of application
[69] In an affidavit sworn on 6 October 2021, Mr Cummins explains the reasons for his application. Mr Cummins says that, following the liquidation of Manchester, he has taken responsibility for the building works at Level 12. He says that he has incurred costs of over $1,200,000 so far. He expects a further $1,600,000 will be required to complete the intended building works and meet associated costs.
[70] For reasons that are not explained, Sage, which had funded the work at Level 12 to date, is now unwilling or unable to continue to fund the work to completion. Sage has, however, concluded an agreement with Flat Bush under which Sage will provide a limited amount of funding to Mr Cummins pending Mr Cummins arranging longer term finance from another undisclosed funder. Mr Cummins exhibits a copy of a term loan agreement between Sage and Philip McGaveston, the Managing Director of Sage, on the one side and Mr Cummins on the other side under which Sage has agreed to advance Mr Cummins $600,000 until 30 July 2022. The loan is guaranteed by Flat Bush and is secured by an unregistered second mortgage over Unit 12A. Mr Cummins says the loan from Sage is to be repaid when the longer term funding is secured.
[71] Mr Cummins has not produced a copy of the agreement between Sage and Flat Bush.45 He says, however, that the Flat Bush/Sage agreement:
… contemplates that the cost to complete the remaining building work will be met within the [Flat Bush] mortgage priority and a new funder will take assignment of the [Flat Bush] mortgage as security for the required additional funding. The [Flat Bush] mortgage is presently charged to Sage to secure the additional funding referred to above.
44 At [69].
45 It appears that a redacted version of the agreement was disclosed to the Body Corporate during discovery in the substantive caveat proceeding. A copy of that agreement was exhibited to the affidavit of Mr Carr, the Body Corporate, as discussed in this judgment.
[72] Mr Cummins says any new funder will only agree to fund the final stage of the remediation works if it has priority over the bulk of the debt owed to Sage. In order for Flat Bush’s mortgage to be assigned to the new funder, however, it must first be registered. For that purpose, the Body Corporate’s caveat must be removed. Mr Cummins says that if he is unable to secure the additional funding, he will have to “mothball” the building works or at least to slow progress to meet available funds.
[73] Mr Cummins says he made various offers to settle the litigation with the Body Corporate so that the Body Corporate would agree to remove its caveat. Those offers were not accepted despite it being, as Mr Cummins sees it, in the interests of the Body Corporate and the other unit owners for him to complete the building work. Mr Cummins says it is imperative that building work is completed, at least to the closed in stage, by 30 April 2022.46
Evidence in opposition
[74] In an unsworn affidavit prepared in December 2021, David Carr, the current chair of the Body Corporate, sets out some of the litigation history of the dispute, including developments in the substantive proceeding.47 He says that instead of complying with the Courts’ orders, Manchester chose to prioritise making payments to beneficiaries (approximately $835,000 in total) and to reduce its indebtedness to Flat Bush (approximately $324,500).
[75] Mr Carr says that Flat Bush and Mr Cummins have failed to provide proper discovery in the substantive proceeding. In particular, they have failed to discover documents evidencing the matters said by Mr Cummins to have been “contemplated” in the Flat Bush/Sage agreement as described above.
[76] Mr Carr says that among the few documents discovered by Flat Bush and Mr Cummins is a redacted copy of a “priority agreement” between Sage and Mr McGaveston on the one hand and Flat Bush and Mr Cummins on the other hand. Mr Carr exhibits a copy of the agreement. Clause 1 relevantly provides that, in
46 Mr Cummins says his contractors’ all-risks and general liability insurance cover ends after 1 May 2022 and his contactors will not be allowed access to Level 12 from that date.
47 The hearing was held while COVID-19 restrictions were in place.
consideration of the loan agreement executed with the priority agreement, the parties have agreed to settle all matters in relation to existing loans to the Trust “and the respective lender securities” as set out in the clause. However, clause (ii) is redacted on the grounds of privilege and confidentiality.
[77] Mr Carr says that the documents discovered by Mr Cummins are meaningless without the source documents and proof of advances being made.
[78] Mr Carr refers to the letter he sent Mr Cummins on 6 October 2021 in response to Mr Cummins’ offers to settle. The first paragraph of Mr Carr’s letter encapsulates the Body Corporate’s position. It states:
The short point is, Mr Cummins, the Body Corporate Committee (BC), and by extension the owners, do not trust you. The BC has put forward a reasonable compromise and does so again now openly. What you are telling us about funding has no reality about it. You owe the BC now approximately
$1.3m. You have used every device and construct to avoid paying amounts due to the BC. You have a major credibility problem. You have never been transparent about what you are doing on L12. Despite requests you have refused to provide the BC with information about your L12 development which would enable independent verification.
[79] The letter states that Mr Cummins’ offers to settle the litigation between Flat Bush and the Body Corporate were unacceptable. The letter sets out a proposal that would be acceptable to the Body Corporate. Mr Carr says there has been no reply to that proposal.
[80] The Body Corporate has also filed an affidavit by Andrew Gray, a building surveyor, who inspected Level 12 on 10 occasions between 19 October 2017 and 29 November 2021, the date of his most recent inspection. Among other things, Mr Gray says that, overall, there continued to be little headway in progress of the redevelopment of Level 12 and that there was little to no prospect of Level 12 being “closed in” or made weathertight within the next six months. Mr Gray states that, based on what he had observed since his first inspection in 2017, he had found nothing Mr Cummins said about the timing of completion of the Level 12 works to be believable.
Evidence in reply
[81] In an affidavit sworn on 19 January 2022, Mr Cummins states that his position is that he has no liability to the Body Corporate or the other owners because he has a genuinely arguable cross claim against the Body Corporate and the other 38 owners for more that $6 million. He takes issue with aspects of Mr Carr’s affidavit. He says Mr Gray’s conclusions are not truly objective and his evidence is overwrought.
[82] Mr Cummins exhibits a report from Mr Ryan Eathorne, who was appointed liquidator of Manchester in August 2021 upon the resignation of the previously appointed liquidators. In his report, Mr Eathorne noted that the records of the former liquidators included an unsecured claim from the Body Corporate for $1,370,067.72. Mr Eathorne also said he had been informed by Mr Cummins of unresolved cross- claims against the Body Corporate and that in order to admit the Body Corporate claim into the liquidation of Manchester, he would need to be satisfied that s 310 of the Companies Act applied. Mr Eathorne also says that the arbitral process would need to conclude in order for the Body Corporate’s claim to be finally accepted. However, Mr Eathorne notes that the applications to vary the remediation scheme might make the arbitral process unnecessary and might determine the extent to which s 310 of the Companies Act would apply.
Submissions of Mr Cummins in support of removing the caveat
[83] Mr Cummins is represented by Mr Sullivan, who was counsel for Flat Bush in the caveat proceeding decided by Gwyn J, for Mr Cummins in the joinder proceeding and for Mr Cummins in the substantive caveat proceeding.
[84] Mr Sullivan submits that much of the prior litigation in the dispute over Level 12 is no longer relevant. He says that the “pay now, argue later” regime under which Manchester was liquidated has run its course. There are substantial cross-claims that must be resolved under the insolvency set-off provisions of the Companies Act before the net position between Manchester and the Body Corporate can be determined. He says the liquidation process is stalled and refers to Mr Eathorne’s report. He also says the arbitration process remains unresolved and refers to the injunction granted by Jagose J.
[85] Mr Sullivan says Mr Cummins accepts that the Body Corporate has shown an arguable case for its caveatable interest. However, that is not the issue now before the Court. Mr Cummins asks the Court to exercise its residual discretion to remove the caveat on the basis of the Court of Appeal’s decision in Pacific Homes.48 Mr Sullivan says that in that decision, which has been applied in subsequent decisions such as Stewart v Kaipara Consultants Ltd and Land Co Albany,49 the Court accepted that, even if a caveator has a caveatable interest, the Court has the discretion to remove the caveat if is satisfied that there is no practical advantage in retaining the caveat.
[86] Mr Sullivan submits that the Court can be so satisfied in the present case. It is clear from the Body Corporate’s application in the substantive caveat proceeding that it has no intention of enforcing the equitable lien which the caveat protects by seeking the sale of Unit 12A. Mr Sullivan suggests that the Body Corporate is not seeking an order for sale because it could not meet the costs of repaying Sage as first mortgagee and so could not settle any sale. Conversely, Mr Sullivan says ss 124 and 147(4) of the Unit Titles Act fully protect the Body Corporate’s position because it can refuse to issue a certificate until its debt is repaid. He refers in this regard to the Court of Appeal’s decision in Gilbert v Body Corporate 162791.50
[87] Mr Sullivan says the Court can also be satisfied that the Body Corporate can have no reasonable expectation of obtaining a benefit in the form of recovering money. The debt is in dispute because of Manchester’s cross-claims in the liquidation so the mandatory insolvency set-off regime applies.
[88] Mr Sullivan submits that, in circumstances where the litigation process is stalled, Manchester’s net position must be established under s 310 of the Companies Act and the arbitration process is subject to injunction, the balance of convenience lies strongly in favour of removing the caveat. For the Body Corporate, there would be no prejudice. Continuation of the caveat, however, would prevent Mr Cummins from refinancing and from completing the remediation of Level 12. That would not be in the interests of Mr Cummins, the Body Corporate or the other unit owners.
48 Pacific Homes Ltd (in Receivership) v Consolidated Joineries Ltd, above n 28.
49 Stewart v Kaipara Consultants Ltd [2000] 3 NZLR 55 (CA); Landco Albany Ltd v Fu Hao Construction Ltd [2006] 2 NZLR 174, (2005) 6 NZCPR 813 (CA).
50 Gilbert v Body Corporate 162791 [2016] NZSC 61, [2018] 1 NZLR 1.
[89] Mr Sullivan proposes that the Court make an order for removal of the caveat on conditions that, he submits, would protect the Body Corporate’s position.
Submissions of Body Corporate in opposition to removing the caveat
[90] Mr Allen, counsel for the Body Corporate, submits that the decisions cited by Mr Sullivan support the Body Corporate’s position that the caveat should not be removed. He says the circumstances of the Body Corporate’s caveat are very different from those in Pacific Homes, Kaipara Consultants and Landco. Mr Allen also submits that Mr Cummins is effectively trying to have a second bite at the removal of the caveat after Gwyn J had previously refused to order removal.
[91] Mr Allen says the Body Corporate does not accept that the Court can put to one side the long history of Court orders for immediate payment of the sums due to it, irrespective of the claims for set-off made by Manchester and Mr Cummins. He submits that the current application, including the proposal put forward by Mr Sullivan in submissions, constitutes yet another attempt to achieve that which the Courts have held that Manchester and Mr Cummins should not be able to achieve, namely the deferral of payment to the Body Corporate pending arbitration of the cross-claims.
Discussion on application to remove caveat
[92] I agree that Mr Cummins is seeking to re-run, albeit on a fuller basis, the same submission that Flat Bush advanced before Gwyn J, namely that the Court should exercise its discretion to remove the Body Corporate’s caveat, even accepting that the Body Corporate has an arguable caveatable interest.
[93] As confirmed by the Court of Appeal in Pacific Homes, the Court has a discretion to order the removal of a caveat even in circumstances where the caveator has a caveatable interest. However, Blanchard J made it clear that the circumstances in which that might be appropriate were circumscribed and that, even if such circumstances arose, removal of the caveat was not automatic.
[94]Blanchard J stated:51
51 Pacific Homes Ltd (in Receivership) v Consolidated Joineries Ltd, above n 28, at 656.
In such circumstances the Court retains a discretion to make an order removing the caveat, though it will be exercised cautiously. An order will be made for removal only where the Court is completely satisfied that the legitimate interests of the caveator will not thereby be prejudiced. If, on the facts of a case, it can be seen that the caveator can have no reasonable expectation of obtaining benefit from continuance of the caveat in the form of the recovery of money secured over the land or specific performance of an agreement or if the caveator’s interests can be reasonably accommodated in some other way, such as by substituting a fund of money under the control of the Court, then it may be appropriate for the caveat to be removed notwithstanding that the right to the claimed interest is undoubted.
[95] It follows that the Court must exercise its discretion cautiously and only where it is “completely satisfied” that the legitimate interests of the caveator will not be prejudiced.
[96]I am not so satisfied.
[97] First, whether or not the Body Corporate intends to exercise the lien that the caveat protects, the Body Corporate has the right to protect its legitimate interest in securing payment of the sums owed to it by Manchester, if those sums are not paid when Unit 12A is sold. Whether or not such a sale will be subject to prior satisfaction of Sage’s mortgage and Flat Bush’s competing equitable interest does not vitiate the protection provided by the caveat while those competing interests remain undetermined.
[98] Secondly, it is not a given that the Body Corporate will be able to secure payment only after settlement of any cross claims through an arbitration process. The Court of Appeal has repeatedly made clear it does not accept that settlement of the cross-claims is a precondition to payment of the sums owed to the Body Corporate.
[99] I do not accept that the liquidation process is stalled or that the arbitration process will continue to be unresolved. The liquidator’s report does not support either proposition. Mr Eathorne says that the arbitration would have to be concluded before the Body Corporate’s claim can be accepted or rejected. However, that statement is subject to the following paragraph in which the arbitrator acknowledges that the variation proceedings may make the arbitral process unnecessary. For that reason,
Mr Eathorne considers it prudent to await the outcome of those proceedings unless there is likely to be excessive delay.
[100] The position regarding any arbitration will be clarified when the hearing of the applications to appeal the arbitration award and vary the remediation scheme are determined. Now that the Court of Appeal has upheld the Joinder Judgement, it can be expected that the hearing previously stayed by Powell J will be re-scheduled. For these reasons, the position regarding cross claims and set-off is far from being settled as asserted by Mr Sullivan.
[101] Thirdly, as Gwyn J stated, and as Mr Sullivan acknowledged, s 147(4) of the Unit Titles Act does not create a security interest. The legislative history and effect of ss124 and 147 are discussed by the Supreme Court in Gilbert v Body Corporate 162791.52 The Supreme Court observed that the sections as enacted still left the potential for a stand-off between a Body Corporate seeking recovery of unpaid levies and a mortgagee seeking to exercise its power of sale.53 Gilbert does not support the submission made by Mr Sullivan that s 147(4) ensures a body corporate will be first paid on a sale of property which is the subject of a claim for unpaid levies.
[102] Fourthly, I agree that the circumstances in the present case are quite different from those in Kaipara Consultants and Landco Albany, where it was held that the discretion to remove a caveat should be exercised. In Kaipara Consultants, the Court of Appeal agreed that the caveator’s interests were adequately protected by the creation of a fund sufficient to compensate any loss suffered by the caveator. In Landco Albany, the Court of Appeal was satisfied the caveat should be removed because the caveator had previously contracted not to register any caveat against the property and had no real prospect of obtaining an order for specific performance of an agreement to develop the property in question. That is because the district council had made it clear that it would not grant resource consent for the intended subdivision of the property.54
52 Gilbert v Body Corporate 162791, above n 50, at [12] – [21].
53 At [21].
54 Stewart v Kaipara Consultants Ltd and Landco Albany Ltd v Fu Hao Construction Ltd, above n 49.
[103] In summary, the arguments advanced by Mr Sullivan do not satisfy me that the legitimate interests of the Body Corporate would not be prejudiced if its caveat were removed. In addition, even if I had been so satisfied, in the circumstances of the present case, I would have seen no case for exercising the Court’s residual discretion to remove the caveat.
[104] I do not accept Mr Sullivan’s submission that the litigation history concerning Unit 12A is largely irrelevant. The history shows that Mr Cummins and entities under his direction and control have pursued a deliberate course of refusing to pay debts owed to the Body Corporate, despite numerous Court orders that those debts must be paid immediately. They have also continued to assert that payment of those debts can be delayed pending the resolution of cross-claims in an arbitral process, despite clear directions from the Court of Appeal that the debts were to be paid irrespective of the cross-claims and arbitration. In the meantime, Mr Cummins and his entities have continued to prioritise their interests over those of the Body Corporate and the other owners of the units in the Hobson Apartments. Those owners have had to endure the stress and disruption caused by unfinished repairs to the top level of their apartment building and the succession of efforts by Mr Cummins and his entities to avoid paying the money owed to the Body Corporate.
[105]The current application is another example of that course of conduct.
[106] In that regard, the evidence Mr Cummins has adduced in support of the application does not satisfy me that he has a genuine need to refinance in order to complete the work on Level 12. There is no evidence from Sage to establish why its position as funder has suddenly changed. The information provided concerning the arrangements between Sage, Flat Bush and Mr Cummins is opaque and incomplete. There is no evidence of any attempts to secure alternative finance approach to, let alone agreement with, an independent funder. Mr Cummins’ statements about the work required to complete Level 12 and the timeline for completion are not supported by independent evidence. Mr Gray’s evidence calls into question the reliability of Mr Cummins’ statements.
[107] While it is unnecessary to make findings as to credibility, the evidence falls well short of persuading me that there is an adequate basis for ordering the outcome advocated by Mr Sullivan.
[108] For all these reasons, I dismiss Mr Cummins’ application that the Body Corporate’s caveat registered against the title to Unit 12A be removed.
Application for strike out
[109] Because I have dismissed Mr Cummins’ application on the merits, it is unnecessary to decide the Body Corporate’s strike out application. However, both counsel made comprehensive submissions on the application. In addition, the merits of the application are relevant to the Body Corporate’s application for indemnity costs. Accordingly, I record my views on the application as follows.
Grounds for application
[110]Mr Allan submits that the application should be struck out because:
(a)The substantive orders sought in the application were determined in the Caveat Judgment which bound Flat Bush and Mr Cummins is a privy of Flat Bush as its controlling mind and will, so issue estoppel applies.
(b)The grounds of the application should have been by Flat Bush before Gwyn J and the application amounts to a collateral attack on the Caveat Judgment, so abuse of process estoppel applies.
(c)Mr Cummins has no standing to make an application under s 142 of the Land Transfer Act because he does not have “an estate or interest affected by a caveat against dealings” in terms of the section.
Mr Cummins’ response
[111] Mr Sullivan says Gwyn J’s decision cannot be regarded as a final determination of the exercise of the Court’s discretion. That would fetter the Court’s discretion to take account of changed circumstances. He also says Gwyn J did not consider the
principal point in the present application because the Body Corporate did not disclose in that proceeding that it does not intend to pursue substantive relief.
[112] Similarly, no abuse of process is said to arise because Mr Cummins could not have raised with Gwyn J the principal point he now makes. He became aware that the Body Corporate does not intend to pursue substantive relief such as a sale only when the Body Corporate filed its substantive caveat proceeding. Mr Sullivan refers to the statement of Lord Bingham in Johnson v Gore Wood, to the effect that the fact that a matter could have been raised in earlier proceedings does not mean that it is abusive to raise it in later proceedings.55
[113] Mr Sullivan says Mr Cummins clearly has an interest in Unit 12A as the trustee of Manchester which holds title to the property as a bare trustee.
Discussion of application for strike out
[114]It is appropriate to deal first with Mr Cummins’ standing.
[115] In the Joinder Appeal, the Court of Appeal made no determination as to the nature of Mr Cummins’ interest, if any, in Unit 12A. Because it made no difference to the result, the Court was prepared to assume that Mr Cummins had acquired some equitable interest in respect of Unit 12A as a result of his arrangements with Manchester.56
[116] Although both counsel addressed me on the point in written submissions I invited after delivery of the Joinder Appeal, I take the same approach as the Court of Appeal. I make no determination on whether Mr Cummins had the necessary standing under the Land Transfer Act to bring his application. In any event, the Body Corporate’s strike out application raises the point only as a subsidiary issue.
55 Johnson v Gore Wood [2002] 2 AC 1 (HL) at 31.
56 Joinder Appeal, above n 41, at [59].
Issue estoppel
[117] Mr Sullivan does not dispute that Mr Cummins is a privy of Flat Bush such that the doctrine of issue estoppel can apply. Rather he says there has been a change of circumstances that justifies a further application to remove the caveat.
[118] I agree with Mr Sullivan that just because the current application seeks the same orders as those declined in an earlier application does not preclude an application seeking the exercise of the Court’s discretion based on a change of circumstances. There must, however, be a genuine change of circumstances.
[119] I do not accept that the fact Mr Cummins did not know that the Body Corporate had no intention of enforcing its lien by seeking a sale of Unit 12A amounts to a genuine change of circumstances.
[120] As noted above, Gwyn J recorded in the Caveat Judgment that there had been no sale and there was no assurance there would be a sale.57 Her Honour also recorded Mr Sullivan’s advice that Flat Bush had no current intention to sell.58 In other words, the likelihood that one of the parties contending for a priority equitable interest was unlikely to seek to enforce its rights was squarely before Her Honour. I do not accept that the absence of an intention to sell on the part of the other party seeking priority amounts to a change in circumstances justifying a further application.
[121] Moreover, while Flat Bush’s principal ground for opposing the Body Corporate’s application that its caveat not lapse was based on Flat Bush’s asserted priority in time, as Gwyn J recorded in her judgment, Flat Bush also sought removal for the caveat in the exercise of the Court’s discretion in accordance with Pacific Homes. While the grounds asserted on this occasion were stated more broadly, for the reasons given above, I do not accept that there was a genuine change of circumstances. Accordingly, I consider that the application was an attempt to secure the same result on essentially the same basis that had been declined by Gwyn J and that issue estoppel applies.
57 Caveat Judgment, above n 1, at [50].
58 At [65].
Abuse of process
[122] Mr Sullivan sets out an extract of Lord Bingham’s discussion in Johnson v Gore Wood of the rule in Henderson v Henderson. The rule requires parties to bring the whole of their case to Court and provides that, except in special circumstances, they cannot return to Court to make argument they could have put forward on the first occasion but failed to raise.59
[123] It is useful to set out the section of Lord Bingham’s speech that preceded the section cited by Mr Sullivan. Lord Bingham stated60:
But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to an abuse of process if the court is satisfied (the onus being on the party alleging abuse) that the claim or the defence should have been raised in the earlier proceedings if it was to be raised. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will be rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is wrong, however, to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
…
[124] As already discussed, I do not accept that an absence of an intention to sell on the part of the Body Corporate is a new circumstance justifying a further application to remove the caveat. In that sense, I do not consider that Mr Cummins is raising an issue that could have been raised before. However, in bringing this application, Mr Cummins is, in reality, seeking to mount a collateral attack on the Caveat Judgment. More generally, I consider that the application is another instance of Mr Cummins and his associated entities engaging in, as Lord Bingham termed it, “unjust harassment” of the Body Corporate and the other owners by seeking again to advance their interests while avoiding paying the sums declared by the Courts to be
59 Henderson v Henderson (1843) 3 Hare 100.
60 Johnson v Gore Wood, above n 55.
immediately payable. In that sense, Mr Cummins is again vexing the Body Corporate and the other owners, as well as taking up valuable court time, pursuing issues that have already been determined to try to achieve what he could not achieve earlier. It is a further example of the Cummins’ interests seeking to circumvent the Courts’ “pay now, argue” later rulings as discussed by the Court of Appeal in the Joinder Appeal and which it held to be an abuse of process.61
[125] In all of these respects, I am satisfied that the present application is an abuse of process. Strike out would have been justified if I had not dismissed the application.
Result
[126] Mr Cummins’ application that the Body Corporate’s caveat should be removed is dismissed.
Costs
[127] The Body Corporate seeks indemnity costs. I consider that an award of actual and reasonable costs is appropriate in this case. The application is an abuse of process and another example of dilatory and prevaricating behaviour by the Cummins’ interests.
[128] Counsel should attempt to agree costs. If they are unable, they may submit memoranda of no more than five pages.
G J van Bohemen J
61 Joinder Appeal, above, n 41, at [64].
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