E & E Developments Limited v Housing New Zealand Limited HC Auckland CIV 2009-404-5656

[2010] NZHC 1939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-5656

BETWEEN  E & E DEVELOPMENTS LIMITED Plaintiff

ANDHOUSING NEW ZEALAND LIMITED First Defendant

ANDHOUSING NEW ZEALAND CORPORATION

Second Defendant

Hearing:         2 November 2010

Counsel:         RB Hucker and PF Chambers for plaintiff

MC Smith for defendants

Judgment:      9 November 2010 at 4:30pm

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]

Solicitors:           Hucker & Associates, PO Box 3843, Auckland 1140

Gilbert/Walker, PO Box 1595, Auckland 1140

E & E DEVELOPMENTS LTD V HOUSING NEW ZEALAND LTD HC AK CIV 2009-404-5656  9 November

2010

The application

[1]      The defendants apply for summary judgment.  They plead that the cause of action pleaded in the statement of claim cannot succeed.

Notice of discontinuance in respect of second defendant

[2]      At the commencement of counsel’s submissions, counsel for the plaintiff advised  that  the  plaintiff  wished  to  discontinue  against  the  second  defendant. Counsel for the defendants consented to the discontinuance of the proceeding in respect  of  the  second  defendant.    In  terms  of  rr 15.19(1)(b)  and  15.20(4)  the proceeding is discontinued in respect of the second defendant.

The court’s approach to a summary judgment application by a defendant

[3]      Rule 12.2(2) of the High Court Rules requires that the defendant satisfy the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[4]      In Westpac Banking Corporation v MM Kembla (NZ) Ltd[1] when dealing with the predecessor of r 12.2(2), namely r 136(2):

[1] Westpac Banking Corporation v MM Kembla (NZ) Ltd [2001] 2 NZLR 298 (CA) at [58]-[64].

[58]The applications for summary judgment were made under R 136(2) of the High Court Rules which permits the Court to give judgment against the plaintiff “if the defendant satisfies the Court that none of the  causes  of  action  in  the  plaintiff's  statement  of  claim  can succeed”.

[59]Since R 136(2) permits summary judgment only where a defendant satisfies the Court that the plaintiff cannot succeed on any of its causes of action, the procedure is not directly equivalent to the plaintiff's summary judgment provided by R 136(1).

[60]… R 136(2) [the present r 12.2(2)] permits a defendant who has a clear answer to the plaintiff which cannot be contradicted to put up the evidence which constitutes the answer so that the proceedings can be summarily dismissed. …

[61]      The   defendant   has   the   onus   of   proving   on   the   balance   of probabilities  that  the  plaintiff  cannot  succeed.  Usually  summary

judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim. Examples, cited in McGechan on Procedure at HR 136.09A, are where the wrong party has proceeded or where the claim is clearly met by qualified privilege.

[62]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 only able to be properly arrived at after a full hearing of the evidence. Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues. Although a legal point may be as well decided on summary judgment application as at trial if sufficiently clear (Pemberton v Chappell [1987] 1 NZLR 1), novel or developing points of law may require the context provided by trial to provide the Court with sufficient perspective.

[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.

[5]      The passages to which I have made reference were approved by the Privy

Council in Jones v Attorney-General.[2]

[2] Jones v Attorney-General [2004] 1 NZLR433 (PC) at 437.

The opposition

[6]      The plaintiff opposes the application.    It says that its cause of action can succeed.

[7]      Mr Hucker, who was instructed on this application only and not on a previous application by the plaintiff for summary judgment against the defendant in this proceeding, further clarified the plaintiff’s position.

[8]      He submitted that because the central issue involved the interpretation of a lease it was not appropriate to determine the question on a summary judgment basis. What was required, he submitted, was an examination of the background facts so that the commercial intentions of the parties at the time the lease was granted were available to the court to assist in the interpretation of the lease document.

[9]      I have mentioned the plaintiff’s application for summary judgment.   I gave judgment on that application on 31 March 2010.  I declined the plaintiff’s application for summary judgment.   Neither counsel submitted that my judgment created an estoppel in respect of the matter which I must now determine.  Accordingly, I must determine the defendant’s application on its merits.

The plaintiff’s claim

[10]     The  plaintiff’s  claim  relies  on  a  memorandum  of  lease  dated  20 January

2004.  The parties to that lease are the plaintiff, as lessor, and the first defendant, as lessee.

[11]     The  lease  is  for  a  term  of  ten  years.    The  lease  provides  that  the  term commenced on 8 December 2003.  The lease provides for an annual rent of $484,120 inclusive of GST.  The lease provides for rent to be paid monthly in arrears.

[12]     The plaintiff claims rent for the period 8 December 2003 to 21 June 2004 in the sum of $260,076.05 plus interest and costs.  It is common ground that rent for this period has not been paid.

The issue for determination

[13]     The defendant’s case is that the lease does not require the defendant to pay rent  for  the  period  claimed.     Mr Smith  submitted  that  that  arises  from  an interpretation of the lease.

[14]     Accordingly, the sole question is whether the lease required the defendant to pay rent from 8 December 2003 to 21 June 2004.

Additional evidence and documents

[15]     The plaintiff’s notice of opposition to this application and the affidavit of its director, Mr LR Ellery, sworn on 3 June 2010 were both filed subsequent to my judgment of 31 March 2010.  The defendant filed an affidavit in reply by the second defendant’s services manager, which was sworn on 30 June 2010.

[16]     Because   of   this   further   application,   the   additional   evidence   and   the submissions advanced, I expand on the background summary contained in my judgment of 31 March 2010.

Background

[17]     On 22 May 2002 the plaintiff, as vendor, the first defendant, as purchaser, and Mr LR Ellery, as guarantor, signed an agreement.   Under the agreement the

plaintiff agreed to:

a)	Construct  38  units  on  land  at  352A  Swanson  Road,  Swanson, Auckland; and
b)	Provide a registrable memorandum of transfer in respect of each of the units.
[18]	The	plaintiff’s  obligations  under  the  agreement,  were  provided  to  be

guaranteed by Mr Ellery.

[19]     The first defendant was required to pay $5,320,000 on a progress payment basis and following the issue of certificates from time to time by a quantity surveyor.

[20]     The amount actually paid through the course of the development as certified by the quantity surveyor was $5,195,970.

[21]     The agreement contains, in the definition section, a settlement date which I

need not repeat for the purposes of this judgment as it has no particular significance.

[22]     Two clauses in the agreement, however, must be noted.   Clause 3.5 deals with insurance and provides:

3.5The Vendor shall insure in the joint names of the parties the Contract Works and all costs arising from any contingent obligations and liabilities under this Agreement including the Vendor’s obligations during  the  Period  of  Maintenance  with  a  reputable  insurance company  against  all  risks  which  the  parties  consider  would  be prudent to insure against for a sum no less than the Purchase Price and any other sums which are required in order to complete the Development and for the Vendor to otherwise observe and perform its obligations contained in this Agreement.

[23]     Clause 8 of the agreement makes provision for the first defendant to occupy the units prior to the settlement of the agreement.  Clause 8 provides:

8.        OCCUPATION PRIOR TO THE SETTLEMENT DATE

Should Practical  Completion  have  been  achieved  and  the  Purchaser and Vendor agree that the Purchaser may take occupation of the Residences prior to the Settlement Date the Purchaser shall take possession of the Residences without the Purchaser having to pay rent or any other consideration to the Vendor although without prejudice to the parties’ obligations on the Settlement  Date  and  on  the  basis  that  the  Purchaser  will  insure  the Residences for their full reinstatement value against damage or destruction by all risks reasonably required by the Purchaser from the date possession is taken.

[24]     In January 2003 the first defendant decided it did not wish to purchase the land and take title to the 38 units.  The result was that the parties, on 28 February

2003, entered into a nomination agreement and an agreement to lease.  Under that agreement the first defendant nominated the plaintiff to purchase the land in return for an obligation on the first defendant to continue paying progress payments under the 22 May 2002 agreement and to lease the 38 units on settlement of the 22 May

2002 agreement.   The first defendant was to be reimbursed on settlement of the

22 May 2002 agreement for all progress payments it had made to the plaintiff.

[25]     The  terms  of  the  proposed  lease  were  set  out  in  a  letter  from  the  first defendant to the plaintiff, dated 23 January 2003.  The letter, itself, is not contractual in nature because it provided specifically that the parties would not be bound by its terms until they had entered into the formal contract of lease.  The letter, however, does indicate basic key conditions that the parties would agree to.  The letter refers to the initial rental term and the heading Lessor’s obligations provides:

Maintenance, all insurances, general rates, water/water rates (agreed amount below), body corporate fees.

Under Lessee’s obligations it provided:

Tenancy  management,  vacancy,  tenant  damage,  bad  debts,  water  rates

(above agreed amount).

[26]     Although I was not provided with specific evidence, there is general evidence that the plaintiff assigned its obligations under the nomination agreement.  The effect of the assignment was described as the plaintiff assigning its obligations to take title to the 38 units to Harry Stanley who then nominated a company, All About Finance Ltd, to assume the plaintiff’s obligations under the agreement.

[27]     All  About  Finance  Ltd  subsequently  sold  the  38  units  to  38  different investors.  The precise timing of those transactions is not contained in the evidence before me but would seem to have been completed by 22 June 2004.

[28]     By about 26 November 2003 the 38 units to be built by the plaintiff had achieved practical completion.   The defendant’s tenants began occupying those completed premises on or about 8 December 2003 in anticipation of the formal lease that was signalled in the 28 February 2003 nomination agreement and agreement to lease.

[29]     In late 2003 and early 2004 no individual titles to the 38 units had issued.  A memorandum of lease of the unsubdivided property at 352A Swanson Street, was executed by the plaintiff, as lessor, and the first defendant, as lessee on 20 January

2004.  The effect of this lease was to enable the first defendant to on-lease the 38 units to its tenants.

[30]     The  memorandum  of  lease  of  30 January  2004  is  the  lease  which  was contemplated  by the  28 February 2003  nomination  agreement  and  agreement  to lease.  It is this document on which the plaintiff bases its claim.  I shall analyse its terms shortly.

[31]     Between 30 January 2004 and 21 June 2004 the plaintiff sent out monthly rent statements to the first defendant.  Those statements received no response and no payment by the first defendant.   Correspondence followed.   In August 2008 the Chief Executive of the second defendant wrote advising that the first defendant considered it had no responsibility for the rent demanded.  No specific reasons for that position were advanced.

[32]     The plaintiff completed the subdivision contemplated by the 22 May 2002 agreement in June 2004.  As a result, 38 individual titles were issued: one for each unit.  As a further result:

a)       The first defendant entered into 38 individual leases.  In each case it was the lessee and the lessor was the investor who had acquired title from All About Finance Ltd; and

b)        There was a need to bring to an end the memorandum of lease of

20 January 2004.   Accordingly, a memorandum of surrender of that lease was executed by the plaintiff and the  first defendant.   That document records:

The Lessee surrenders and the Lessor accepts a surrender of the Lease from the surrender date on which day the Lease merges with the Reversion and ceases to have effect.

The surrender date is recorded as 9 June 2004.

[33]     A consequence of the memorandum of lease dated 20 January 2004 is that the first defendant was able to charge rent in respect of those units which it had tenanted.

In addition, the first defendant was able to receive from the Crown the shortfall between market rent for an individual unit and what the tenant actually paid by the combined operation of the Housing Restructuring and Tenancy Matters Act 1992, ss 46 to 49 and s 65.

[34]     The  position  referred  to  in  [33]  was  contemplated  by  clause 8  of  the agreement of the 22 May 2002.  However, it has to be noted that there does not seem to have been a precise application of clause 8 of that agreement.  In particular, the first defendant did not insure the units as clause 8 required.   That is because the plaintiff  was  required  to  pay  insurance  costs  by  the  lease  of  20 January  2004 pursuant to clause 2.1 as set out in the Second Schedule.

[35]     With the settlements that occurred in June 2004:

a)       The plaintiff received the balance of the sale proceeds in respect of its sale   to   All  About   Finance   Ltd.      The   actual  sale   price   was

$6,544,152.30; and

b)The plaintiff paid the first defendant $5,195,970 which was the total of the progress payments made thus implementing the terms of the nomination agreement and agreement to lease of 28 February 2003.

The memorandum of lease dated 20 January 2004

[36]     For the purpose of determining the obligation to make the payments claimed by the  plaintiff,  the  following  specific  provisions  of  the  memorandum  of  lease require a consideration.  They are:

Clause 1.1

1.        RENT AND REVIEW

1.1The Lessee shall pay during the Term the Annual Rent (as reviewed and varied from time to time under this Lease) on the first day of each Month during the Term.  Payments of the Monthly Rent shall be  paid  in  arrears  with  the  first  payment  (being  a  proportionate

Clause 14

payment if applicable) to be paid on the first day of the Month first occurring after the Commencement Date.

14.      ESSENTIALITY OF PAYMENTS

14.1Failure to pay the Monthly Rent on the due date shall be a breach going to the essence of the Lessee’s obligations under this Lease.

14.2The acceptance by the Lessor of arrears or of any late payment of Monthly Rents shall not constitute a waiver of the essentiality of the Lessee’s continuing obligations to pay the Monthly Rents.

[37]     Schedule 1 of the memorandum of lease provides a definition of annual rent and monthly rent as follows:

9.        ANNUAL RENT:

$484,120.00 (inclusive of GST) as reviewed from time to time in accordance with this Lease.

10.      MONTHLY RENT:

$40,343.33 (inclusive of GST) being one twelfth of the Annual Rent as reviewed from time to time in accordance with this Lease (notwithstanding clause 1.1 of the Second Schedule to this Lease the Annual Rent is payable from the date the Payments (as that expression is used in the agreement dated 22 May 2002 and made between the Lessor, the Lessee and Lindsay Royce Ellery) are repaid to the Lessee).

The interpretation issue

[38]     The plaintiff’s entitlement to rent for the period 8 December 2003 to 21 June

2004 requires a consideration of the clauses in the lease dealing with the obligation to pay rent.

[39]     In particular, Mr Hucker saw three specific possibilities in relation to the obligation to pay rent, namely:

a)        That there was an immediate obligation to pay rent on the signing of the lease so that rent was payable as from 8 December 2003; or

b)        The obligation to pay rent for the period 8 December 2003 to 21 June

2004 was deferred so that the actual payment was not required to be made until 21 June 2004; or

c)        That  payment  of  rent  was  suspended  and  the  obligation  did  not commence to run until the payment was made on 21 June 2004.

[40]     I approached this task by, first, reading the lease to see if a clear provisional view as to what was intended is apparent.  Second, I checked that view against the contractual context to see if what appears plain and unambiguous is susceptible to being altered by the contractual context: Vector Gas Ltd v Bay of Plenty Energy Ltd.[3]

Third, I bear in mind that this is a summary judgment application and that the

defendant is only entitled to judgment if I can be satisfied that the abbreviated procedure and affidavit evidence is sufficient to expose all the facts and the legal issues so that a determination of the issue can be made at this summary stage.

[3] Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at 459.

[41]     In  Vector  Gas  Ltd  v  Bay  of  Plenty Energy  Ltd[4]the  Supreme  Court  has recently revisited the approach to contractual interpretation and, in particular, considered the extent to which extrinsic evidence is available as an aid to determine, on an objective basis, what the parties intended by their contract.   Although the judgments have approached the problem from different routes there is broad acceptance that the five principles set out in Investors Compensation Scheme Ltd v

[4] Ibid.

West Bromwich Building Society[5] are appropriate:

[5] Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98 at 114-115 per Lord Hoffmann.

The principles may be summarised as follows.

(1)       Interpretation  is  the  ascertainment  of  the  meaning  which  the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2)The background was famously referred to by Lord Wilberforce as the ‘matrix of fact’, but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the

parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3)The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4)The  meaning  which  a  document  (or  any  other  utterance)  would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352, [1997] 2

WLR 945).

(5)       The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the commonsense proposition that we do not easily accept  that  people  have  made  linguistic  mistakes, particularly  in formal documents. On the other hand, if one would nevertheless conclude  from  the  background  that  something  must  have  gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord  Diplock made  this point  more  vigorously when  he  said  in Antaios Cia Naviera SA v Salen Rederierna AB, The Antaios [1984]

3 All ER 229 at 233, [1985] AC 191 at 201:

‘. . . if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.’”

[42]     Clause 1.1 of the lease creates an obligation on the first defendant to pay annual rent from the first day of each month during the term of the lease.  It further requires payment of monthly rent to be paid in arrears from the first day of the month after commencement.   It is necessary to go to the definition of “annual rent” and “monthly   rent”   contained   in   Schedule   1   to   obtain   the   precise   obligation. Significantly, the definition of “monthly rent” provides:

(notwithstanding clause 1.1 of the Second Schedule to this Lease the Annual

Rent is payable from the date the Payments … are repaid to the Lessee).  [ie

21 June 2004.]

[43]     Clause 1.1, read in conjunction with the definition of “monthly rent” is clear. The annual rent is not payable until the payments under the 22 May 2002 are repaid, that is, it is payable until 21 June 2004.

[44]     The language is clear.  It excludes the requirement to pay during the period before repayment, ie 21 June 2004.  The first interpretation, ie referred to in [39]a), has no support in the language used in the lease at all.

[45]     In determining which of the interpretations set out in [39]b) or [39]c) are appropriate,  the first inquiry requires a  consideration of the word  “payable”  in Schedule 1 and under the heading “monthly rent”.   In particular, does the word “payable” mean “liable to pay” – the interpretation opined for in [39]c) or “due for payment” – the interpretation opined for in [39]b).

[46]     The dictionary definitions are consistent.   Black’s Law Dictionary[6]  defines

[6] Black’s Law Dictionary (7th ed, West Publishing, United States, 1999). 

“payable” as meaning:

Payable, adj.  (Of a sum of money or a negotiable instrument) that is to be paid.  An amount may be payable without being due.  Debts are commonly payable long before they fall due.

[47]     In Stroud’s Judicial Dictionary of Words and Phrases[7] “payable by way of rent” was held to mean “rent the tenant is under an enforceable obligation to pay”.

[7] Stroud’s Judicial Dictionary of Words and Phrases (7th ed, Sweet and Maxwell, London, 2006) at

1970.

[48]     What I held in my judgment of 31 March 2010 was that there is a difference between the point at which a liability to pay arises and the point at which the debtor is required to discharge that liability by of way of payment.   The first situation is when the debt is payable; the second is when it is due.

[49]     The preliminary view I reach, then, is that the rent was not payable for the period up to and including 21 June 2004.

[50]     I next  consider whether  that  view  is  susceptible of  being altered  by the contractual context.   I have outlined extensively in this judgment that contractual context.  It is not suggested in the submissions before me that there is any particular credibility issue or other material that I should look at to ascertain what the parties intended by the lease.  I can find nothing in the contractual context to indicate that the parties meant anything other than a total suspension of the obligation to make payments of rent until 21 June 2004.  Although their previous contract was not the basis the lease that was entered into, it at least gives an objective assessment of what the parties’ intention were at the time that document was executed.  It is plain, when one considers clause 8 of that the document that the parties did not intend that rent be paid if the capital payment had not been repaid.  I can find nothing that would justify any change to that position in the documents that were executed.

[51]     I do not accept that there is an arguable basis for the proposition that all that was intended by Item 10 of the First Schedule was a deferment of the due date for payment.

[52]     Mr Hucker questioned whether there would ever have been any payments due under the lease, having regard to the surrender of it.  That matter is answered quite simply.  The surrender of the lease reflected the plaintiff’s desire to sell each of the titles which had followed the subdivision to individual investors.  The surrender of lease was replaced by 38 individual leases.  That permitted the sale to the individual investors.  I cannot see that that position and, in particular, the surrender of the lease adds any support for the plaintiff’s argument at all.

[53]     Mr Hucker next referred to the letter of 23 January 2003.  That letter, in my view, adds nothing to the argument.  The letter, itself, makes it plain that it does not provide a legal basis and is dependent upon the parties entering into a formal contractual document.  When it is read it gives no assistance whatsoever as to how the lease that was actually entered into should be interpreted.

[54]     Mr Hucker next referred to the fact that the defendant was able to obtain a rent subsidy.  In my view, that does not assist his client’s position at all.  If anything, what is relevant is the fact that the defendant was able to lease the units to its tenants. As I recorded in [23] in my judgment of 31 March 2010, there was, here, an obvious advantage to the plaintiff in seeing that rent arrangements with tenants of the defendant were in place when it came to the plaintiff selling off the individual units. Those units were being sold to investors.   They would have been particularly interested in the rental stream income coming from the investment properties they were purchasing.  That, in turn, would clearly affect the price that they would pay the plaintiff for the units being purchased.  That is the most likely and credible reason why the plaintiff would have wanted to see the units rented and a clear income stream established.

[55]     I am satisfied that the terms of the lease are clear.  I am further satisfied that there is nothing in the contractual context that suggests that any other interpretation is appropriate or has any grounds of support for it.  I am also satisfied that there is no risk of any injustice by simply relying on the summary judgment procedure and the affidavit  evidence  that  has  been  adduced  to  me  in  determining  the  question  of whether there is liability for rent in the period concerned.  There just does not seem to be any credible line of inquiry that would produce a basis for some other contractual intention being applied to this lease.

[56]     I therefore conclude that the first defendant is entitled to summary judgment.

Judgment

[57]     I enter judgment for the first defendant.

Costs

[58]     At the conclusion of the hearing I canvassed with counsel what would happen depending upon the outcome of this case.   In the circumstances, no argument was advanced that the answer should be other than that costs should be awarded on both

applications  for  summary judgment  based  on  Category 2  Band B  together  with

disbursements as fixed by the Registrar.  I order that costs be paid accordingly.

JA Faire

Associate Judge