Feck v Parohinog
[2016] NZHC 2246
•23 September 2016
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2013-419-813 [2016] NZHC 2246
BETWEEN DIWA LAPURA FECK
Plaintiff
AND
ELSA LAPURA PAROHINOG Defendant
Hearing: 18 August 2016 Appearances:
S A McKenna and J A Alchin-Boller for the Plaintiff
S N Cameron, litigation guardian for the DefendantJudgment:
23 September 2016
JUDGMENT OF MUIR J
This judgment was delivered by me on Friday 23 September at 10.00 am
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………
Counsel/Solicitors:
S A McKenna, Grantham Law, Hamilton
J A Alchin-Boller, Grantham Law, Hamilton
S N Cameron, Barrister, Hamilton
FECK v PAROHINOG [2016] NZHC 2246 [23 September 2016]
Introduction
[1] The plaintiff and defendant are respectively aunt and niece. Both are Filipino New Zealanders. They were formerly co-owners in equal shares of a Hamilton property which has since been sold. The net proceeds of sale after repayment of mortgages is a modest $92,236.54 of which $30,000 has already been paid to the plaintiff in terms of interim orders. They cannot agree to the division of the balance of the proceeds. Having formerly been close, they now no longer speak. The defendant is consumed by conspiracy theories to the point that a litigation guardian was appointed in respect of the proceedings. She blames the plaintiff for the loss of her former job with ANZ Bank. It was clear from her oral evidence that she regards her claim to 50 per cent of the proceeds as in part recompense for her lost career.
[2] By agreement between counsel, the sole issue which I am required to determine is a factual one in terms “was the property transferred to the defendant on terms that she was to hold her interest as tenant in common in equal shares on trust for the plaintiff”.
Background
[3] In 1997 the plaintiff and her then husband, Mr Michael Feck, purchased a property at 9 Edwin Street, St Andrews, Hamilton. They had two young children at the time, Ashley born 1990 and Shane born 1993, in respect of whom Ms Feck was the primary caregiver.
[4] In early 2007 the plaintiff and her husband began to experience difficulties in their marriage and agreed to an amicable separation. As at the date of separation the property had an agreed value of $368,000. Existing bank debt was $126,621 with the result that Mr and Mrs Feck had equity of approximately $120,000 each.
[5] Although the children were at that stage teenagers Mrs Feck did not want to disrupt their home life and was anxious to purchase, if she could, her husband’s share in the property so that she could remain living there with the children post- separation. In order to effect that purchase and refinance existing debt, total borrowings of approximately $247,000 were required.
[6] At the time the plaintiff had a job with Health Care New Zealand Limited as a relief support worker. Although on occasions she would work fulltime (and indeed in excess of 40 hours per week) her minimum guaranteed hours were 20 per week only, at a rate of $12 per hour. She did not therefore consider herself in a financial position to undertake the purchase and assume existing outgoings.
[7] At about the same time the defendant had separated from her partner. She was mother to one young child, E, and living by herself in rental accommodation in Auckland. Both aunt and niece were therefore facing challenging circumstances. The plaintiff saw in this an opportunity for mutual advantage. She thought that if her niece were to purchase Mr Feck’s interest in the property they could live together in Hamilton and provide each other with support.
[8] The plaintiff and defendant had preliminary discussions. The idea was one which was encouraged by relatives in the Philippines whom the defendant visited in early 2007.
[9] Although initial discussions contemplated an outright purchase by the defendant of Mr Feck’s share, she had no significant savings (apart from those in her ANZ superannuation scheme comprising approximately $36,000). She also had a personal loan through the ANZ Bank in approximately the same amount. However, the defendant did have access to favourable lending rates from her employer and the equity which the plaintiff had in the property facilitated borrowings sufficient to purchase Mr Feck’s share and refinance the existing loan provided the joint incomes of the plaintiff and defendant were identified as available to service it.
[10] In early June 2007 ANZ agreed to advance a total amount of $334,750 to the plaintiff and defendant. On the 10th of that month a Lock Rate Agreement was signed by them.
[11] The ANZ offer provided for four loans as follows: Loan 1 $115,000.00 at 8.8 per cent
Loan 2 $ 80,741.00 at 8.8 per cent Loan 3 $103,009.00 at 7.72 per cent Loan 4 $ 36,000.00 at 7.72 per cent
[12] The purpose of the $36,000 loan was to refinance the defendant’s existing
staff loan at the preferential rate available for secured lending.
[13] The balance of the loans were required to refinance the existing debt, purchase Mr Feck’s interest in the property and meet relevant fees and disbursements. However, they exceeded by approximately $50,000 the amount required for those purposes. That $50,000 was ultimately disbursed to the plaintiff. There is disagreement between the parties as to the purpose of that additional loan. The defendant says it was to provide the plaintiff with deposit monies for a further property that the parties might subsequently purchase in Auckland. The plaintiff disputes that. Ultimately the monies appear to have been part used by the plaintiff for travel and in part to provide her with what she describes as a “nest egg”.
[14] I am satisfied that at the time the Rate Lock Agreement was entered into, the agreement between the parties was that the defendant would move to Hamilton with her son, would live with the plaintiff and her boys, that she would contribute nothing in cash to the purchase of Mr Feck’s interest in the property and would be responsible only for servicing the $36,000 of refinanced personal debt secured against the property. Beyond that there is no reliable evidence as to the basis on which the parties at that stage intended that arrangements were to proceed, and in particular as to how the property would thereafter be owned and/or in what shares.
[15] Preliminary discussions appear to have been held about the establishment of a Family Trust – eponymously named the Lapura Trust after the middle names of both plaintiff and defendant. The defendant says they had plans to start a business
renovating properties and using the equity in the Hamilton property as a spring board. The plaintiff denies that.
[16] In any event in mid-July 2007 the parties plans to live together in Hamilton received a significant setback as a result of the defendant’s partner obtaining interim orders from the Family Court preventing the removal of E from Auckland. Arrangements for the purchase of Mr Feck’s share were, however, by that stage well advanced and, with the prospect that the Family Court might ultimately be persuaded to allow relocation to Hamilton, the parties decided to continue with their plans.
[17] On 31 July Ms Feck and her husband entered into a written separation, custody, maintenance and relationship property agreement which provided in cl 4.1 that:
The relationship home at 9 Edwin Street, St Andrews, Hamilton is to be sold to Diwa and her niece Elsa Lapura Parohinog in equal shares for the agreed price of $368,000.
[18] This agreement was forwarded by solicitor Ms Liliana Bracanov, who was acting for both Ms Feck and Ms Parohinog, to ANZ Bank on 31 July 2007. On the same date Ms Bracanov wrote to Ms Parohinog (there having been earlier email exchanges between them) in terms critical to my assessment. She said:
Hi Elsa
Diwa has signed the relationship agreement today.
We are expecting the sale agreement to come in tomorrow
However I have faxed to Sean Morrison [ANZ Mobile Manager] the signed Relationship agreement and asked him to prepare docs on that basis for settlement on 3 August 2007.
I have also asked him to advise if you can execute the docs in AKL without
solicitor’s disclosure.
I will need to email you an authority to accept the transfer which I understand is to be ¾ share to Diwa and ¼ to you and that you now holding that share in trust for financial arrangements to secure the lending but Diwa will actually be paying all outgoings. We can draft an agreement to reflect this arrangement after the settlement.
Regards
Liliana Bracanov Solicitor (emphasis added)
[19] On 1 August 2007 Ms Parohinog signed the four relevant ANZ Loan Agreements at the ANZ. On the same day Ms Bracanov received the completed sale and purchase agreement referred to in her email of 31 July. This was signed either that day or thereabouts by both Ms Feck and Ms Parohinog.
[20] The completed loan documents were then forwarded by ANZ to Ms Bracanov and arrangements made by Ms Feck to sign. She did so at a meeting on 6 August
2007. That meeting was attended by Ms Feck and also by Ms Parohinog. However, the latter was under time pressure to return to Auckland (Ms Bracanov’s office being in Hamilton) to collect her son. In evidence Ms Feck agreed that the period she and Ms Parohinog were both present was “very very short” and probably in the order of
10 to 15 minutes only. I accept also the meeting continued in Ms Parohinog’s
absence.
[21] Relevantly, Ms Bracanov prepared a handwritten file note dated 6 August
2007 which states the following:
Family Agreement 6/8/07
Diwa FECK
&
Elsa PAROHINENOG
- Title reflect 50 % tenants in Common Share
- For financial arrangements
Elsa holds this on trust for DIWA
- For this consideration the parties agree that the property can be used as future security & that the parties will execute any documents that may be required by the lender.
- Elsa has borrowed $61,000.00 for her own debt consolidation & other.
She is responsible for this share of the mortgage. She has no ownership of the property.
417.26 p. fln $115 K 342.52
$103,009 292.16
80,741
119.20
36,000
- Another $200 for hole in the wall. Son’s room needs to be fixed.
- Supply our invoice for all costs. (emphasis added)
[22] Ms Parohinog says that when she went to the meeting she assumed it would be to sign documents associated with the establishment of the Lapura Family Trust and when it was apparent these were not ready she returned to Auckland.
[23] Ms Feck concedes that some of the matters referred to in Ms Bracanov’s file note were not the subject of discussion between the parties on 6 August because there was insufficient time, but her case is that the file note nevertheless reflects the arrangements previously agreed between them with the exception that up until 6
August she had thought only a quarter share in the property was to be transferred to Ms Parohinog but was told the bank requirement was for Ms Parohinog to be a tenant in common in equal shares. She says that change was not ultimately material to her because Ms Parohinog’s share was, in any event, to be held in trust for Ms Feck. Ms Feck’s concession that not all the file note reflects tripartite discussions that day is reinforced by the fact that it refers to Ms Parohinog borrowing $61,000 for her own debt consolidation. The relevant amount was in fact $36,000 as reflected subsequently in the file note. Had Ms Parohinog been present when that issue was discussed it is likely she would have corrected this error.
[24] On 10 August 2007 the ANZ made total advances of $334,750 under the four loans. Of this $36,000 was applied in repayment of Ms Parohinog’s personal loan and $298,750 was paid to Ms Bracanov’s firm Frankton Law. That sum was in turn disbursed as follows:
(a) $247,282.73 in settlement of the purchase of Mr Feck’s share and
repayment of the previous mortgage.
(b) $1,119.50 in payment of Franklin Law’s fees and disbursements.
(c) The balance of $50,347.77 was paid to the plaintiff’s account.
[25] The transfer to Ms Feck and Ms Parohinog together with the mortgage to
ANZ Bank was then registered. This occurred on 15 August 2007.
[26] On the same date Ms Bracanov sent a draft Arrangement in the form of a Deed to Ms Feck. It is not apparent whether this was simultaneously forwarded to Ms Parohinog.1 The draft recorded in its “Operative Part” that Ms Feck had transferred a 50 per cent undivided share in the property [to Ms Parohinog] and that the parties had entered into loan agreements with the ANZ in respect of total borrowings of $334,750 for a 30 year term. It stated that Ms Feck was to be responsible for all payments of principal and interest on $298,750 of this borrowing and that Ms Parohinog was responsible for servicing the $36,000 loan which had
been used to extinguish her personal debt. It further stated that Ms Feck was to be responsible for the payment of all outgoings on the property including but not limited to rates, insurance and maintenance. Significantly, proposed recitals 5, 6 and 7, stated:
5. Elsa [Parohinog] agreed to assist Diwa [Feck] to raise a loan to buy
out Michael Feck’s half share.
6.In return Diwa has agreed to transfer Elsa a 50 per cent share in the property at 9 Edwin Street, Hamilton on trust.
7.In return Diwa has agreed to allow Elsa to use the property as future security as 50 per cent owner.
1 Mr McKenna submits that this was the case. Nothing turns on the point as it is apparent that, from whatever source, Ms Parohinog came into possession of a copy of the draft at about that time. However, she declined to sign it.
[27] Significantly also Clause 5 of the Operative Part was in terms:
The parties expressly declare that the transfer to Elsa is pursuant to the provisions of this Agreement and does not in any way constitute any element of gift to Elsa.
[28] Consistently with the arrangements referred to in the proposed Deed, Ms Feck commenced servicing all except $36,000 of the mortgage and Ms Parohinog the $36,000. A joint account was established into which the respective parties made payments and from which the loan repayments were made. In total Ms Parohinog made payments of $9,550 net to that account. To the same account Ms Feck made payments of $82,168.19. In addition, Ms Parohinog made direct payments against her part of the liability of $5,696.74. This was after relations between the parties had deteriorated to a point where operation of their joint facilities was no longer practical.
[29] From the time of the settlement until approximately June 2010 Ms Parohinog would frequently travel to Hamilton with E and spend weekends in the home. Ms Feck’s two sons had respectively moved out in August 2007 and March 2008 and E had his own bedroom. Invariably, Ms Parohinog would spend money on groceries while there. She said this was in the order of $150 to $180 per week but I do not consider her contribution in that respect was any greater than justified by her own needs and that of her son and in the context of an extended family relationship.
[30] On 26 August 2007 Ms Parohinog entered into an agreement to purchase in her own name a property at Rippon Crescent in Meadowbank. Ultimately, however, she did not proceed with that purchase. She says that the purchase was intended to be on behalf of herself and Ms Feck and that this was part of a grander scheme for co-ownership of various properties by them. However, the agreement did not identify Ms Feck as a proposed purchaser nor Ms Parohinog as having rights of nomination. I consider the purchaser more likely to reflect the rights reserved to Ms Parohinog in recital 7 of the proposed Deed.
[31] As should have been recognised as a risk throughout, Ms Parohinog declined to sign the draft Deed. She said it did not reflect the agreement between the parties.
[32] Relations between the parties subsequently deteriorated and Ms Parohinog deposes that the last time she stayed in the house was on 8 May 2010. The parties have not in fact spoken since July 2010. From correspondence forwarded by Ms Parohinog to Ms Feck’s solicitor on 26 February 2013 it is apparent that the reasons for the breakdown of the relationship had their origins in the termination of Ms Parohinog’s job with ANZ Bank in 2009. She held Ms Feck responsible for this saying that she had “ruined my life”. There is no evidence before the Court to suggest Ms Feck undermined Ms Parohinog to her employer nor that she “defamed” her as alleged in the correspondence.
[33] That letter was sent in response to a request by Ms Feck’s solicitors that Ms Parohinog agree to a sale of the property. This had become necessary on account of Ms Feck’s inability to continue to service the mortgages, despite receipt of additional income by her from boarders studying in the Waikato. Ultimately Ms Parohinog agreed to the sale. In the result, all debt secured against the property was discharged including the balance of the loan raised to retire Ms Parohinog’s personal debt.2
[34] Ms Parohinog denies that her nominal 50 per cent share of the net proceeds of sale is held on trust for Ms Feck. She says that the property was purchased “equally to share and for the benefit of [Ashley, Shane and E]”.
My findings
[35] Although neither party advanced an account which was entirely coherent, the following sets out my findings of fact and reasons for them.
[36] Ms Parohinog’s approach to the litigation is premised on a number of misconceptions and/or irrational beliefs. That is most clearly demonstrated by her response to a question from me towards the conclusion of her cross-examination and directed to why I should conclude Ms Feck was prepared effectively to gift half of
her equity in the property to her.
2 The amount required to discharge Ms Parohinog’s portion of the loan is not before the Court. It is likely to have been in the order of $25,000 to $30,000 having regard to the amount borrowed, repayments and term of loan.
… so it is not fair that it goes everything to Diwa because I sacrifice, my son and I sacrifice to live in a bedroom so we can service, we can meet all the servicing of the mortgage and also what I am not happy with is my job is affected by this because she has been complain to the bank and I got a copy of the letter.
[37] To the contrary, the only contribution towards service of the mortgage was in respect of the portion which substituted for Ms Parohinog’s personal loan. She made no other contribution to the property by way of repairs, maintenance, rates, insurance or debt servicing. Her monthly outgoings were in fact lower for the transaction than without it, by virtue of the reduced interest rate and longer repayment term available in the context of a secured facility. Contributions to food on the weekends she spent in Hamilton were in my view no more than would be expected for herself and her son and were not, in any event, contributions to the property. To the extent grievances are alleged against Ms Feck on account of the loss of Ms Parohinog’s job they are not based in facts established before me. In any event, I would have regarded such allegations as irrelevant.
[38] There were obvious commensal benefits in the initial proposal that Ms Parohinog purchase a 50 per cent interest in the property and use her ANZ associations to simultaneously refinance the existing debt. There was the ability for each of Ms Parohinog and Ms Feck to support each other in their solo parenthood. There was the support and companionship which Ms Feck’s two boys could provide for Ms Parohinog’s young son. The ANZ offered concessionary rates to employees and without some such arrangement combining the incomes of Ms Feck and Ms Parohinog for loan approval purposes I accept that Ms Feck would have faced difficulties in purchasing her husband’s share of the property. That was the very reason she approached Ms Parohinog.
[39] However, Ms Parohinog ultimately decided against, or on account of her absence of equity had no option but to accept, that she was not in a position to buy a half share outright in her own name.
[40] The prospect of her having a stable home environment in Hamilton with supportive relatives was nevertheless appealing and particularly in circumstances where her only servicing requirements related to the $36,000 she already owed.
Moreover, with a move to Hamilton there was the ability to save on the rental costs she was paying in Auckland.
[41] Although the Family Court’s interim orders frustrated those plans Ms Parohinog remained hopeful that when matters were finally determined she would be able to move to Hamilton with her son and for these reasons (and no doubt a desire to assist her aunt to whom she was at that stage close) she agreed to continue with the transaction despite the Court’s orders.
[42] I accept that the parties did have some discussions about the possible establishment of the Lapura Trust. But no conclusion was reached and nor was Ms Bracanov instructed to prepare trust documents at any stage prior to settlement of the Edwin Street purchase. There was clearly much to be discussed and agreed in that context, including the status of beneficiaries (discretionary and otherwise), powers of appointment et cetera. There is no obvious reason why Ms Feck, with obligations to her own children, would simply pass her equity in Edwin Street to a trust of which her great nephew was also a beneficiary without ensuring her own children’s position was adequately protected. I conclude that discussions about a family trust were at a very preliminary stage and that this was an issue which was “parked” to be revisited later and possibly in the context of other property purchases.
[43] Ms Bracanov’s only instructions prior to settlement as recorded in her file note of 6 August were to prepare a so-called “Family Agreement” which would have seen the parties hold the property as tenants in common as to 50 per cent shares but with Ms Parohinog’s share held on Trust for Ms Feck.
[44] That was, having regard to Ms Parohinog’s servicing obligations, a predictable and equitable arrangement. She had paid nothing towards purchase of the property and although her employment with ANZ had obviously been useful in securing finance and at a competitive rate, she was also securing a number of personal benefits from the transaction. For example, I accept as having been agreed between the parties that Ms Parohinog could borrow against her nominal interest in the property for the purposes of other acquisitions and that it was this potential which was referenced in her attempts to purchase an Auckland property in her own
name late in August 2007. There was also, as I have noted, the prospect of Waikato accommodation if the Family Court’s interim orders could be overturned and the lower interest rate Ms Parohinog secured for her (formerly) personal loan.
[45] Ms Parohinog was not a party to all the discussions which took place at Ms Bracanov’s office on 6 August and Ms Feck gave conflicting evidence3 about whether Ms Parohinog was present when the topic of her holding her interest “on trust for Diwa” was discussed. Nevertheless, a trust arrangement had been clearly telegraphed in Ms Bracanov’s email to Mrs Parohinog of 31 July.
[46] Although this email does not specifically refer to a trust in favour of Ms Feck (as opposed to a family trust of which the three children were beneficiaries), I conclude that it was in this sense that it was both intended by Ms Feck and Ms Bracanov and understood by Ms Parohinog. That conclusion is in my view supported by the qualifying words that the trust is “for financial arrangements to secure the lending but Diwa [Ms Feck] will actually be paying all outgoings”. Payment of all the outgoings by Ms Feck made sense if the share transferred was to be held on trust for her as a simple expedient to secure the “financial arrangements”. It made no sense otherwise. Responsibly, Ms Cameron’s submissions acknowledge this as the proper interpretation of the email. However, she says the proposal was never agreed to.
[47] In my view when she entered into the agreement for sale and purchase the day after receipt of Ms Bracanov’s email, Ms Parohinog must be taken as having done so on the basis of a trust in favour of Ms Feck, as the email was intended and understood to mean. That was certainly as Ms Feck understood the position to be (as reflected in the 6 August file note) and reasonably so in my view. No matter what inconclusive discussions may have occurred between the parties between execution of the agreement and 6 August and no matter what issues may potentially have remained for further review after Ms Parohinog left the meeting on that date, in my view, she accepted by conduct, at the point she entered into the agreement for sale
and purchase, that whatever share she took in the context of the “financial
3 NOE 65/29-31 and 75/12-17.
arrangements” predicated in the email of 31 July it would be on trust for Ms Feck.4
Nor was there any subsequent agreement in substitution for that arrangement. The file note of 6 August is conclusive in that respect. I find therefore the necessary consensus to sustain the plaintiff’s claim to a common intention constructive trust.5
[48] The imperative for such a trust was even greater when Ms Parohinog’s legal registered share increased from 25 per cent to 50 per cent, particularly given the fact that Ms Parohinog’s financial contributions continued to be limited to servicing her own refinanced debt. I find that the trust arrangements which Ms Parohinog agreed to by conduct at the time she entered into the agreement for sale and purchase (at which point she was to hold a 25 per cent share on trust for Ms Feck) were, by her subsequent conduct in accepting the transfer of a 50 per cent share, similarly applicable to that share.
[49] Moreover, Ms Parohinog’s actions in the period which followed were consistent with the tenor of the arrangements described in the file note of 6 August and set out (in terms of the trust arrangement) in the email of 31 July. In particular she:
(a) made no financial contribution to purchase of the property and the only debt serviced by her was Loan 4 for $36,000;6
4 I do not regard Ms Feck’s acknowledgment (NOE 64/9) that as at 6 August “there really was no mutual agreement … about what was going to happen” as detracting from this conclusion as, in context, it was a statement about what may or may not have been agreed in discussions. Proper allowance must, in my view, be made for Ms Feck’s lack of sophistication in relation to financial matters and limited ability to express herself coherently in English both of which were obvious to me.
5 Harvey v Beveridge [2014] NZCA 72 at [27]. In that case what was alleged was a bare promise that the property was held on trust. There was no equivalent of the agreement for sale and
purchase and transfer in this case. A finding of express trust is precluded by the writing
requirements of s 49A(3) of the Property Law Act 1952, being the legislation applicable at the time (see now the Property Law Act 2007, s 25(2)). However, had I not found a common intention constructive trust, I would have been prepared to find acts of part performance supporting an oral express trust, including transfer of the land, consolidation of Ms Parohinog’s personal debt and the servicing of the same. Section 49A(5)(d) preserves the operation of part performance without a written agreement.
6 The defendant’s payments to the joint account commenced at the rate of $120 per week against payments on Loan 4 of $119.70 per week. Periodically, the loan payments were adjusted to reflect changes in interest rates and the defendant likewise adjusted her payments to the joint account.
(b)continued to reside in the property periodically for approximately the next three years; and
(c) entered into an agreement for sale and purchase of an Auckland property in her own name for which the cross collateralisation agreed by the parties would have been necessary.
[50] No claim is pursued by Ms Feck for repayment of Loan 4 from the proceeds of sale. Moreover a Legal Aid debt incurred by Ms Parohinog and secured on the property in the amount of $2,230 has likewise been discharged from the proceeds of sale. The benefits derived by Ms Parohinog from the transaction have, in that sense, been significant.
[51] I regard as significant the fact that, although Ms Parohinog deposed at [13] of her affidavit that “we agreed to buy the house and it was to be placed in a trust with a trust deed named the Lapura Family Trust”, the position she adopts through her litigation guardian is that she is entitled to rely on her legal interest and thus be paid half of the proceeds of sale in her personal capacity. The Court should not be expected to condone such an outcome.
Result
[52] For the foregoing reasons I answer the question posed to me in the affirmative, with the result that I declare that the defendant holds her share of the net proceeds of sale of the property located at 9 Edwin Street, St Andrews, Hamilton on trust for the plaintiff.
[53] I further order that, subject to the payment required in terms of [54] below, the net proceeds of sale be paid to the plaintiff exclusively.
[54] I note the indemnity which has been provided by the plaintiff for payment of Ms Cameron’s fees from the sale proceeds and Ms Cameron’s undertaking to invoice at the legal aid rate of $134 per hour.
[55] If any question of costs arises counsel are to file memoranda on the following timetable:
Plaintiff: within 21 days of judgment
Defendant: within 28 days of judgment
Such memoranda are to be exchanged in advance to limit areas of differences.
[56] Given the nature of the defendant’s representation and her evident financial circumstances, the parties may consider that costs appropriately lie where they fall.
[57] Leave is reserved to the plaintiff to apply for any orders consequential on
[52] and [53] herein.
Muir J
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