Forest Holdings Limited v Mangatu Blocks Incorporation

[2019] NZHC 1772

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2016-470-158

[2019] NZHC 1772

BETWEEN

FOREST HOLDINGS LIMITED

Plaintiff/Respondent

AND

MANGATU BLOCKS INCORPORATION

Defendant/Applicant

Hearing:	On the papers
Counsel:	ZG Kennedy and MD Toulmin for plaintiff/respondent MD Branch for defendant/applicant
Judgment:	26 July 2019

JUDGMENT OF FITZGERALD J

[As to stay of enforcement]

This judgment was delivered by me on 26 July 2019 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Harkness Henry, Hamilton

MinterEllisonRuddWatts, Auckland

Forest Holdings Limited v Mangatu Blocks Incorporation [2019] NZHC 1772 [26 July 2019]

Introduction

[1]    In July 2018, the defendant/applicant (Mangatu) was ordered by the High Court to pay the plaintiff/respondent (FHL) approximately $30,000 in costs. The costs related to FHL’s successful appeal on a question of law, arising out of an award in arbitration proceedings in which the parties are presently involved. Mangatu has not paid the costs, but nor, until recently, has FHL taken steps to enforce the costs judgment in its favour.

[2]    FHL now wishes to enforce the costs judgment and in May of this year, obtained a sale order issued by the High Court.  Mangatu seeks an order pursuant to  r 17.29 of the High Court Rules staying the sale order, and all other enforcement steps otherwise available to FHL in relation to the costs judgment.

[3]    The background to Mangatu’s application is a little complicated and is set out in more detail later in this judgment. In summary, however, Mangatu and FHL have been embroiled in arbitration proceedings since around 2013. An appeal by FHL to this Court in 2016 on a question of law arising from one of the arbitrator’s decisions was determined in FHL’s favour. By a separate costs judgment in 2018, it was awarded the $30,000 in costs. Mangatu says it has an extant costs claim against FHL in the arbitration proceedings totalling some $400,000. It therefore says there would be a serious miscarriage of justice if it were required to pay the $30,000 of costs to FHL now, which will deprive it of being able to set-off its own (more substantial) costs claim in the arbitration.

[4]    The parties filed helpful written submissions on Mangatu’s application, which they were content for me to determine on the papers.

Factual background – more details

[5]    Mangatu and FHL have been parties to a dispute which has been the subject of arbitration proceedings since late 2013. The dispute concerns Mangatu’s termination of a Forestry Right (the Forestry Right) on account of FHL’s breaches. While I do not profess (or need) to have a detailed knowledge of the underlying claims for the purpose of the present application, the arbitrator found that Mangatu’s termination of the

Forestry Right amounted to contractual repudiation. This was because it did not comply with a 120-day notice period for termination. A key issue in the arbitration has been, therefore, what damages are payable to FHL as a result.

[6]    The arbitrator’s finding of contractual repudiation was made in an award on liability dated 8 June 2016. In a later award (described as a “decision on preliminary damages issue”) dated 29 July 2016, the arbitrator set out his proposed approach to resolving the causation and loss issues on FHL’s damages claim. He stated that, on the approach he proposed to adopt, it was likely FHL would recover nominal damages only. FHL did not agree with the arbitrator’s decision. It successfully appealed to the High Court against the arbitrator’s award (the First Appeal). Although he granted the appeal, Heath J reserved costs in relation to the First Appeal (and other High Court applications), so as not to foreclose an argument for Mangatu that “[FHL’s] appellate exercise had been pointless”.1

[7]    In a subsequent  award  described  as  a  “further  ruling on  damages”  dated 7 March 2018 (Final Award), and after hearing evidence on causation and loss, the arbitrator found that Mangatu was liable for nominal damages only. In other words, despite FHL’s First Appeal being successful, the arbitrator remained of the view that nominal damages only arose.

[8]    Following Heath J’s retirement, the question of the reserved costs on his 2016 judgment on the First Appeal was referred to Woolford J. He delivered a judgment on costs on 18 July 2018.2 Mangatu submitted that FHL’s appeal had in fact been pointless (given the arbitrator had confirmed that FHL was entitled to nominal damages only). It therefore sought costs on the First Appeal. Woolford J disagreed, and fixed costs in favour of FHL in the sum of approximately $30,000. It is enforcement of Woolford J’s costs judgment which Mangatu now seeks to stay.

[9]    FHL had in the interim sought leave to appeal to the High Court against the arbitrator’s Final Award. On 12 December 2018, Courtney J granted leave to appeal.3

1      Forest Holdings Ltd v Mangatu Blocks Incorporation [2017] NZHC 1174 at [28].

2      Forest Holdings Ltd v Mangatu Blocks Incorporation [2018] NZHC 1782.

3      Forest Holdings Ltd v Mangatu Blocks Incorporation [2018] NZHC 3272.

In her judgment, she concluded that the arbitrator had erred in the standard of proof to be applied to the assessment of causation.

[10]   FHL has confirmed that it will now progress its appeal against the Final Award. Timetabling orders have been made and a hearing on 28 August 2019 allocated.

[11]   As noted, Woolford J’s cost judgment on the First Appeal was delivered on 18 July 2018. The following day, FHL made demand on Mangatu for payment. In response, Mangatu suggested the costs be paid into Mangatu’s solicitors’ trust account, pending determination of Mangatu’s costs claims in the arbitration. It proposed that if the arbitrator ordered costs in FHL’s favour, or made an order that costs lie where they fall, the amounts held in the trust account would be immediately paid to FHL.

[12]   FHL did not accept that proposal. It reserved its right to have the costs judgment executed without notice. Consistent with this, but almost a year later,  on 14 May 2019, FHL obtained a without notice sale order from the High Court. This was served on Mangatu at its premises by bailiff on 23 May 2019. Those steps led to Mangatu’s application for a stay.

Mangatu’s costs application in the arbitration

[13]   Before turning to the parties’ submissions on the stay application, it is necessary to say a little more about Mangatu’s costs claim in the arbitration.

[14]   As noted, while FHL was successful in the arbitration on liability, in his Final Award, the arbitrator concluded FHL was entitled to nominal damages only. Subject to the outcome of FHL’s second appeal (but acknowledging that Courtney J has already identified an error in the arbitrator’s approach to assessing causation), FHL submits that its damages claim is yet to be considered on a final basis. It says that assuming its appeal in the High Court is successful, a substantial damages award “seems inevitable”.

[15]   At the conclusion of the Final Award, the arbitrator did not set a timetable for consideration of costs, given his understanding that FHL was technically insolvent.4 Mangatu therefore sought timetable orders for filing submissions on costs. The arbitrator responded that “Mangatu is entitled to have costs considered”.

[16]   Mangatu accordingly filed its costs submissions. It seeks costs in the arbitration of some $400,000. Mangatu also submits on the application before this Court that the arbitrator has indicated a preliminary view that it is at least entitled to costs on two interlocutory applications, which total approximately $30,000.

[17]   However, costs in the arbitration have not yet been considered or determined. Not unreasonably, the arbitrator does not propose to deal with costs until FHL’s second appeal has been determined by the High Court. On 11 October 2018, he stated:5

On reflection I doubt the efficacy of determining costs until the High Court has given its decision. If the appeal succeeds it may not be appropriate to determine costs until the arbitration has run its course or the matter is otherwise resolved … If FHL succeeds with its appeal the matters relevant to a costs award will be very different.

[Emphasis added]

[18]   When and on what basis costs in the arbitration proceedings might be determined is therefore unknown.

Legal principles

[19]   Mangatu’s present application is made pursuant to r 17.29 of the High Court Rules. This provides:

17.29   Stay of enforcement

A liable party may apply to the court for a stay of enforcement or other relief against the judgment upon the ground that a substantial miscarriage of justice would be likely to result if the judgment were enforced, and the court may give relief on just terms.

4      Which on its face might indicate that, at that time at least, the arbitrator envisaged a costs award

against FHL.

5      Minute in arbitral proceedings dated 11 October 2018.

[20]   White J in Bay Cities Real Estate Ltd v Re/Max New Zealand Ltd conveniently summarised the principles to be applied to such applications:6

(a)The onus is on an applicant for the stay of enforcement to persuade the Court to exercise its discretion.

(b)A "substantial miscarriage of justice" must be involved bearing in mind that "substantial miscarriage" means "something more than minor or insubstantial" and that it is not a substantial miscarriage of justice for a party that has had the use of another's money to be required to repay that money or for a creditor to be able to take whatever  steps  it  sees  fit  to  pursue  recovery:  Marac   Finance   v Twilight Trustee.

(c)A substantial miscarriage of justice must be "likely to result" if the judgment were enforced. It is not sufficient that a miscarriage of justice "might" result; it must be "likely to result", i.e. probably result: Crawford and Yelcich v Odin Enterprises Pty Ltd.

(d)The Court must seek to recognise and reconcile the conflicting interests of both parties in such manner as will best serve the overall interests of justice: Enright at 246. A balancing exercise is involved.

(e)A miscarriage of justice is unlikely to result where a party is required to pay to another an amount that is owing to it and the paying party is free to pursue its claim against the other party in the normal way: Econotek Construction Ltd v Kale.

(f)Other factors which may be relevant include: the apparent strength or weakness of the claim; the ability of the applicant for the stay to meet the judgment that is being enforced; and the potential bankruptcy or liquidation of a party seeking to pursue an apparently strong claim: Roberts' Family Investments Ltd v Total Fitness Centre (Wellington) Ltd, NZ Apple & Pear Marketing Board v Wallis, Goldsmith v Drummond, and Raffles Education Corporation Ltd v Mills.

[Footnotes omitted]

[21]   Both parties also refer to Gilbert J’s judgment in Greymouth Holdings Ltd v Jet Trustees Ltd.7 In that case, the third defendant (JSAL) had obtained summary judgment against Greymouth Petroleum Holdings Ltd (GPHL) for unpaid management fees of $939,242. In the same judgment, GPHL obtained judgment against JSAL for damages for negligent performance of the management services

6      Bay Cities Real Estate Ltd v Re/Max New Zealand Ltd HC Napier CIV-2010-441-134, 8 June 2011 at [19].

7      Greymouth Holdings Ltd v Jet Trustees Ltd [2014] NZHC 1418, (2014) 22 PRNZ 198.

agreement pursuant to which the management fees were owed. The quantum of those damages was not, however, quantified at that stage.

[22]   After obtaining summary judgment in its favour, JSAL obtained an interim charging order over GPHL’s assets, as a result of which GPHL paid approximately

$1 million into Court. JSAL then sought an order that the money be paid out to it, in response to which GPHL sought an order under r 17.59 for a stay of execution.8 GPHL relied on the principles of equitable set-off as between JSAL’s liquidated debt under the summary judgment, and its own (yet to be quantified) damages claim.

[23]   Gilbert J noted that an equitable set-off arises where a plaintiff’s claim is impeached by a defendant’s cross-claim. Equitable set-off may be raised as a defence, and operates to reduce or extinguish a plaintiff’s claim to the extent of the proven cross-claim. The Judge accepted that equitable set-off can apply to unliquidated damages claims.

[24]   Gilbert J observed that had GPHL defended JSAL’s claim for management fees by pleading equitable set-off as a defence, there was no doubt it would have succeeded. He said that JSAL’s claim for management fees was plainly impeached by GPHL’s cross-claim for negligent performance of the management duties for which those management fees were payable. Further, damages were clearly due to GPHL, they simply required quantification.

[25]   GPHL had not, however, defended JSAL’s claim on the basis of equitable set- off. Gilbert J therefore had to consider whether GPHL’s (unquantified) damages claim was sufficient to warrant a stay of enforcement of JSAL’s summary judgment.

[26]   Given the reliance both parties place on Gilbert J’s judgment, it is useful to set out the key (relevant) aspects of it in full:

[22]   The distinction between a cross-claim giving rise to an equitable set- off which may be raised as a defence to a claim and the Court’s jurisdiction to stay execution of a judgment where there is such a cross-claim is discussed in Derham on the Law of Set-Off:

8      At [18], Gilbert J considered the exercise of discretion under r 17.59 gave rise to similar considerations to the exercise of the discretion under r 17.29.

… it is also difficult to accept that a set-off of judgments and orders in contexts other than costs against costs is an equitable set-off. In the first place, equitable set-off is a defence to an action to enforce payment of the debt or other monetary obligation, the defence operating in equity as a complete or partial defeasance of the plaintiff’s claim. A set-off of judgments and orders, on the other hand, is not a defence in that sense. Essentially, it is a procedural device which determines the amount for which execution may issue, and which may provide a ground for a stay of enforcement. Secondly, the practice of setting off judgments and orders was developed in the common law courts (as opposed to courts of equity) long before the Judicature Acts. It is true that the availability of the set-off has been described as an ‘equitable’ jurisdiction. However, that expression was used in the sense of justice and fairness, as opposed to the jurisdiction of the Court of Chancery.

The true basis of the set-off is the court’s inherent jurisdiction. Its purpose is to prevent absurdity or injustice, and to do that which is fair. It has long been accepted that the inherent jurisdiction is not confined to judgments in the same action, or the same court, without it being suggested that the claims nevertheless must be closely connected as for an equitable set-off.

[23]   In Grant v NZMC Ltd, the leading authority in New Zealand on equitable set-off, Somers J confirmed that the Court may stay execution of a judgment where it would be inequitable to allow the judgment creditor to proceed and execute the judgment without bringing a cross-claim into account, including an unliquidated claim for damages:

Equity would restrain an action or execution of judgment at law or allow a set-off where it would be inequitable or unconscionable to allow the plaintiff to proceed without bringing to account some claim by the defendant which was sufficiently linked to that made by the plaintiff. That equitable right was not limited to liquidated cross-claims but extended to unliquidated claims for damages.

[24]   Whether it is correct to characterise GPHL’s judgment for unquantified damages as giving rise to a true equitable set-off as GPHL contends, the fact that the underlying claims are interdependent, each calling into question and impeaching the other, is relevant to the exercise of the Court’s discretion under r 17.59.

...

[29]   … The underlying claims [in this case] gave rise to rights of equitable set-off which the parties did not contract out of. There is a real risk that JSAL will not be able to satisfy the judgment obtained by GPHL if the money held in court is paid to JSAL now. JSAL was formed for the purpose of providing management services to GPHL. It has not received management fees since the purported suspension of that contract in February 2011. There is no evidence to suggest that it has any substantial assets. It appears that JSAL’s solicitors will receive the benefit of any payment made to JSAL at this stage. GPHL is justifiably concerned that JSAL will not be able to pay the amount owing under its judgment, when it is quantified. That would leave GPHL exposed to the risk of paying JSAL’s management fees in full but not receiving the benefit promised by JSAL in exchange for those fees. That would be unjust.

[30]   There can be no suggestion that GPHL has been dilatory in pursuing its claim. It obtained judgment on its claim at the same time as JSAL. The fact

that GPHL’s judgment has not yet been quantified is only because the Court did not have sufficient information at the time judgment was given to determine the relevant losses based on the particular findings of negligence. It does not seem appropriate that JSAL should secure a significant advantage as a result of the fact that the damages have not yet been quantified through no fault on GPHL’s part.

[Footnotes omitted]

[27]   As noted, GPHL had a finding in its favour on liability and damages, but through no fault of its own, damages were yet to be quantified. Gilbert J also noted JSAL’s financial position and that, if the funds were paid out of Court to JSAL, they would likely be used to pay JSAL’s legal costs of the proceedings. Given those circumstances, Gilbert J had no difficulty in concluding that a stay of enforcement was warranted.

[28]   One further point relevant to note before turning to the parties’ submissions is that in this case, Mangatu does not yet have a costs award in its favour, quantified or otherwise. But a determined and quantified claim is not necessary for the purposes of r 17.29 (though the presence of one will no doubt bolster an applicant’s case for a stay). As noted in Bay Cities Real Estate, a relevant factor when considering an application for stay is the apparent strength or weakness of the applicant’s claim against the judgment creditor.9 This obviously pre-supposes that the applicant’s claim is yet to be determined.

The parties’ submissions

Mangatu’s submissions

[29]   Mangatu says that a substantial miscarriage of justice will occur if it is required to pay on the costs judgment now. It says FHL’s costs entitlement arises from an appeal against the substantive arbitration dispute, which is therefore interdependent with the dispute and Mangatu’s costs claim in it. While its costs entitlement has not yet been determined by the arbitrator, Mangatu says its entitlement to costs in the arbitral proceedings is clear, and quantification will on any view result in an amount which far exceeds the High Court costs judgment in FHL’s favour.

9      Bay Cities Real Estate Ltd v Re/Max New Zealand Ltd, above n 6, at [19](f) – quoted at [20] above.

[30]   Given the interdependence of the costs judgment and its extant costs claim in the arbitration, Mangatu says it ought to be able to set off its (liquidated) liability to FHL against FHL’s significantly greater, though unliquidated, liability to Mangatu. Mangatu also points to clear statements by FHL that it is effectively insolvent, such that it is almost inevitable FHL will be unable to meet any costs award against it in the arbitration. Relying on Gilbert J’s observations in Greymouth Holdings, Mangatu says it is similarly concerned that any payment made by it now pursuant to the costs judgment will simply be “used up” by FHL to meet its solicitors’ costs.

FHL’s submissions

[31]   FHL reinforces the primary position that it is entitled to the fruits of its judgment in the First Appeal in the ordinary way, including the costs ordered in its favour.

[32]   Mr Branch, counsel for FHL, says Mangatu cannot presently show it arguably has a qualifying cross-claim which could in due course be set-off against the costs judgment. FHL says that unlike the plaintiff in Greymouth Holdings Ltd, Mangatu does not have an existing (though unquantified) judgment or award against FHL. Rather, there has simply been an observation by the arbitrator that Mangatu is entitled to be heard on costs (which has itself now been overtaken by more recent events).

[33]   FHL further submits that any entitlement on Mangatu’s part to costs in the arbitration is unclear. It says it is wrong for Mangatu to suggest it is or will be found to be the “successful” party overall because of the arbitrator’s conclusion that FHL is entitled to nominal damages only. It points to Courtney J’s recent judgment granting FHL leave to appeal the Final Award, and the Judge’s identification of error on the arbitrator’s part in that award. FHL also points to the arbitrator’s own observation that “if FHL succeeds with its appeal the matters relevant to a costs award will be very different”.10

[34]   FHL also notes that as recently as April 2019, the arbitrator has said it is not appropriate to determine costs in the arbitration at this time.

10 See [17] above.

[35]   While FHL does not strongly challenge the points made about its own financial position, it notes that its impecuniosity, or not, is dependent on the outcome of the arbitration. It also says it has never stated it could not pay, if necessary, costs awarded in the arbitration.

Discussion

[36]   I have reached the conclusion that Mangatu’s application for a stay must be dismissed. I have reached this conclusion for the following five reasons.

[37]   First, the starting point is that FHL has a High Court costs judgment in its favour and is prima facie entitled to be paid those costs within a reasonable time of the order being made.

[38]   Second, while the costs judgment in FHL’s favour, and any costs award in Mangatu’s favour in the arbitral proceedings, are certainly related, they are not “interdependent” with each other, at least in the very close sense often seen in the authorities (where, for example, the respective claims arise out of the same transaction). Both Bay Cities Real Estate and Greymouth Holdings concerned cross- claims that were much more closely connected than the cross-claim advanced by Mangatu in this case.

[39]   Third, it is not possible at this stage to say much about the apparent strength or weakness of Mangatu’s claim to costs in the arbitration proceedings. What is clear, however, is that unlike the plaintiffs in Bay Cities Real Estate and Greymouth Holdings, Mangatu does not presently have a costs entitlement in the arbitration which is waiting to be quantified. The arbitrator had certainly indicated that Mangatu was entitled to be heard on costs. But that does not equate to being entitled to costs. Further, it is not axiomatic that, simply because FHL has succeeded to a limited extent in the arbitration (if that is the final outcome), Mangatu will be considered the successful party overall.11 Rather, the Court of Appeal has indicated that in such circumstances, an appropriate outcome may be a reduced costs award to the party

11     Water Guard New Zealand Ltd v Midgen Enterprises Ltd [2017] NZCA 36; Weaver v Auckland Council [2017] NZCA 330.

which has achieved limited success, or for costs to lie where they fall.12 I should emphasise that that is not in any way to suggest that might be an appropriate outcome on costs in the arbitration. I plainly do not have sufficient knowledge of the claims and conduct in the arbitration to express such a view. It simply reflects that a party’s limited success on its claim does not automatically result in the other party being the “successful” party for costs purposes.

[40]   I am also mindful of the arbitrator’s own observation that the outcome of the appeal may mean “the matters relevant to a costs award will be very different”.

[41]   I further note the arbitrator’s comments, on two separate occasions, that despite FHL’s conduct and the manner in which it has pursued its claim in the arbitration, it is necessary to balance those factors against the fact the arbitration “originated because of Mangatu’s unlawful action”, and where its Chief Executive Officer accepted it considered the consequences of terminating the Forestry Right without giving the contractual notice to remedy which it was obliged to give.13 Those matters may also be relevant to the exercise of the broad costs discretion in the arbitration proceedings.

[42]   Fourth, in awarding costs to FHL on the First Appeal, Woolford J said the following:14

[8]    I am of the view that the general costs principles dictate the result in the present case. First, the party who fails with respect to a proceeding or an interlocutory application should pay costs to the party who succeeds. (“Costs follow the event”). Proceeding is defined as meaning any application to the court for the exercise of the civil jurisdiction of the court, other than an interlocutory application. An interlocutory application is in turn defined as meaning an application made in accordance with r 7.19 or r 7.41 of the High Court Rules 2016.

[9]    The arbitration before Hon BJ Paterson QC is neither a proceeding nor an interlocutory application and, accordingly, the outcome of the arbitration should not, except in exceptional circumstances, be determinative of costs of a High Court proceeding or interlocutory application.

[10]    Second, the determination of costs should be predictable and expeditious. Costs are not predictable or expeditious if they depend on the outcome of a claim outside of the court’s processes.

12     Water Guard New Zealand Ltd v Midgen Enterprises Ltd, above n 11, at [13]; Weaver v Auckland Council, above n 11, at [28].

13     Arbitrator’s Minutes dated 23 April 2018 at [2] and 11 July 2018 at [7].

14     Forest Holdings Ltd v Mangatu Blocks Incorporation, above n 2.

…

[13]   There is no doubt that Forest Holdings succeeded in respect of all    three hearings in the High Court. Mangatu failed. There is no principled basis on which costs could be awarded in favour of a losing party. The arbitration also continues. Forest Holdings has apparently instructed its solicitors to appeal the subsequent ruling on damages dated 7 March 2018.

[43]   In my view, the principles underlying Woolford J’s observations also point to Mangatu’s application for a stay being dismissed. Costs in the High Court ought to be predictable and expeditious, and costs awards paid promptly. These objectives will be undermined if High Court costs judgments are too readily the subject of a stay of enforcement, based on an unclear and yet to be determined outcome outside the Court’s processes. Added to this is that since Woolford J’s judgment, FHL has again been successful in obtaining leave to appeal on a question of law.

[44]   Finally, there is no suggestion there is any difficulty in Mangatu making the costs payment now. Importantly, there is no suggestion that if it does so, it will not be able to continue to pursue its costs claims in the arbitration in the normal way. The plaintiffs’ financial position was an important factor in a stay being granted in Bay Cities Real Estate. As noted at [20] above, a miscarriage of justice is unlikely to result where a party is required to pay an amount that is owing by it and is still free to pursue its claim against the other party in the normal way.15 And, while Mangatu’s concerns as to FHL’s financial position appear to be well-founded, this point alone does not, in my view, warrant a stay being granted. I agree that JSAL’s financial position assumed some importance in Greymouth Holdings. But this was in the context of GPHL already having a damages judgment against JSAL, but through no fault of GPHL, it not having been quantified. In those circumstances, one can understand Gilbert J’s concern at the injustice caused by that timing “mismatch”. In contrast, the financial position of the judgment creditor does not loom large (expressly at least) in the principles to be applied on stay applications.16

[45]   Ultimately, Mangatu bears the onus of persuading me to exercise my discretion to grant a stay. Standing back and undertaking the balancing exercise required, I am not persuaded it has met that onus. I do not agree it is likely that a substantial

15     Econotek Construction Ltd v Kale, HC Gisborne CP8/87, 7 January 1998.

16     See the list of principles at [20] at above.

miscarriage will result if Mangatu is required to meet the costs judgment now. Rather there is a possibility, depending on the outcome of FHL’s second appeal and the resulting impact on the arbitration, that Mangatu will at some point in the future have a greater costs award made in its favour in the arbitration. This is insufficient in my view to warrant a stay.

Result and costs

[46]   Mangatu’s application for a stay of enforcement of Woolford J’s costs judgment of 18 July 2018 is therefore dismissed.

[47]   There appears to be no reason why costs on Mangatu’s application ought not to be fixed now, on a 2B basis. If the parties cannot agree costs:

(a)FHL may file a costs memorandum within 15 working days of the date of this judgment;

(b)Mangatu may file a costs memorandum in response within a further

5 working days; and

(c)I will thereafter determine costs on the papers.

[48]No costs memorandum is to be longer than 3 pages in length.

Fitzgerald J

Solicitors: