Gavin v Powell

[2020] NZHC 1224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000272

[2020] NZHC 1224

BETWEEN

CHARLOTTE TERESA GAVIN

Plaintiff

AND

DANIEL JOHN POWELL

First Defendant

AND

PAUL JOSEPH DORRANCE

Second Defendant

Hearing:

20 May 2020

Appearances:

A F Grant for Plaintiff

W J Palmer and O Peers for Defendants

Judgment:

4 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 4 June 2020 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GAVIN v POWELL [2020] NZHC 1224 [4 June 2020]

Introduction

[1]    The plaintiff (Charlotte) and the first defendant (Daniel) are brother and sister and the children of John Powell and Lynda Powell. This litigation concerns the Daniel Powell Family Trust (DP Trust). Daniel and the second defendant, Paul Dorrance (Mr Dorrance), are presently the trustees of the DP Trust. The discretionary beneficiaries include Charlotte and Charlotte’s children. Charlotte alleges, amongst other things, numerous breaches of trust by Daniel and Mr Dorrance. Ultimately, Charlotte seeks their removal as trustees and the appointment of the New Zealand Guardian Trust Company Ltd as a sole trustee in substitution for them.

[2]    This judgment concerns Charlotte’s application for a priority fixture. The case has been timetabled in the expectation it will be heard in the first quarter of 2021. There is the possibility (subject to the result of this application) the trial could be brought forward and commence on 12 October 2020. Charlotte wants to secure the earlier date. Daniel and Mr Dorrance oppose her application.

Background

[3]    This case has a complex procedural history in its own right but should be understood as a sequel to earlier litigation between John Powell and Daniel concerning the DP Trust. What follows provides sufficient background to understand the context within which this application has been made but is by no means complete.

[4]    The DP Trust and Charlotte Powell Family Trust (CP Trust) were established by John Powell in 1998. The DP Trust and the CP Trust were in similar terms and in each case the discretionary beneficiaries included Charlotte, Daniel, their children, grandchildren and spouses. The settlement of the Trusts was effectively Daniel’s and Charlotte’s inheritances from their father. The main asset of each Trust was a shareholding in companies John Powell had established.

[5]    In the case of the DP Trust, the company was Kensal Investments Ltd (Kensal). It owned a commercial cold store in Christchurch. In April 1999, Daniel was appointed a trustee of the DP Trust. The other trustee of the DP Trust at the time was John Powell. The trustees of the DP Trust own all but one of the shares in Kensal.

[6]    In the case of the CP Trust, the company was Investment Southland Ltd (Southland). Southland owned a cold store in Bluff. The trustees of the CP Trust own all the shares in Southland. The trustees of the CP Trust are Charlotte and John Powell. They are also the directors of Southland.

[7]    In August 2013, John Powell filed proceedings to remove Daniel as a trustee of the DP Trust and for an order appointing an independent trustee(s) to the DP Trust. The relationship between Daniel and John Powell had broken-down. Charlotte participated in the litigation as an interested party supporting her father. This was hostile litigation resulting in substantive judgments of the High Court and Court of Appeal. 1 Ultimately John Powell was unsuccessful and was removed as a trustee and replaced by a lawyer, Janine Ballinger (Ms Ballinger), as an independent trustee.

[8]    In June 2016, Ms Ballinger resigned as a trustee and contemporaneously she and Daniel appointed Mr Dorrance, a partner in Duncan Cotterill, as a new trustee.

[9]    On 7 May 2018, Charlotte filed this proceeding alleging the appointment of Mr Dorrance was invalid because he was not qualified to be a professional trustee and was not independent. She also claimed that Daniel and Mr Dorrance had been in breach of trust in a number of ways. The proceeding was filed with affidavits in support and an application for a priority fixture. Charlotte claimed she was experiencing financial and other difficulties. She relied upon the parlous state of the CP Trust’s investments and business associated with the Southland cold store.

[10]   On 29 June 2018, Daniel and Mr Dorrance filed a statement of defence. Duncan Cotterill were the solicitors on the record acting for them.

[11]   In a Minute of 30 July 2018, Nation J confirmed that Charlotte was no longer applying for a priority fixture but that the proceeding should be set down for trial in early 2019. Mr Grant again expressed concern about Duncan Cotterill acting when the conduct of a partner of that firm was in issue.  Nation J made various directions

1. Powell v Powell [2014] NZHC 476, [2014] 3 NZTR 24-011; Powell v Powell [2014] NZHC 2096;

Powell v Powell [2015] NZCA 133; [2015] NZAR 1886 and Powell v Powell [2015] NZHC 1984.

including in relation to discovery and the filing of evidence and interlocutory applications.

[12]   On 28 September 2018, the defendants filed a counterclaim seeking directions relating broadly to their obligations to Charlotte and her family. Also on 28 September 2018, Charlotte filed her first amended statement of claim.

[13]   On 5 December 2018, the proceeding was set down for a four-day trial to commence on 4 March 2019.

[14]   On 20 December 2018, the defendants sought leave for Duncan Cotterill to continue acting as the solicitors on the record. On 23 January 2019, Mr Grant filed a memorandum opposing Duncan Cotterill’s application for leave. Mr Grant also raised the possible amendment of the statement of claim and questioned whether four days would be long enough for the trial.

[15]   At a telephone conference on 13 February 2019, the issues for discussion included:

(a)a potential application by Charlotte for leave to amend the pleadings;

(b)whether Duncan Cotterill could continue as solicitors on the record;

(c)the defendants’ objections to the admissibility of evidence included in the affidavits filed from and for Charlotte; and

(d)whether the then allocated four days for the trial would be sufficient.

[16]   The last matter was determined by agreement. It was accepted that four days would be insufficient for the trial scheduled to begin on 4 March 2019 and it was vacated.

[17]A hearing was scheduled for 7 March 2019 to deal with:

(a)Charlotte’s application to amend the statement of claim;

(b)the defendants’ application for rulings as to the admissibility of the evidence in affidavits from and for Charlotte; and

(c)the application for leave for Duncan Cotterill to continue as solicitors on the record.

[18]   Following a hearing, Nation J issued a judgment on 7 June 2019. Charlotte was granted leave to file an amended statement of claim, but her application was adjourned so that counsel could settle on a final form of that amended claim and the draft statement of claim could be considered by the defendants. Significant parts of the affidavits filed by or for Charlotte were ruled inadmissible as seeking to relitigate issues decided in the earlier proceeding. They were also found to contain expressions of opinion, submission, argument and hearsay. The parties were to begin again the process of filing affidavits once Charlotte had settled her amended statement of claim. Duncan Cotterill was refused leave to continue to represent the defendants.

[19]   There was a significant delay while Charlotte attempted to finalise her pleadings. Charlotte filed a second amended statement of claim on 29 November 2019. The defendants objected to the amended claim and filed an application to strike out. In a minute of 26 February 2020, Nation J directed Charlotte to file a third amended statement of claim by 5 March 2020, but she did not do so. In the event, while the defendants maintained their objection to Charlotte’s amended claim they were content to deal with this at trial. On that basis, on 12 March 2020, Nation J made timetabling directions to trial assuming a two-week hearing in early 2021.

[20]   The timetable directions were subject to Charlotte making application for a priority hearing and provided that:

(a)Charlotte was to file a third amended statement of claim by 13 March 2020 and the pleadings were to be finalised by 2 June 2020;

(b)the parties would provide tailored discovery by 14 July 2020 with inspection by 21 July 2020;

(c)interlocutory applications would be filed by 4 August 2020;

(d)detailed directions for the filing of briefs of evidence working back from a proposed trial date no earlier than March 2021; and

(e)a further case management conference on 20 August 2020 to deal with interlocutory applications, the close of pleadings and any other matters required for trial.

[21]   Charlotte filed a third amended statement of claim on 17 March 2020 and on 24 March 2020 this application for a priority fixture. The defendants filed a notice of opposition on 7 April 2020 (and an amended notice of opposition on 6 May 2020).

[22]   The application came before Dunningham J at a teleconference on 20 April 2020. Dunningham J adjourned the telephone conference to 23 April 2020 to identify whether there was any prospect of the case being heard this year.

[23]   At a further teleconference on 23 April 2020, Dunningham J identified the possibility of a two-week trial commencing 12 October 2020. Charlotte’s application for a priority fixture was set down before me on 15 May 2020.

[24]   On 24 April 2020, Charlotte filed a fourth amended statement of claim. The defendants filed their statement of defence to the fourth amended statement of claim and counterclaim on 4 May 2020. Pursuant to Nation J’s directions of 12 March 2020 Charlotte was to file any reply to the statement of defence and a defence to counterclaim by 18 May 2020 and did so on 20 May 2020. The defendants were to file any reply to the defence to the counterclaim by 2 June 2020 and did as directed.

The law

[25]   I summarise the relevant principles to be applied in considering applications for priority fixtures as follows:

(a)the overriding objectives of the High Court Rules 2016 are to secure the just, speedy and inexpensive determination of proceedings;2

(b)under r 7.13 of the High Court Rules, a Judge may give a direction allocating a hearing date for a proceeding;

(c)the court has a broad discretion to allocate a priority fixture if it is satisfied that it is just in all the circumstances to do so;3

(d)the court will not grant a priority fixture unless the applicant presents strong evidence justifying such an order;

(e)the factors that may justify the granting of a priority fixture must be exceptional, going beyond the usual hardship experienced by a litigant, include compassionate grounds, impending financial disaster, health problems, and the public interest or the interests of children; 4

(f)the granting of a priority fixture will inevitably disadvantage other litigants by delaying the disposition of proceedings which were filed earlier and are ahead in the queue. The court’s responsibility is to allocate precious hearing time in a manner that is fair and just for all litigants;5 and

(g)the lack of preparedness of the matter for trial is a significant factor in the court declining an application for a priority fixture.6

Charlotte’s evidence and submissions

[26]   The principal grounds advanced in support of granting Charlotte priority are that:

2      High Court Rules 2016, r 1.2.

3      Birnie Capital Property Partnership Ltd v Birnie HC Auckland CIV-2010-404-3000, 20 July 2010 at [58].

4      Shattock v Devlin (1988) 1 PRNZ 271 at 278.

5      Alison Trust Holdings Ltd v NZVIF Investments Ltd [2016] NZHC 2715 at [7].

6      Deep v Auckland Gold Line Co-Operative Taxi Society Ltd [2018] NZHC 1189 at [4].

(a)Charlotte and her family are suffering severe financial stress;

(b)the financial stress is harming Charlotte’s health and her relationship with her husband; and

(c)the interests of Charlotte’s children require an early trial.

Financial need

[27]   Mr Grant took me to the evidence concerning Charlotte’s financial need. Charlotte has long been concerned about payment of her children’s private school fees. For a number of years these have been paid by advances made from the CP Trust. Charlotte said that a loan was obtained from her husband’s parents for her son’s private school fees this year and that she had been considering selling her car to pay those fees.

[28]   Other evidence of financial need is that Charlotte cannot fund her daughter’s education next year, cannot make repairs to the family home or afford underfloor heating and has not been able to afford other expenses including a subscription for Sky Television.

[29]    Charlotte presented a bleak picture of the finances of the CP Trust and Southland. She provided the financial statements of Southland and the CP Trust for the 2018 and 2019 financial years. Southland suffered substantial losses in each of those years. However total shareholders’ equity in 2019 was $3,887,477. The financial statements of the CP Trust in the same year show Total Trust Equity of

$1,928,531.

[30]Southland has assets, namely:

(a)land with a cold store at Bluff;

(b)a commercial building in Albany, Auckland; and

(c)land at Belfast, Christchurch.

[31]   The Bluff cold store was partially destroyed by a frost-heave event and is vacant. The property will remain untenanted and the port at Bluff is moribund. Rates on the property are paid but Southland no longer pays insurance premiums. To get cash for the business, Southland sold a property to John Powell. The commercial property at Auckland is also untenanted. The land at Belfast is landlocked and has no practical value until appropriate subdivision consents are obtained.

[32]   Charlotte says Southland has not been in a position to make payments to the CP Trust for several years. The CP Trust is, Charlotte says, in complete lockdown and has no money to make distributions to its beneficiaries. She acknowledges, however, obtaining advances from the CP Trust in breach of trust to pay her children’s school fees but says she had no alternative.

[33]   Charlotte receives a salary from Southland but says John Powell wants her to stop taking her salary and insists Southland be put into liquidation. If that happens, she claims, a liquidator would likely require her to repay the loans she received from the CP Trust and such demand would require her to sell her home and be bankrupted.

[34]   Charlotte acknowledges the defendants have offered to provide financial assistance from the DP Trust subject to her providing an indemnity that might require her to repay the money. She will not give an indemnity as she has no prospect of repaying the money and she will not add to her financial pressures. Mr Grant submitted it would be an “extraordinary situation” if the High Court was to take the view that a priority fixture should not be granted because Charlotte did not accept a financial burden she cannot pay.

Health

[35]   Mr Grant relied upon evidence that Charlotte has suffered depression and has contemplated suicide. She attributes this to the stress of this dispute. There is evidence from Helen Bush, a psychologist, that Charlotte consulted her with symptoms of depression, sleep disturbance and anxiety.

Domestic difficulties

[36]   Mr Grant referred to evidence of domestic difficulties between Charlotte and her husband who believes they should not have become so fully involved with the trusts Charlotte’s father created.

Interests of children

[37]   Mr Grant submitted that the interests of Charlotte’s children are a most important consideration. Mr Palmer correctly objected to Mr Grant’s reliance upon affidavits that Nation J had ruled inadmissible and I have no regard to those affidavits.

[38]   The evidence about the children is limited. Charlotte says that her daughter was worried about payment of her school fees and sought advice from her school counsellor and had a skin problem from stress.

Other matters

[39]   Mr Grant has proposed timetable directions to take the case to trial commencing on 12 October 2020. He contends that at a teleconference on 23 April 2020, Mr Palmer was generally satisfied with the timetable which required only refinement not wholesale alteration. Mr Grant argues  nothing  has changed  since  23 April 2020 to justify substantial objection to the timetable.

[40]   Mr Grant submits that the unavailability of the defendants’ senior counsel, Mr Weston QC, for a trial in October 2020 is not a ground to refuse Charlotte’s application. Trial dates are not, he contends, allocated at the convenience of counsel and there is sufficient time for other counsel to be instructed. He notes the defendants have the services of Buddle Findlay and there is no certainty that Mr Weston will be available for a trial in 2021 in any event.

The defendants’ evidence and submissions

[41]Daniel and Mr Dorrance oppose the application arguing:

(a)Charlotte has provided an inaccurate and incomplete picture of her financial circumstances and has failed to show any substantial hardship justifying a priority fixture;

(b)they have offered Charlotte financial support which she has unreasonably refused;

(c)there is inadequate time to complete all necessary interlocutory steps and prepare for a trial commencing on 12 October 2020;

(d)senior counsel is unavailable for an early trial on the proposed dates; and

(e)it is not in the interests of justice and fairness to grant priority in circumstances where lengthy delays to date have been caused by Charlotte.

History of delay

[42]   Mr Palmer took me through prior court judgments in this proceeding and the litigation pursued by John Powell. He notes there have been considerable delays in this proceeding resulting from Charlotte’s attempt to relitigate issues and her failure to finalise her pleadings. The result is, he argues, this proceeding is not yet at a stage where the pleadings are finalised (this has now happened), discovery and inspection have not been undertaken, interlocutory applications are yet to be made and evidence has not been exchanged.

Financial need

[43]   Mr Palmer argues that Charlotte has not reached the high threshold for granting a priority fixture on the grounds of financial need. Charlotte’s affidavits are, he argues, inadequate and do not provide an accurate reflection of her financial circumstances.

[44]   He submits that the defendants have offered meaningful financial support to Charlotte. In his affidavit, Daniel details offers made to pay Charlotte’s children’s

school fees and provide distributions of $25,000 to Charlotte and a further sum of

$20,000 towards Charlotte’s daughter’s travel fund for her gap-year. This was offered without preconditions other than that Charlotte provide an indemnity to protect the defendants personally from having to repay these amounts to the DP Trust. Mr Palmer submitted that requirement was reasonable. Repayment by Charlotte would only occur if she was successful in this litigation as otherwise the defendants may be required to reimburse the moneys distributed to her with no obligation upon her to repay those funds.

Timetable unrealistic

[45]   The defendants’ position is that the timetable directions that were made by Nation J on 12 March 2020 are appropriate. Mr Palmer submits that the history of this case shows that generous tolerances are required for taking steps in the proceeding. The timetable proposed by Mr Grant was not therefore reasonable or realistic.

Prejudice to defendants

[46]   Mr Palmer also submits that to grant a priority fixture will prejudice the defendants in a number of other respects. Mr Weston has been acting as senior counsel for almost 18 months but is not available for a trial in October 2020. Mr Palmer argues it would be unjust if the defendants are deprived of senior counsel of their choice and are required to incur substantial additional expense instructing new counsel to accommodate Charlotte’s desire for an urgent hearing.

[47]   Mr Palmer also submits this case is very significant for Daniel involving a challenge to his rights as trustee and to his inheritance. The case is significant also for Mr Dorrance as his professional standing is challenged. Given its significance the defendants should not be required to accept less than sufficient time to prepare their case.

Analysis

[48]   Although the court can accommodate a two-week trial starting 12 October 2020 there are other cases competing for that hearing time. To grant this application will involve Charlotte jumping the queue and putting back the hearing of other claimants’ proceedings. As the authorities make clear, strong reasons are required justifying that. Charlotte has failed to establish such reasons.

Financial need

[49]   I do not accept much of Charlotte’s evidence. It is unnecessarily argumentative. She makes statements that are incorrect and, in my assessment, give a misleading impression of the existence of financial hardship. She posits hypothetical scenarios concerning her bankruptcy and the liquidation of Southland that are unlikely and have no bearing on her present circumstances. She presents, inharmoniously, John Powell as someone who refuses to provide for her and is unconcerned with forcing the sale of her family home and yet is paying her legal fees. She says John Powell insists that Southland be put into liquidation but there is nothing to suggest he has or can take any such action. She says that if Southland goes into liquidation this will result in her bankruptcy since her personal liabilities exceed the value of her home but, on analysis, the value of her home must well exceed her liabilities. She gratuitously states that she assumes Daniel wants to leave her family homeless when there is no reason to consider that is likely or that he has such a malevolent intention.

[50]     Charlotte highlights the financial circumstances of the CP Trust and Southland. While I accept that evidence is relevant to issues arising in the substantive proceeding, it is less so to an assessment of Charlotte’s personal financial circumstances in the present context. For present purposes, I note that Southland pays Charlotte a salary and the CP Trust paid her children’s school fees for many years.

[51]   I do not consider Charlotte’s assertion that she is suffering serious financial need is realistic. She owns a property at 38 Johns Road, Belfast which has a current rating valuation of $1,460,000. She has no mortgage. Whilst stating in her first affidavit that John Powell paid legal fees which are secured against the property, in

her reply affidavit she says the borrowing does not involve a written mortgage. She does not say how much John Powell has paid for legal fees.

[52]   Charlotte’s only known liabilities are the amount shown as beneficiary advances in the 2019 financial statements of the CP Trust of $375,383, an amount borrowed for her son’s school fees this year and an undisclosed amount that is owing to John Powell for legal fees. I would expect the value of the Johns Road property significantly exceeds these liabilities.

[53]   Charlotte’s husband has a company that owns an investment property in Auckland. The property has a rating valuation of $440,000 and borrowings of $78,326 for renovations required in 2019. There is therefore significant equity.

[54]   Charlotte says this is her husband’s only asset and that if their relationship failed he should not be expected to use his personal asset to pay family debts. I do not accept that position. Charlotte’s evidence is that the Auckland property was acquired to support her husband’s income and contribute to the household and I consider it can properly be considered in an assessment of the financial hardship she says her family is suffering under.

[55]   Both Charlotte and her husband are employed. She receives a salary from Southland and has employment as a legal executive. Charlotte has not provided recent proof of earnings or expenses. She has not provided an up-to-date budget of household income and expenditure. She acknowledges household income of around $150,000 per annum. This is a good income when there is no mortgage or rent to pay and both the children’s education and Charlotte’s legal fees are paid from other sources.

[56]   I do not accept the specific matters relied upon by Charlotte in her affidavit are indicators of serious financial need. She says she cannot fund her daughter’s education next year but there are no details of what her daughter intends to study, where and what the costs will be. In the absence of a household budget it is not clear why the cost of making repairs to the house or of underfloor heating cannot be budgeted for out of household income. I do not consider a subscription for Sky Television an essential expense.

[57]   The evidence satisfies me, then, that Charlotte and her husband own valuable assets, have significant equity in those assets, have employment and enjoy a good level of household income. There is no evidence of extraordinary household expenses (other than those paid from other sources) which might illumine why the household income is insufficient for family needs. Even if I had been satisfied there is financial need, it does not appear that Charlotte is face impending financial disaster. There is no evidence, for instance, that any creditors are pursuing her for payment or have otherwise acted against her to recover debts. In any event, her financial circumstances are certainly not exceptional.

[58]   In relation to the defendants’ offer to provide Charlotte with financial assistance, in circumstances where the defendants’ status as trustees is directly challenged by Charlotte in this proceeding, their request for an indemnity does not seem surprising or unreasonable. It is incongruous that Charlotte accepts on demand loans from John Powell to fund this litigation but is not prepared to give an indemnity to obtain money to pay for her children’s education and other family expenses despite alleging serious financial need.

Health

[59]   I accept that Charlotte finds this litigation stressful and that it has some adverse effect on her health. Litigation is inherently stressful and there is nothing exceptional in that. The evidence of Helen Bush is unclear when and over what period she has been treating Charlotte or the extent to which Charlotte’s depression and anxiety is due to the litigation or other factors.

[60]   The matter that concerned me most is that Charlotte says she has considered suicide although she does not say that this is presently the case. Importantly, for present purposes, Helen Bush makes no reference to Charlotte having suicidal ideation.

Domestic difficulties

[61]   There is insufficient evidence to suggest that domestic disharmony is a significant factor.

Interests of children

[62]   Charlotte’s daughter’s concern about payment of school fees relates to past circumstances as she is no longer at school. Her daughter also recently returned from her gap-year, but it is unclear how that was paid for.

Other matters

[63]   None of the grounds advanced by Charlotte satisfy me that it is appropriate to grant a priority fixture in this case. There are other matters that fortify me in that view.

[64]   First, this case is not ready for hearing and I do not consider that Mr Grant’s proposed timetable is realistic. The pleadings are only just finalised, and it has taken over two years to get to this point. The timetable assumes, and requires, strict compliance with tight timeframes which the history of this proceeding satisfies me will almost certainly not occur.

[65]   The timetable takes no account of unexpected matters that may arise. The revelation of John Powell’s involvement in funding Charlotte’s legal fees is a case in point. Maintenance and champerty are still torts in New Zealand. When considered against the background Charlotte presents of John Powell’s refusal to alleviate her family’s financial needs, his unsuccessful attempt to remove Daniel as a trustee and his hostility towards Daniel, his decision to fund this litigation is a matter that the defendants should be entitled to investigate. That could possibly lead to applications for security for costs, a third party funding order or even a stay of the proceeding.7 Most importantly, it is an example of the type of substantial matter that may arise between these parties that Mr Grant’s proposed timetable does not contemplate.

7      Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] NZLR 91 at [60]; Cain v Mettrick

[2019] NZHC 802, [2019] NZAR 668 at [7] and [10].

[66]   Second, there is some force in Mr Grant’s submission that trial dates are not allocated at counsel’s convenience, but the court does attempt to accommodate counsels’ commitments where possible. Here, where the grounds advanced for priority are not strong, it would be wrong to deprive the defendants of their senior counsel and put them to the considerable expense of engaging replacement counsel.

[67]   Mr Grant argued that little should be made of this because there is no certainty Mr Weston will be available for a trial in 2021. He is correct that circumstances might arise to prevent that, but I am satisfied that it is Mr Weston’s intention to make himself available for the trial next year.

[68]   Third, Charlotte has been involved in litigation involving her family since 2013. She claimed urgency when this proceeding was filed and then did not pursue that application. There is nothing to suggest to me that her personal circumstances are more difficult now than they were then.

[69]   Fourth, there have been substantial delays in the proceeding largely due to the manner in which Charlotte has pursued her claim. It would be unjust if, despite that, she is granted priority over other litigants.

Result

[70]Charlotte’s application for a priority fixture is dismissed.

[71]    I expect counsel to confer and agree on costs. If they cannot do so they may file memoranda within 14 days. The memoranda should be no longer than 5 pages.

O G Paulsen Associate Judge

Solicitors:

Anthony Grant, Barrister, Auckland Buddle Findlay, Christchurch