Gillibrand v Swanepoel
[2018] NZHC 2700
•24 October 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2014-488-129 [2018] NZHC 2700
BETWEEN CHRISTIAN JOHN GILLIBRAND and
MARY CAECILIA GILLIBRAND First Plaintiffs
CHRISTIAN JOHN GILLIBRAND Second Plaintiff
AND
GEORGE PETER SWANEPOEL First Defendant
ANDREW PETER HOLGATE Second Defendant
On the papers: [ ] Appearances:
C T Patterson for the Plaintiffs
H M Twomey for the DefendantsJudgment:
24 October 2018
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 24 October 2018 at 11:00am
pursuant to Rule 11.5 of the High Court Rules.
…………………………………
Deputy Registrar
Solicitors:
KP Legal (Kirstin Poole), Grey Lynn, Auckland for the Plaintiffs Robertsons (H M Twomey/S Watson) Auckland, for the First Defendant Counsel:
Chris Patterson Ltd ( E J Grove), Auckland for the Plaintiffs
Andrew Holgate, Whangarei, Second Defendant
GILLIBRAND v SWANEPOEL [2018] NZHC 2700 [18 October 2018]
[1] The plaintiffs apply for a stay of execution pending appeal. They are judgment debtors of the first defendant for $176,139. They sued the defendants, both lawyers, for professional liability. They succeeded against the second, Mr Holgate, but failed against the first, Mr Swanepoel.1 Their debt is for costs.2 They appealed against the judgment dismissing their claim. The Court of Appeal has heard the appeal but has not given its decision yet. They have also appealed against the costs decision, but that has not been heard.
[2] They filed their application in July 2018. Toogood J gave agreed directions on
25 July for a notice of opposition and for submissions to be filed with a view to the application being decided on the papers. While the parties complied with those directions, the file was not referred to a judge for decision. I did not become aware of the matter until the file was referred to me for another matter, the plaintiffs’ examination of the second defendant.
The substantive proceeding
[3] The Gillibrands sued the defendants in negligence. Woodhouse J heard the case in February and March 2016 and gave his judgment on 6 June 2017.3 Mr and Mrs Gillibrand sued as trustees of the Gillibrand Family Trust. Mr Chris Gillibrand sued as beneficiary of his father’s estate. The father, Gordon, had died in a Bupa rest home in 2011. At his death there were outstanding rest home fees. Mr Gillibrand was the executor of his father’s estate. The main asset of the estate was a debt of $350,000 payable by the trustees of the Gillibrand Family Trust to Gordon. Mr Chris Gillibrand was keen to avoid paying the Bupa account. The Gillibrands engaged Mr Swanepoel to act as their solicitor. Mr Holgate, a barrister, acted in proceedings brought by Bupa to remove Mr Gillibrand as executor. The matter went very badly for the Gillibrands. Mr Gillibrand was removed as executor.4 A Whangarei lawyer was appointed as executor. The debt to Bupa was upheld. The whole exercise ended up costing the Gillibrands much more than if they had paid the rest home fees at the outset. They
sued their lawyers alleging negligence in two matters:
1 Gillibrand v Swanepoel and Holgate [2017] NZHC 1209.
2 Gillibrand v Swanepoel and Holgate [2018] NZHC 1376.
3 Gillibrand v Swanepoel and Holgate [2017] NZHC 1209.
4 Bupa Care Services NZ Ltd v Gillibrand [2013] NZHC 2086, [2013] 3 NZLR 701.
[a]the trust debt – whether the trustees could properly defend a claim against them by the executor; and
[b]alleged mistreatment of Gordon Gillibrand – whether the estate of Gordon Gillibrand could defend Bupa’s claim for payment by alleging mistreatment.
[4] Woodhouse J found that Mr Swanepoel was not negligent.5 He held that Mr Holgate was not negligent on the trust debt issue,6 but was liable on the mistreatment issue for $80,049.26.7 He held that Mr Gillibrand had no claim in his own right against either Mr Swanepoel or Mr Holgate.8 In his costs decision, Woodhouse J awarded costs to Mr Swanepoel of $176,139.00.9 That was mainly because of an unreasonable refusal to accept a sensible settlement offer. Costs were fixed up to the date of the settlement offer at $22,084.00 and from the date of the settlement offer to trial at $138,000.00. He ordered Mr Holgate to pay costs of
$80,504.41 to give a total judgment debt of $165,603.67.
[5] The Gillibrand trustees, but not Mr Gillibrand as beneficiary of his father’s estate, appealed against the liability judgment in favour of Mr Swanepoel. The Court of Appeal heard the appeal in May 2018 but has not given its decision yet. In July this year the Gillibrand trustees filed an appeal against the costs decision, but served it late. They need leave to continue that appeal.
The stay application – principles
[6] In Minnesota Mining and Manufacturing Co v Johnson & Johnson Buckley LJ
commented on applications to stay enforcement pending appeal:10
The object, where it can be fairly achieved, must surely be so to arrange matters that, when the appeal comes to be heard, the appeal Court may be able to do justice between the parties, whatever the outcome of the appeal may be.
5 Gillibrand v Swanepoel and Holgate [2017] NZHC 1209 at [179] on the trust debt issue, [230] on the mistreatment allegation.
6 At [181].
7 At [207].
8 At [107].
9 Gillibrand v Swanepoel and Holgate [2018] NZHC 1376.
10 Minnesota Mining and Manufacturing Co v Johnson & Johnson [1976] RPC 671 (CA).
[7] In Walker v Castlereagh Properties Ltd11 Associate Judge Osborne quoted
Legg JA in Roe McNeill & Co v McNeill:12
The relevant factors to consider on whether to grant a stay are these:
1.A successful plaintiff is entitled to the fruits of his judgment. He should not be deprived of them unless the interests of justice require that they be withheld from him until the defendant's appeal is decided.
2. The court's power to grant a stay is discretionary and should be exercised only where it is necessary to preserve the subject matter of the litigation or to prevent irremedial [sic] damage or where there are other special circumstances.
3.In the exercise of its discretion the court may weigh the interests of the parties, the balance of convenience and any prejudice that may arise and grant the stay on terms it considers appropriate.
4.A first step to consider on a motion for a stay is to determine whether an appeal is without merit or has no reasonable prospect of success.
[8] The factors to be taken into account include:13
[a] whether the appeal may be rendered nugatory by the lack of a stay; [b] the bona fides of the applicant as to the prosecution of the appeal;
[c] whether the successful party will be injuriously affected by the stay; [d] the effect on third parties;
[e] the novelty and importance of questions involved; [f] the public interest in the proceeding; and
[g] the overall balance of convenience.
Of course not all these factors occur in every case. It has sometimes been suggested that the apparent strength of the appeal is an additional factor, but caution is required.
11 Walker v Castlereagh Properties Ltd [2015] NZHC 907 at [32].
12 Roe McNeill & Co v McNeill (1994) 49 BCAC 247 at [6].
13 Keung v GBR Investment Ltd [2010] NZCA 396 at [11].
Generally any assessment of the merits of the appeal goes no further than checking whether the appeal is without merit or has no reasonable prospect of success.14
[9] A common approach on appeals against money judgments is to grant a stay on the respondent giving security for repayment. That is on the basis that a judgment creditor is entitled to the fruits of its judgment and a judgment debtor is not barred from continuing their appeal, even if judgment is enforced in the meantime.15
[10] In Walker v Castlereagh Properties Ltd Associate Judge Osborne held that appeals against costs orders raised these considerations:16
[43] Those involved in litigation in this Court are subject to a régime whereby costs become payable when they are fixed. Successful parties are intended to have (upon the fixing of costs) the cash flow benefits of the costs to which the Court has found them entitled.
[44] Where the unsuccessful party appeals a substantive judgment, the justice in relation to identifying who should be out of pocket for awarded costs in the interim will most often (albeit not invariably) favour the successful respondent. The respondent has had to bear costs in either suing the other party or defending the other party’s unsuccessful claim. That stage of the litigation is over. If the unsuccessful party elects to embark on a further stage of litigation through appeal it will generally be just that the successful party (through the payment of costs) is reimbursed in the interim for the costs awarded and fixed pursuant to its success.
[45] Such an approach will by the nature of the balancing exercise remain subject to influence by factors of particular relevance in an individual case. One such factor is where the appellant establishes that the successful party may be unable to repay the awarded costs in the event the appeal is successful. But such factors are more likely to inform the Court’s decision on the way in which the unsuccessful party should make any payment in the interim (e.g. by outright payment to the plaintiff or by payment into a stakeholding) rather than on whether the unsuccessful party should be relieved of the requirement to make payment pending the determination of the appeal.
[11] The Gillibrand trustees apply for a stay of execution under r 12(3) of the Court of Appeal (Civil Rules) 2005. Their application also refers to r 20.10 of the High Court Rules, but that applies only to appeals to this court, not appeals to the Court of Appeal.
14 See, for example, Contributory Mortgage Nominees Ltd v Harris Road No 10 Ltd HC Auckland
CIV 2005-404-3078, 31 January 2006 at [9] and [21].
15 McLeod v New Zealand Pine Company Ltd (1892) 11 NZLR 493 (SC); discussed in Walker v
Castlereagh Properties Ltd [2015] NZHC 907 at [33]–[41].
16 Walker v Castlereagh Properties Ltd at [43]–[45].
This case
[12] Some factors do not apply here. There is no question of third parties being affected. There are no general or public interest issues at play. The parties have not claimed that the questions on appeal are novel or important. There seems no reason to doubt the bona fides of the Gillibrands in appealing. After all, they have taken the appeal on liability through to a hearing. I infer that there must be some substance to their appeal because of the time the Court of Appeal has taken to give its decision. If there were no merit in their appeal, the Court is likely to have given its decision earlier. The appeal on costs cannot be dismissed as frivolous. There appears to be a proper argument for appeal on the award of increased costs.
[13] Mr Swanepoel submitted that the Gillibrands had delayed. Delay may be relevant as showing that appellants are using an appeal only as a stalling device to put off paying a successful respondent. An affidavit sworn for Mr Swanepoel shows that the Gillibrands could have brought the liability appeal more promptly, but that is irrelevant, because the appeal has been heard. The time taken by the Court of Appeal to give its decision does not count against the Gillibrands. Woodhouse J gave his costs decision on 12 June 2018. The Gillibrands could not apply for a stay of execution of that judgment before he gave it. On 14 June the Gillibrands’ lawyer advised Mr Swanepoel’s lawyers that he had instructions to appeal and proposed that an appeal not be filed until the decision on the liability appeal had been given. On 19 June Mr Swanepoel’s lawyers rejected that. They sealed the judgment and on 29 June made written demand for the costs to be paid by 20 July. The Gillibrands’ application for a stay of execution dated 13 July was filed on 17 July. None of that shows delay.
[14] Their appeal against the costs decision was filed on time but served on
Mr Swanepoel’s lawyers on 12 July. That was out of time under rr 29(1)(a) and
31(1)(b) of the Court of Appeal (Civil) Rules. The Gillibrands need leave under r 29A to appeal out of time. They applied for leave on 27 July. Mr Swanepoel will oppose the application. For this decision the Gillibrands appear to have an arguable case for an extension of time under r 29A under the principles in Almond v Read.17 Whether
17 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
time will be extended is for the Court of Appeal to decide. I also note that if Mr Swanepoel opposes the application unsuccessfully he will contribute to the time required to deal with the costs appeal. At this stage it cannot be said that the Gillibrands are doomed to fail on the costs appeal because it is out of time. Nor can it be said that the slippage in serving the notice of appeal on Mr Swanepoel two days late is relevant delay for the stay application. It does not suggest that the appeal is being run just to play for time.
[15] Mr Swanepoel takes the standard position for a respondent to an appeal: having succeeded at first instance he is entitled to the fruits of judgment. He should not be kept out of them because of the appeals. As he has insurance cover, his indemnifiers will be able to refund any costs recovered if the appeals go the Gillibrands’ way. Their appeals will not be made nugatory by interim enforcement of the costs award. As a judgment creditor for costs, he can rely on Associate Judge Osborne’s decision in Walker v Castlereagh Properties Ltd to support his argument against a stay of enforcement.
[16] The case has features that need to be noted. A decision on the liability appeal will not necessarily determine the outcome of the costs appeal. If the Gillibrands fail on the liability appeal, they will still be able to run their costs appeal. Admittedly they will be liable for costs for having failed, but they will still be able to argue that increased costs should not have been awarded. If they succeed on the liability appeal, costs may still be a live issue, given Mr Swanepoel’s Calderbank offer. The matter may turn on the extent of any relief awarded by the Court of Appeal. If there is to be a stay, it may need review in the light of any decision on the liability appeal, but the stay may well run until the costs appeal is decided.
[17] There is a parties question. Mr Swanepoel says that he can enforce the costs order against Mr Gillibrand regardless of the appeals. To understand that, it is necessary to see the basis for the claims against Mr Swanepoel by Mr and Mrs Gillibrand as trustees of the family trust and by Mr Gillibrand as beneficiary of his father’s estate. When Gordon Gillibrand sold the family farm to the trustees in 2003, he advanced the purchase price of $505,000 to the trustees as a loan repayable on
demand, but demand was not to be made until seven years after the advance.18 While Mr and Mrs Gillibrand owed the debt to Gordon as trustees, they remained personally liable for the debt, but had a trustee’s normal right of indemnity with the associated equitable lien over trust assets and the right of recourse to trust assets to exonerate themselves. Up to Gordon’s death there had been some reduction in that indebtedness. At his death Gordon owed Bupa rest home fees of about $40,000. The only way for the estate to pay that debt was from the monies payable by Mr and Mrs Gillibrand as trustees. Mr Chris Gillibrand was the executor of his father’s estate and the sole beneficiary. The Gillibrands instructed Mr Swanepoel to act for them on these matters, both as trustees of the family trust and Mr Gillibrand as executor of his father’s estate. Their case against Mr Swanepoel was that with proper advice from him they would have paid about $48,000 at the outset, but it ended up costing them about $183,000. They claimed the difference as damages. Mr Gillibrand did not sue as executor of his father’s estate, as he had been removed. While they pleaded the added costs as a loss to the trust, their claim was really for losses they had suffered personally. They paid the added costs, even if they did so by recourse to trust assets. When their claim failed, the costs order was against them as trustees, but that required them personally to meet the order for costs, even if they had a right of recourse to trust assets. Their appeal against the liability decision is to obtain an award of damages for the added costs they incurred personally. The aim of their appeal against the costs decision is to have costs ordered against them personally set aside or reduced. The point here is that while they were trustees, their original claim, the judgment dismissing their claim, the costs order and their appeals are about their personal rights and liabilities. To a large extent (but not wholly) their trusteeship is secondary. That is subject to a qualification about Mr Swanepoel’s enforcement rights, which I will come to soon.19
[18] Mr Gillibrand also sued as beneficiary of his father’s estate, saying that he suffered loss because funds that would otherwise have come to him under his father’s will were lost because of the added costs arising from Mr Swanepoel’s alleged negligence. Woodhouse J dismissed that claim primarily because he found that the Gillibrands were determined that none of the money payable as the trust debt should fall into the estate. He noted that the claim was brought in the alternative, in case it
18 Gillibrand v Swanepoel and Holgate [2017] NZHC 129 at [13].
19 See [25] and [26] below.
were found that Mr Swanepoel did not owe a duty to the trustees.20 Again this claim
affected Mr Gillibrand’s personal rights and liabilities.
[19] For Mr Swanepoel it was submitted that Mr Gillibrand had not appealed against Woodhouse J’s dismissal of his claim as beneficiary of his father’s estate. He would therefore remain liable for the costs ordered by Woodhouse J, as the decision on appeal cannot alter his liability to pay costs to Mr Swanepoel. That submission assumes that Mr Gillibrand has separate liabilities, one as trustee and the other as beneficiary of his father’s estate. Taken to its extreme, it means that even if the Gillibrands succeed on their appeal as trustees and obtain an award against Mr Swanepoel for the added costs they claimed, Mr Gillibrand would still have to pay Mr Swanepoel $176,000 in costs.
[20] With respect, the submission for Mr Swanepoel misses the point that Mr Gillibrand’s claim as estate beneficiary was brought in the alternative. Plaintiffs may bring alternative claims and not succeed on them all. A failure on some causes of action does not mean that the defendant can obtain costs against a successful plaintiff for unsuccessful alternative causes of action. Woodhouse J ordered costs against Mr and Mrs Gillibrand because they failed entirely against Mr Swanepoel. It will be for the Court of Appeal to decide, but it is arguable for the Gillibrands that if they succeed on appeal and obtain an award against Mr Swanepoel, the costs order in this court against the plaintiffs may be set aside and that may include any separate liability of Mr Gillibrand. The costs order is against Mr Gillibrand personally. In so far as it is also against him as trustee, he may have recourse against trust assets under his trustee’s indemnity, but that does not alter the fact he is personally responsible for paying the costs. A decision on appeal upholding the personal rights he asserts may have costs consequences, including setting aside his personal costs liability.
[21] The Gillibrands say that their judgment against Mr Holgate including costs is for 94 per cent of the costs they have to pay Mr Swanepoel. They offer to assign their judgment debt to him. Mr Swanepoel does not believe that there is any value in the judgment debt. On 16 October I sat on the Gillibrands’ examination of Mr Holgate
under r 17.12 of the High Court Rules. Mr Swanepoel is right to have misgivings about Mr Holgate’s ability to meet his liability under the judgment. His circumstances are very modest. There is little prospect of his paying anything under the judgment unless his circumstances change. The suggested assignment can be disregarded.
[22] In a reply affidavit Mr Gillibrand has attached a copy of financial statements for the family trust for the year ending 31 March 2017. His accountants had not completed accounts for the 2018 year when he swore the affidavit. The main assets of the trust are two properties at Dargaville, one rural and the other on the outskirts of the town. They are shown at cost – 2004 values. There is no evidence about current market value. The trust earns rental income. The Gillibrands live on one of the properties. There appears to be an unrelated secured creditor for $434,000. There is likely to be enough equity in the trust assets to meet Mr Swanepoel’s judgment debt if the properties are sold. The Gillibrands would of course prefer not to lose their home, before their appeals are decided.
[23] Mr Gillibrand describes himself and his wife as the trustees, but that is not correct. The financial statements identify the trustee as Gillibrand Trustee Ltd. The company was incorporated in April 2014 before the start of this proceeding in August that year.21 Mr and Mrs Gillibrand are the directors and shareholders of the company. This does not mean that Mr and Mrs Gillibrand could not sue Mr Swanepoel. Their claim was for losses they had suffered while trustees, not losses suffered by the new trustee. But the new trusteeship is relevant to Mr Swanepoel’s enforcement remedies.
[24] Putting aside the assets held on trust, Mr Swanepoel will have difficulty recovering from the Gillibrands the costs ordered by Woodhouse J. They do not appear to have any other significant assets or sources of income from which they could meet the costs order. If Mr Swanepoel were to start bankruptcy proceedings against them, a halt could be ordered under s 42 of the Insolvency Act 2006 until the costs appeal was decided. The trust assets are Mr Swanepoel’s best option for being paid. But accessing the assets is not straightforward. He can do so through any trustees’ rights of indemnity, but not otherwise. As trustees, before Gillibrand Trustee Ltd
replaced them, Mr and Mrs Gillibrand suffered the added costs for which they sued Mr Swanepoel. The fact that they recouped their losses by recourse to trust assets did not prevent them from suing Mr Swanepoel for alleged negligence causing those losses and they could bring that claim, even if they had been replaced as trustees. But in seeking compensation from Mr Swanepoel for their losses incurred while they were trustees, they incurred a further liability – the costs ordered by Woodhouse J. That leads to the question whether their rights of indemnity allow them recourse to trust assets for liabilities they incurred after they retired as trustees. A possible argument is that they sued to recover losses incurred as trustees and their proceeding was intended to benefit the trust. I have not however had argument on the point. I do no more than signal the issue. An independent trustee acting in the interests of the beneficiaries might sternly take another point: as former trustees Mr and Mrs Gillibrand are not entitled to indemnify themselves from the assets of the trust because the claim against Mr Swanepoel was misconceived and they should never have started it. I note it as an arguable point. As Mr and Mrs Gillibrand are directors of the new trustee, I assume that they will not take that point against themselves. It seems to be generally accepted that former trustees keep their equitable lien over trust assets, even though the assets vest in a new trustee. That is a property interest that ranks ahead of the interests of beneficiaries.22 Even so, Mr and Mrs Gillibrands’ rights of recourse to trust assets to meet their liabilities to Mr Swanepoel as former trustees are not clear- cut.
[25] Mr Swanepoel needs to rely on those rights. As a trustees’ creditor he has a right of subrogation to assert the trustees’ right of indemnity to have recourse to the trust assets. But his position can be no stronger than the trustees. A former trustee’s right of indemnity is enforceable by judicial sale or appointment of a receiver, not by ordinary execution remedies.23 And a trust creditor asserting subrogation rights also needs a court order to have recourse to trust assets. On such an application,
22 Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344, (2008) 74 NSWLR 550 at 553–554; S and S Ltd v XYZ Ltd [2016] NZHC 26, (2016) 4 NZTR 26-
029 at [38]; LSF Trustees Ltd v Footsteps Trustees Company Ltd (in liq) [2017] NZHC 2619,
[2017] NZAR 1676 at [14]; DHC Assets Ltd v Arnerich [2018] NZHC 1865; and Andrew Butler
(ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at 16.6.
23 See the cases in fn 22.
Mr Swanepoel will need to prove that Mr and Mrs Gillibrand can be indemnified from trust assets for their costs liability and that he can assert those rights.
[26] The result is that if a stay is not ordered while the appeals are pending, enforcement will take time and may be complicated. Mr Swanepoel does not seem to have a prompt and viable execution remedy under Part 17 of the High Court Rules that he can use as of right, including any post-judgment charging order under r 17.42. Any bankruptcy proceedings may be halted until the appeals are decided. Recourse to the trust assets will require proof of the Gillibrands’ right of indemnity for the costs judgment and a court order allowing enforcement of Mr Swanepoel’s subrogation rights.
[27] It can be said for Mr Swanepoel that if his enforcement rights are that time- consuming, there will be a greater injustice if he is not able to start exercising them until after the costs appeal is decided. He will be kept out of his money for that much longer.
[28] On the Gillibrands’ side there is a risk of unnecessary hardship if their home on the rural property is sold up, but they succeed on their appeals and their costs liability is set aside or cut down to an amount they can pay. While Mr Swanepoel is entitled to his fruits of judgment, if he fails on appeal, it may not be possible to put the Gillibrands back into the position they were in before execution. They may lose their home for good.
[29] There is also a risk of unnecessary hardship if they were adjudicated bankrupt before their costs appeal is decided. Admittedly that can be addressed by halt decisions under s 42 of the Insolvency Act 2006, but that power to halt a bankruptcy application pending appeal largely involves the same considerations as applications to stay execution pending appeal.24 On adjudication in bankruptcy control of the appeal will pass to the Official Assignee, who is likely to decide to continue it only if he has funding and the appeal is likely to benefit creditors. Given that the Official Assignee
24 See Yeoh v Al Saffaf HC Auckland CIV-2006-404-1164, 21 June 2006; ANZ National Bank Ltd v Pillay HC Auckland CIV 2009-404-4175, 3 December 2009; and Health Distributors Ltd v Wright HC Hamilton CIV-2010-419-121, 4 November 2010.
could decide that there is no benefit in continuing the appeal, an adjudication could make the appeal nugatory.
[30] These considerations can be accommodated. In my judgment, if Mr Swanepoel wants to take enforcement steps in anticipation of success on appeal, he should be allowed to start now, so long as a watch is kept on the costs appeal. The Gillibrands should not be adjudicated bankrupt or have their home sold while they prosecute their costs appeal with due diligence. If Mr Swanepoel’s enforcement steps reach either of those stages, a stay of execution or a halt of any bankruptcy application may be ordered, depending on progress or the results of the costs appeal. But that does not require an immediate stay of enforcement. That gives an appropriate balance of convenience for the circumstances of this case.
Outcome
[31] Accordingly I adjourn the application to stay enforcement of the costs judgment. That allows Mr Swanepoel to begin steps towards enforcement, but leave is reserved to bring the application on again if it appears that any enforcement steps may bite before the result of the costs appeal is known. Leave is reserved to ask for the stay application to be called again for other good reason.
[32] My provisional view is not to order costs on this decision. But if a party seeks costs, it may file a memorandum. The other side is to file a response within five working days. I will decide costs on the papers.
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Associate Judge R M Bell
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