GP 96 Ltd v FM Custodians Ltd HC Auckland CIV-2011-409-000627

[2011] NZHC 516

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-000627

BETWEEN  G P 96 LIMITED Plaintiff

ANDF M CUSTODIANS LIMITED Defendant

Hearing:         23 May 2011

Appearances: G A Hair for Plaintiff

J V Ormsby for Defendant

Judgment:      24 May 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      Two  applications  are  before  the  Court.    The  plaintiff  seeks  an  interim injunction and the defendant seeks an order consolidating these proceedings with CIV-2010-409-2222.  It is convenient to dealt with the consolidation matter first.

[2]      Mr Forbes QC, who is presently overseas, is counsel in relation to CIV-2010-

409-2222.  Mr Hair does not have instructions on the application.  While this is not an entirely satisfaction situation, there will be no prejudice if the application for consolidation is deferred until a Duty Judge list early in June (not before 10 June). Hopefully, the consolidation issue can be resolved without opposition because an order for consolidation seems to be highly likely.

[3]      The application for interim injunction is much more complicated.  An interim injunction preventing the defendant from taking any further steps in connection with the purported termination of the lease of 96 Lichfield Street, Christchurch, is sought.

This application is strongly opposed by the defendant.

G P 96 LIMITED V F M CUSTODIANS LIMITED HC CHCH CIV-2011-409-000627 24 May 2011

Background

[4]      On 5 November 2009 Lichfield Ventures Limited, as owner of the property at

96 Lichfield Street, entered into a lease in favour of Livingspace Properties Limited. David Henderson was guarantor, both parties being part of the Henderson Group. The lease was for a term of 6 years from 6 October 2009 and there were two rights of renewal, each for a period of six years.   The annual rental was $520,000 per annum.

[5]      The property at 96 Lichfield Street comprises a five level building which appears to have been erected during the 1940’s.   It is located within the CBD and provides economy level accommodation by way of 110 rooms.  Up to 220 guests, both long and short term, can be accommodated.  Significant parts of the building were sub-let.

[6]      FM Custodians, the defendant, is the trustee for the mortgagee, Canterbury Mortgage Trust.  It has a registered first mortgage over a strip of land at 96 Lichfield Street and a registered second mortgage over the balance.  Apparently steps are now being taken to remedy the situation so that the defendant will be a first mortgagee of the whole of the land.  For present purposes nothing turns on the precise status of the defendant.

[7]      The defendant consented to the lease.  Indeed, it is my understanding that it required the informal leasing arrangement to be regularised.  Hence the lease from Lichfield Ventures to Livingspace Properties.

[8]      On 23 July 2010 Livingspace Properties, as lessee, assigned the lease to the plaintiff which is also part of the Henderson Group.  The assignment was consented to by the lesssor.  Mr Henderson signed for all the parties.  The defendant did not consent to the assignment.   It is alleged by the plaintiff that when the lease was assigned  to  it  rental  had  been  paid  in  advance  to  the  extent  of  approximately

$244,000.

[9]      Issues concerning the validity of the assignment arise in proceeding CIV-

2010-409-2222.  Amongst other things the defendant alleges that the assignment is invalid because Livingspace Properties was in receivership at the time and the receivers did not participate. Those issues cannot, of course, be resolved here.

[10]     The  building  at  96  Lichfield  Street  was  damaged  in  the  earthquake  on

4 September 2010.   However, the hotel operation resumed after the cordon was lifted, albeit on a reduced scale.   Thereafter,  correspondence  concerning repairs passed between representatives of the plaintiff and representatives of the defendant. It is not entirely clear why the liquidator of Lichfield Ventures Limited, which was then in liquidation, appears not to have played any role.  But again this is not critical to the decision to be made today.   In essence, the defendant appears to have been acting as mortgagee in possession.

[11]     More    damage  was  suffered  when  the  further  earthquake  occurred  on

22 February 2011.   As will be explained in more detail later, the damage following the February earthquake can be broadly categorised as minor structural and moderate cosmetic damage.  Like all other buildings in the CBD, the building at 96 Lichfield Street was evacuated and, apart from brief entry into the building on several occasions, it has not been occupied since.   The building is within the “red zone” from which the public is excluded.

[12]     At  this  stage  it  appropriate  to  introduce  two  clauses  in  the  lease  which concern damage or destruction to the premises. These clauses provide:

DAMAGE TO OR DESTRUCTION OF PREMISES Total Destruction

26.1If the premises or any portion of the building of which the premises may form part shall be destroyed or so damaged

(a)      as to render the premises untenantable then the term shall at once terminate; or

(b)      in the reasonable opinion of the Landlord as to require demolition or reconstruction, then the Landlord may within

3 months of the date of damage give the Tenant 20 working

days notice to terminate and a fair proportion of the rent and

outgoings shall cease to be payable as from the date of damage.

Any termination pursuant to this clause shall be without prejudice to the rights of either party against the other.

Partial Destruction

27.1IF the premises or any portion of the building of which the premises may form part shall be damaged but not so as to render the premises untenantable and:

(a)       the Landlord’s policy or policies of insurance shall not have been invalidated or payment of the policy moneys refused in consequence of some act or default of the Tenant; and

(b)       all the necessary permits and consents shall be obtainable: THEN  the Landlord shall with all reasonable speed expend all the

insurance  moneys  received  by  the  Landlord  in  respect  of  such

damage towards repairing such damage or reinstating the premises and/or the building but the Landlord shall not be liable to expend any sum of money greater than the amt of the insurance money received.

27.2Any repair or reinstatement may be carried out by the Landlord using such materials and form of construction and according to such plan as the Landlord thinks fit and shall be sufficient so long as it is reasonably adequate for the Tenant’s occupation and use of the premises.

27.3Until the completion of the repairs or reinstatement a fair proportion of the rent and outgoings shall case to be payable as from the date of damage.

27.4If any necessary permit or consent shall not be obtainable or the insurance moneys received by the Landlord shall be inadequate for the repair or reinstatement then the term shall at once terminate but without prejudice to the rights of either party against the other.

Clause 45 of the lease defines “building” as the land and building of the landlord.

The expression “untenantable” is not defined.

[13]     On 7 April 2011 the defendant’s solicitors wrote to the plaintiff:

1.We  act  for  FM  Custodians  limited,  which  is  the  mortgagee  in possession   of   the   property   located   at   96   Lichfield   Street, Christchurch.  Pursuant to section 147 of the Property Law Act 2007 our client, as mortgagee in possession, is entitled to exercise all the powers of the lessee under the lease between Livingspace Properties Limited (in liquidation) and Lichfield Ventures Limited (in liquidation) and purportedly assigned to GP96 Limited.

2.Without prejudice to our client’s position that the lease was not validly assigned to GP96 Limited, we write to inform you that the lease between Livingspace Properties Limited (in liquidation) and Lichfield Ventures Limited (in liquidation) has terminated.

3.        Pursuant  to  clause  26.1(a)  of  the  lease,  the  lease  terminated  at

12.51 pm on 22 February 2011 when, due to the eaerthquake that occurred at that time, the premises became so damaged as to be

untenantable.

4.Our client is taking possession of the premises given the termination of the lease.

Similar notices were received by the sub-tenants.  On 16 April 2011 the locks were changed and trespass notices were issued. This proceeding was issued on 19 April.

Pleadings

[14]     The plaintiff alleges that the termination of the lease and related steps by the defendant breached the lease and were invalid.  A permanent injunction is sought by the plaintiff who also seeks interim relief.   In essence, the application for interim relief seeks to restrain the defendant and its agents from taking, or continuing to take,  any  steps  in  relation  to  the  notice  of  termination  of  lease,  possession  of premises, trespass notices, and other matters.

[15]     Interim relief is opposed on three primary grounds which are supplemented by the affidavit sworn  on behalf of the defendant by Graeme Reid.   The three primary grounds are: no serious question to be tried; the balance of convenience favours refusal of the application; and the interests of justice favour refusal.

[16]     Numerous affidavits have been filed.  The plaintiff objects to the affidavit of John-Luke Day which was filed and served late on Friday.  Mr Hair submitted that it was filed too late for the plaintiff to be able to respond to it and in any event it is hearsay.

Is there a serious question to be tried?

[17]     Three issues  require consideration:    status  of the defendant;  whether the property at 96 Lichfield Street was rendered untenantable; and whether the lease was frustrated.  Each of these matters will now be considered.

Status of the defendant

[18]     According to the plaintiff the defendant had no status to terminate the lease because it was not at the relevant time a mortgagee in possession under the relevant provisions of the Property Law Act 2007.   The plaintiff’s position is that having consented to the lease the defendant is bound by it and there is no basis on which it could legitimately terminate the lease.  This argument was developed with reference to both the Property Law Act and s 105 and s 119 of the Land Transfer Act 1952.

[19]     Those propositions are rejected by the defendant.  Its position is that it is a mortgagee in possession in terms of the relevant legislation.   It claims that the lessor’s rights have been effectively subrogated to it and that in terms of the Property Law Act, particularly s 147, it has the powers conferred by the lease, but not the obligations.  Amongst other things, Mr Ormsby and Mr Johnson noted that there is no contractual relationship between the plaintiff and the lessee.

[20]     I now consider these matters.

[21]     Under s 147 of the Property Law Act a mortgagee in possession can exercise and  enforce  powers  conferred  by  the  lease.    Section  139(1)  defines  when  a mortgagee becomes a mortgagee in possession.

139     When mortgagee becomes mortgagee in possession

(1)       A mortgagee  who  exercises  a  power  to  enter  into possession  of mortgaged land or goods in accordance with section 137 becomes a mortgagee in possession of the land or goods on the earlier of—

(a)      the  date  on  which  the  mortgagee  enters  into,  or  takes, physical possession of the land or goods; or

(b)       the date on which the mortgagee first receives any income from the land or goods as mortgagee in possession; or

(c)       the date of the mortgagee's application to the court for the order if—

(i)       the mortgagee applies to the court for an order for possession of the land or goods; and

(ii)      the court, in response to the mortgagee's application, makes the order.

For the purposes of this application for an interim injunction, but limited to that purpose, it is common ground that paragraphs (a) and (c) have no application.[1]   I will come back to (b) in a moment.

[1] In terms of para (a) it is acknowledged by the defendant, but only for the purposes of this application, that the evidence indicates that physical possession was not taken until the locks were changed on 16 April 2011.

[22]     Finally, reference needs to be made to s 138(1) of the Property Law Act which provides:

138Mortgagee  may  not  enter  into  or  take  physical  possession  if mortgagee has consented to lease 1

(1)       If a mortgagee has consented to a lease of all or part of the mortgaged land or goods, the mortgagee may not, in accordance   with   section  137(1)(a),   enter   into   or   take physical possession of any land or goods that are subject to the lease, except in the exercise of a power conferred by section 147.

(2)       Subsection (1) applies whether the consent was given, or the lease was entered into, before or after—

(a)       the mortgagee entered into the mortgage; or

(b)      the default occurred; or

(c)       the goods became at risk.

The defendant argues that subsection (1) contemplates that a mortgagee who has consented to a lease can nevertheless exercise the powers conferred by s 147.  Thus the matter comes full circle and whether the defendant is a mortgagee in possession

for the purposes of s 147 turns on s 139(1)(b).

[23]     On the evidence presently available (but this might change if there is an order for consolidation  and the evidence available in relation to  other the  proceeding becomes relevant) the defendant has not received any income in terms of s 139(1)(b). Indeed, it appears that no rent has been paid since 1 August 2010.   It follows that there is a serious question about whether the defendant is a mortgagee in possession for the purposes of s 147.  But that is not necessarily the end of the matter.  If the lease automatically terminates pursuant to clause 26 of the lease because the property is untenantable, then the status of the defendant does not matter.  This brings me to the next issue.

Did the earthquake on 22 February 2011 render the property untenantable?

[24]     What is meant by the word “untenantable” in clause 26.1(a) was considered in DFC NZ Limited v Samson Corporation Limited.[2]A fire gutted the storeroom behind a shop.  The damage was largely confined to the storeroom and the back of the shop.  The damage progressively decreased as on one moved towards the front of the shop.   The lease was for six years.   Although it was anticipated   that repairs would take three weeks, they actually took 10 weeks.

[2] DFC NZ Limited v Samson Corporation Limited HC Auckland CP 862/91 5 June 1992 at page 11

[25]     In the High Court Robertson J applied this test:

“Neither counsel has referred to any decision on what “tenantable” means. It is a phrase which is frequently used within this context, but apparently has not received reported consideration.   For the purposes of this case I am satisfied that the word means nothing more nor less than able to be used and enjoyed by a tenant.  Within that general catalogue of clause 26, subclause (a) involves some degree of permanence.  In other words, something which is merely transitory or temporary will not make a building untenantable. However, where there is a substantial interference with the tenant’s ability to enjoy, use and operate, particularly when one is talking about commercial premises, then you have “untenantability”.

The Judge found that the property was untenantable in terms of clause 26.1(a).

[26]     On appeal[3]  the Court of Appeal adopted the test used by Robertson J but commented:

[3] DFC NZ Limited v Samson Corporation Limited CA 250/92 23 September 1993

There appears to have been some delay in effecting the reinstatement of the premises, but the assessor called for Samson considered that it would have taken a maximum of three weeks from starting date.  Viewing this evidence as a whole in the context of a lease for a six year term, we think it establishes damage of a “merely transitory or temporary nature”, which would be insufficient to satisfy the description  “untenantable”.    It  would justify a temporary abatement of rent under clause 26(c) of the lease pending the completion of reinstatement.  On this ground also we, with respect, disagree with the conclusion reached by the Judge.

The appeal was allowed.

[27]     The next case is Russell v Robinson[4]  which also concerned clause 26.1(a). In that case the first floor of a property that was leased for four years (with one right of renewal[5]) was extensively damaged by fire just after the lease had commenced. The premises were not reinstated until 10 months after the fire.  A District Court Judge held that the damage was not “transitory or temporary” and that the property was untenantable with the result that the lease had been validly terminated.

[4] Russell v Robinson HC Auckland CIV-2010-404-5992 1 April 2011

[5] The term of the right of renewal is not apparent from the judgments.

[28]     On appeal to this Court Priestly J stated, after considering the DFC decision:

[26]     On the basis of these authorities, most of which were before the Judge, I consider that, for the purposes of clause 26.1(a), the word “untenantable” is an objective state to be determined on the specific relevant facts.  Certainly the focus of the inquiry must be whether the premises are capable of being tenanted by the lessee, who in terms of a lease went into the premises for a specific purpose and for a specific term.  The tenant’s purpose is inextricably tied up with the permitted use of the premises.

The appeal was dismissed.

[29]     Mr Ormsby also referred to the decision of the House of Lords in Doherty v Orman[6]to support the proposition that untenantability necessarily involves consideration of whether a hypothetical tenant looking to lease the premises would take a lease.  That proposition was not pressed particularly strongly by Mr Ormsby. I do not derive any assistance from that decision.  It is the lease between the relevant parties that needs to be objectively considered and I do not think that the matter is

[6] Doherty v Orman 1878 3 App Cas 709

advanced by looking at a future hypothetical lessee or an assignee.

[30]     With the benefit of that discussion I return to the issue that needs to be resolved:   is there an arguable case that 96 Lichfield Street was not rendered untenantable by the earthquake on 22 February 2011?

[31]     I begin by making some observations about clause 26.1(a) of the lease.  The enquiry is whether any portion of the building was so damaged as to render the premises untenantable.  In other words, the focus is on the damage to the building and the implications in terms of tenantability.  It is an objective test which reflects that the clause is for the benefit of both parties.   Before the building can be untenantable there needs to be some degree of permanence and something that is merely transitory or temporary will not be enough.   All relevant facts need to be taken into account including the purpose of the lease, the duration of the lease, the extent of the damage, and estimated time for repairs before occupancy can be resumed.   If the building is rendered untenantable the lease will automatically terminate.

[32]     Mr Ormsby argued that the two rights of renewal should not be taken into account.  His reasons included:  they might not be exercised; they are only for the benefit of the tenant; they involve a new lease; and the cases have not taken rights of renewal into account.  I do not agree that the rights of renewal should be ignored.  In my view it would be commercially unrealistic to ignore a feature of the lease that is of such importance to the parties.  From the inception of this lease the lessee knew that provided it complied with the terms of the lease it had tenure of up to 18 years. And the lessor knew that if the lessee complied with the lease and exercised the rights of renewal the lessor would be committed to the lessee or its permits assigns for 18 years.

[33]     I do not accept that DFC and  Russell are authority for the proposition that rights of renewal should be ignored.  There is no indication from the DFC decisions that there was any right of renewal and there is no mention of the principles that should be applied where one exists.  While it is true that in Russell the District Court made a fleeting reference to a right of renewal (but without indicating how long it was for) the significance or otherwise was not addressed in either the District Court

or this Court.  It is reading too much into the decision of Priestly J to say that it is authority for the proposition that rights of renewal should be ignored.

[34]     Restrictions arising from the “red zone” were also traversed.  The defendant relies on a letter from Canterbury Earthquake Recovery Authority which states:

I refer to your email enquiry about a property at 96 Lichfield Street and likelihood of the cordon being lifted.

I advise that the cordon will not be removed from around the area containing that building at any time in the near future.  It is not possible to put a firm timeline around the cordon’s removal for this area, but it is unlikely to be this year.   Cordon boundaries are reviewed regularly to ensure the cordon area is minimised but this is very dependent on the demolition programme. It is, however, possible to provide access to certain buildings for legitimate reasons, including to building owners and occupiers.

The indication that the cordon is unlikely to be removed this year is relied on by the defendant to support its contention that the property at 96 Lichfield Street is “untenantable”.

[35]     As mentioned earlier, Mr Hair objected to the admission of the affidavit exhibiting that letter. At the time I indicated that I would consider the weight, if any, to be given to the letter when arriving at a decision on the interim injunction application.

[36]     Given the widespread use of clause 26.1 in leases in New Zealand (it is contained  in  the  standard Auckland  District  Law  Society  form)  the  defendant’s submission, if accepted, is likely to have very significant implications in Christchurch.   A huge number of leases within the “red zone” are likely to be automatically terminated with the result that lessors or lessees would be able to walk away.  There would be commercial chaos.  I am not prepared to go there, especially in the context of an interim injunction.

[37]     In any event, the evidence about the likely delay before this building can be repaired and reoccupied is unsatisfactory.  The letter is relatively equivocal and the plaintiff has not had an opportunity to respond to it.   Much more comprehensive evidence would be required before the “red zone” factor could be properly weighed.

[38]     Returning to the building, there is no real dispute about the extent of the damage.      John   O’Loughlin,   the   plaintiff’s   engineer,   was   involved   in   the strengthening of this building in 2001 and 2002.  He deposed:

8.I  found  that  there  was  no  significant  structural  damage  to  the building.  There was cosmetic damage where soft wall linings met structural components, cosmetic to ceiling linings and some damage to fitout and joinery items.   There was also limited damage to the fascia stonework of the building facing Lichfield Street, at the west end.

Mr O’Loughlin also deposed that with “a minimum amount of cosmetic repair work”

the building could resume its use as an accommodation facility.

[39]     The defendant’s engineer, Graeme McMillan described the damage as “minor structural and moderate cosmetic”.  Gregor Ferguson, the construction manager for Livingspace Design and Construction Limited, considered that once initial repairs requiring 17 working days had been completed the business could resume operation (on a limited scale).  He considered that full repairs would require 15.4 weeks with the hotel continuing to trade after the initial repairs had been completed.   This timeframe was endorsed by Mr O’Loughlin.  Mr McMillan indicated that he would adopt a “similar” timeframe.

[40]     In the context of a lease with 16 ½  years still to run, a period of 15.4  weeks does not indicate an element of permanence.  To the contrary, it would indicate that the damage and its consequences could be more accurately categorised as transitory or temporary.  Moreover, even if the matter was approached on the basis that the “red zone” cordon would not be lifted for another seven months or so, and that business could not resume before that time, I very much doubt that this would alter the situation in the context of a lease with potentially such a long period still to run.

[41]     Whatever approach is adopted, it is clear that the plaintiff has an arguable case that the building was not rendered untenantable in terms of clause 26.1 by the earthquake on 22 February 2011.  Indeed, on the evidence currently available (but that might change if there is consolidation and other evidence becomes available) the plaintiff’s case could be described as relatively strong.

Frustration

[42]     I can be brief.  While the doctrine of frustration can apply to leases (Stack Shelf Company Number 16 Limited v Mathers)[7] it is clear that the doctrine will rarely be invoked in that context.   I do not believe that there is any prospect of it being invoked in this case.

[7] Stack Shelf Company Number 16 Limited v Mathers HC Rotorua CP 31/90 6 March 1991 Fisher J

[43]     The parties to the lease elected to provide their own mechanism for resolving what happens when there is damage to the building or it is destroyed.   That mechanism is provided by clauses 26 and 27.  No doubt it is for that reason that no provision has been made for force majure.  The lease governs the situation and there is no room for frustration.

Balance of convenience

Adequacy of damages and related matters

[44]     The  plaintiff  argues  that  if  the  building  is  demolished,  sold  or  leased, damages could not compensate the plaintiff for the loss of its proprietary rights. Mr Hair claimed that without interim protection the business could be lost and the plaintiff’s substantive application might be rendered nugatory.  He also claimed that there were issues about the defendant’s ability to pay damages.

[45]     Mr Hair also contrasted the inadequacy of damages to the plaintiff with the lack of prejudice to the defendant if an interim injunction is granted.   He claimed that the defendant could still exercise its powers under the lease as mortgagee in possession.   He also submitted that, given the pre-payment and the abatement of rental arising from the two earthquakes, the defendant could not expect any rental while the substantive matter was being resolved.    Mr Hair also claimed that the evidence before the Court supported the proposition that once it resumed occupation

the plaintiff would be able to resume rental payments

[46]     In  response,  the  defendant  assured  the  Court  (through  the  affidavit  of Mr Reid) that it was not going to take any radical steps and that the status quo should be preserved by refusing to provide interim relief.  The defendant also claimed that damages  would  be  an  adequate  remedy.   At  different  stages  of  the defendant’s submissions both Mr Ormsby and Mr Johnson discussed the business interruption insurance held by the plaintiff.  The thrust of their submission was that this cover would ensure that the plaintiff would not suffer any loss.

[47]     Various  other  issues  were  also  raised  on  behalf  of  the  defendant:    the plaintiff’s ability to support its undertaking as to damages; the defendant’s position is that the plaintiff has been running at a loss and is effectively insolvent; whether the plaintiff is a legitimate assignee; and the plaintiff’s breach of timetable orders imposed by the Court in relation to CIV-2010-409-2222 with the result that the other proceeding has still not been heard.

Third parties

[48]     According to the plaintiff, the sub-lessees are not only a valuable source of income for the plaintiff, they will be prejudiced if there is no interim relief.   The defendant’s response is that if they were really concerned about the matter they would have become involved.

Public interest

[49]     The defendant says it would be contrary to the public interest if the plaintiff was granted an interim injunction without having to pay arrears and current rental. The plaintiff denies that there are any arrears or that there is any obligation to pay current rental.

Conclusions

[50]     It is, of course, a matter of balancing the competing interests.  In this case the arguments certainly go both ways and the balancing exercise is not particularly easy.

In the end I need to assess the balance of convenience in the context of the relatively limited interim relief that I am prepared to contemplate.

[51]     The starting point is that the plaintiff has a relatively strong case.  The lease has around 16 ½ years to run (assuming the rights of renewal are exercised). While it might be unlikely that any steps will be taken by the defendant to demolish, sell or lease the building, I am not prepared to exclude that possibility.  The defendant has effectively invited the Court to take it on trust.  I am concerned, however, that the defendant seems to be of the view that it can take the benefit of the lease but is not bound to honour the obligations arising under it.

[52]     Moreover, I am by no means sure that damages would be an adequate remedy if the property was demolished, sold or leased.  Nor can I entirely ignore the sub- lessees.   While it is true that they have not taken any steps, this is often the case where interim relief is being sought.  That does not entitle the Court to ignore their interests.

Result

[53]     While I am worried about the strength of the plaintiff’s undertaking as to damages I have decided that the balance of convenience and overall justice favour a limited interim injunction.  There will therefore be an order preventing the defendant from demolishing, selling or leasing the building until the substantive matter is heard or until further order of the Court.

[54]     As  I  have  already  mentioned,  the  application  for  consolidation  is  to  be included in a Duty Judge list sometime in June.   Hopefully that will not occupy much time.  The substantive matter will be heard on 8 August 2011.  Two days will be allocated.  At this stage it is not possible to indicate the venue.  It will be advised in due course.

Costs

[55]     Mr  Hair  seeks  costs  for  the  plaintiff.   An  order  is  strongly opposed  by Mr Ormsby on the basis that the interim relief obtained by the plaintiff was available and indeed was offered during the hearing yesterday.  The reality is that, albeit to a limited extent, the plaintiff has succeeded in its application and costs should follow the event. The plaintiff is entitled to costs on the 2B scale plus disbursements.