Grow Build NZ Limited (in liquidation) v Timber Cabins Group Limited
[2023] NZHC 2447
•1 September 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1779
[2023] NZHC 2447
BETWEEN GROW BUILD NZ LIMITED (in
liquidation)
Plaintiff/RespondentAND
TIMBER CABINS GROUP LIMITED
Defendant/Applicant
Hearing: 27 June 2023 Appearances:
T J Conder and D S Howell for the Plaintiff/Respondent K Eastwood for the Defendant/Applicant
Judgment:
1 September 2023
JUDGMENT OF ASSOCIATE JUDGE SUSSOCK
This judgment was delivered by me on 1 September 2023 at 4.15 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Holland Beckett Law, Tauranga K3 Legal, Auckland
GROW BUILD NZ LTD (in liq) v TIMBER CABINS GROUP LTD [2023] NZHC 2447 [1 September 2023]
Introduction
[1] The plaintiff, Grow Build NZ Limited (in liq) (Grow Build), was incorporated to construct and supply tiny homes according to plans designed by the defendant, Timber Cabins Group Limited (TCG).
[2] Within 12 months, Grow Build had failed with significant creditor claims in the liquidation. TCG was its sole customer and is a claimant in the liquidation seeking more than $1 million for advances TCG alleges it made.
[3] Grow Build submits that in fact TCG owes Grow Build more than $750,000 and that if TCG had paid its invoices promptly, Grow Build could have continued to trade and would have broken even. Grow Build also claims that the “advances” claimed by TCG in the liquidation were in fact the payment of valid invoices and are not owed.
[4] TCG has now applied for security for costs. There is no question that Grow Build is insolvent. The question for the Court is whether the circumstances of this case are such that the proceedings should be allowed to continue, despite the fact that costs may not be able to be paid if Grow Build is unsuccessful.
[5] Grow Build submits that it has a meritorious claim and that its insolvent position is a consequence of the defendant’s actions. Accordingly, it submits that it is in the interests of justice for TCG’s application to be declined so that the proceeding can continue.
[6]Grow Build further submits that the amount of security sought is excessive.
[7]I set out the relevant principles before applying them to the facts in this case.
Security for costs principles
[8]Rule 5.45 of the High Court Rules 2016 relevantly provides:
5.45 Order for security of costs
(1)Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
…
(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.
(2)A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
(3)An order under subclause (2)—
(a)requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—
(i)by paying that sum into court; or
(ii)by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and
(b)may stay the proceeding until the sum is paid or the security given.
[9] Grow Build does not dispute that it is insolvent so the threshold in r 5.45(1)(b) is met. Rule 5.45(2) provides that once the threshold is met, security may be ordered if it is “just in all the circumstances”.
[10] As Kós J held in Highgate on Broadway Ltd v Devine, impecuniosity does not per se require the making of such an order.1 The plaintiff’s right to access to justice must be balanced against a defendant’s right to be protected for costs.
In Lee v Lee, the Court of Appeal described the discretion as follows:2
[20] The discretion is a broad one. It may be exercised to require security even if that may prevent a plaintiff from pursuing a claim. But access to the Court for a genuine plaintiff is not lightly to be denied. In A S McLachlan Ltd v MEL Network Ltd this Court summarised the position:
[15]The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.
[16]Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified
1 Highgate on Broadway Limited v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [20]–[21].
2 Lee v Lee [2019] NZCA 345; citing A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13].
litigation, particularly where it is over-complicated and unnecessarily protracted.
[12] Similarly, in Reekie v Attorney-General the Supreme Court said that applications for security in first instance proceedings call for careful consideration and judges are slow to make an order for security which will stifle a claim.3
[13] In A S McLachlan Ltd v MEL Network Ltd, the Court of Appeal cautioned that the discretion in r 5.45(2) is not to be “fettered by constructing ‘principles’ from the facts of previous cases”.4
[14] As far as possible, the Court will endeavour to assess the merits and prospects of success of the claim, bearing in mind the early stage of the proceeding.5 If a prima facie case can be established that a plaintiff's claim is unmeritorious, this will be a factor weighing in favour of security.6
[15] If the defendant's actions, being the subject of the litigation, have caused the plaintiff's impecuniosity, it may be unjust for a defendant to receive security for costs. A mere assertion of such a linkage is not sufficient; there must be evidence to support the contention to the standard of a “reasonable probability”.7
[16] Delay in applying for security for costs may be relevant to the Court’s exercise of its discretion if it causes unfairness to a plaintiff.8
[17] Where a plaintiff can reasonably draw upon resources from third parties to fund litigation, such as shareholders or other persons interested in the litigation or subject matter, this may weigh in favour of an order of security notwithstanding the difficulties the impecunious plaintiff might otherwise face. In those circumstances, it is less likely that a prima facie meritorious case will be impeded by the ordering of security.9
3 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [3].
4 A S McLachlan Ltd v MEL Network Ltd, above n 2, at [13].
5 Saunders v Houghton [2009] NZCA 610 [2010] 3 NZLR 331 at [37].
6 Highgate on Broadway Ltd v Devine, above n 1, at [22(c)].
7 At [23(a)].
8 Oxygen Air Ltd v LG Electronics Australia Pty Ltd [2018] NZHC 945 at [26].
9 Highgate on Broadway Ltd v Devine, above n 1, at [22(d)].
[18] In cases of an insolvent plaintiff, the courts have been more willing to order security where proceedings have not been issued by liquidators in their own names but in the name of the company.10
[19] Finally I record that the quantum of any order for security is at the discretion of the Court and will not necessarily be fixed by reference to likely costs awards. It will reflect what the Court thinks fit in all the circumstances, which will generally include:11
(a)the amount or nature of the relief claimed;
(b)the nature of the proceeding, including the complexity and novelty of the issues;
(c)the estimated duration of trial; and
(d)the probable costs payable if the plaintiff is unsuccessful, and potentially the defendant's estimated actual (i.e. solicitor and client) costs.
Factual background
[20] The proceeding arises out of an agreement between the parties for Grow Build to construct and supply tiny homes to TCG.
[21] Grow Build was incorporated in January 2021 and entered into an agreement with TCG in or around February 2021. The terms of the agreement between the parties are in dispute, including as to the agreed build price per square metre (referred to as the build rate) and whether progress payments were payable or payment was due on completion.
[22] TCG says that Grow Build was undercapitalised from the start and likely insolvent, either from the outset or shortly after it commenced trading. As a result,
10 Combined Industrial Services Ltd (in liq) v Dewar [2015] NZHC 1924 at [54].
11 McNaughton v Miller [2022] NZCA 273 at [17].
TCG says it became a funder, shareholder and secured creditor of Grow Build in addition to being its only customer.
[23] Grow Build says by contrast that it was incorporated solely for the purpose of constructing homes designed by and solely for TCG and if TCG had paid Grow Build’s invoices promptly it could have continued to trade and would have broken even. Grow Build further submits that the “advances” claimed by TCG were in fact the payment of valid invoices.
[24] In March 2021, Mr Frans Minnaar, the sole director of Grow Build and sole shareholder at the time, says he gifted 25 per cent of the shares in Grow Build to TCG following a request to do so from the directors of TCG as they said they were offering to fund Grow Build’s business and operations. Mr Minnaar’s evidence is that he agreed to gift TCG the shareholding as TCG was Grow Build’s only client so the success of their companies “seemed intertwined”. Mr Minnaar says he hoped that if TCG had an interest in Grow Build it would be more willing to spend money on the business.
[25] Mr Minnaar describes the period between May to July 2021 as the tipping point for Grow Build as the company was taking on a lot of debt in building the units ordered by TCG. Mr Minaar’s evidence is that the failure by TCG to pay Grow Build’s invoices on time put significant pressure on Grow Build’s cash flow.
[26] Mr Christopher Farmer, currently the sole director of TCG, gives evidence that over this period TCG was receiving negative feedback about the finish quality of the tiny homes and that build timelines continued to be pushed out, causing TCG financial difficulties. This is because TCG required finished products in order to have units to sell and bring cashflow into the business.
[27] By May 2021 Mr Farmer says there was a long backlog of partly finished homes and TCG had advanced a considerable amount of money for unfinished products. Mr Farmer says that due to increasing concerns about the amount of money paid in advance, TCG asked Grow Build to enter into a general security agreement
(GSA) in TCG’s favour as security for the advances TCG says it had made before it would make any more advance payments.
[28] Mr Minaar’s evidence in relation to entry into the GSA is that it was put to him as a way out of the predicament that Grow Build was in due to lack of payments and subcontractors threatening to stop work completely. Mr Minaar deposes that Mr Farmer and Mr Robert Vincent (the other director of TCG who has sadly since passed away) offered to pay Grow Build $300,000 but only if Grow Build signed the GSA. Mr Minaar’s evidence is that at that time he was in no position to argue and so a GSA was entered into in favour of TCG on 19 July 2021.
[29] There were further meetings between the parties in July and August 2021, where discussions included, on Mr Farmer’s evidence, reaching an agreement on 17 August 2021 to increase the build rate per square metre. Later on that same day, Auckland went into lockdown due to the ongoing COVID-19 pandemic.
[30] On 22 September 2021, TCG appointed receivers to Grow Build pursuant to the terms of its GSA.
[31]TCG made claims in the receivership for:
(a)$181,811.74 made up of an advance payment of $60,000 towards 13 partially completed homes and $121,811.74 for materials that Grow Build had ordered and received but which were paid for by TCG through its trade accounts; and
(b)$1,096,889 (excluding GST) for costs associated with 21 further partially completed homes.
[32] TCG says that the second claim was based on costs assessed by independent building surveyors, Prendos New Zealand Limited, to rectify defects and complete the building work on the 21 partially completed homes to comply with the New Zealand building code.
[33] TCG says it recovered only $180,357 of its total claim in the receivership. Other prior ranking secured creditors were paid in advance of TCG from the assets of Grow Build realised by the receivers. TCG remains a creditor of Grow Build for the balance.
[34] During the course of the receivership, TCG purchased the 13 partially completed homes that were in the possession of Grow Build for $880,000 (excluding GST) following a public tender.
[35] TCG says it has to date incurred costs of over $900,000 to complete the 13 homes to an acceptable standard.
[36] Grow Build was placed into liquidation in October 2021 by resolution of its shareholders and remains in liquidation.
[37] Grow Build therefore concedes insolvency. It says it cannot pay costs other than $5,000 until the end of discovery. Counsel for Grow Build says that if more than that is ordered, Grow Build will be unable to continue with its claim.
[38] I consider below the merits of Grow Build’s claim, whether it is reasonably probable that that plaintiff’s impecuniosity has been caused by the defendant and then any remaining factors before determining how to exercise the r 5.45(2) discretion.
Merits of the claim
[39] Where the effect of an order will be to prevent a claim from being brought, the plaintiff submits a security for costs order should be considered “entirely exceptional”.12 Such an order will only be made where “a clear impression can be formed that the plaintiff’s claim is altogether without merit — so that in the alternative it would be amenable to being struck out”.13 The evidence filed for the plaintiff is that an order for security for costs is likely to be fatal to the proceeding being continued to the extent that it exceeds $5,000 payable up until discovery. The plaintiff therefore
12 Highgate on Broadway Limited, above n 1, at [22(e)].
13 At [23(b)].
says security only ought to be ordered if the Court is satisfied that the claim is altogether without merit.
[40] Grow Build pleads six causes of action. Counsel submits however that its principal claim is contractual. The parties agree that a contract exists and that its terms are partly written and partly oral. Counsel for Grow Build submits that the lack of clarity as to the terms of the contract explains the need for a number of alternative pleadings, not that its claim is weak as TCG submits.
[41] The fact that the agreement is partly written and partly oral means that there is no single document that can be relied on to include or exclude specific terms. Grow Build says that the terms of the agreement will therefore depend on the evidence of both parties, which is difficult to assess on a summary basis.
[42] Sadly, adding to the difficulties, as mentioned above, one of the directors of TCG, Mr Vincent, has passed away. The evidence of agreements reached orally is therefore only available from the other director, Mr Farmer. Mr Farmer’s evidence is that a square metre build rate of $1,850 was verbally proposed in early February 2021 subject to an agreement that Grow Build would undertake due diligence to establish whether they were able to build at that rate profitably. By 11 February 2021, Mr Farmer’s evidence is that Grow Build had confirmed that they would be able to operate at the build rate proposed and had agreed on a number of other terms. These terms are set out in an email on that date from Mr Vincent to Grow Build. However, the terms did not include the build rate of $1,850 that Mr Farmer says was agreed.
[43] Grow Build submits that the agreement reached included that there were to be progress payments and adjustments to reflect variations, followed by a final wash up to reflect the true cost of the work. Grow Build’s evidence is that Mr Vincent dealt with finance-related matters and Mr Farmer dealt with sales and technical building related matters. In any event, Grow Build says that the evidence of TCG’s director supports Grow Build’s position that there was to be a final price adjustment made and progress payments, pointing to the following:
(a)Mr Farmer records in his evidence that:
(i)as at early February 2021, the initial build rate was subject to “due diligence”, although Mr Farmer claims that this rate was then settled by an email of 11 February 2021;
(ii)this build rate was in active discussion in June 2021 to “try and contain build prices”; and
(iii)the build rate was increased in August 2021, a fact that is inconsistent with Mr Farmer’s claims that the terms of the contract were fully concluded in February 2021;
(b)Mr Farmer says that the term that payment was on completion was an essential term from TCG’s perspective yet acknowledges a number of progress payments being made, including as early as the end of February 2021; and
(c)Mr Farmer’s evidence shows that the relationship between TCG and Grow Build was far from an arm’s length relationship, adding weight to the allegation that the arrangement was one where TCG was to assist with cashflow and capital development.
[44] Counsel for TCG made submissions in respect of each of the causes of action and then makes the following submissions in conclusion on the merits of the plaintiff’s claim:
(a)there is no credible evidence to support the claim that TCG agreed to make any payments to Grow Build beyond a fixed square metre rate per home relying on:
(i)the agreement to a fixed price is supported by the email correspondence and records of meetings between the parties during the course of their relationship;
(ii)the fixed price is reflected in the invoices that were issued by Grow Build to TCG which priced each tiny home based on a square metre rate;
(iii)no additional invoices were issued by Grow Build that could represent variation payments or wash up payments; and
(iv)Grow Build’s own internal records support that 34 of the homes had been paid for in full.
(b)Grow Build failed to deliver 21 of the homes that TCG had paid full value for and TCG has incurred very substantial costs in completing these homes to an acceptable standard for sale, exceeding $500,000 to date;
(c)the liquidator’s assessment of the claim gives no consideration to Grow Build’s failure to deliver completed homes of an acceptable standard to TCG within a reasonable period of time, submitting that an objective observer would doubtless acknowledge that TCG did not receive the goods that it had been invoiced for and had paid for; and
(d)the receivers of Grow Build, experienced insolvency practitioners with statutory duties, assessed TCG as being a creditor of Grow Build (as opposed to determining that any amount was owing by TCG to Grow Build) and there has been no challenge to their actions.
[45] TCG submits Grow Build has been fully compensated for the work done on the 13 homes which were sold by the receivers at a price which exceeded the full build cost for the homes. Overall TCG submits the prospect of any recovery for Grow Build seems highly unlikely, particularly accounting for TCG’s counterclaim.
[46] In my view, the merits of Grow Build’s claim are hard to assess at this stage. I do not consider the evidence clearly supports the interpretation put forward by TCG that the agreement was for TCG not to make any payments beyond a fixed square
metre rate per home of $1,850. There is reference in the correspondence to this rate being subject to further assessment and it is accepted that variations to the rate were agreed. Grow Build’s claim in this regard appears, at least, reasonably arguable.
[47] TCG’s 11 February 2021 email did include a term recording that payments would be on completion. The email does not however record that these were agreed terms between the parties.
[48] Mr Minnaar attaches a letter dated 15 February 2021 to his affidavit that he says was given to Mr Vincent, the director of TCG who has since passed away, in response to the 11 February 2021 email, saying that the company would need monthly progress payments. Mr Farmer’s evidence in reply is that he does not accept this letter was ever given to TCG, noting that the letterhead was not Grow Build’s letterhead at the time.
[49] Whether this letter was given to Mr Vincent at the time or not, the evidence is not such that it can be untangled in the context of this interlocutory application. As the Court of Appeal said in McNaughton v Miller:14
It is well recognised, however that there is a limit as to how for an inquiry into the merits can be made, particularly at an early stage of the proceeding…. In a complex matter, any assessment of the merits will be no more than an impression.
(Footnotes omitted)
[50] It appears at this stage that to determine the terms of the contract that were agreed will require discovery and cross-examination. Counsel for TCG submits that there will be nothing more revealed on discovery as Grow Build has been in liquidation for a significant time now and any documents that it wishes to rely on ought already to have been located. This however does not mean Grow Build will have had an opportunity to see TCG’s documents.
14 McNaughton v Miller, above n 11, at [19].
[51] In these circumstances my impression of the merits is that they support ensuring that any security for costs award does not prevent the bringing of the claim by Grow Build.
Is it reasonably probable that the defendant caused the plaintiff’s financial position?
[52] TCG denies any role in Grow Build’s impecuniosity, relying on the findings of the liquidators that the company was insolvent from an early stage. However, Grow Build’s evidence includes evidence from Mr Minnaar that Grow Build was formed to support TCG, with an expectation that TCG would financially support Grow Build to become independently viable. Counsel for Grow Build says there is no dispute that Grow Build was chronically undercapitalised, but Grow Build submits that this is at least in part a consequence of the way TCG dealt with Grow Build throughout its relatively short life. Grow Build submits these dealings included continuous delays in paying invoices, culminating with a requirement that the GSA be provided before invoices were paid.
[53] Counsel for Grow Build submits that the impecuniosity factor is seldom determinative alone but that it requires the Court to consider more closely the request for security and to apply particular caution to avoid a situation where a litigant avoids a legitimate claim based on a situation that they have helped to create. In this case TCG was the sole customer of Grow Build and Grow Build submits this was, at least for the initial period, by design. The successive failure of TCG to make payments created a situation of chronic underfunding that made the ultimate failure inevitable. Counsel for Grow Build says that in such a case, security would only compound this by preventing Grow Build from obtaining recourse for what has occurred.
[54] If Grow Build is correct that Grow Build’s invoices were issued in accordance with the agreed terms then TCG’s actions may be seen as leading to the impecuniosity on which TCG now seeks to rely. This depends on the determination of what the contractual terms were which, as stated, is not possible at this stage of the proceeding.
[55] I have held above however that at this early stage Grow Build’s position on the terms of the contract appears reasonably arguable. Grow Build’s reliance on its impecuniosity being caused by TCG appears therefore to be more than mere assertion.
[56] Again, I consider therefore that this factor supports ensuring that the claim may proceed because it is not a matter that can be determined in the context of this application.
Delay
[57] I agree with counsel for TCG that there can be no suggestion of needless delay in the defendant applying for security for costs. The application has been brought at an early stage of the proceedings with no resulting unfairness to the plaintiff. There is no suggestion from the plaintiff otherwise.
Other funders
[58] The liquidator of Grow Build, Mr David Thomas, has confirmed by affidavit that he has approached some of the creditors of Grow Build to see whether they would be prepared to post security but that at this stage he has not had any success. He deposes further that he does not expect that to change if security for costs is ordered.
[59] Counsel for Grow Build however indicated that if the documents supported its case following discovery, Grow Build may be able to attract a litigation funder. I consider this further below in relation to quantum.
Quantum
[60] The fact that the defendant accepts that the contract was partly written and partly oral, the brief time period between the incorporation of Grow Build and receivership by TCG, and the clearly intertwined nature of the business relationship all support security being awarded in an amount that will allow the claim to proceed.
[61] Grow Build had previously indicated to TCG that it could fund $5,000 for security to the conclusion of discovery and that at that stage, the position on the merits will be clearer. Counsel submits that if discovery is fruitful for Grow Build, this is
likely to assist it in obtaining funding to pursue the claim, including to meet any security set for the next stage.
[62] If security is ordered, TCG submits that the amount ought to be fixed with reference to the standard steps taken in the proceedings. TCG attaches a schedule of costs calculated on a 2B basis amounting to $65,725 based on an estimated five-day fixture and assuming no further interlocutory applications are required.
[63] Grow Build submits that even if the Court determines it is appropriate to order security at this stage, the sum sought by TCG is excessive. Grow Build says that security is usually limited to future steps in the proceeding, not steps that have already occurred.15 As a result, Grow Build submits that the first six items in TCG’s schedule, totalling $13,145, ought to be deleted.
[64] Secondly, Grow Build submits that allowing for second counsel at this early stage of the proceeding is entirely premature and would be unusual in a security for costs award, leading to a further reduction of $5,975. Together these two reductions reduce the total from $65,725 to $46,605. Grow Build says that this figure should be further reduced as security is not generally given for the full sum that would otherwise be ordered.16 Counsel for Grow Build emphasises this is necessary in this case if security is ordered to balance the interests of the parties, balancing the risk to the defendant that a costs award will not be paid against the plaintiff’s interest in the claim proceeding. On this basis, counsel submits a further reduction of 50 per cent from the
$46,605 would be appropriate, giving a final figure of $23,300.
[65] Finally, counsel for Grow Build submits that security ought to be ordered in stages, as follows:
15 Pickard v Ambrose HC Wellington CIV-2003-091-143, 13 August 2009 at [9].
16 Purau Moorings Association Inc v Canterbury Regional Council [2018] NZHC 462.
Stage 2B Cost
Security (50 per cent)
Discovery (items 20 and 21)
$9,560
$4,780
Exchange of briefs (items 15 and 33)
$13,145
$6572.50
Trial (items 33B and 34)
$23,900
$11,950
[66] Balancing the interests of both parties, I consider that it is appropriate to order security in stages to ensure the plaintiff fairly assesses whether to continue its claim at each stage, protecting the defendant’s interests in doing so but also ensuring that its claim is able to proceed it has sufficient merit.
[67] In the circumstances, I consider that the outcome which fairly balances Grow Build’s right to bring the proceeding against TCG’s right to recover its costs if Grow Build is unsuccessful is for Grow Build to pay staged security as follows:
(a)$5,000 by 29 September 2023;
(b)$10,000 by close of pleadings;
(c)$20,000 by 15 working days following service of the defendant’s evidence.
[68] These stages are different than proposed but in my view are appropriate dates at which the plaintiff ought to assess whether to continue with its claim sufficiently in advance of the defendant being required to invest further resources for the next stage. The orders made below record that proceedings will be stayed until payment at each stage.
Stay
[69] The defendant seeks an order pursuant to r 5.45(3)(b) staying the proceeding until the security is provided.
[70]Counsel for Grow Build responsibly did not resist such an order.
[71] A complicating factor is that TCG has filed a counterclaim. I include an order below that the proceeding be stayed at each stage until security is paid but reserve leave to the defendant to apply for a variation of that order if required.
Orders
[72]I order:
(a)the plaintiff shall provide security for the defendant’s costs of this proceeding as follows:
(i)$5,000 by 29 September 2023;
(ii)$10,000 by close of pleadings;
(iii)$20,000 by 15 working days following service of the defendant’s evidence.
(b)this proceeding is stayed until provision of the security directed in paragraph [72](a)(i) and again if security is not paid as directed in paragraph [72](a)(ii) and (a)(iii); and
(c)leave is reserved to the defendant to apply to lift the order for stay if required.
Costs
[73] Although TCG has succeeded, my preliminary view on costs is that costs ought to lie where they fall as prior to the applications being filed, Grow Build proposed that the proceedings continue on the basis that Grow Build pay $5,000 until discovery is completed and that the question of security be addressed at that stage. TCG did not take up that offer. It may be that TCG could have avoided the costs of this application if it had done so. I ask the parties to confer and only if agreement cannot be reached to file memoranda of no more than three pages (excluding schedules), on behalf of the
applicant within 20 working days of this judgment and respondent, a further 10 working days.
Associate Judge Sussock
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