Jackson v Grant
[2022] NZHC 2113
•24 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-2460
[2022] NZHC 2113
UNDER The Receiverships Act 1993 IN THE MATTER
of the receivership of Ormiston Rise Limited (in receivership and in liquidation) and
Ormiston Rise Development Limited (in receivership and in liquidation)
BETWEEN
NEALE JACKSON and GRANT GRAHAM
as Receivers of Ormiston Rise Limited (in receivership and liquidation)
First Applicant
…/cont.
Hearing: 19 August 2022 Appearances:
S Hunter QC and D Friar for the first and second applicants
R Hollyman QC and A Peat for the first and second respondents D Chisholm QC and S Hawksworth for the third and fourth respondents
Judgment:
24 August 2022
JUDGMENT OF GORDON J
This judgment was delivered by me on 24 August 2022 at 4 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: Solicitors:
S Hunter QC, Auckland Bell Gully, Auckland
R Hollyman QC, Auckland Simpson Grierson, AucklandA Peat, Auckland A Botterill, Waterstone Insolvency D Chisholm QC, Auckland
JACKSON v GRANT [2022] NZHC 2113 [24 August 2022]
NEALE JACKSON and GRANT
GRAHAM as Receivers of Ormiston Rise Development Limited (in receivership and liquidation)
Second Applicant
AND DAMIEN GRANT as Liquidator of
Ormiston Rise Limited (in receivership and liquidation)
First Respondent
DAMIEN GRANT as Liquidator of Ormiston Rise Development Limited (in receivership and liquidation)
Second Respondent
ARENA ALCEON NZ CREDIT PARTNERS, LLC
Third Respondent
QUAESTOR ADVISORS, LLC
Fourth Respondent
[1]This is an application for discovery.
[2] The substantive application is an originating application brought by the first and second applicants Neale Jackson and Grant Graham as receivers for Ormiston Rise Ltd (in receivership and liquidation) (ORL) and Ormiston Rise Development Ltd (in receivership and liquidation) (ORDL) respectively.
[3] In the substantive application the receivers are seeking declarations as to the proper amount of the secured debt owed by ORL and ORDL.
[4] The receivers filed their originating application after the first and second respondents, Damien Grant as liquidator of ORL and ORDL respectively, raised concerns over the increase in the level of debt during the receivership.
[5] The liquidator now seeks discovery of certain categories of documents. The application is opposed by the receivers and by the third and fourth respondents Arena Alceon NZ Credit Partners, LLC (Arena) and Quaestor Advisors, LLC (Quaestor) respectively. Arena provided funding to ORL and ORDL through Quaestor, which is the secured creditor. I will refer to Arena and Quaestor together as the lender.
Background
[6] A brief factual background giving rise to the receivership and liquidation is as follows.
[7] ORL and ORDL were incorporated for the purpose of purchasing and developing land at Murphy’s rise in South Auckland (land). The development of the land related to the construction of a four stage residential development of over 700 houses. ORL purchased the land for the development in 2019 and in early 2020 it incorporated a wholly-owned subsidiary ORDL to undertake the work on the development (development).
[8] ORL’s purchase of the land was funded in part by vendor finance (secured by a second mortgage over the land) and in part by two facility agreements namely a Senior Facility Agreement and a Mezzanine Facility Agreement both dated
18 February 2020 (together the Facility Agreements) entered into with Arena. The Facility Agreements record ORL as the borrower, ORDL as the guarantor, Arena as the lender, and Quaestor as Arena’s agent and security trustee.
[9] ORL’s and ORDL’s obligations under the Facility Agreements were secured by two General Security Deeds dated 18 February 2020 over ORL’s and ORDL’s assets (together the GSD) along with a registered first mortgage over the land (mortgage).
[10] The GSD and the mortgage were held by Quaestor as security trustee pursuant to a Security Trust and Subordination Deed (Security Trust Deed).
[11] On 28 April 2021 Arena made demand on ORL under the Senior Facility Agreement, following an event of default. The demand was not remedied and on 6 May 2021 Arena instructed Quaestor to appoint receivers. The receivers were appointed to ORL on 7 May 2021 and to ORDL on 8 May 2021.
[12] Construction work on the development had commenced in early 2020. The evidence of Mr Jackson, one of the receivers, is that by the time of his and Mr Graham’s appointment in May 2021, construction had commenced on all four stages of the development: stage one civil construction work was close to achieving practical completion and house construction had also commenced on stage one.
[13] The receivers say that following their appointment their initial focus was on securing the assets and stabilising the development. Mr Jackson’s evidence is that the receivers considered that the continuation of certain works in the development was important to preserve the value of the companies’ assets and to avoid significant risks which he identifies in his evidence, associated with ceasing all works immediately.
[14]Having taken expert advice the receivers prepared a development budget of
$29 million for the continuation of works including earthworks and civil and design works through to 31 August 2021 in accordance with ORDL’s plans for the development. In order to fund those works ORL, ORDL and Arena entered into a Receivership Facility Agreement on 4 June 2021 under which Arena provided funding of up to $30 million to continue the works on the development in line with the
development budget. ORL and ORDL’s obligations under the Receivership Facility Agreement were secured by the GSD.
[15] In order to repay the secured debt the receivers conducted a sales process for the land and development (which were the primary assets of ORL and ORDL) by way of a public tender. The receivers received tenders from a number of parties and entered into negotiations with three of those parties. On 19 August 2021 the receivers accepted an offer from The Neighbourhood South Ltd (TNSL) and an agreement for sale and purchase was signed.
[16] TNSL is related to Arena, and Arena provided funding to TNSL to purchase the development. The purchase price was $197,750,000. TNSL was required to pay
$19 million in cash to discharge the second mortgage over the land (which had secured the original vendor finance) and $178,750,000 was to be applied to the debt owed by ORL and ORDL to Quaestor in a paper transaction.
[17] Settlement was to have been on 31 August 2021 but was delayed until 13 September 2021 for reasons relating to New Zealand moving to COVID-19 Alert Level Four. The receivers agreed to that variation in consideration of TNSL increasing the purchase price by $250,000. As at 13 September 2021 the amount of the secured debt was $181,607,352 (the secured debt). There was thus a small amount of the secured debt outstanding after settlement.
[18] Mr Grant was appointed as administrator of ORL on 25 August 2021 by its Board of Directors and as liquidator on 29 September 2021. He was then appointed as liquidator of ORDL on 3 December 2021.
[19] On 28 October 2021 the liquidator brought an originating application in this Court seeking an order that the Court terminate the receivership of ORL. The liquidator’s position was that the secured indebtedness was less than that claimed and it therefore had already been fully repaid so that the receivers should retire.
[20] The receivers disputed the basis of the liquidator’s 28 October 2021 application and so brought their own originating application dated 23 December 2021 for
directions as to the proper amount of the secured debt. On 16 February 2022 an order was made by consent staying the liquidator’s 28 October 2021 application pending resolution of the receivers’ 23 December 2021 originating application, or until otherwise ordered by the Court.
[21] Mr Grant says as liquidator he has sought to understand the increase in the secured debt during the period of receivership but with the documents provided to date he has been unable to do so. A portion of that sum has now been provisionally agreed but just under $47 million remains in dispute.
Legal principles
[22] The legal principles regarding discovery in originating applications are well settled. Discovery in originating applications is not available as of right. Rather, the Court has the discretion to order discovery.1 There is no express provision for discovery in Part 19 of the High Court Rules 2016 but the following principles emerge from case law:2
(a)The document sought must be capable of supporting the applicant’s case or adversely affecting the opponent’s case;
(b)Discovery orders should be subject to the proportionality and practicality requirements identified in r 8.2 of the High Court Rules and, as with all orders and the High Court Rules generally, should accord with the objective of “just, speedy and inexpensive determination of disputes”;3
(c)While a conservative approach is generally adopted, discovery under a Part 19 application is not restricted or limited to exceptional or the rarest of cases;4
1 Commissioner of Inland Revenue v Elementary Solutions Ltd [2017] NZHC 2411 at [37].
2 Commissioner of Inland Revenue v Elementary Solutions Ltd, above n 1, at [37].
3 High Court Rules 2016, r 1.2.
4 Commissioner of Inland Revenue v Elementary Solutions Ltd, above n 1, at [36].
(d)Discovery will be appropriate in marginal cases where the party makes an outline case but the Court encounters genuine difficulty in determining, without documentary evidence which is likely to assist, whether the threshold test is satisfied.
[23] Mr Hunter QC for the receivers and Mr Chisholm QC for the lenders emphasised the need for a conservative approach and referred to the statement by Muir J in Gibson v Official Assignee,5 where the Judge stated that discovery in originating applications should be far from routine. I note that Muir J added, however, that each case is necessarily assessed on its own facts.
[24] Mr Hollyman QC for the liquidator emphasised that while the proceeding had been initiated by way of an originating application it involved significant sums, is factually heavy and strongly contested on all sides. The Court is not being asked to engage in a purely procedural determination.
[25] Three questions arise for consideration on an application for discovery on an originating application:6
(a)What is at issue in the application?
(b)Would the documents in question be capable of supporting the applicant’s case or adversely affecting the respondent’s case on a relevant issue?
(c)Would discovery be appropriate and proportionate in the circumstances?
[26] As recognised by Asher J in Commerce Commission v Cathay Pacific Airways Ltd, in the context of considering an application for tailored discovery, an analysis of the issues in the proceeding is important:7
5 Gibson v Official Assignee [2018] NZHC 1077 at [8].
6 Manchester Securities Ltd v Body Corporate 172108 [2015] NZCA 29 at [18].
7 Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726.
[13] The starting point in such a consideration of appropriate tailored discovery orders must be an analysis of the issues. Discovery categories will reflect the issues and will only be ordered for the discovery of documents that are relevant to those issues. Except in exceptional circumstances, these issues will be discernible from a review of the pleadings. Discovery orders that are essentially of a “fishing” nature are not part of tailored discovery. Orders will not be granted where the categories do not relate to a pleaded relevant issue, but rather a non-pleaded issue which might be pleaded should discovery reveal documents that support such a pleading.
[27] In determining relevance the case of the party seeking discovery must be assumed to be true, not that of the party from which discovery is sought.8 Relevance can be broader than the test for admissibility in s 7(3) of the Evidence Act 2006 and can include “something that is directly connected, related or pertinent to ‘the matter in hand’”.9
What is at issue in the proceeding?
[28] As already stated the issue for determination in the proceeding is the proper amount of the secured debt. That issue turns on the interpretation of the Facility Agreements and whether the amounts outstanding under those agreements form part of the secured debt under the GSD. The liquidator disputes three particular parts of the secured debt (disputed amounts).10 Using the wording of the receivers’ originating application, the declarations sought that are relevant to the disputed amounts are as follows:
(c)A declaration that the Secured Debt appropriately includes
$6,489,574, being amounts advanced by Arena Alceon NZ Credit Partners SPV, LLC (Arena) to preserve the value of the secured property (the Preservation Costs);
(d)A declaration that the Secured Debt appropriately includes
$14,692,006, being amounts drawn down by ORDL to allow it to continue the development of the project (the ORDL Costs);
(e)A declaration that the Secured Debt appropriately includes
$18,000,000 being the final interest payment payable to Quaestor (the Final Interest Payment).
8 Kawarau Village Holdings Ltd v Yuen [2015] NZHC 1379 at [38].
9 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 74, [2018] NZAR 275 at [28].
10 There is also an issue over interest that is accruing on what the receivers say is the unpaid amount of the secured debt. The answer to that issue will follow from the findings of the Court in relation to the disputed amounts.
Preservation Costs
[29] The liquidator takes issue with $6,489,574 being amounts advanced by Arena which were said to be used to preserve the value of the secured property and to allow the development to continue. Arena claims these are amounts under the Facility Agreements and they therefore form part of the secured debt. The liquidator’s case is that Arena is not entitled to claim these costs under the Facility Agreements.
ORDL costs
[30] The receivers say ORL and ORDL borrowed funds under the Receivership Facility Agreement of 4 June 2021 in accordance with the receivers’ powers under the GSD to fund receivership costs. The receivers say these costs form part of the secured debt under cl 2 of the GSD. They also say these costs were Senior Secured Money and therefore part of the secured debt under cl 1.3 of the Receivership Facility Agreement, to the extent these amounts were not repayable as receivership costs. The receivers have provided a breakdown of the ORDL costs and each of the underlying invoices to the liquidator.
[31] The liquidator accepts $3,608,294.43 of the ORDL costs (accepted ORDL costs) but disputes the balance of the costs on the following basis:
(a)“Unable to verify or unnecessarily incurred” ($12,575,814); and
(b)“Pre-receivership costs” ($441,904).
Final Interest Payments
[32]The originating application at paragraph (e) set out in [28] above refers to
$18 million as the Final Interest Payment. That is the amount in the Senior Facility Agreement. The liquidator also challenges $1,900,000 as the Final Interest Payment under the Mezzanine Facility Agreement. The total amount in dispute is therefore
$19,900,000.
[33] The receivers’ position is that under the terms of the Facility Agreements the Final Interest Payments became repayable on 13 September 2021, the date on which
the loans were paid upon settlement of the sale. As a result the receivers say the Final Interest Payments form part of the secured debt. The liquidator challenges that interpretation of the Facility Agreements and says the Final Interest Payments were to be a success fee on the completion of the development.
Discovery sought by the liquidator
[34] There are three categories of documents sought. In the course of the hearing Mr Hollyman pruned the types of documents sought within each category and refined the remaining types sought.
Category one: context of funding document
[35] The documents sought are “Documents relating to the negotiation and meaning of the ‘Final Interest Payment’”. The liquidator says such documents will be relevant to the interpretation of the ‘Final Interest Payment’ as that term appears in the Facility Agreements and whether entitlement to the Final Interest Payments had actually arisen.
[36] Mr Hollyman submits that the “Final Interest Payments” are not in fact due before the development is completed and there was no reason that they should be paid at such an early stage. He refers to the definition in the Facility Agreements:
Final Interest Payment: On the earlier of the Repayment Date and the date on which all Loans have been fully repaid and/or prepaid the Borrower shall pay to the Agent (for the account of the Lenders by reference to their respective Commitments) a non-refundable fee in an amount equal to NZ$18,000,000 (the Final Interest Payment). For the avoidance of doubt, the Final Interest Payment shall be payable in addition to, and not in lieu of, any other amount of interest or fees payable under this Agreement.
[emphasis in original]
[37] There is a similar clause in the Mezzanine Facility Agreement for an amount of $1,900,000.
[38] The “Repayment Date” is defined as: “The Outstanding Amount shall be repaid in full on or before 31 March 2023”.
[39] Mr Hollyman emphasises the wording “all loans have been fully repaid” in the above clause. There was provision for the borrowing of a total of $330 million made up of three tranches: Facility A $140 million; Facility B $120 million and Facility C
$70 million. The debt at the time of default was below the sum of borrowing under Facility A. Mr Hollyman says there is an available argument that because all loans have not been fully repaid the Final Interest Payment was not due.
[40] Mr Hollyman also refers to a document that Mr Grant annexes to his affidavit of 14 April 2022 which was provided to him by Todd Strathdee, Arena’s representative in New Zealand, in which the Final Interest Payment is described as a “success fee”. The liquidator’s position is that if the Final Interest Payment is a success fee (ie payable on completion of the development) this is not properly payable at this stage and would not have been payable until the development was completed.
[41] In opposition the receivers say first, that they do not have any such documents. Second, Mr Hunter submits the documents sought are not relevant, given the receivers relied on the plain wording of the Facility Agreements set out above without access to any relevant background material.11 There is no interpretive dispute in relation to the Facility Agreements and so no discovery is required in respect of such documents.
[42] Mr Chisholm submits the documents are not relevant and/or discovery would not be proportionate. Mr Chisholm refers to the confirmation by the Supreme Court in Bathurst Resources Ltd v L & M Coal Holdings Ltd that a court will not take into account evidence that demonstrates a party’s own subjective position when interpreting a contract.12 Accordingly Mr Chisholm submits that Arena’s internal records and communications will not assist the Court in interpreting the wording of the clause in question.
11 Bathurst Resources Ltd v L & M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 at [47]; citing with approval Firm PI 1 Ltd v Zurich Australian Insurance Ltd (t/a Zurich New Zealand) [2014] NZSC 147, [2015] 1 NZLR 432 at [62].
12 Bathurst Resources Ltd v L & M Coal Holdings Ltd, above n 11.
Category one: discussion
[43] First, whether the Final Interest Payment of $19.9 million is part of the secured debt is clearly an issue in the proceeding. That, in turn, depends on the interpretation of “Final Interest Payment” in the Facility Agreements.
[44] The next issue is whether the documents sought would be capable of supporting the liquidator’s case or adversely affecting the case for the receivers and the lenders. Submissions available to the receivers and lenders on the substantive application would include the following (which would support a submission that extrinsic evidence would not be admitted):
(a)The amounts of $18 million and $1.9 million were payable based on the plain meaning of the clause in question;
(b)The Senior Facility Agreement expressly contemplates that the whole of each tranche would not be drawn down and the Mezzanine Facility Agreement contemplates that the whole of the Facility would not be drawn down;
(c)The “No Reliance” clause at cl 30.11 of both Facility Agreements provides that each party acknowledges that it had consulted independent legal advisors and had not relied on any representation or warranties except as expressly set out in the Facility Agreements.
(d)The clause is a “boilerplate” clause common to many such agreements; and
(e)The approach to extrinsic evidence may be more restrictive where the parties are aware the contract may be relied upon by third parties.13 This is just such a case where the receivers are third parties relying on the Facility Agreements.
13 Bathurst Resources Ltd v L & M Coal Holdings Ltd, above n 11, at [47]; referring to Firm PI 1 Ltd v Zurich Australian Insurance Ltd (t/a Zurich New Zealand), above n 11, at [62].
[45] How the “Final Interest Payment” clause will be interpreted and whether any extrinsic evidence will be admitted as part of that interpretation exercise will be determined by the Court hearing the originating application. It is not the role of this Court hearing the application for discovery to determine such matters. Nevertheless, for the purposes of considering the discovery application I consider the receivers and the lenders have the stronger argument. However, the position of the liquidator is not completely untenable. Any documents (that indicate a mutual intention) supporting the existing document that the “Final Interest Payments” were to be a success fee would be capable of supporting the liquidator’s case.
[46] As to proportionality, no evidence has been given by the lenders as to the volume of likely documents or the difficulty of searching for or recovering them or the extent of work involved in that respect. The category of documents is narrowly defined and it is unlikely that the negotiation period was extensive. I therefore conclude it would be appropriate and proportionate for an order to be made in relation to documents in Category one.
Category two: reasons for the payments during the course of the receivership (broad)
[47]The documents sought in Category two, as amended, are as follows:
Documents relating to:
(a)the decision by Arena/Quaestor and the Receivers to continue with payments for the development of the land through the receivership;
(b)reasons for, and the necessity of, making payments of pre-receivership amounts;
(c)reasons for, and the necessity of, making payments to continue the development of the land during the receivership and to make payments in advance for further work; and
(d)reasons for, and the necessity of, making preservation advances.
[48] The liquidator says that each of those types of documents is relevant to an issue in the proceeding.
Category three: reasons for the payments during the course of the receivership (specific)
[49] It is useful to set out Category three at this point as the liquidator’s position is that the types of documents in Category three are a narrow class of documents within Category two. The types of documents sought in Category three are as follows:
Documents relating to each of the preservation advances and payments applied under the Receivers’ facility agreement and which remain in dispute.
[50] The liquidator says Category three documents are relevant to the following issues:
(a)Reasons for, and the necessity of, each payment of pre-receivership debt.
(b)Reasons for, and the necessity of, each payment to continue the development of the land during the receivership or paid in advance for further work.
(c)Reasons for, and the necessity of, each of the preservation advances and also each assignment of debt taken.
(d)Reasons for, and the necessity of, the excess drawn down made by the Receivers.
(e)The validity of the interest claimed and its continued accrual on the above amounts.
[51] The documents sought relate to both the ORDL costs which were costs incurred by the receivers and the Preservation Costs which were costs incurred by Arena.
[52] For the receivers it is noted that the liquidator does not say the ORDL costs were not borrowed by the receivers under the Receivership Facility Agreement. Also the liquidator does not say that these amounts were not due and owing under that agreement or that the GSD does not apply to the Receivership Facility Agreement. Rather, Mr Hunter says the liquidator appears to suggest that the receivers improperly spent the money borrowed from Arena. Mr Hunter says the propriety of the use to which the funds were put is irrelevant to the question of whether the amounts were borrowed from Arena and are now owing to Arena.
[53] I accept that submission. The propriety of the receivers’ conduct is not in issue in this proceeding. The receivers have powers under cl 10.4 of the GSD to deal with, use and do anything to protect the secured property and to raise money. Further, under cl 14.1 of the GSD the receiver has the power to do anything which it “thinks desirable to preserve and protect the secured property and its value”.
[54] The documents in Category two – so far as they relate to the ORDL costs and which go to the propriety of the receivers’ conduct – are irrelevant. The extent of the disclosure otherwise sought is disproportionate.
[55] Turning to Category three, again in relation to the ORDL costs, it is important to note that the receivers have already provided to the liquidator all of the invoices for the ORDL costs as well as the minutes of the Project Control Group meetings. Those meetings from time to time address the need for various payments to be made over the course of the receivership. As Mr Hunter notes what is now sought by the liquidator is all documents that relate in any way to each of the costs (that remain in dispute).
[56] I agree with the submission made on behalf of the receiver that to the extent the liquidator seeks documents in Category three regarding the reason why the ORDL costs were incurred, the request should be limited. Mr Hunter notes that such costs were typically part of the development budget and were therefore part of the initial decision to continue works as part of the development. The evidence is that the receivers engaged a civil engineer to review the civil works physically undertaken each month by the Civil Works Contract to ensure the work (and associated costs) were consistent with the development budget. They also instructed a Quantity Surveyor to review the various consultant invoices and ensure that they were in accordance with the budget and the value of the work provided.
[57] While still maintaining a position that the documents concerning their decision-making are irrelevant to the question as to how much Quaestor is owed, the receivers propose to discover the following documents in addition to the documents already provided:
(a)The receivers’ development budget;
(b)The monthly certification reports from the engineer reviewing the civil works undertaken; and
(c)The monthly reports from the Quantity Surveyor.
[58]I will make an order in those terms.
[59] Turning to the Category two and three documents as they relate to the Preservation Costs paid by Arena, Mr Chisholm argues that the issue for the Court hearing the originating application will simply be whether the Preservation Costs fall within cl 15.1 of the Security Trust Deed. That clause provides that the borrower and guarantor must indemnify Quaestor in relation to, or as a result of, the taking, holding, protection or enforcement of the security. He says all the Court will be concerned with is the nature of the payment, the invoices issued and the fact of payment by Arena. He notes that Mr Strathdee has sworn an affidavit explaining each of the costs making up the total sum and the reason those costs were incurred.
[60] Mr Hollyman responds that in relation to the Preservation Costs, under cl 6.1 of the GSD steps taken must be “necessary” to preserve and protect the secured property and its value. He raises the issue as to whether the Preservation Costs were for the benefit of ORL and ORDL or for TNSL. Accordingly he submits there will be an issue as to why it is said the payments fall within the loan documents and accordingly the documents in Categories two and three are relevant to the issue of whether those costs are properly visited on the borrower.
[61] I consider limited disclosure should be ordered. However, the types of documents as framed under Category two are too broad. The documents should be limited to all documents relating to the decisions taken to incur the Preservation Costs and reasons for and necessity of making Preservation Advances (ie incurring the Preservation Costs) which remain in dispute.
Orders
[62]I direct that:
(a)Arena and Quaestor are to make discovery of all documents relating to the negotiation and meaning of the “Final Interest Payment” in the Facility Agreements to the liquidator;
(b)To the extent that the receivers have any such documents referred to in
(a) above, they are also to make discovery to the liquidator;
(c)The receivers are to make discovery of the following documents to the liquidator:
(i)The receivers’ development budget;
(ii)The monthly certification reports from the engineer reviewing the civil works undertaken; and
(iii)The monthly reports from the Quantity Surveyor; and
(d)Arena and Quaestor are to make discovery to the liquidator of all documents relating to: the decisions taken to incur the Preservation Costs; and the reasons for and the necessity of incurring the Preservation Costs which remain in dispute.
Costs
[63] I did not hear from counsel on costs. I therefore reserve costs. If the parties are able to agree costs, a joint memorandum should be filed and served within 20 working days of the date of this judgment.
[64] If costs cannot be agreed the liquidator is to file and serve his memorandum within five working days of the date for the joint memorandum. The receivers and Arena/Quaestor are to file and serve their memoranda within five working days of service of the liquidator’s memorandum on them.
[65] Costs memoranda should not exceed four pages (excluding any attachments). I will determine costs on the papers.
Gordon J
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