Jones v Tasman Motor Camp 2019 Limited
[2022] NZHC 207
•17 February 2022
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2021-442-000047
[2022] NZHC 207
BETWEEN REBECCA NICOLE JONES and PETER CRAIG WILSON
First PlaintiffsAND
TASMAN MOTOR CAMP 2019 LIMITED
Second Plaintiff
AND
TASMAN MOTOR CAMP 2011 LIMITED
First Defendant
AND
JOANNE ALISON HILL
Second Defendant
AND
TONY JAMES McROBERT
Third Defendant
Hearing: 10 February 2022 Appearances:
L S B Acland for Plaintiffs G Praat for Defendants
Judgment:
17 February 2022
JUDGMENT OF GENDALL J
This judgment was delivered by me on 17 February 2022 Pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar
JONES & ORS v TASMAN MOTOR CAMP 2019 LTD [2022] NZHC 207
Introduction
[1] This proceeding arises on the basis of an alleged breach of contract between the parties for the sale and purchase of the Tasman Motor Camp at Mapua. The plaintiffs as purchasers say the defendants as vendors breached warranties they gave in their agreement for the sale and purchase of the Tasman Motor Camp business, and are jointly and severally liable for the associated costs resulting from this breach.
[2] The defendants did not file and serve statements of defence to the claims in the time required. The plaintiffs now seek for this matter to be listed for formal proof against the defendants pursuant to r 15.9 of the High Court Rules 2016.
[3] Subsequently, the defendants filed an application seeking orders out of time staying this proceeding pursuant to r 15.1(3) of the High Court Rules.
[4] The defendants’ stay application was heard before me on 10 February 2022 with judgment reserved. The plaintiffs’ formal proof application was adjourned at that time to await the outcome of the stay application. I now give my decision with respect to the stay application.
Background
[5] On 29 April 2019 the plaintiffs as purchasers entered into agreements with the defendants as vendors for the sale and purchase of the Tasman Motor Camp property and the business conducted there for a total price of $800,000. The contracts comprised a standard ADLS agreement for the sale and purchase of the business and its assets for $140,000 (the business agreement) and a standard ADLS agreement for the sale and purchase of the land and buildings for $660,000 (the land agreement).1
1 The $140,000 for the business comprised $40,000 for the tangible assets and $100,000 for the intangible assets. The sale and purchase under the two agreements required “contemporaneous settlement and inter-dependence”. The transactions settled on 20 September 2019.
Plaintiffs’ case
[6] The plaintiffs allege in their pleadings that the defendants breached a warranty they gave in the business agreement that as at the date of settlement the premises and business would comply in all respects with local authority requirements, and there would be no unfulfilled requisitions pursuant to any authority requirements concerning or touching the premises or the business. In fact, the plaintiffs say, at the time of settlement on 20 September 2019, first, an existing resource consent for the operation of the wastewater treatment system at the camp had expired2 and secondly, it was not capable of renewal under the revised terms of the Tasman District Resource Management Plan without fully replacing the wastewater system and applying for a new resource consent under revised terms. It seems that once the defendants learned in around late August 2019 of the expiry of the resource consent, they took some steps to explore what was required to remedy the situation. These steps included the engagement of an expert for advice and the lodging of a new resource consent application.
[7] Subsequently, on 30 June 2021, the Tasman District Council did grant the defendants a new resource consent to discharge treated wastewater to the land at the motor camp property, but this was on the basis that an entirely new wastewater system was constructed on the property. The estimated cost for that new wastewater system was $487,240.54 (including GST).
[8] On 2 August 2021 the plaintiffs demanded that the defendants rectify this situation or pay damages. The plaintiffs say the defendants have failed to do so.
[9] The plaintiffs say that, as covenantors under the business agreement, the defendants are each jointly and severally liable for their failure to meet their warranties under the contract. The plaintiffs claim summary judgment against the defendants for:
(a)costs to design, construct and consent the new wastewater system;
2 Unbeknown to the parties at the time, shortly after the contracts were signed, the resource consent for wastewater disposal on the property expired. This occurred on 1 May 2019. And, initially, it seems the Council had also omitted this fact from its LIM provided to the plaintiffs for the purchase until shortly before the 20 September 2019 settlement date.
(b)loss to future profits for the period of construction of the approved wastewater system; and
(c)twenty per cent lost future profits on the basis the wastewater system will allow a maximum capacity for the campground of 80 persons, whereas the plaintiffs say it was represented in the purchase negotiations that the camp had a maximum capacity of 100 persons.
Defendants’ case
[10] The defendants dispute their liability under the terms of the contract for the cost of replacing the existing wastewater system with the alternative system.
[11] They contend that under the terms of their contract with the plaintiffs (specifically cl 13 noted below) the parties are committed to resolve any dispute arising from or in connection with their agreement under the dispute resolution mechanism included there. In effect this is a protest to the Court’s jurisdiction to hear the matter in circumstances where the parties it is said have contracted to resolve their dispute in a specific way.
[12] The defendants say to date the parties through their solicitors have had considerable discussion in an endeavour to resolve this dispute but without success. By email dated 23 September 2021 the defendants’ solicitors wrote to the plaintiffs’ solicitors raising the option of resolving the dispute in accordance with cl 13.
[13]That cl 13 of the business agreement relevantly provides as follows:
13.0Dispute Resolution
13.1Unless otherwise provided in this agreement, if a party considers that there is a dispute in respect of any matters arising out of, or in connection with it, then that party may give a dispute notice to the other party or parties to the dispute setting out details of the dispute.
13.2The affected parties will then endeavour in good faith to resolve the dispute between themselves within five (5) working days of the receipt of the dispute notice, failing which the dispute will be resolved by an expert in accordance with the provisions below.
13.3Except where there is no dispute, or in the case of urgent interlocutory relief, such as an injunction, no party may commence legal proceedings against another party in respect of this agreement without first following the process set out in cl 13.3
[14] The defendants say they have not waived their rights to have the dispute submitted to the agreed dispute resolution process under cl 13, and that they have not submitted to the Court process by filing a statement of defence. Instead, they seek an order that this proceeding is stayed pursuant to r 15.1(3) of the High Court Rules. Under this rule “the Court may stay all or part of the proceeding on such conditions as are considered just”.
Procedural matters
[15] The plaintiffs filed their statement of claim in these proceedings on 4 October 2021. The second defendant was personally served with the proceedings on 28 October 2021. Under r 5.47 of the High Court Rules a defendant who intends to defend a proceeding must file and serve a statement of defence within the number of working days stated in the notice of proceeding, that is here 25 working days. The second defendant therefore was required to file and serve her statement of defence by 2 December 2021. As I understand the position the first defendant was served around the time the second defendant was served, and it is now accepted that the third defendant has also been served.
[16] On 9 December 2021 the plaintiffs applied for judgment by default and for the matter to be listed for formal proof against the defendants pursuant to r 15.9 of the High Court Rules. This was on the basis that the first defendant and the second defendant who had been served, had not filed and served a statement of defence.
[17] On 15 December 2021 the defendants filed an application for stay of these proceedings pursuant to r 15.1(3) of the High Court Rules. This application was advanced on the basis that in the business agreement pleaded by the plaintiffs, cl 13 contains a contractual commitment on the parties to actively address any dispute arising from or in connection with that agreement using the dispute resolution process laid out in that provision, before legal proceedings may be commenced.
3 Emphasis added.
[18] So far as the plaintiffs’ application for formal proof and judgment by default is concerned, under r 15.9(3) of the High Court Rules, after a proceeding is listed for a formal proof hearing, a statement of defence from the defendants may be accepted only with leave of a Judge. And, the grounds for granting such leave are that there will or may be a miscarriage of justice if judgment by default is entered.
[19] The defendants in their application object to the jurisdiction of the Court to hear their dispute. Under r 5.49 of the High Court Rules a defendant who objects to the jurisdiction of the Court can file an appearance in lieu of a statement of defence or alternatively, may alert the plaintiff to their objection through filing a statement of defence to that effect. In either case, however, the defendant needs to have alerted the plaintiff to their objection within time. This is plain from the wording of r 5.49(1).
[20] This has not occurred. To the extent that the defendants are defending this action, they are doing so largely out of time as a statement of defence at least from the second defendant was due by 2 December 2021 and the defendants applied for a stay of proceedings only on 15 December 2021.
[21] The defendants do point to the communication from their solicitor of 23 September 2021, at that time raising with the plaintiffs the option of making use of the cl 13 dispute resolution process. This does not, strictly speaking however, follow the procedure required for a protest to jurisdiction under r 5.49 of the High Court Rules. As noted the protest must occur through either of the two procedures I have detailed above. That the defendants through their solicitor suggested implementing their contracted dispute resolution process as an option does not perhaps amount to a formal protest to the Court’s jurisdiction in the way they now pursue.
[22] Notably, neither an appearance nor an application for stay will necessarily be regarded as submitting to the jurisdiction of the Court to hear a dispute. Thus, it was entirely open to the defendants to file with the Court an appearance in the normal manner without prejudice to their protest to the Court’s jurisdiction. Significantly too, the onus is always on the defendant who protests the Court’s jurisdiction to establish that the Court does not have jurisdiction. Rule 5.49(6) of the High Court
Rules makes this explicit when it says that the Court must dismiss the proceeding “if it is satisfied that it has no jurisdiction to hear and determine the proceeding”.
[23] It is also notable that while r 5.49(8) of the High Court Rules provides for the Court to extend the amount of time within which a defendant may file and serve a statement of defence, the power to extend the time within which a defendant may file and serve documents is limited within that rule to the statement of defence. There is no provision for late service of a protest to jurisdiction itself. In summary then, the defendants’ protest to jurisdiction here does seem to be out of time. It seems it fails to meet the strict stated requirements of the High Court Rules.
Court’s exercise of inherent jurisdiction
[24] Nevertheless, r 15.1.4 of the High Court Rules makes it clear that the ability this Court has to stay all or part of a proceeding under the rules does not affect the Court’s inherent jurisdiction. Thus it remains entirely open for this Court by use of its inherent jurisdiction to stay all or part of the present proceeding if it is satisfied there will be a miscarriage of justice if judgment by default is entered.
[25] Case law and commentary are helpful in assessing when the Court may exercise its jurisdiction in this way.
[26] Relevantly, there is some commentary to the effect that where parties have agreed in their contract to resolve their dispute in a manner other than litigation through the Court, it is the proper function of the Court to support their election to do so, this being said to uphold the principle of party autonomy.4
[27] This was described in Fisher & Paykel Financial Services Limited v Credit Management Services Inc in this way:5
“The power and duty of the Court to stay an action in such circumstances is under the general principle that the Court makes people abide by their contracts and will restrain a plaintiff from bringing an action which he is doing in breach of his agreement …”.
4 McGechan on Procedure, at para HR 15.1.10(2), Thompsom Brookers, loose-leaf ed.
5 Fisher & Paykel Financial Services Ltd v Credit Management Services Inc, HC Auckland, CIV- 2006-404-6646, 16 May 2008 at [26].
[28] This is supported by a line of authority beginning with Braid Motors Limited v Scott in 2001.6 Case law clearly shows that a stay of proceedings may be granted where there is an agreement to refer a dispute to alternative dispute resolution. A number of cases have done so.7
[29] In Braid Motors Limited, the Court held that an agreement to go to mediation will be enforced by the Court directing a stay of proceedings if it is appropriate to do so and that agreement was sufficiently certain.8 The Court said it would invoke the general power to grant a stay, where to not do so would be to allow an abuse of process.9 As the Court noted:10
“If (the parties) have contractually bound themselves to attend mediation and the process is sufficiently certain … then the parties will be kept to the bargain they have made. To allow otherwise would be to permit an abuse of process of the Court.”
[30]The Court went on to note:11
“The question for the Court in each case is whether the agreement to mediate is sufficiently certain in the circumstances of the case.”
[31] On the facts in that case the agreement was held to be so sufficiently certain. The terms were clear and in writing and, like the present case, fully set out the process to be followed. The parties had thus bound themselves to a clear mediation process, and a stay of proceedings was ordered to allow the parties to conduct that process.
[32]In EXAPL Limited v Pact Group (NZ) Limited, the Court did observe that:
“It is always open to the Court (that is, the High Court) to determine whether the parties have, through their contract, chosen to oust the jurisdiction of the Court and to substitute an alternative form of dispute resolution.”12
6 Braid Motors Ltd v Scott, (2001) 15 PRNZ 508 (HC).
7 EXAPL Ltd v Pact Group (NZ) Ltd, HC Auckland CIV-2011-404-5919, 12 December 2011 at [38]; Braid Motors Ltd, above n 6; Fisher & Paykel Financial Services Limited v Credit Management Services Inc, above n 5; see also the statement in Waaka v Harrison-Poike (14 Waimapu Marae) (2015) 101 Waikato Maniapoto MB 216, (101 WNN 216), referring to Waterco (NZ) Ltd v Simpson, [2012] NZHC 2361; and Waters v Perry Foundation [2013] NZHC 576.
8 Braid Motors Ltd, above n 6 at [33] and [38].
9 As provided for in what is now r 15.1(1)(d), High Court Rules or otherwise in exercise by the Court of its own inherent jurisdiction as in Braid Motors Ltd.
10 Braid Motors Ltd, above n 6, at [33].
11 Above n 6, at [38].
12 EXAPL Ltd v Pact Group Ltd, above n 7 at [42].
[33] The Court in that case went on to say that the plaintiff “should not be allowed to resile from this position (choosing to submit their disputes to an independent expert) now”,13 and the Court granted a stay of the proceeding on that basis.
[34] Efstratiou v Archaeology North Limited,14 is an example where the Court declined to grant a stay of proceedings. In that case, the dispute resolution provision was not “the type of agreement to mediate recognised in Braid Motors Limited v Scott”.15 It was included in a management plan and was “simply devoid of any provisions as to process”.16 In my view this is quite unlike the situation in the present case.
[35] Similarly, in Reynolds v Peters,17 while the Court accepted that where there has been an agreement to mediate the Court will generally hold the parties to that bargain, it decided that no concluded agreement had been reached and therefore no bargain to which the parties should be held. Notwithstanding this, the Court “urged the parties to explore the possibility of mediation” as it “might well be the least expensive method of resolving this litigation”.18
[36] Archers Road Trust Company Limited v JMR Business Limited ,19 is another example involving a dispute resolution clause in near identical terms to the present. In that case, however the Court declined to grant a stay of proceedings based on uncertainty about whether the provision applied to one of the plaintiffs in the case, and whether the subject matter of the actions pleaded were amenable to expert determination involving as they did a range of factual issues, the need for evidence to be called, and questions of law apart from the contractual dispute including negligence and director’s duties owed under the Companies Act 1993.20 Clearly that case was somewhat more complicated than the present, and I accept therefore inappropriate for mediation in a way that does not necessarily apply here.
13 Above n 7 at [50]–[51].
14 Efsratio v Archaeology North Ltd, HC Wanganui CIV-2011-483-175, 7 September 2011.
15 Braid Motors Ltd, above n 6 at [18].
16 Braid Motors Ltd, above n 6, at [18]–[19].
17 Reynolds v Peters (2010) 20 PRNZ 774 (HC) at [22]–[24].
18 At [26].
19 Archers Road Trust Co Ltd v JMR Business Ltd [2016] NZHC 2987.
20 At [56].
[37] As I have noted above, before ordering a stay in favour of an agreed dispute resolution process, the Court must be satisfied that the parties have contractually bound themselves to an alternative means of resolving their dispute and that their process for doing so is sufficiently certain. As the Court in Fisher & Paykel noted in relation to its ability to exercise its inherent jurisdiction to order a stay when the parties have agreed to an alternative dispute resolution process:
“Those powers will be exercised only when there is a clear contractual commitment to the arrangement.”21
[38] In the present case before me there is no doubt in my mind that the parties have contractually bound themselves to an alternative dispute resolution process. Clause 13 makes this clear. There can also be no dispute in my view as to the clarity of that process under cl 13 which itself sets out in detail the steps to be followed. Unlike the situation which prevailed in Archers Road Trust Company Limited, however, (in which case the stay was declined) as I see the position the subject matter of the present dispute is clearly within the scope of what was envisaged by that cl 13, as the business agreement refers to local authority regulations within which the resource consent issue clearly falls. Thus the dispute I find does arise from, and is sufficiently connected with the agreement in the way envisaged by the clause.
[39] In Archers Road Trust Company Limited the Court declined to stay the proceedings but partly because the substance of this dispute fell beyond the scope of the independent expert’s authority under the dispute resolution clause.22 In contrast, the present dispute, including the contractual liability of the defendants and the quantification of damages, in my view, is exactly the sort of matter which would be amenable to an independent expert or mediator’s determination, especially one for example such as an experienced barrister.
[40] There is also a possible question however as to whether the dispute resolution process here provided for in cl 13 can be relied on in resolving this dispute on the basis that the clause seems to be included only in the business agreement and may not also be present in the land agreement. Indeed, in Tan Investment Pte Limited v Goldhem
21 Fisher & Paykel Financial Services Ltd v Credit Management Services Inc, above n 5 at [32].
22 Above n 19 at [56]–[57].
Group Limited, the Court dismissed an application for the stay of the proceeding on the basis that one of the contracts in that case did not include the dispute resolution clause then relied on to back a stay of the proceeding.23
[41] However, as I see it, this is not an issue in the present case. In their case for breach of contract here the plaintiffs base their pleadings on the breaches of warranties contained entirely within the business agreement. In addition, the plaintiffs in their pleadings against all three defendants allege that they are jointly and severally liable for breaches of the business agreement warranties. The second and third defendants are specifically said to be liable as covenantors under that agreement. The pleading goes on to properly note that the land agreement is one made solely with the first defendant as vendor. Given that in their present pleadings, the plaintiffs base their claim solely on breaches of warranty contained entirely within the business agreement, as I see the position, it is really of no moment that the land agreement, albeit contemporaneous, may not include the relevant dispute resolution clause.
[42] All this in my view supports the exercise of the Court’s jurisdiction in this case to stay the present proceedings so the parties can implement their own contractually agreed dispute resolution process. As the Court noted in Braid Motors, it is important here for the Court to keep the parties to their bargain to prevent what might otherwise be an abuse of process.
[43] I now turn to deal with two final matters raised by the plaintiffs here. The first is that the plaintiffs say the cl 13 dispute resolution clause does not apply here as, to begin with, there has been no compliance on the part of the defendants with the requirements of this provision. At the very least the plaintiffs contend that the defendants have not properly initiated the dispute resolution process because they have not issued a “dispute notice” to the plaintiffs “setting out details of the dispute” as required by cl 13.1. Also, the plaintiffs contend that in any event there is no real dispute here. I reject these arguments however. The dispute resolution cl 13 does not outline what may be required to constitute “a dispute notice”. And, also in this case, as I see it, the defendants have done sufficient to advise the plaintiffs of the details of
23 Tan Investment Pte Ltd v Goldhem Group Ltd, HC Auckland, CIV-2010-404-1187, 28 June 2010.
that dispute. Many discussions of this appear to have taken place between counsel for both parties and presumably between the parties themselves. Further, there can be no doubt in my view that the parties, as outlined in the cl 13.2, have made endeavours personally and through their lawyers to resolve the dispute and, in any event, as Mr Praat acknowledged both in submissions before me, and in his 23 September 2021 email to the plaintiffs’ counsel, the critical issue here and the knub of the dispute will probably focus around what would be the appropriate measure of damages in the event of liability and a quantification of these. Mr Praat argues that an experienced barrister expert appointed to resolve these disputes would be entirely appropriate here. He suggests too that in all the circumstances here it would be more timely to follow the cl 13 dispute resolution process than to have this matter wend its way through the Court, and I agree.
[44] I now turn to the second and last matter raised by the plaintiffs here. The suggestion is made that the defendants present application for a stay is purely a delaying tactic given that the plaintiffs suggest the defendants have had ample opportunity to defend the breach of contract claim against them. The plaintiffs say they are significantly prejudiced by ongoing delays and specifically the lack of any progress in installation of the new wastewater system required by the Council’s resource consent approval. Mr Acland went so far as to suggest before me that the plaintiffs feel that this unresolved and critical wastewater disposal issue remaining for the motor camp, daily feels somewhat like a sword hanging over their heads.
[45] Delay is always a concern to be cognisant of. Apart from clear messages from cases I have referred to, emphasising that the Court should support the parties contractual intentions where possible, on this aspect I am also encouraged in this case by what appeared from Mr Praat before me of the defendants’ readiness for strict conditions to be imposed on any orders I am to make accompanying a stay of this proceeding. In particular, the defendants are supportive of the imposition of strict time limits relating to the alternative dispute resolution process in line with what they contracted for in the business agreement. Mr Praat confirms they are happy for conditions to be imposed so that if the defendants fail to comply with time limits imposed, the plaintiffs can immediately return to Court for lifting of the stay and an adjudication in this matter.
[46] In the cases I have cited above a number have simply granted a stay of proceedings without any further time limitation. By way of contrast, in Braid Motors Limited the Court ordered the stay to continue until further order of the Court or on conclusion of the mediation between the plaintiff and the defendant.24 In Waterco (NZ) Limited the Court limited the stay of proceedings to a period of 80 days.25 This was on the basis that the dispute resolution process included in the parties’ contract provided for an 80 day period for the parties to resolve all disputes. As the Judge in that case said, “I can see little or no disadvantage to the plaintiff in requiring it to follow the dispute resolution process”.26
[47] An approach similar to that taken in the Waterco New Zealand Limited decision, whereby the time allowed for the stay of proceedings should be the subject of some limitation, in my view is preferable here. This will in part give effect to what the parties have contracted to do. In the present case cl 13.2 of the business agreement provides that the parties “will endeavour in good faith to resolve the dispute between themselves within five (5) working days”. In the event they are unable to do so, cl 13.4 allows for a further two days within which to agree on an independent expert to determine the matter. No further timings however are provided for in the contract.
[48] In my view these specified timeframes are extremely short in all the circumstances. It is acknowledged however, these are what the parties themselves agreed to. An order staying the proceedings so that this alternative dispute resolution process can occur is appropriately made in the present circumstances. Some adjustment to timeframes to provide realistic time periods is required however.
[49] On this I do not think it is appropriate to impose a date by which any process between the parties must have been concluded. Rather I prefer to leave this to the usual process whereby if it becomes clear that mediation or a dispute resolution process has not worked the parties are then free to apply to the Court to lift the stay and have a final determination of their claim made. First however, they should follow, more or less, the contractually agreed process.
24 Braid Motors Ltd v Scott, above n 6, at [69].
25 Waterco (NZ) Ltd above n 7 at [50].
26 Above n 26, at [48].
[50] Finally, if the defendants should fail to comply with the timeframes I am shortly to impose, the plaintiffs are free to apply to the Court to lift the stay and have matters determined by this Court. But, in light of what I am told are necessary Court delays in Nelson, reference to the agreed alternative dispute resolution process may well result in this dispute being resolved far more speedily than what otherwise would have been the case.
Conclusion
[51] It is clear to me that in cl 13 of the business agreement, which is the subject of the present breach of contract claim by the plaintiffs, the parties agreed that, in the event of a dispute arising, the alternative dispute resolution arrangements would be followed prior to commencing Court proceedings. It is the proper function of this Court to support the parties’ election to do so here.
[52] Although I accept the defendants’ present application to stay this proceeding was one brought out of time and may not have been in strict accordance with the procedural requirements outlined in the High Court Rules, it is nevertheless appropriate in the interests of justice for the Court to exercise its inherent jurisdiction here to stay the present proceeding so that the parties agreed alternative dispute resolution process can occur.
[53]An order is now made staying the present proceeding on the following basis.
[54]The basis for this stay is now set out and orders are made as follows:
(a)Within five working days of the date of this judgment counsel for the defendants is to inform counsel for the plaintiffs of the name and details of a suitably qualified expert to be appointed pursuant to cl 13 of the business agreement to act as an expert to determine this dispute pursuant to that provision.
(b)Within a further five working days of that date, counsel for the plaintiffs is to confirm either acceptance of that nominated party as the appointed
expert here or alternatively to provide to the defendants’ counsel an alternative suggested appointee as expert.
(c)Within a further three working days of that date, counsel for the defendants is to confirm their acceptance or otherwise of that alternative appointee.
(d)In the event that within these timeframes no agreement is reached as to an agreed expert to be appointed in terms of para 13, then forthwith the President for the time being of the Auckland District Law Society Inc is to be approached jointly by counsel to appoint an appropriate expert to resolve this dispute.
(e)Also, within five working days of the date of this judgment, counsel for the defendants is to provide to counsel for the plaintiffs for approval his proposed terms of the dispute to be provided to the appointed expert. Those proposed terms are to be either accepted or amended through a renegotiation between counsel to take place within a further ten working days of that date.
(f)Once the para 13 expert is appointed then both parties are to fully cooperate with that expert and do all things necessary to have their dispute determined by the expert at the earliest reasonable opportunity, and otherwise in accordance with cl 13 of the business agreement.
(g)In the event that the defendants on their part breach any of the provisions outlined as a basis for the stay ordered here, including particularly a failure to comply with the time limits in these orders imposed upon them, then on application made by the plaintiffs to this Court, this stay shall be lifted and the present proceeding immediately listed for call in this Court for further directions to progress the plaintiffs’ formal proof and general claim herein.
(h)Leave is reserved for any party to this proceeding on 24 hours’ notice to approach this Court further if assistance is reasonably required in implementing any of the above orders.
Costs
[55] As no submissions were advanced to me with respect to the issue of costs, they are reserved here. In the event that counsel are unable to resolve between themselves any issue of costs that arises, they may file (sequentially) submissions on costs (three pages maximum) and I will decide the question of costs based upon the material then before the Court.
Gendall J
Solicitors:
Rout Milner Fitchett, Nelson Knapps Lawyers, Nelson
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