Kumar v Heartland Bank Limited
[2023] NZHC 283
•23 February 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-470-000064
[2023] NZHC 283
BETWEEN DEVENDER KUMAR
First Appellant
AND
ATTRI AND SONS
Second Appellant
AND
HEARTLAND BANK LIMITED
Respondent
Hearing: 1 June 2022 Appearances:
A C N Fuiava and C Richardson for Appellants A W Johnson for Respondent
Judgment:
23 February 2023
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 23 February 2023 at 4PM pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Denham Bramwell, Auckland Martelli McKegg, Auckland
KUMAR v ATTRI AND SONS [2023] NZHC 283 [23 February 2023]
Introduction
[1] Devender Kumar (Mr Kumar) and Attri and Sons Ltd (Attri) (collectively the appellants) appeal against the decision of Judge I D R Cameron delivered in the District Court at Tauranga on 6 May 2021.1 The Judge declined an application by Mr Kumar for an adjournment of Heartland Bank Limited’s (the Bank) summary judgment application, and entered summary judgment against both Mr Kumar and Attri in the sum of $66,723.85 together with interest and costs being the amount outstanding of a loan facility borrowed by Attri, and which Mr Kumar had guaranteed.2
[2] The appellants now appeal against Judge Cameron’s decision declining the application for an adjournment of the hearing of the summary judgment application, and his decision to grant summary judgment.
[3] The parties are agreed that affidavits by Mr Kumar dated 17 June 2021 and 27 August 2021, and the affidavit of Mr Benjamin Gillies of the Asset Management division of the Bank, be admitted as evidence for the purposes of the appeal.
Background
[4] On 22 June 2016 Attri entered into a franchise agreement with Paper Plus New Zealand Ltd (Paper Plus), pursuant to which it operated a Paper Plus branded retail shop in Otorohanga. Mr Kumar was a guarantor under the Paper Plus franchise agreement. The Paper Plus retail business conducted by Attri was one of several businesses it owned and operated from the same premises, others being a Sports World business, a Lotto outlet, and a New Zealand Post shop.
[5] To support the operation of the businesses Attri and Mr Kumar arranged a loan facility with the Bank. On 7 July 2016, the Bank as lender and Attri as borrower executed a Term Loan Facility Agreement (the Facility Agreement). Mr Kumar executed the Facility Agreement as the sole director of Attri, and also as guarantor.
1 A reserved judgment giving reasons was delivered on 10 May 2021.
2 Heartland Bank v Attri and Sons Ltd [2021] NZDC 8364 at [1].
[6]Pursuant to the terms of the Facility Agreement the Bank agreed to lend Attri
$270,600 for a term of 60 months. The Facility Agreement required Attri to provide security for the borrowing, by granting a first ranking security over its assets, and by Mr Kumar executing an all obligations personal guarantee and indemnity in respect of all monies advanced by the Bank and payable by Attri pursuant to the Facility Agreement.
[7] As at 13 August 2019 Attri’s payments under the Facility Agreement were in default with arrears then totalling $5,533.53. Following discussions between the parties the Bank agreed to a variation of the Facility Agreement and on 9 September 2019 the Bank, Attri and Mr Kumar executed a Variation Disclosure recording their agreement that the Facility Agreement be varied effective 13 August 2019, pursuant to which Attri was required to make 23 consecutive monthly instalment payments commencing 11 September 2019 until the loan was repaid in full. The outstanding loan balance at the time was $122,957. The Variation Disclosure document was executed by the Bank, Attri and Mr Kumar on 9 September 2019.
[8] On 31 December 2019 Paper Plus issued a notice of demand stating that Attri owed it the sum of $111,937.29. The notice of demand required payment of the outstanding amount to be paid on or before 21 January 2020. When the demanded payment was not made, on 23 January 2020 Paper Plus appointed receivers from the accounting firm BDO in Tauranga (the receivers). The receivers continued to operate the business, and despite an attempt by Mr Kumar to resolve the issue of the debt owed to Paper Plus, the receivers subsequently sold the business as a going concern in August 2020 for the sum of $104,286.01.
[9] From around January 2020 Attri had failed to make the required monthly payments to the Bank under the Facility Agreement and fell into default. Following the receivers’ sale of Attri’s assets, the Bank received payment of the sum of $49,700 in reduction of the balance owing under the Facility Agreement. On 3 November 2020 the Bank issued a written demand to Attri and Mr Kumar for payment of the remaining outstanding balance of the loan, being the sum of $67,969.69. On 10 February 2021 the Bank received a further payment of $2000 from the receivers. No further payments were made by Attri or Mr Kumar.
[10] The terms of the Facility Agreement provide for interest to be paid on the loan at the rate of 7.75 per cent per annum, with a rate of 10 per cent per annum to apply in the event of default of payment being made in accordance with the terms of the Facility Agreement.
[11] On 24 February 2021 the Bank commenced a proceeding in the District Court at Tauranga against Attri and Mr Kumar as first and second defendants, in which it claimed the sum of $66,297.24 being the outstanding balance owing under the Facility Agreement as at 11 February 2021. The Bank also claimed interest pursuant to s 22 of the Interest on Money Claims Act 2016 at 17.75 per cent per annum compounding monthly, from 11 February 2021 to the date of payment, and costs. Also on 24 February 2021, the Bank filed an application for an order for summary judgment. The receivership was terminated on 30 March 2021.
[12] The Bank’s application for summary judgment was supported by an affidavit of Mr Benjamin Gillies,3 who as I have noted is an asset manager of the Bank at Auckland. In his affidavit Mr Gillies set out the factual background and history of the Facility Agreement and produced it as an exhibit. He confirmed the contents and allegations set out in the statement of claim and asserted the Bank’s belief that the appellants do not have a defence to the Bank’s claim. Mr Gillies noted that the Bank had realised the net sum of $49,700 from the receivers’ sale of the Attri business, and produced a statement prepared by the receivers’ solicitors confirming that amount. Mr Gillies said that the Bank had issued notices to each of the appellants on 3 November 2020 in which it made demand for payment of the sum of $67,969.69 together with interest continuing to accrue until payment was made. He also confirmed that the Bank had subsequently received a further sum of $2000 from the receivers on 10 February 2020 which had reduced the amount owing by the appellants as at 10 February 2020 to $66, 297.24.
[13] The appellants were served with the District Court proceedings on 30 and 31 March 2021.4 The summary judgment application was listed for hearing on
3 Affidavit of Benjamin Gillies dated 23 February 2021.
4 The first appellant being served on 30 March 2021, and second appellant being served on 31 March 2021.
6 May 2021. On 3 May 2021, Mr Kumar filed a Notice of Opposition advising that the appellants intended to oppose the application for summary judgment. In an accompanying Memorandum also dated 3 May 2021, Mr Kumar said that having been served with the proceedings and summary judgment application on 30 March 2021, he had taken steps to engage a lawyer in order to defend the proceeding and oppose the summary judgment application. He said he had met with a lawyer in Auckland on 6 April 2021, and that an application for legal aid had been submitted on 9 April 2021. Mr Kumar said that on 23 April 2021 he had been advised by legal aid that the application was being considered. He said that the lawyer he had spoken to had advised that she was not prepared to take any formal steps on behalf of the appellants until the legal aid application was approved. Against that background Mr Kumar requested an adjournment of the hearing of the summary judgment application for a period of six weeks to enable the application for legal aid to be determined and legal representation to be confirmed.
[14] Mr Kumar attended the hearing of the Bank’s application for summary judgment on 6 May 2021 and requested an adjournment based on the matters set out in his memorandum, and that he was awaiting determination of his application for legal aid. The Bank opposed an adjournment. Judge Cameron declined to grant an adjournment and having heard from counsel for the Bank and considered counsel’s Memorandum in Support of the application for summary judgment. The Judge made an order granting the Bank’s application and entered judgment for the Bank against both Attri and Mr Kumar for $66,723.85 together with interest and costs totalling
$5,423.55 with his reasons reserved. On 10 May 2021 the Judge delivered a decision in which he set out his reasons.
Judge Cameron’s decision
[15]In his judgment of 10 May 2021, Judge Cameron said:
[2] I indicated at the time that I would give reasons for making the orders, despite opposition from the [appellants]. The application for summary judgment and accompanying documents were filed and served on 30 and 31 March respectively. The notice of proceeding required the defendants to file a notice of opposition and affidavits setting out any defence not less than three working days before the date of the hearing.
…
[4] The second defendant Devender Kumar appeared in Court on 6 May 2021, seeking an adjournment so that legal aid could be granted and affidavits in opposition filed. Mr Kumar also handed the Court a letter from Denham Bramwell, solicitors of Auckland dated 5 May 2021. This letter confirms that legal aid was still being processed and contains the statement:
In our view, there was an arguable defence to the claim and also the possibility of adding a counterclaim defendant in the proceedings.
[5]No further details were provided.
[6] I enquired of Mr Kumar what the nature of the defence was. He advised the Court that his company, the first defendant, had been placed into receivership by Paper Plus on 23 January 2020. The chartered accountant’s [sic] BDO were appointed. The Court was advised that the receivership terminated on 30 March 2021. It became apparent from what Mr Kumar told the Court that he considered that the receivers had sold the company assets for a gross undervalue. I advised him that this not affect the validity of the loan from the plaintiff bank, and at best would be a separate claim against the receivers. Mr Kumar also advised that the creditor Paper Plus had wrongly sought the appointment of receivers. Again, Mr Kumar was advised that this would have no effect on the validity of the loan from the plaintiff.
[7] Mr Kumar was unable to identify any defence to the claim by the plaintiff for repayment of the money lent. Nor was there anything in the letter from Denham Bramwell dated 5 May 2021 that identified any defence to the plaintiff’s claim.
[8] I was satisfied that there was no arguable defence to the plaintiff’s claim, and for this reason entered summary judgment against both defendants.
Application to set aside the summary judgment
[16] On 18 June 2021, Mr Kumar filed an application in the District Court seeking an order setting aside the summary judgment. The application, which was founded on r 12.14 of the District Court Rules 2014, was advanced on the basis that the appellants had not “appeared” before the Court on 6 May 2021 when the matter was called before Judge Cameron and the application for an adjournment declined, and summary judgment entered. The application was heard on 7 December 2021, and on 1 February 2022 Judge D J Clark delivered a reserved decision finding that the District Court did not have jurisdiction to entertain the application as the appellants had appeared at the hearing before Judge Cameron.5 The application was accordingly dismissed. Judge Clark said:6
5 Applying Erwood v Glasgow Harley [2002] 1 NZLR 251 at [35][36].
6 Heartland Bank Ltd v Attri and Sons Ltd [2022] NZDC 1160.
[42] Given that I have found that an appearance by and on behalf of the defendants was made, it follows that I do not have the jurisdiction to set aside the judgment of Judge Cameron’s. A consideration then of the merits of any proposed defence by the defendants is unnecessary. In saying that however, an opportunity to test the merits of their opposition will be dealt with on appeal.
Submissions
The appellants
[17] As noted, the appellants appeal Judge Cameron’s decision to decline their application for an adjournment of the Bank’s summary judgment application, and his decision to enter summary judgment against them both.
[18] Ms Fuiava for the appellants submits that the Judge’s decision declining their application for an adjournment resulted in Mr Kumar being denied the opportunity to put forward his defence to the Bank’s claim, and do so with the benefit of legal advice and legal representation. Counsel submits that Attri has an arguable defence to the Bank’s claim and it follows that Mr Kumar as guarantor also has an arguable defence. Ms Fuiava says that there being an arguable defence available to the appellants, Judge Cameron erred by entering summary judgment.
[19] Ms Fuiava submits that the arguable defence is based on the proposition that the receivers of Attri who were appointed by Paper Plus proceeded to act as agents for the Bank. She says that the actions of the receivers were fundamentally flawed and that the Bank as their principal is bound by and liable for the actions taken by the receivers in their dealing with Attri’s assets in a manner which caused loss to Attri as borrower, and consequentially also to Mr Kumar as guarantor.
[20] Regarding the decision declining the appellants’ application for an adjournment, Ms Fuiava says that following service of the Bank’s proceedings on Mr Kumar and Attri on 30 and 31 March 2021 respectively, Mr Kumar took all reasonable steps in an effort to arrange legal counsel and representation prior to the scheduled hearing of the application in the Tauranga District Court on 6 May 2021. Counsel says that Mr Kumar qualified for legal aid having regard to his financial position at the time. When Mr Kumar was unable to arrange legal representation in
Otorohanga from a practitioner providing civil legal-aid services, he was referred to an Auckland-based law firm, Denham Bramwell Lawyers (Denham Bramwell), which was willing to accept engagement subject to the appellants being granted legal aid. Denham Bramwell assisted Mr Kumar to submit an application for legal aid but did so on the basis that the firm was not prepared to formally act for the appellants or take any active steps in the matter until the legal aid application was approved. Denham Bramwell nevertheless advised Mr Kumar that given the imminence of the District Court hearing, Mr Kumar should file a notice of opposition setting out his intention to defend the proceeding and a memorandum explaining the steps he had taken to engage counsel and apply for legal aid. Denham Bramwell advised Mr Kumar to attend the District Court on 6 May and provided him with a letter setting out the reasons why they were unable to take any steps in the proceeding, and stating that in their view there was an arguable defence to the claim “and also the possibility of adding a counter-claim Defendant in the proceedings.”
[21] Ms Fuiava notes that Mr Kumar’s legal aid application was subsequently granted on 14 July 2021, which was within the six week adjournment period sought by Mr Kumar when he appeared before Judge Cameron on 6 May 2021.
[22] Ms Fuiava says that although Mr Kumar was questioned by the Judge as to the basis of his proposed defence to the Bank’s claim, his purpose for attending court that day was to seek an adjournment of the summary judgment application, and he was not prepared or able to explain the basis of his defence to the Judge in a meaningful way. She submits that Mr Kumar’s inability to adequately explain the basis of his defence is reflected in Judge Cameron’s reasons decision in which he makes no mention of the appellants’ claim that the receivers had acted as agents of the Bank when conducting the receivership and selling Attri’s business assets, thereby dealing with the Attri business assets in an “unsound” manner, and causing loss to Attri and Mr Kumar as guarantor.
[23] Ms Fuiava submits that it is not in the interests of justice for this Court to allow the summary judgment to stand, when Mr Kumar had provided a legitimate explanation of his inability to arrange legal representation and was not given a proper opportunity in the District Court to explain the basis of his arguable defence.
[24] Regarding the appellants’ arguable defence, Ms Fuiava says that the evidence contained in Mr Kumar’s affidavits which have been admitted for the purposes of the appeal show that the Bank had held out to Mr Kumar and his former counsel that the receivers appointed by Paper Plus were the Bank’s agent. She says the affidavit evidence shows that when Attri was placed in receivership by Paper Plus, all payments due to the Bank under the Facility Agreement were up to date and current. She submits that the affidavit evidence shows at least to the standard of demonstrating the existence of an arguable defence that the receivers did become the agents of the Bank as regards the realisation of Attri’s assets. Further, she says that during the receivership the Bank was in effective control of what was to happen to the assets of the company either by reason of the first ranking nature of its security or alternatively as a result of the Bank appointing the receivers as its agents to deal with the Attri assets.
[25] Ms Fuiava submits that the appropriate starting point for an assessment of the appellants’ defence to the Bank’s claim involves consideration of the security. She notes that the Bank held a first ranking security over the assets of Attri, and submits that the security took priority over all present and after-acquired property of the company, including its business assets and fixed assets. She says that while Paper Plus held a General Security Agreement and Purchase Money Security Interest, the receivers appointed by Paper Plus were not entitled to deal with the assets of the company over which the Bank held security. She says that the only assets over which Paper Plus had priority were those goods which it had supplied to the company, and over which a Purchase Money Security Interest arose. This security interest was therefore restricted to the items of stock supplied by Paper Plus to the company and the proceeds of sale of that stock. And she submits that affidavit evidence shows that the Bank did not enforce or exercise its security by taking possession and dealing with the Attri assets as it was entitled to do under the terms of its security.
[26] Ms Fuiava says that during the receivership the Bank declined to negotiate with Mr Kumar and the appellants’ then legal representatives Hucker and Associates, regarding how Attri’s assets were to be dealt with, and had instead allowed the receivers to act as the Bank’s agent in relation to the realisation of some of the company’s assets. She submits that the Bank’s actions went beyond simply providing security releases to the receivers to enable them to realise assets on the basis that the
Bank would be paid in full from the proceeds of sale. She submits that the Bank relied on the receivers acting as its agents, for the purposes of the realisation of the assets under its securities, and distributing the money that the receivers decided the Bank should receive.
[27] Ms Fuiava submits that the issue of whether the Bank appointed the receivers as its agent is the central issue on which the appellants’ defence would be based. She submits that: the appellants only have to show that they have an arguable defence; there has been no formal discovery; there has been no cross-examination to test the Bank’s affidavit evidence; and there may be other witnesses who can give relevant evidence including the receivers and the appellants’ former solicitors at Hucker and Associates, who were involved in the relevant events following the receivership and the Bank’s demand under the Facility Agreement. Counsel submits that by reason of the Bank’s failures both directly and as conducted on its behalf through the receivers as it’s agent there is no foundation for the debt claimed as owing by the Bank in the District Court proceeding and summary judgment application.
[28] Ms Fuiava further submits that by its conduct the Bank and the receivers represented to Mr Kumar and his former solicitors that an agency relationship existed between the Bank and the receivers. The appellants say that the existence of an agency is evident from an email letter sent by Mr Gillies of the Bank to Mr Swan of Hucker and Associates on 27 February 2020 which was copied to the receivers, saying:
Hi [Mr Swan],
As the 2008 Mitsubishi Outlander (reg: ATTRIS) is owned by the business and covered under the banks [sic] General Security Agreement, we have instructed the receivers to take possession of the vehicle.
Regards, [Mr Gillies]
Heartland Bank/ Asset Manager.
[29] The appellants submit that by its dealings and cooperation with the receivers, it is apparent that the Bank was attempting to conduct a de facto realisation of the securities in order to avoid the need to issue notices under the Property Law Act 2007 and complying with other statutory requirements. They refer to an email sent by
Mr Gillies to the receivers on 30 April 2020 regarding a Deed of Agency by which the Bank would appoint the receivers as its agent for the realisation of the Attri assets. Mr Gillies sent an email to Mr Manning of BDO Tauranga, the receivers, which said:
Hi [Mr Manning]
With regards to the agency agreement, as receiver you should already have the ability to sell the assets of Sports World. Heartland , as 1st ranking secured creditor, is prepared to give you consent to sell these assets on the basis that you account to it for the net sale proceeds after deduction of your costs of sale, GST etc. If, however Heartland was to appoint you as its agent (which we do not see as necessary – perhaps it would be in a liquidation situation but not here) this would make it a sale by Heartland and we would have to comply with a whole lot of Property Law Act requirements. Likewise, the indemnity you seek is difficult because you have already been appointed receivers and we cannot indemnify you for your appointment under documents to which we are not a party and in respect of matters which we have no control.
Please confirm you are happy to sell the Sports World assets to your existing receivership on the above basis.
[30]To which Mr Manning replied:
Hi [Mr Gillies],
We are happy to proceed on this basis. Thanks – talk soon,
[Mr Manning]
[31] The appellants say that the existence of an agency relationship is further evidenced by an email sent by Mr Manning to Hucker and Associates on 1 May 2020 in which he wrote:
I am replying to your letter dated 20 April 2020.
Heartland Bank:
While we have been appointed receivers by Paper Plus, we continue to deal with Heartland (as first ranking secured party). We are handling the sale of assets of the company as we obtain Heartland’s written consent to the terms of sale of any assets of the company, and an appropriate discharge of their security by Release Deed Poll. For the purposes of clarity, Heartland has expressly consented to us handling the company assets.
Outlander:
We have spoken to Heartland regarding [Mr Kumar’s] offer - [Mr Kumar’s] offer for the Outlander is not accepted. He is welcome to improve his offer.
Otherwise the vehicle is to be surrendered and sold at market value – most likely at auction. We can let [Mr Kumar] know the auction details in due course.
Stock count:
The detailed stock count results have been sent to you by separate email. We do not have the dollar amount of the stock figure covered by Paper Plus PMSI to hand – when we return to working in our office (Covid 19 Level 2) we will provide this to you. This figure to be deducted from the overall Paper Plus debt of $136k as previously provided to you.
Sportsworld:
As previously advised, the stock count excludes the Sportsworld side of the business. In accordance with [Mr Kumar’s] request, the Sportsworld side of the business was not closed for a stock take when we were appointed Receivers. Details regarding the sale of Sportsworld stock since our appointment can be provided once the store re-opens (Covid 19 Level 2). Once the store re-opens under Level 2 we will also close the Sportsworld business and conduct a stocktake.
We will then decide (after discussion with Heartland) whether or not we can sell the Sportsworld store as a going concern in the current CV19 environment, and if not, we will arrange for the sale of the stock and chattels. Your client is welcome to make an offer to us.
Time records:
I can confirm no-one has requested any details as to our time and cost as Receivers since our appointment.
If you have any queries regarding the above please do not hesitate to contact me.
[32] The appellants also refer to email communications between the receivers and the Bank on 19 May 2020 in which the receivers (Mr Manning) sent the Bank (Mr Gillies) details of a proposed timeline for the sale of the Sportsworld business which set out dates for: advertising of the sale in newspapers and TradeMe; the date for closing of expressions of interest; the completion of a stocktake; completion of due diligence by a purchaser; and settlement and possession. Mr Gillies responded saying:
Hi [ Mr Manning]
Thanks for sending this through.
We are happy to proceed with the timeline proposed. Cheers,
[Mr Gillies]
[33] Ms Fuiava says that correspondence shows the receivers seeking instructions from the Bank and confirmation of its instructions for the marketing of the Sportsworld business. She says it demonstrates that the Bank knew about and approved of the proposed sale of that asset and the subsequent sale of the Sportsworld assets. The appellants submit that the Bank had active involvement in the process by which the receivers realised the business assets, and was making the decisions as to how the receivership should be conducted as regards the assets over which it held security. The appellants say that the evidence shows that the receivers had and maintained possession of the Attri assets on behalf of the Bank, even though they had not been appointed by the Bank
[34] Ms Fuiava, also notes that in both their second and third7 reports, the receivers stated that they had been “engaged” by the Bank to dispose of all assets secured under the Banks General Security Agreement (GSA). In their second report dated 17 September 2020, the receivers said:8
Heartland has engaged the Receivers to dispose of all assets secured under its GSA. The Receivers have sold some of these assets at the date of this report. The Receivers have advertised the Sportsworld assets and business for sale and are liaising with interested parties at the date of this report.
[35] Ms Fuiava submits that despite the “affirmative representations” made by both Mr Gillies for the Bank and the receivers, to the extent that there was no explicit appointment of the receivers as the Bank’s agent, there was at least an implied agency. Counsel notes that while it is necessary in order to show the existence of an agency that there be an instruction or request by the principal, and an undertaking of the duty or task by the agent, the representations made by the Bank to Mr Kumar and his legal representatives, when objectively construed demonstrate that an agency relationship was being asserted.
[36] The appellants submit that the effect of the agency is that the Bank assumed the obligations under the Personal Property Securities Act 1999 that the receiver had
7 Receivers’ third Report dated 10 February 2021..
8 Receivers’ Second Report dated 17 September 2020.
in dealing with Attri’s assets. Ms Fuiava submits that as a consequence the Bank, as principal, was bound by the actions of the receivers which were undertaken as its agent, including being liable for the receivers’ breaches of their duties owed to Attri which also exposed Mr Kumar to the Bank’s claim under the guarantee. Moreover, regardless of the agency position the Bank also had a responsibility to ensure that the securities it held were not prejudiced as a result of its actions and conduct. By its failure to ensure that the secured assets were preserved, the Bank has engaged in conduct that has resulted in the obligations of Mr Kumar as guarantor being released in any event.9
[37] Noting that there has been no discovery, and no evidence from the receivers, Ms Fuiava submits that available evidence shows that it is at least arguable that the Bank failed to protect the value of the secured assets, and proceeded to release the securities it held by: not ensuring that the appropriate amounts were paid to it from the sale proceeds of the assets; failing to require the receivers to pay the amounts due to it under its securities in full before agreeing to the release of its securities; by not taking steps regarding how the assets were dealt with by the receivers, especially as all payments to the Bank were current and up to date as at the date of the receivership; and by not ensuring that there was a proper and appropriate allocation of the receivers’ costs across the asset classes they sold. Ms Fuiava notes that notwithstanding the Bank giving its authority and release to the receivers to enable the realisation of assets, and despite the realisations totalling over half a million dollars, the Bank had received only
$51,700.00.
[38] Ms Fuiava notes that the receivers’ final report10 shows that at the date of receivership Attri held cash of $5069; a motor vehicle (the Mitsubishi Outlander) subsequently sold for $5,652; Paper Plus shares subsequently sold for $24,000; and pre-receivership funds on hand of $53,045. Counsel says that the application of those funds including the proceeds of the sale of the Paper Plus shares which the Bank had the ability to insist on receiving, would have resulted in the outstanding debt to the
9 Relying on UDC Finance Ltd v Whitley HC Auckland CIV-2008-404-00608, 17 December 2009 at [31], [36].
10 Receivers’ Second Report dated 30 March 2021.
Bank being either repaid in full, or would have left only a small amount remaining for which Mr Kumar would be liable under his guarantee.
[39] Ms Fuiava also notes that the receivers’ costs were significant. The receivers’ fees were $90,000; trading expenses, wages and salaries were $40,000; and travelling expenses of $10,000 were paid. The Lotto, Kiwibank, and Sportsworld franchises owned by the company were also lost. Counsel says that it is apparent that the Bank took no steps to assess whether it was entitled to the proceeds of sale of the various assets and it failed to require a breakdown of the receivers’ costs and details of how the receivers’ costs and expenses related to the particular assets realised by them. The appellants say that the receivers’ reports fail to explain why the forced sale of the business was considered necessary to ensure that the Bank was paid when such a sale was not in fact necessary in order that the Bank be paid, and why the receivers traded the businesses at a loss and incurred substantial legal and agent’s fees when the sum received by the receivers from the sale of the businesses was only $80,000 after the agent’s commission on the sale of the businesses was deducted. Ms Fuiava says that other issues include: why the sum of $93,469 was paid by the receivers to Lotto from the realised assets of the company when the total Lotto sales during the period of the receivership totalled $27,279 when the Bank held a first ranking security; how legal fees totalling $21,193 were incurred by the receivers, and why they should be effectively paid by the Bank to the prejudice of the appellants and specifically Mr Kumar; and why the business landlord’s legal fees of $12,753 were paid by the receivers in priority to the Bank.
[40] Ms Fuiava says that if this appeal succeeds it is likely that the appellants will apply to join the receivers as a party to the proceeding seeking relief including orders requiring the receivers to restore to the Bank the amount it was entitled to under its securities.
[41] Ms Fuiava submits that having regard to those matters this Court should allow the appeal and remit the matter back to the District Court for a defended hearing by way of ordinary proceedings. Such will enable the District Court to determine the Bank’s claim after the parties have undertaken discovery and with the benefit of full evidence and cross-examination of the witnesses. Counsel submits that if Mr Kumar
is denied the opportunity of defending the Bank’s claim he will be bankrupted and the family home where he lives with his wife and four children would have to be sold.
The respondent
[42] Mr Johnson for the respondent first addressed the appeal against the Judge’s decision to decline the appellants’ application for an adjournment of the Bank’s summary judgment application. He submits that the District Courts Act grants a general right of appeal to the High Court in respect of all decisions of the District Court.11 And he notes that pursuant to s 123 of the Act, decision includes a judgment and an interim or a final order. Mr Johnson says that although the Judge did not expressly decline to grant an adjournment, he implicitly did so by deciding that the appellants had no arguable defence to the Bank’s claim and proceeding to enter judgment for the Bank.
[43] Counsel notes that before the Judge decided to decline the application for an adjournment, he went into considerable detail by enquiring about the nature of the defence Mr Kumar wished to advance for the appellants. From this it appeared that the proposed defence focussed on the actions of the receivers. Mr Johnson says that although not stated by the Judge in his decision, it is implicit that Mr Kumar had suggested that the defence would be based on the proposition that the Bank was liable for the actions of the receivers. He notes that the Judge indicated to Mr Kumar that even if the receivers had acted inappropriately, that conduct would not have any impact on the validity of the Bank’s loan or its claim. Counsel submits that on the basis of that analysis and observation, the Judge implicitly declined the application for an adjournment and determined that the appellants had not shown that there was an arguable defence to the Bank’s claim.
[44] Mr Johnson submits that in any event the existence of a right of appeal against a summary judgment decision, weighs heavily against allowing an appeal against the decision declining an application for an adjournment. He notes that in hearing an appeal against a summary judgment decision, the appeal court will consider the matter de novo, and there are no credibility findings required to be made in relation to an
11 District Courts Act 2016, s 124.
appeal. Mr Johnson submits that there should not be a right to appeal the District Court’s decision to decline to grant an adjournment, but if there is a right of appeal it should be dismissed.
[45] In response to the appellants’ proposition that the receivers were the Bank’s agent, Mr Johnson says that there is no arguable basis to support the existence of such an agency. He says that the only communication by the Bank regarding the receivers during the period between 10 February 2020 and 28 April 2020, being the period during which the appellants allege the agency existed, is an email from the Bank to Hucker and Associates, dated 27 February 2021, in which the Bank said that it had “instructed the receivers” to take possession of a vehicle belonging to Attri, and which it believed fell within the scope of its security under the Facility Agreement. Mr Johnson says that this communication which related to a single asset that the Bank “instructed” the receivers to take possession of, does not demonstrate the existence of a general agency or that the Bank had appointed the receivers as its agent.
[46] Mr Johnson notes that on 20 April 2020, Hucker and Associates wrote to the receivers. They said:
We refer to previous communications and note that you are acting as agent of Heartland Bank in dealing with assets secured under the Heartland Bank security for the purposes of section 109 of the Personal Property Securities Act 1999 and that as agent of Heartland Bank you have dealt with our client’s business and its assets. There can be no other basis on which you have dealt with the assets otherwise given that you are not appointed under the Heartland Bank securities.
[47] Mr Johnson says that correspondence between the receivers and the Bank makes the issue of the existence of an agency quite clear. He notes that on 28 April 2020, the receivers proposed to the Bank that it execute a Deed of Agency to appoint them and BDO as the Bank’s agent. However in his email of 30 April 2020 Mr Gillies had explained why the Bank declined to do so.
[48] Mr Johnson notes that in their reply dated 1 May 2020, the receivers advised the Bank that they were happy to proceed on the basis proposed by Mr Gillies. On the same day the receivers wrote to the appellants’ solicitors stating that they were
continuing to deal with the Bank, and were handling the sale of the company’s assets and obtaining the Bank’s consent to the sales as quoted above at [31].
[49] Mr Johnson submits that the Bank consenting to the receivers’ actions regarding the sale of an asset does not constitute the Bank appointing the receivers as its agent. He says that the appellants must have known that pursuant to the General Security Agreement executed by Attri in favour of Paper Plus, the appointment of receivers would be made on the basis that the receivers were the agents for Attri, and not the Bank. Mr Johnson notes that further correspondence between the receivers and the Bank confirms that the Bank and the receivers both proceeded on that basis, and he submits that at no stage did the Bank intervene in the receivership in any way that would result in the receivers being appointed or becoming the Bank’s agent. He further submits that it is clear from the correspondence and evidence that at no stage did the Bank make a representation to Mr Kumar that the receivers were its agent, and nor did Mr Kumar or Attri act on or alter their positions in reliance on such a representation or suffer any loss as a result of a representation regarding the existence of an agency.
[50] In response to Mr Kumar’s submission that the Bank conducted itself in a manner that has resulted in Mr Kumar being released from his obligations as guarantor, Mr Johnson says there is simply no evidential basis to support the allegation or on which to found an arguable defence on that basis. He notes that at all times Mr Kumar knew of Attri’s default and could have taken steps to protect his position as guarantor by paying the Bank and Paper Plus. He submits that the Bank had no obligation to protect the value in the security held by Paper Plus over the Attri business. Mr Johnson notes that in any event the terms of the Guarantee and Indemnity entered into by Mr Kumar provide:
5.1 Liability Not Prejudiced
In the case of each Guarantor, that Guarantor is not to be discharged nor are its obligations to be affected (nor are any of the rights of the Lenders or any of them to be affected) by anything which, but for this clause, might operate to discharge or affect the obligations of, or otherwise provide a defence to, that Guarantor (whether or not known to any Guarantor or the Lenders or any of them), including:
(a)…..
(f) any enforcement of, delay in enforcing or failure to enforce:
(i) any rights of the Lenders or any of them against the Debtor, any other Guarantor, or any other person;
(ii) any other agreement, guarantee or security in respect of any Guaranteed indebtedness;
…
(j) anything done, or omitted or neglected to be done, by the Lenders or any of them whether in exercise of the rights of the Lenders or any of them under this document or any other agreement, guarantee or security or otherwise; or
(k) any other thing whatsoever, other than a release of the obligations of that Guarantor under this document executed by the Lenders.
[51] Mr Johnson submits that this provision confirms that the intention of the parties at the time Attri executed the Facility Agreement and Mr Kumar executed the guarantee, was that the obligations created by the guarantee would be preserved and continue to have effect notwithstanding any omission as alleged by the appellants in their proposed defence.
Law and relevant principles
Summary Judgment
[52] The principles applicable to the court’s consideration of applications for summary judgment were set out in Krukziener v Hanover Finance Ltd:12
[26] The principles are well settled. The question on a summary judgment application is whether the defendant has not defence to the claim; that is, that there is no real question to be tried ... The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated ... The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable ... In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it ...
[27] Under r 141A the defendant need not file a statement of defence. The onus remains on the plaintiff, and summary judgment will be denied if on the hearing of the application it appears that there is an issue worthy of trial.
12 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 (citations omitted).
Liability of secured creditors for actions of receivers
[53] The appellants submit that they have an arguable defence to the Bank’s claim by reason of the Bank’s involvement with the conduct of the receivers appointed by Paper Plus. The appellants refer to the summary of the relevant principles set out by Blanchard and Gedye in their text Private Receivers of Companies in New Zealand in which they observe:13
Potential liability of secured party where receiver appointed as agent of debtor company
A secured party may also be liable for the actions of a receiver who is appointed as agent of the debtor where the secured party interferes in the conduct of the receivership and gives directions to the receiver. The precise basis for this liability is unclear. It may be that it is based on a direct duty affected third parties. Alternatively, it may be that based on the principle that the secured party, by directing the receiver, has constituted the receiver the agent of the secured party, (which agency would be additional to, but despite, the receiver’s agency relationship with the company pursuant to the security agreement), and is therefore liable as principal for the acts of its agent.
…
Whichever view is taken of the basis of the secured party’s potential liability when the receiver is prima facie the agent of the debtor, it is apparent that the secured party’s intervention will need to be serious before the secured party is found liable for the receiver’s actions. Giving advice to, or holding discussions with, the receiver, or simply making known its preferences, will not render the secured party liable. In Florgale Uniforms Pty Ltd v Orders the receiver informed the secured creditor of the steps the receiver proposed to take in the receivership and the creditor concurred with the receiver’s recommendations. But the secured creditor did not go as far as telling the receiver what to do and accordingly incurred no liability. There will very probably be liability where the secured party clearly instructs the receiver to conduct the receivership in a manner that is in breach of the receivers duties to the debtor. And in State Bank of New South Wales v Chia it was stated that a secured party would be accountable where “heavily involved in the performance of the receiver’s duties even to the extent of directing when and to whom the receiver was to exercise his power of sale.
This issue is relevant both in relation to the ability of third parties to recover damages from the secured party for the receiver’s default and in relation to the ability of the receiver to claim an indemnity from the secured party. …
13 Peter Blanchard and Michael Gedye Private Receivers of Companies in New Zealand (3rd ed, LexisNexis, Wellington, 2008) at [2.06] (footnotes omitted).
Guarantor’s obligations
[54] The appellants wish to argue that the Bank’s intervention in the conduct of the receivership resulted in the value of the security being reduced and were thereby prejudicial to Mr Kumar as guarantor. It is settled law that a guarantor’s obligation under a contract of guarantee is subject to the intervention of equity to protect a surety in appropriate circumstances, and equity will act to discharge a guarantee where the person guaranteed acts in a way to harm the security or the guarantor’s rights in relation to it.14 In Watts v Shuttleworth a surety was released where a creditor had covenanted to insure mortgaged goods and had failed to do so. Pollock CB explained:15
The substantial question in the case is, whether the omission to insure discharges the defendant, the surety. The rule upon the subject seems to be that if the person guaranteed does any act injurious to the surety, or inconsistent with his rights, or if he omits to do any act which his duty enjoins him to do, and the omission proves injurious to the surety, the latter will be discharged … the rights of a surety depend rather on principles of equity than upon actual contract …
Discussion
[55] In a very brief reserved decision delivered on 10 May 2021, Judge Cameron noted that he had entered summary judgment for the Bank as plaintiff in the sum of
$66,723.85 being the outstanding balance of a loan made by the Bank to Attri of which Mr Kumar had guaranteed payment. The Judge noted that three days prior to the hearing the appellants had filed a notice of opposition and memorandum claiming that they had an arguable case and that Mr Kumar had appeared before him on 6 May 2021 to seek and adjournment of the hearing of the Bank’s summary judgment application, so that his legal aid application could be determined and affidavits in opposition filed.
[56]The Judge set out this history:16
[3] On 3 May 2021, three days before the hearing on 6 May 2021, the [appellants] filed a notice of opposition claiming they had an arguable defence to the claim. Accompanying that notice of opposition was a memorandum by [Mr Kumar]. This was to the effect that he understood that he qualified for
14 China and South Sea Bank v Tan [1990] 1 AC 536 (PC) at 543544. Applied in UDC Finance Ltd v Whitley, above n 9.
15 Watts v Shuttleworth (1860) 157 ER 1171 5 H&N 235, at [247][248] (citations omitted).
16 Heartland Bank Ltd, above n 2.
legal aid and had found suitable lawyers in Auckland and met with them on 6 April 2021. The memorandum stated that the lawyer filed and a legal aid application on his behalf on 9 April 2021. Legal Services sought further information on 15 April 2021, and the lawyer replied to the letter on the same day. Then on 23 April 2021 [Mr Kumar] states that he received a letter from Legal Services confirming the application was being considered and still processed.
[57] The Judge then referred to Denham Bramwell’s letter dated 5 May 2021 which confirmed that the appellants’ legal aid application was still being processed and set out the reasons why they were unable to take any formal steps in the proceeding until the application for legal aid had been determined. The Judge noted that in their letter Denham Bramwell expressed their view that there was an arguable defence to the claim and also the possibility of adding counterclaim defendant to the proceedings.
[58] The Judge then referred to his discussion with Mr Kumar in which Mr Kumar explained that the receivers of the company, appointed by Paper Plus, had sold the company’s asset for a gross undervalue, and to the conclusion the Judge had reached from that discussion that the matters raised by Mr Kumar could not amount to an arguable defence to the Bank’s claim, and “at best would be a separate claim against the receivers”.17 The Judge concluded that those matters would not affect the validity of the Bank’s loan, and he had proceeded to enter summary judgment, which necessarily meant that he also decided to dismiss Mr Kumar’s application for an adjournment of the summary judgment application.
[59] Although not before the District Court Judge, the appellants have produced for the purposes of their appeal, the letter written by Denham Bramwell to Legal Services dated 9 April 2021. In their letter Denham Bramwell set out a summary of the background to the proceeding in which they reviewed the timeline of the steps taken by Mr Kumar immediately after he was served with Paper Plus’s 31 December 2019 notice of demand seeking payment of $111,937 by 21 January 2020. It is clear from the contents of this letter that Mr Kumar had acted promptly to seek legal advice and representation and that his locally based lawyer had sought assistance from an Auckland based lawyer who had then engaged with the receivers. When those
17 At [6].
negotiations were unsuccessful, the receivers proceeded to realise the company assets and the Bank then made demand to Mr Kumar under the guarantee.
[60] Denham Bramwell concluded the factual summary in their letter to Legal Services saying:
16. Heartland Bank authorised the receivers to deal with the assets of the Company as the first security holder and in providing such authority authorised the Receivers and Paperplus [sic] to act on their behalf as secured creditors and to deal with the collateral the subject of their securities.
17. The Receivership fees charged were excessive given the returns and payments appear to have been made to Paperplus [sic] that arguably ought to have been made to Heartland to reduce the debt due to Heartland Bank.
18. Given that Heartland Bank did not take steps to ensure the proper realisation of its securities and that there were funds that ought to have been properly applied in reduction of the overall debt that were not[,] Heartland breached its duty to the guarantor to ensure the proper protection of the securities that it held and ought not to have authorised payments that were made to Paperplus [sic] where Heartland had a higher and greater ranking priority interest in the collateral.
[61] The Judge’s finding that the actions of the receivers would not affect the validity of the loan from the bank was based on what could only have been a brief discussion with Mr Kumar in which the self-represented Mr Kumar was seeking an adjournment of the summary judgment application. Mr Kumar was obviously not expecting to have to explain the basis of his arguable defence in other than broad terms, and his inability to explain to the Judge the factual basis of the claim that the Bank had been directly involved with the receivers and the significance of the Bank’s involvement with the receivers’ actions in realising the Attri business assets, is not surprising. As someone without legal qualifications, Mr Kumar could hardly be expected to provide an informed explanation of the factual and legal basis of an arguable defence. He was however able to provide the Judge with a copy of Denham Bramwell’s letter of 5 May in which they expressed the view that there was an arguable defence.
[62] It was clear from Denham Bramwell’s letter that Mr Kumar had sought to arrange legal representation and that he had made an application for legal aid which was yet to be determined. Mr Kumar’s memorandum of 3 May 2021 and Denham Bramwell’s letter of 5 May 2021 both confirmed that the application for legal aid had
been made and explained why Denham Bramwell were not prepared to take any formal steps in the proceeding on behalf of the appellants until the legal aid application had been determined and approved.
[63] In these circumstances where the appellants had arranged legal representation subject to being granted legal aid, and were seeking an adjournment to enable their application to be determined so as to have legal representation to defend the Bank’s claim, it was clearly not a case of the appellants seeking to frustrate the efficient progress of the proceeding by means of a “last minute” application for an adjournment. Denham Bramwell’s letter stating their view that the appellants had an arguable defence to the Bank’s claim provided support for what Mr Kumar said notwithstanding the solicitors’ unwillingness to take formal steps in the proceeding until the legal aid application had been determined. Denham Bramwell’s statement that they considered the appellants to have an arguable defence, and that there was a possibility that a claim against another defendant could be made, demonstrated that the solicitors had taken instructions as to the background and had given consideration to the matter, and that in their view there was a genuine basis on which the appellants could advance an arguable defence. In these circumstances the appellants quite obviously had legitimate and well-founded reasons for seeking an adjournment of the summary judgment application.
[64] On the other hand, there is no suggestion that the Bank would suffer any significant prejudice as a result of an adjournment of its application for summary judgment. In this regard I note that Mr Johnson who represented the Bank at the District Court hearing on 6 May 2021, attended by telephone, and so there was no significant inconvenience and expense involved in the attendance of counsel before the District Court in Tauranga.
[65] By dismissing their application for an adjournment and entering summary judgment against them, the appellants were denied the opportunity to present and explain the basis of their arguable defence and prevented from producing affidavits setting out evidence to support their defence of the Bank’s claim. They were denied the opportunity to oppose summary judgment in an effective manner. Moreover, by declining the adjournment the Judge created the situation wherein the District Court
would proceed to hear and determine the Bank’s application for summary judgment, not only without Mr Kumar having been given an adequate opportunity to be heard, but also without the Court having the benefit of evidence that would enable it to determine the application on a properly informed basis.
[66] As is clear from the evidence presented on appeal, there is an evidential foundation for the appellants’ claim that the Bank was directly involved in the actions and decisions taken by the receivers regarding the realisation of assets. There is also evidence regarding the manner in which the receivership was conducted which resulted in considerable costs and expenses being incurred which arguably ought not to have been applied in priority to reducing the secured Bank debt. The receivers’ second report in which they state that the Bank “has engaged the Receivers to dispose of all assets secured under its GSA”, provides material support for the appellants’ claim that the receivers had become the Bank’s agents in relation to the realisation of assets which were subject to the Bank’s first ranked security. Moreover, other evidence presented by the appellants for this appeal provides support for their claim that the receivers’ conduct of the receivership was undertaken in a manner that prejudiced the appellants and specifically Mr Kumar as guarantor, and that the Bank participated in or contributed to the receivers decisions, or at least some of them.
[67] The arguable defence that the appellants wish to raise finds support in the principles outlined by Blanchard and Gedye set out above at [53]. Whether and to what extent the Bank was involved in the decisions and actions of the receivers and whether or not the actions of the Bank and the receivers amounted to a failure on their part to discharge duties owed to the appellants are matters which are clearly arguable and which the appellants have shown have an evidential basis. Although the hearing of this appeal is not the appropriate time to determine these issues, I am satisfied that the appellants have provided evidence to show that they do have an arguable defence to the Bank’s claim.
[68] The evidence presented by the appellants on this appeal shows that the Judge’s finding based on a brief discussion with Mr Kumar, that the actions of the receivers would have no effect on the validity of the Bank’s loan to Attri, was made on an inaccurate assumption that the Bank was entirely uninvolved in the actions of the
receivers and their conduct of the receivership in relation to the realisation of assets. Such assumption is not consistent with the evidence now before this Court, and it illustrates the dangers inherent in determining disputes without affording both parties a proper opportunity to be heard. Affording parties involved in legal proceedings a proper opportunity to be heard before a determination affecting them is made is a fundamental requirement of our system of justice. Although the Judge afforded Mr Kumar an opportunity to be heard, it is clear that without the assistance of legal representation and without an opportunity to produce relevant evidence regarding the actions of the Bank and the receivers, Mr Kumar was not given a reasonable opportunity to be heard before the Judge proceeded to impliedly dismiss the application for an adjournment and grant the bank’s application for summary judgment.
[69] In my view the Judge erred by failing to specifically address and determine Mr Kumar’s application for an adjournment before proceeding to determine and grant the summary judgment application. Where the outcome of an application for an adjournment is effectively dispositive and will leave the unsuccessful party in a position where they are unable to effectively oppose the application before the court, especially when the application is seeking summary judgment which will determine the matter in dispute, the interests of justice generally and specifically the requirements of natural justice, require the court to evaluate the merits of the adjournment application and in doing so, consider the effect of an adjournment on the respective parties. In my view, where as was the case here, the reasons for seeking an adjournment relate to a party’s wish to arrange legal representation and they show that they have been diligent in their efforts to arrange legal representation, there would need to be compelling reasons for an adjournment to be declined. Here the Judge did not undertake an assessment of the relative positions of the parties or take account of the significant prejudice that the appellants would suffer if their application for an adjournment was declined. By failing to undertake that evaluation the Judge overlooked the compelling merits of the appellants’ adjournment application, and thereby erred.
[70] I am accordingly satisfied that the Judge erred in declining the appellant’s application for an adjournment of the Bank’s summary judgment application. I am
also satisfied that the Judge erred in finding that the appellants had no arguable defence to the Bank’s claim, and also in his decision to enter summary judgment in favour of the Bank against both appellants.
[71] For these reasons, I find that the appeal succeeds. The decision made by Judge Cameron to enter summary judgment and order costs against the appellants should be quashed.
Result
[72]The appeal is allowed.
[73] I make an order that the summary judgment entered against the appellants by the judgment of Judge I D R Cameron in the District Court at Tauranga on 6 May 2021 is quashed.
[74] I make an order quashing Judge Cameron’s finding that the appellants do not have an arguable defence to the Bank’s claim and I make an order finding that the appellants have demonstrated that they do have an arguable case in defence of the Bank’s claim in the District Court Proceedings.18
[75] I make an order remitting the proceeding back to the District Court at Tauranga, for the matter to hereafter proceed as a standard civil proceeding requiring the filing of a statement of defence and enabling the appellants to apply for leave to join additional parties should they elect to do so. The District Court is to give directions pursuant to r 12.12(1) of the District Court Rules, as to the future conduct of the proceeding and mode of trial.
[76] The appellants having succeeded are entitled to an award of costs and reasonable disbursements. In the event that the parties are unable to agree on costs within 10 working days from the date of delivery of this judgment, I direct the appellants to file and serve a costs memorandum not exceeding three pages in length (not including the title page and any annexures or schedules) by 5.00pm on Friday 17
18 District Court proceedings CIV-2021-070-000218.
March 2023. And I direct the respondent to file and serve its costs memorandum in reply by 5.00 pm on Friday 24 March 2023. Following receipt by the Registrar of the parties’ costs memoranda, I shall determine the award of costs on the papers.
Paul Davison J
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