Lam v Mo
[2021] NZHC 1663
•6 July 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2013-485-001736
[2021] NZHC 1663
BETWEEN MAN FUNG LAM, YUET MING BETTY WONG and MORAL DRAGON LIMITED
PlaintiffsAND
CHIU CHEUNG MO and LILY YUET HA WONG
First Defendants
AND
SUNLINK DEVELOPMENTS LIMITED
Second Defendants
AND
PLIMMERTON HEIGHTS CONSTRUCTION LIMITED
Third Defendants
AND
STEVEN WEE HONG LEE
Fourth Defendant
Hearing: 20 May 2021 Appearances:
R J B Fowler QC and P W F Cheng for the Plaintiffs
M R C Wolff and H J Dempsey for the First, Second and Third Defendants
No appearance for the Fourth DefendantJudgment:
6 July 2021
JUDGMENT OF NATION J
[1] I refer to the plaintiffs in the way they have been referred to in earlier judgments of the Court as “the Lams”. I refer to the first defendants as “the Mos”.
LAM v MO [2021] NZHC 1663 [6 July 2021]
[2] The second defendant, Sunlink Developments Ltd (Sunlink Developments), was involved in a residential subdivision in Plimmerton. The third defendant, Plimmerton Heights Construction Ltd (Plimmerton Heights), built homes on that site. The sole director and registered shareholder of those two companies is one of the first defendants, Mo Chiu Cheung, known in the litigation by his English name David Mo.
[3] In these proceedings the Lams claimed they had an interest in the businesses associated with the Mos, particularly the Plimmerton development.
[4]In a judgment of 16 May 2017 (Judgment No. 1), Williams J said:1
[7] The essential dispute between the Lams and the Mos is therefore over which of the Sunlink Group’s companies the Lams have interests in, and the comparative size of that interest as against the Mos and any other interest holders. There is then a downstream issue about what obligations the Mos and any relevant Sunlink companies might owe the Lams by way of account of profits.
[5]Williams J summarised his findings as:
[214] I have found that the Lams hold a 35 per cent interest in the Plimmerton subdivision joint venture incorporating Sunlink Developments and Plimmerton Heights Construction Ltd.
[215] I have found that the Mos (and David in particular) owed fiduciary obligations to the Lams in relation to the Plimmerton joint venture, in addition to obligations owed by the companies and David as director and any rights of ordinary shareholders. These obligations required that deductions and expenses from revenue for the purpose of deriving profit were only such as were reasonably necessary to derive that profit, and in light of the no conflict fiduciary obligation owed to the Lams.
[216] I have held that it is in order for reasonable deductions to be made to account for the time and skill expended [by] David in deriving the Plimmerton joint ventures profits and that this issue must be returned to this Court for final resolution.
[217] I have held further that the Lams had no entitlement to the shareholder salaries they claimed were promised to them.
[218] And I have held that the acknowledged payments made by the Mos to the Lams of $276,000 together with the Angel Wong loan from David on Tony’s behalf of US$30,000 should be taken into account in any final settling of the entitlements between them.
1 Lam v Mo [2017] NZHC 997 [Judgment No. 1].
[6] In the proceedings, the Lams had also brought a claim against the Sunlink group’s solicitor, the fourth defendant. Williams J determined Mr Lee was never the Lams lawyer and never owed them any direct obligations as their legal advisor and, in any event, he had a limitation defence to the claim against him.2 That claim was dismissed.
[7] In Judgment No. 1, Williams J directed that accounts be taken of Sunlink Developments and Plimmerton Heights.
[8] On 13 February 2018, Churchman J held the Lams were to pay the fourth defendant’s costs in the sum of $73,639.69.3 $20,000 held in the Lams solicitor’s trust account as security for costs plus any interest was to be paid to the fourth defendant immediately with the balance payable within 14 days.
[9] The appointed account-taker completed the report on 15 December 2017. Following that report there was disagreement over various matters relevant to the determination of the value of the Lams interest in the Sunlink group and the amount which the Mos had to account for to the Lams through the interest they had in a joint venture with the Mos.
[10] In a judgment of 9 November 2018 (Judgment No. 2) Williams J made findings on the matters in dispute.4 It was not possible for him to finally determine matters at that stage because there was too much uncertainty about the value and condition of two sections in the Plimmerton development, 1 and 14 Mo Street.
[11] The value of 1 Mo Street was particularly contentious. The property then and now is potentially of considerable value but there was or is a possibility it could be affected by asbestos contamination. If it was or is contaminated, the costs of remediation could be significant. There was a dispute as to how the value of that section should be established. The Lams suggested one way would be to sell the sections. The Mos suggested rateable value should be adopted.
2 At [197]-[201].
3 Lam v Mo [2018] NZHC 116.
4 Lam v Mo [2018] NZHC 2920 [Judgment No. 2].
[12] With the determinations made in Judgment No. 2, Williams J hoped it would be possible to agree how those sections would be brought into account “in a pragmatic business fashion” but said, if that proved impossible, he would entertain an application for an appropriate vesting order.5 With the determinations made in Judgment No. 2 and with the hope he had expressed, Williams J anticipated that it would be possible for the parties to prepare appropriate draft orders within a short time. He directed a memorandum on the matter be filed within 15 working days of the judgment.
[13] Counsel were granted further extensions to allow them to meet and attempt to reach a final resolution. On 15 June 2020, counsel filed a memorandum advising the parties had not been able to reach agreement over certain matters.
[14] In a memorandum of 26 June 2020 counsel sought a one-day hearing and timetabling directions. The directions related to the provision of reports and expert evidence as to the value of 1 Mo Street and the impact of potential contamination issues on that value.
[15] Against that background the proceedings were set down for a further hearing on 20 May 2021.
[16] Shortly before the hearing counsel advised that agreement had been reached over certain matters and further evidence would not be presented at the scheduled hearing. At the hearing counsel explained this was because agreement had been reached that the value of 1 Mo Street would be determined through the sale of the property and all parties were committed to marketing the property to obtain the best price for it in a way that would realise its true market value.
[17] As confirmed by counsel in their joint memorandum of 17 May 2021, it has been agreed the judgment sums for the Lams will include or allow for the following:
3.1 $57,475 (being the 35% of the profit determined by the account taking exercise of $164,215, absent the two remaining unsold properties – 1 and 14 Mo Street);
5 At [37].
3.2 $96,856 (being 35% of the net sale proceeds of 14 Mo Street of $276,734 settled 15 February 2019);
3.3 1 Mo Street is to be sold pursuant to an agreed sale process and 35% of the net sale proceeds will form part of the judgment sum;
3.4 A deduction $321,000 is to be made from the final judgment sum without interest (being for Mr Mo’s payments plus repayment to Angel);
3.5 A further deduction for the costs already ordered to be paid to the fourth defendant of $54,593 (being $52,955 plus $1,838) plus interest at 5% from the date of judgment 16 May 2017 to date of payment) is to be paid directly to the fourth defendant.
[18]The Court’s determination was required on issues over interest and costs.
Interest
[19] Because the Mos claim began before 1 January 2018, their claim for interest had to be made under s 87 of the Judicature Act 1908.
[20] In Judgment No. 1, Williams J found the Lams had an interest in the Plimmerton joint venture.
[21] The Lams seek interest on the now agreed share of profits from the joint venture from the date of termination of the joint venture (20 June 2013) to the date of payment at five per cent per annum.6 There is no dispute that this is the appropriate rate pursuant to s 87 of the Judicature Act 1908.7
[22] In Judgment No. 2 Williams J recorded the Lams submitted that interest should run from the termination of the joint venture on 20 June 2013. Mr Mo suggested interest should be offset by interest on two other sums. These were the acknowledged payments made by the Mos to the Lams of $276,000 and $770,000 which the Mos had advanced to, and during, the joint venture in connection with the Plimmerton subdivision.
6 See Judicature (Prescribed Rate of Interest) Order 2011.
7 Which continues to apply pursuant to sch 1 pt 1 cl 1 of the Interest on Money Claims Act 2016.
[23] Williams J said he did not accept it was appropriate to make the offset suggested by Mr Mo. He said:8
[53] Mr Lam will be entitled to interest in the usual way. I do not accept that it is appropriate to make the off-sets suggested by Mr Mo. As I noted [in the No. 1 judgment] at [149], the Lams’ funds had been under the control of Mr Mo for some considerable time before being attributed to the Plimmerton joint venture. There is therefore no good reason for me to exercise any discretion in respect of interest in favour of Mr Mo in those circumstances.
[24] The parties have agreed the amount to be deducted from the final amount due from the Mos to the Lams is $321,000. This figure takes into account Mr Mo’s payments of $276,000 plus his repayment of a US$30,000 debt to Angel Wong. The amount to be paid by the Mos to the Lams on account of their interest in the Plimmerton joint venture, absent the value of the two previously unsold properties, 1 and 14 Mo Street, is $57,475.
[25] The final judgment sum due from the Mos to the Lams will take into account their 35 per cent share of the $276,734 obtained from the sale of 14 Mo Street, i.e.
$96,856. Settlement of that sale occurred on 15 February 2019. The Lams accept their entitlement to interest on the $96,856 should be just from 15 February 2019 to the date of payment.
[26] 1 Mo Street is yet to be sold. The Lams say, except for any period while the proceeds from the sale of that property are held on deposit, no interest issue arises as to the Lams interest in 1 Mo Street.
[27] The Lams are thus claiming interest on $57,475 from 20 June 2013 to the date of payment, and interest on $96,856 as from 15 February 2019 to date of payment.
[28] For the Mos, Mr Wolffe submitted interest should not run on the value of the Lams entitlement to the appropriate share of profits in the joint venture. The amount for which the Mos are liable is less than an amount of $321,000 which is to be deducted from the final judgment sum as agreed. This is on account of the payments which, in
8 Judgment No. 2, above n 4.
Judgment No. 1, Williams J found had been made by the Mos to or for the benefit of the Lams.
[29] For the Lams, Mr Fowler QC said such an approach would not be consistent with well established principles as to how claims for interest are to be approached.
[30] The parties are agreed there is to be a deduction of $321,000 against the final judgment of the amount due from the Mos to the Lams. There is thus agreement that the credit due to the Mos for that sum has not previously been brought into account when calculating the share of the joint venture equity to which the Lams are entitled.
[31] In Judgment No. 1, Williams J recorded it was common ground the Mos had made payments in the order of $276,000 to the Lams during the course of the Sunlink business venture.9 Williams J said he was in no doubt the payments “ought to be taken into account as a matter of equity in the final wash-up”.10 He held these payments and the payment of US$30,000 should be taken into account in any final settling of the entitlements between the Lams and Mos.11
[32] It is thus now apparent that the credit due from the Lams to the Mos exceeds the amounts which will be due from the Mos to the Lams for their interest in the joint venture, excluding their share of the proceeds from the sale of 1 Mo Street.
[33] The Lams however have the judgment from Williams J in which he said the Lams were entitled to interest on the amount due to them for their share in the equity of the joint venture, despite the credit due to the Mos for the $276,000 the Mos had paid to the Lams during the joint venture. Williams J also held they were entitled to interest, having earlier found the Mos were entitled to a credit for their payment of the US$30,000 Wong debt.
[34] In any event, the Mos have not demanded payment of the $321,000 which the parties agree they now have a credit for. The Mos have been content to simply retain that credit with the knowledge it would be brought into account when the final account
9 Judgment No. 1, above n 1, at [74].
10 At [77].
11 At [218].
occurs in respect of the joint venture. They have also remained in control of the equity in the joint venture including the properties at 1 and 14 Mo Street throughout the time these proceedings have continued.
[35] Accordingly, the Lams are entitled to interest on the sum of $57,475 at the rate of five per cent per annum from 20 June 2013 to the date of this judgment.
[36] The amount due to the Lams for their share in the proceeds of sale from 14 Mo Street is $96,856. They have not had the use of the monies since settlement of that sale on 15 February 2019. They are accordingly entitled to interest on that sum as from 15 February 2019 to the date of this judgment at the rate of five per cent per annum.
[37] The Mos have not sought interest on the $321,000 for which they have a credit. For the avoidance of doubt, I make it clear that they would not be entitled to such interest. They have not made a claim for payment of that sum. They have been content for the sum to be simply brought into account against the damages which they ultimately have to pay the Lams. They have not been able to bring that benefit into account against their ultimate liability because of the considerable delays and difficulties that have eventuated in resolving the final amount which they must pay the Lams. They are responsible for those delays in the same way as the Lams, if not more so.
Costs
[38] The Lams say they succeeded in their claims against the first, second and third defendants. They say they are entitled to costs on a 2B basis. They have provided a schedule of what those costs would be - $134,473 for costs and disbursements up to the completion of the hearing for Judgment No. 2. They seek costs on a 2B basis for further steps in the proceedings up to the end of the hearing which has led to this judgment, $19,182.
[39] In the schedule setting out the costs sought, Mr Fowler apportioned them between costs in the proceedings up to Judgment No. 1 and costs in relation to the
account-taking up to Judgment No. 2. Separately, in submissions, he identified the costs sought in preparing for the latest hearing which proceeded on 20 May 2020.
[40] The Mos say, with Judgment No. 1, the Lams failed on their claims against Sunlink Developments and Plimmerton Heights as they did not obtain judgment against those companies. They say the second and third defendants were thus successful in the proceedings against them, so they are entitled to costs against the Lams. The Mos, through counsel, accepted the Lams could properly be considered the successful party as against David Mo and the Mos, and would thus be entitled to costs against the Mos. They submitted the quantum of those costs should be reduced for the limited success the Lams achieved.
[41] The Mos submitted they had been partially successful in the proceedings on the basis of a submitted assessment as to determinations in the proceedings overall.
[42] Mr Wolff submitted costs for the second and third defendants should be assessed on the basis an appropriate award for all three defendants on a 2B basis would be in the sum of $63,327. He accepted that perhaps one third of the costs for all defendants could be attributed to the first defendant, the Mos. I infer this was, in essence, a submission that the legal work done for the second and third defendants was also done for the first defendant, the Mos. They thus contend the costs which they are entitled to for the legal work done for them should be assessed on the basis that two-thirds of the costs they incurred were for them, and one-third for the Mos. They accept the Mos are not entitled to costs. The second and third defendants say they are entitled to costs on a 2B basis for two-thirds of $63,327.
[43] Mr Wolff argued the costs claimed by the Lams against the Mos should be discounted by 50 per cent to reflect what he said was the limited level of success the Lams achieved in the proceedings.
[44] I note, in Judgment No. 2, with the accounting required to determine the equity in the joint venture, Williams J found the costs incurred in the proceedings should be attributed two-thirds to Mr Mo personally and one-third to the second and third defendants equally.
Discussion
[45] All three defendants had the same legal representation in the proceedings. The sole director and shareholder of the second and third defendant companies was David Mo. Williams J recorded Tony Lam and David Mo were the leading witnesses for their respective families and interests. He said other witnesses gave evidence that was very much supplementary to the competing narratives of David Mo and Tony Lam. David Mo as a first defendant was a party to the proceedings.
[46] The Lams did not obtain a judgment against either Sunlink Developments or Plimmerton Heights but that did not mean they had been unnecessarily joined in the proceedings as defendants or that the Lams had been unsuccessful in seeking to obtain a share of the profits or equity in those companies.
[47] Williams J found by 2000 the Lams and Mos understood that the Lam money would be applied to Sunlink Developments and the Plimmerton subdivision.12 The Judge found Sunlink Developments was part of the joint venture in which the Lams had an interest.13 He found the Lams held 35 per cent of the joint venture in the Plimmerton subdivision through Sunlink Developments.14 He also found Plimmerton Heights were a part of the joint venture.15 Williams J then found David Mo held the Lams shares in those companies as trustee for them. The Judge found the Mos were obliged to account to the Lams for 35 per cent of the profit of the joint venture subject only to such deductions for project/company expenses as was consistent with that fiduciary obligation.16
[48] Although he dismissed the claims against Sunlink Developments and Plimmerton Heights, he concluded the Plimmerton joint venture companies should give an account in accordance with pt 16 of the High Court Rules 2016.17 He directed an account of the two companies should be taken accordingly and that the costs of the account-taker would be met from the funds of Sunlink Developments. David Mo and
12 At [151].
13 At [154].
14 At [156].
15 At [158].
16 At [175].
17 At [219].
the two defendant companies were to provide accounts and other relevant documents to the accountant undertaking the forensic examination. After the account-taking, in Judgment (No. 2) Williams J made various findings against Sunlink Developments.
[49] Although judgment was not entered against the second and third defendants in Judgment No. 1, it cannot be said the companies separately were successful in resisting the claims made by the Lams. The Mos have to account to the Lams for a share of the profits already made from 14 Mo Street and to be made in the future from 1 Mo Street.
[50] Any expense incurred by Sunlink Developments and Plimmerton Heights through reference to them in the proceedings would likely have been incurred if they had not been defendants.
[51] It was also appropriate for them to be joined in the proceedings because of the “opaque” way Mr Mo had recorded how he and those companies were carrying on business and using the funds which had been made available to them by the Lams.
[52] I accordingly determine that neither Sunlink Developments nor Plimmerton Heights are entitled to costs as against the Lams.
[53] In Judgment No. 1 Williams J summarised the Lams’ case as being that, in return for contributions to the joint venture (around $760,000) with the Mos in the Sunlink Group, they were entitled to between 35 and 50 per cent of the group.18 The Mos accepted the Lams had an interest in Sunlink, not reflected in their registered shareholdings. They agreed there was a joint venture between them but said this was limited to an interest in Sunlink Developments no greater than their capital contributions. They claimed this was not $760,000 but around $270,500 or six per cent of the capital of the project. They were thus entitled only to six per cent of Sunlink Developments.
[54] Williams J found the Lams had contributed $743,829. He found they had a 35 per cent share in Sunlink Developments and Plimmerton Heights in the profits. The Lams had no interest in the development of a property on Dixon Street, Wellington
18 At [4].
through another company, Sunlink NZ Ltd and a property development on Cuba Street through a company, Sunlink Investments Ltd.
[55] There was potential for the Lams to have some entitlement resulting in those investments. Williams J referred to “the almost complete lack of formality around the business arrangements” between the Lams and the Mos,19 and the way “money shifted readily between the four companies within the group even though the companies had no direct shareholding in each other”.20 The Judge commented that both Tony Lam and David Mo had occasionally proved themselves to be unsatisfactory and less than truthful witnesses. He gave two examples of that with Tony Lam but said:21
On the other hand, David [Mo] proved himself willing to give false statements to a banker, and his approach in general to engaging in business with friends and family was (I have found) to create and exploit ambiguity, to control information to his advantage, and to retrospectively repackage facts to suit his interests where necessary.
[56] It was substantially because of this that Williams J decided it was necessary to address each factual dispute case by case and to look for independent corroborating evidence where it existed to assist in his assessment. He said “[o]verall, this has made the fact finding process rather more laborious than it might otherwise have been”.22
[57] Neither Sunlink NZ Ltd nor Sunlink Investments Ltd were involved as defendants. It is not suggested that the Lams claim for a share of the profit for the Mos to account for a share of the profits in those companies was vexatious or frivolous.
[58] With Judgment No. 1, there were particular issues which were determined in favour of the Mos. Overall in establishing the extent of their interest in the joint venture for which the Mos had to account to the Lams, and that David Mo had fiduciary obligations to the Lams, it was the Lams who were successful in the proceedings and on the claims dealt with in Judgment No. 1. They are accordingly entitled to costs, including disbursements, as sought for the proceedings up to that point.
19 At [9].
20 At [37].
21 At [45].
22 At [46].
[59] Before Judgment No. 2, the account-taker had calculated the equity in the joint venture for which David Mo would have to account. In doing so, the account-taker determined various issues. The hearing over Judgment No. 2 was necessary primarily because various determinations were not accepted by either David Mo or Tony Lam.
[60] Before the hearing, the account-taker had held that half of the total entertainment costs claimed by David Mo of $139,000 should be treated as personal drawings by Mr Mo. Mr Mo agreed. Mr Lam suggested, at best, a total of $6,000 should have been treated as a company expense. Williams J declined to disturb the account-taker’s finding that $69,258 should be brought into account as reasonable entertainment expenses.
[61] The account-taker had allowed $1,094,000 as David Mo’s remuneration in managing the development. Mr Lam suggested an appropriate salary for the period would be $490,000. Williams J was not prepared to interfere with the decision made by the account-taker on this issue.
[62] There was a potential issue over the allowance for wages paid to others but the judgment records, at the hearing, there was no real contest on that issue. Williams J recorded they were a legitimate company expense.
[63] Legal fees of $226,127 (excluding GST) were incurred in defence of the proceedings. There was an issue as to how much of that amount should be attributed to and met by David Mo personally as opposed to the defendant companies. The account-taker had been unsure as to whether the legal fees should be treated as personal costs of Mr Mo or attributable in part to the companies. David Mo submitted two thirds of the legal fees, i.e. $150,751, should be attributed to the companies. Mr Lam submitted $26,000 should be attributed to the companies and $200,000 attributed to David Mo personally. Williams J found the fees should be shared two-thirds, that is $150,751, to David Mo personally and one-third, that is $75,375, between Sunlink Developments and Plimmerton Heights equally.
[64] Sunlink Developments made a profit but Plimmerton Heights made a relatively significant loss. There was an issue as to the extent to which the Lams should share
in that loss. The Lams submitted the losses should not be brought into account. The Mos said the losses were part of the joint venture. Williams J held the losses were part of the joint venture.
[65] There was an issue over the account-taker’s costs. In Judgment No. 1, Williams J directed the costs were to be met from the funds of Sunlink Developments. Mr Lam argued this should not happen. David Mo argued there should be no relitigation on the issue. Sunlink did not have funds to pay for the account taking so he had paid for them. Williams J refused to disturb the direction he made in Judgment No. 1.
[66] David Mo sought to bring into account a loan which another company, Sunlink Investments Ltd, had paid to Sunlink Developments and a credit he sought for that amount because he had paid off that loan personally. This issue had not been put before the account-taker. Williams J agreed with David Lam that the sum of $38,635 was irrelevant.
[67] There was an issue over interest on the sum that would be due to the Lams through the joint venture. David Lam sought interest from the termination of the joint venture. As already referred to, Mr Mo said there should be an offset for interest on
$276,000 and the funds he had advanced to Plimmerton Heights. Williams J held the Lams were entitled to “interest in the usual way”.23
[68] On my review of Judgment No. 2, I consider the Lams and the second and third defendants had approximately equal success in the continuation of the proceedings up to that point and the issues which had to be addressed with Judgment No. 2. The parties should all bear their own costs for attendances in relation to the account-taking and the continuation of the proceedings through to the hearing on 14 May 2018, leading to Judgment No. 2 on 9 November 2018.
[69] The Lams seek costs of $19,182 including expert fees of $11,522 for preparation for the hearing on 20 May 2021 and that hearing.
23 Judgment No. 2, above n 4, at [53].
[70] It is apparent from counsels memorandum of 26 June 2020 seeking timetabling directions the major issue that required a further hearing arose out of the parties inability to determine the value of 1 Mo Street. That property remained as an asset of Sunlink Developments so had to be brought into account between the parties. Counsel said there was a factual dispute over the value of the property and a hearing was necessary to determine that value. It was anticipated that expert evidence would have to be called as to the potential for contamination from asbestos and/or industrial waste. Valuers would also be giving evidence as to how that expert evidence over contamination would affect the values.
[71] Ultimately, just prior to the hearing, the parties agreed that the value of 14 Mo Street would be determined through selling the property. They agreed on steps that would be taken to achieve that sale.
[72] Williams J recorded in Judgment No. 2 that the Lams suggested there were three options of bringing the sections into account. One was to value them now, but he considered this would not be a straightforward exercise.
[73] One of three options the Lams had suggested was to give the Lams a share in the proceeds after the sale of the sections. That option was taken up as to 14 Mo Street when it was sold but the timetabling directions referred to above were required because the Mos were not accepting 1 Mo Street should be sold to determine its value at that time. The Mos ultimately, but only on the eve of the scheduled hearing, agreed to determine the value of 1 Mo Street in that way.
[74] All parties deserve credit for that aspect of the settlement. However, with that settlement, it can be said the Lams have been successful.
[75]The Lams have been successful on their claims both as to interest and costs.
[76] The Lams are entitled to costs on a 2B basis for the period between Judgment No. 2 and this judgment. Those costs are to be on a 2B basis with disbursements for expert fees as claimed, $19,182.
The fixing of the judgment sum
[77] With the decisions I have now made over interest and costs, it should be possible to calculate the sum for which judgment will be given. It is likely, on my preliminary calculation, that the amount due from the Mos to the Lams, putting their interest in 1 Mo Street to one side, will be less than the credits due to the Mos as agreed.
[78] I do not consider judgment for the net sum that will probably be due from the Lams to the Mos should carry interest from the date of judgment. The Mos remain in control of 1 Mo Street. The balance due from the Lams to the Mos should be brought into account when 1 Mo Street has been sold.
[79] Leave is reserved to the parties to file a memorandum setting out the precise terms of the orders which the Court is to make in accordance with this judgment. Those orders should include the order as to the sale of 1 Mo Street and the terms on which that sale is to take place. Counsel for the Lams had provided a memorandum with those proposed terms at the time of the hearing on 20 May 2021. Mr Wolff said he did not have instructions from the Mos as to whether those terms were acceptable to the Mos. Counsel anticipated they would be able to agree on a process that would ensure a sale would be progressed promptly and in a manner that ensures the true value of the property is realised.
Result
Interest
[80] The Lams are entitled to interest on the sum of $57,475 at the rate of five per cent per annum from 20 June 2013 to the date of this judgment.24
[81] The Lams are entitled to interest on $96,856 at a rate of five per cent per annum from 15 February 2019 to the date of this judgment.25
24 See above at [35].
25 See above at [36].
Costs
[82] Neither Sunlink Developments nor Plimmerton Heights are entitled to costs against the Lams.26
[83] The Lams are entitled to costs and disbursements as sought against the Mos on a 2B basis for the period up to 16 May 2017 (Judgment No. 1) in the sum of
$107,158.27
[84] Costs lie where they fall in respect of the costs for attendances in relation to the account-taking and the continuation of the proceedings through to the hearing on 14 May 2018, leading up to 9 November 2018 (Judgment No. 2).28
[85]The Lams are entitled to costs on a 2B basis against the Mos in the sum of
$7,660 plus disbursements of $11,522. This order covers expenditure for the period between 9 November 2018 (Judgment No. 2) and this judgment.29
[86] The Court asks counsel to file a memorandum as to the orders which can now be made before 16 July 2021.
[87] Leave is reserved to the parties to seek further directions as to any issue that might arise out of the implementation of this judgment, in particular, as to the sale of 1 Mo Street.
Solicitors:
R J B Fowler, Barrister, Wellington
Paul Cheung & Co., Solicitors, Wellington Morrison Kent, Lawyers, Wellington
Fee Langstone, Auckland.
26 See above at [52].
27 See above at [57].
28 See above at [67].
29 See above at [75].