Mak v Lumenosity Limited
[2023] NZHC 2386
•30 August 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1080
[2023] NZHC 2386
BETWEEN SUZANNA MAK AND ASA DENTON
Plaintiffs
AND
LUMENOSITY LIMITED
First Defendant
AMBER MARIE NAVEIRA
Second DefendantVICTOR NAVEIRA
Third DefendantTHE GRANARY LIMITED
Fourth Defendant
Hearing: 29 May 2023
Plaintiffs’ chronology and defendants’ chronology 8 June 2023
Counsel:
G Williams for Plaintiffs
No appearance for First Defendant
C Hadlee and S Thirayan for Second, Third and Fourth DefendantsJudgment:
30 August 2023
JUDGMENT OF HINTON J
This judgment was delivered by me on 30 August 2023 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Sinclair Black, Auckland
Hudson Gavin Martin, Auckland
MAK v LUMENOSITY LIMITED [2023] NZHC 2386 [30 August 2023]
[1]This judgment addresses two interlocutory applications in this proceeding.
Introduction
[2] In late 2021 the plaintiffs and second and third defendants (the Naveiras) informally agreed that they would enter into a business venture relating to the establishment and operation of a virtual production studio. They took various steps in that direction until February 2022 when the relationship broke down.
[3] The terms of the agreement are unclear. It seems to have been intended, and this is the agreement as relied on by the defendants, that the venture would be run through an existing company, being the fourth defendant (The Granary) which was owned by the Naveiras, and the plaintiffs would acquire a 49 per cent shareholding in that company. The Granary already owned intellectual property (IP) relating to a virtual production studio but had no ability to fund the venture. It had also applied for a grant from the Ministry of Culture and Heritage (MCH). The intention was that the plaintiffs pay either NZD 1.5 million approximately (according to the plaintiffs) or USD 1.5 million (according to the defendants) for the shareholding in The Granary. For convenience only, instead of transferring The Granary shares, the parties incorporated the first defendant (Lumenosity) and the shares in that company were issued 51 per cent/49 per cent to the Naveiras and plaintiffs respectively.
[4] Before Lumenosity was incorporated, the plaintiffs purchased and paid for virtual studio equipment (VPE), comprising screens and accessories, a camera and two workstations.1 Payments for the VPE and for other outgoings were made by the plaintiffs down to the relationship breakdown in February 2022. The VPE payments were USD 737,329.70, AUD 202,470 and NZD 54,635.96. In addition, the plaintiffs paid NZD 3,468.74 for two boards. They also incurred net further expenditure of NZD 73,418.96.
[5] Following the relationship breakdown, the plaintiffs say that they are the owners of the VPE and boards. They say it was intended that ownership would ultimately be transferred by them to Lumenosity, either by way of sale or in return for
1 At the request of the Naveiras, these are not further described.
Lumenosity’s agreement that it would reimburse the plaintiffs for the costs they had incurred. They say the transfer of ownership did not occur because of the relationship breakdown that occurred almost simultaneously with their purchase of the equipment.
[6] The plaintiffs’ primary claim in the proceeding is for a declaration that they are the owners of the VPE and boards, either legally or beneficially. Alternatively, they say that Lumenosity is indebted to them for the full purchase price of all of these assets and also indebted in the sum of NZD 73,418.96 referred to above. Finally, they say that Amber has converted the boards. (The plaintiffs have possession of the VPE.) The plaintiffs also allege that the Naveiras have made misleading and deceptive statements in breach of the Fair Trading Act 1986, that statements made by the Naveiras amount to injurious falsehood and that the Naveiras’ conduct amounts to a breach of s 174 of the Companies Act 1993 (the Act). The plaintiffs also claim that The Granary is in breach of contract by not “gifting” to Lumenosity a grant that it received from the MCH.
[7] The defendants’ position is that the sums paid by the plaintiffs for the VPE were part consideration for the plaintiffs having a 49 per cent shareholding in Lumenosity. They say the plaintiffs were at all points purchasing the VPE on behalf of Lumenosity, the company to be incorporated, and the plaintiffs have no ownership interest in those assets, nor are they owed any money by Lumenosity or the other defendants.
[8]The defendants have counterclaimed on the following basis:
(a)The plaintiffs’ attempts post the relationship breakdown to sell the VPE as a complete package breach a non-disclosure agreement that Suzanna signed, or breach the plaintiffs’ duties under s 131 of the Act.
(b)Any sale of the VPE would be a major transaction under s 129 of the Act and, as the defendants’ consent was not obtained, the attempted sale of these assets amounts to prejudicial conduct under s 175 of the Act.
(c)The plaintiffs are in breach of an “accommodation offer” for which they seek equitable relief.
(d)The plaintiffs’ conduct is oppressive, in breach of s 174 of the Act.
The present applications
[9]The plaintiffs seek:
(a)leave to commence summary judgment proceedings in respect of their claims to be the legal and beneficial owners of the VPE and boards; or, in the alternative,
(b)a direction to have the questions as to whether they are the owners of the VPE and boards and/or whether they are owed debts by Lumenosity, tried as preliminary questions.
Chronology
[10] At the end of the hearing, I asked the parties whether they had prepared a chronology, which they had not. I charged them with preparing a joint chronology. They were unable to agree on a chronology. On 8 June, each filed their own separate document. There is a large degree of agreement. I set out below those matters which currently appear relevant.
[11] In late May 2021, through Te Wānanga o Aotearoa’s programme, Kōkiri, a business accelerator for Māori-led ventures, Suzanna was matched to the Naveiras, co-directors of The Granary, as a business mentor. On 8 June 2021, The Granary formally offered Suzanna a board of advisory/business mentor role and, on 9 June The Granary and Suzanna entered into a non-disclosure agreement.
[12] On 16 August 2021, The Granary ended discussions with an investment company, which had apparently placed a “value” on The Granary of between NZD 5 million and NZD 12 million.
[13] On 18 September 2021, The Granary applied to the MCH for a grant of NZD 975,000 (MCH Grant). Suzanna provided a letter in support.
[14] During a video call on 6 October 2021, Suzanna offered the Naveiras a personal loan and six months’ free accommodation. The terms of the personal loan were documented. By email to the Naveiras, Suzanna also mentioned the possibility of investing in The Granary herself. Her email set out four possible options, including “a note” with reasonable payment terms, an investment in The Granary (but she said it would be at a much lower value than that indicated by the investment company), a living set-up in about eight weeks and a work set-up in an unknown number of weeks.
[15] During a video call on 8 October 2021, the Naveiras accepted the personal loan offer from Suzanna. They say they also accepted the accommodation offer. The plaintiffs may differ as to that.
[16]Suzanna says that in the next week or so, she asked the Naveiras:
… what they thought of building a virtual production studio together with us. Specifically, I offered to help them with funding for the business, a place to live and a bridging loan for living expenses …
[17] Suzanna says, “I knew from the discussions … the type of virtual production studio we had in mind would require funding of approximately NZD $1.5m”.
[18] The Naveiras say that between 8 and 14 October 2021, Suzanna orally offered and they orally accepted an “investment proposal” whereby Suzanna and Asa would invest USD 1.5 million in The Granary in exchange for a 49 per cent shareholding; Asa would join as Chief Technical Officer; and Suzanna and Asa would become directors.
[19] On 14 October 2021, Amber emailed Suzanna and Asa, headed “CONFIDENTIALITY NOTICE” and attached the list of hardware equipment that comprised the VPE.
[20] On 1 November 2021, Suzanna sent the Naveiras an email which stated, among other things, that:
As we will proceed with a note for some or all of the investment amount, I am researching the benefits and requirements of a loan secured against the company.
…
As your contributions are critical, can we agree to a minimum commitment of your time for example ten years or repayment in full whichever comes first, before you leave the company? I know that’s your intention, just clarifying.
[21] In November 2021, the plaintiffs purchased the screens using their personal accounts. The invoice was issued in the name of The Granary and subsequently transferred to Lumenosity.
[22]On 8 November 2021, the plaintiffs paid the first instalment for the panels.
[23] The first pre-incorporation meeting of Lumenosity was held on 19 November 2021 and on 22 November, the Naveiras informed the plaintiffs they were happy to use the Angel Association of New Zealand Shareholders Agreement template.
[24] On 23 November 2021, Amber sent an email to the plaintiffs regarding the camera package which was being purchased through The Granary’s account and GST number. In this email Amber says, among other things:
We acknowledge that until Lumenosity is formed this is your equipment and I am assuming we will sell it to the company?
[25] On 25 November 2021, a second pre-incorporation meeting of Lumenosity was held. Suzanna noted:
Setup: Agreed urgency in establishing corporate entity, naming and defending space to avoid power vacuum struggle. AMN notes existing relationships for employment attorneys, and accounting. ACTIONS: AMN to establish Lumenosity as NZ corporation, link domains (co, studio, nz, gaming) SM to research banking relationship.
[26] That same day a draft shareholder’s agreement was sent to the Naveiras by the plaintiffs which contained at cl 16.1 reference to a “first and highest priority repayment option” in favour of Suzanna and Asa. An accompanying email from Suzanna said:
I have no idea if this is legally binding, but that’s our intent – will need a “real” lawyer to take a look at this if we all agree to content.
[27]This draft shareholder’s agreement was never executed by the parties.
[28] Also on 25 November 2021, Amber notified the camera vendor that the invoice would need to be reissued from The Granary to a new business entity still to be incorporated. In addition that same day, the plaintiffs purchased the boards and the two workstations. The invoice for the boards was in the name of The Granary. The payment, as before, was made directly by the plaintiffs.
[29]On 2 December 2021, Lumenosity was incorporated.
[30] On 6 December 2021, according to the plaintiffs, Amber confirmed receipt of NZD 110,000 from Suzanna for the loan. The defendants make no mention of this and no document is referred to.
[31] Lumenosity’s first board meeting took place on 9 December 2021. The minutes record that Amber would “research with accountants how best to transfer assets and GST” and that there was a vote “to buy the panels and hardware, [and to] accept pre-incorporation activities of directors in acquiring assets”.
[32] On 10 December 2021, Lumenosity entered into a three-year lease agreement for its business premises, starting 1 February 2022. The defendants say they also requested reissue of invoices from two of the VPE suppliers and that invoices were then reissued to Lumenosity rather than The Granary.
[33] In mid-December 2021, the COVID-19 travel restriction was lifted, and the Naveiras were able to travel to Auckland where they were hosted by the plaintiffs.
[34] On 17 December 2021, the Naveiras were informed by MCH that The Granary had been awarded the MCH Grant. The defendants say that the plaintiffs “began to request the recipient for the MCH Grant be changed to Lumenosity” which it seems the defendants resisted.
[35] On 23 December 2021, there was a further directors’ meeting of Lumenosity. The Naveiras say there was confirmation of “final payments to [suppliers of VPE] to be finalised for Lumenosity to receive in 2022”, the meaning of which is unclear.
[36] On 30 December 2021 and 4 January 2022, the plaintiffs paid for the panels, again out of their personal accounts.
[37] On 14 January 2022, Lumenosity was issued a New Zealand Customs GST import invoice for the camera which Suzanna paid from her and Asa’s personal account.
[38] In early January 2022, the Naveiras say that their relationship with the plaintiffs further deteriorated due to disagreements with Suzanna about how the MCH Grant “could be used”, in the course of which they say they introduced Suzanna to The Granary’s MCH advisors. The plaintiffs say that one of Amber’s proposed internal MCH budgets included naming her friends and family to roles to be funded by the MCH Grant and that assigning government funds this way was inappropriate.
[39] The Naveiras claim that during a video call on 21 January 2022 the plaintiffs told them they would be “pulling their investment”. The plaintiffs do not accept that. There is no document to that effect. That night, Asa sent an email to the Naveiras stating, “[w]e have talked and we would be willing to continue, on a trial basis.” The terms of the trial are set out in that email.
[40] On 25 January 2022, Suzanna signed and submitted a declaration to insurer Crombie Lockwood.
[41] Further, on 25 January 2022, there was an email exchange between the parties in which the Naveiras said they required the transfer of physical assets into their new entity Lumenosity.
[42]The next day, Suzanna said she and Asa were:
… willing to transfer the ownership of the [VPE] if in exchange the corporation takes an IOU for the undepreciated value of all startup hard assets and continued capital outlay. We all know that the strategic value of this hardware is much higher than their current value or this invoiced cost, and the IOU would not address that. Hopefully you recall we had discussed early on that in the unanticipated event of liquidation Asa and I would be first creditors to the amount of our investment to that point. Even taking a position as first creditor is risky to us since our money purchased the assets and guarantees the lease!
[43] On 1 February 2022, the Lumenosity lease commenced. That day Victor and Asa met to tour and plan modifications to the warehouse and the in-progress living accommodation. Victor says he found out at that point that no work had been done on the living accommodation.
[44] On 9 February 2022, Amber sent an email to the plaintiffs regarding the transfer of The Granary’s grant, stating, “[o]nce we’ve spoken to the lawyer we will be able to carry this on”.
[45] On 12 February 2022, according to the plaintiffs, the Naveiras accepted an alternative rental property suggested by the plaintiffs. (The Naveiras do not mention this in their chronology.)
[46] On 14 February 2022, all directors of Lumenosity met to discuss the future of the company and business relationships. The Naveiras say the plaintiffs requested that Amber step down as CEO and Suzanna become CEO.
[47]On 18 February 2022, Amber sent an email to the plaintiffs saying:
We appreciate that the news of us wishing to step away from working closely together inside of the business would bring disruption. … We discussed a need for us to renegotiate the terms with you, …
[48] On 25 February 2022, Suzanna declined the proposals set out in Amber’s 18 February 2022 email. She acknowledged that the Naveiras wished to continue using the name Lumenosity, and considered this fine “as long as the formal corporate association” between them was dissolved. Suzanna suggested that they change Lumenosity’s name and dissolve that company by mutual consent, allowing the Naveiras to incorporate a new company that trades as Lumenosity.
[49] On 7 March 2022, the Lumenosity directors met. The plaintiffs said they did not agree to the proposed resolution for dissolving Lumenosity as they were still personally paying Lumenosity’s continuing financial commitments.
[50] On 8 March 2022, Suzanna arranged to have the insurance in respect of the VPE transferred into her name and she paid the premium. She emailed the Naveiras
to say she had prepared a “list of assets that we are selling … as discussed”. The Naveiras say they did not consent to a sale, at least at that time.
[51] On 10 March 2022, Suzanna approached third parties with a list of the VPE for the purposes of selling.
[52] Hudson Gavin Martin, lawyers for the defendants, sent an email to the plaintiffs on 29 March 2022 stating that the plaintiffs should immediately cease offering the assets for sale and that the assets are owned by Lumenosity. They said the assets should be returned to enable Lumenosity to continue its business, or to allow for an orderly windup.
[53] There was further correspondence culminating in the issue of this proceeding by the plaintiffs on 4 July 2022.
[54] On 19 December 2022, the defendants offered to allow the sale of the VPE as long as it was not sold as a complete package. They also subsequently acknowledged on 22 February 2023 that such a sale would be without prejudice to the plaintiffs’ position that Lumenosity does not own the VPE.
Application for leave to commence summary judgment proceedings
[55] On 4 April 2023, the plaintiffs sought leave to commence summary judgment proceedings in respect of their claims to be the legal and beneficial owners of the VPE and boards.
[56] The plaintiffs accept that the overriding consideration for the Court when considering the grant of leave to commence a claim for summary judgment (made other than at the time the statement of claim was served) is the interests of justice, having regard to the stated objectives of the High Court Rules 2016 to secure the just, speedy and inexpensive determination of proceedings.
[57] They say that summary judgment, if granted, would likely resolve a significant part of their claims promptly and would result in savings of time and costs for the parties. Importantly, summary judgment if granted would resolve the ownership
question quickly and inexpensively in circumstances where the plaintiffs submit the VPE and boards cannot presently be sold to a third party due to the dispute over their ownership, and meanwhile their resale value is quickly diminishing given their nature as electronic goods.
[58] The plaintiffs would be seeking summary judgment upon the grounds that the Naveiras’ emails to them dated 23 November 2021, 25 January 2022 and 18 February 2022 expressly admit that ownership of the VPE remained with the plaintiffs and, accordingly, there is no defence to the plaintiffs’ claims that they are the legal and beneficial owners of the VPE and boards.
[59] While I accept that the plaintiffs have an arguable case as to ownership of the VPE and boards, I do not accept that the emails referred to constitute “admissions” of ownership in themselves, or that there is no arguable defence to the plaintiffs’ claims as to ownership.
[60] The 23 November 2021 email, referred to at [24] above, could be read as an acknowledgement that the equipment belongs to the plaintiffs until Lumenosity is formed, or could be stating that it belongs to the plaintiffs until Lumenosity is formed and the equipment is sold to the company. If it is the former, the company was formed on 2 December 2021 and the email would not be an acknowledgement of the plaintiffs’ ownership after that point. Even on the latter basis, the reference to a sale does not preclude the possibility of an obligation to transfer on some basis or other.
[61] The 25 January 2022 email talks about the transfer of physical assets but that is not necessarily an admission of ownership. It may be simply a reference to the need to execute what has been agreed to be done.
[62] The email dated 18 February 2022 sets out a proposal to purchase the VPE or at least some of it “from [the plaintiffs]” but this is written after the dispute has arisen and may be no more than a practical way of describing the proposal that is being put. It would be difficult to elevate the language used to the status of a formal admission.
[63] In short, in my view the plaintiffs’ case for summary judgment as currently advanced is insufficiently clear to justify leave being granted or to satisfy me that time would be saved by approaching the matter in that way.
Application for separate questions to be tried
[64] Under r 10.15(a) of the High Court Rules, the Court can make orders that a question be decided separately from any other question in the proceeding.
[65] This is only appropriate if the plaintiff can displace the presumption that having one trial is preferable.2 A plaintiff must establish that there is a plainly discernible advantage in departing from the rule that matters will be determined at one hearing. Haden v Attorney-General summarises the well-established factors for consideration:3
(a)Will there be difficult demarcation questions between those issues to be addressed at the first trial and those left for the second?
(b)Will the proceedings be brought to an end by separate questions?
(c)What potential time saving does the separate question offer?
(d)How will appeals be dealt with?
(e)Are there any other practical considerations tending one way or the other?
[66] In Haden this Court held that the interaction between issues was the most important issue to consider.4 Issues in the two hearings desirably should be discrete. If they are not, or if there is significant evidential overlap, separate determination is far less likely to be appropriate.5
2 Karam v Fairfax New Zealand Ltd [2012] NZHC 1331 at [58].
3 Haden v Attorney-General (2011) 22 PRNZ 1 (HC) at [50].
4 At [50(a)] citing Clear Communications v Telecom Corporation of NZ Ltd (1998) 12 PRNZ 333 (HC) at 335.
5 Haden v Attorney-General, above n 2, at [50(a)] citing Levi Strauss & Co v Kimbyr Investments Ltd (1992) 5 PRNZ 577 (HC) at 580; Dobson Construction Co Ltd (in liq) v Dobson (1993) 7 PRNZ 64 (HC) at 65; Andrews v Television New Zealand Ltd HC Auckland CIV-2004-404-3536, 15 March 2005 at [17]; Auravale Industries Ltd v Hallenstein Bros Ltd HC Auckland CIV-2004-
[67] The plaintiffs say that if the preliminary issues are heard, that would result in the most significant monetary issue in the proceeding being determined promptly, with the related significant prospect that the remaining issues could be resolved by settlement. They otherwise rely on their submissions in relation to summary judgment.
[68] The defendants say there are considerable difficulties demarcating the issues the plaintiffs seek to have heard on a preliminary basis from the remaining issues listed. They say evidence from the same witnesses about the same facts is likely to be central to both hearings. The plaintiffs and the Naveiras will need to provide evidence about the terms of the plaintiffs’ investment and purchase of the VPE in both hearings because, for example:
(a)Determining whether the sums paid by the plaintiffs for the VPE were part consideration for their 49 per cent shareholding in Lumenosity will rely on much of the same evidence necessary to determine whether the plaintiffs’ conduct (allegedly leading the Naveiras to believe that the VPE would be owned by Lumenosity) amounts to oppression under s
174 of the Act. The Naveiras say that evidence of conduct and reasonable expectations at the time the plaintiffs made their investment, leading the Naveiras to divulge their confidential IP and enter into the lease, is necessary for both hearings.
(b)Determining the ownership issue cannot sensibly be achieved without also determining whether a sale of the VPE as a complete package, or the plaintiffs’ conduct in attempting to sell the VPE to competitors, amounts to a breach of ss 129 or 131 of the Act (relevant to s 174) and/or a breach of the plaintiffs’ confidentiality obligations.
404-4088, 31 October 2005 at [18]–[19]; Fairview Park Ltd v Bell HC Auckland CIV-2006-404- 1549, 24 July 2006 at [24]; Todd Pohokura Ltd v Shell Exploration NZ Ltd HC Wellington CIV- 2006-485-1600, 31 January 2007 at [32]; O’Connell v Dwerryhouse HC Auckland CIV-2010-404-
1329, 24 June 2011 at [48].
[69] The Naveiras say that separate trials will cause a real risk that the Judge hearing the first trial may, without the benefit of relevant evidence or submissions, inadvertently express views on matters meant for determination at the second.
[70] In my view, there are further issues which the parties have not presently pleaded, at least expressly, but which clearly arise from the evidence and submissions. These issues may have a material bearing on the case and hopefully a resolution of it.
[71] The original intention was that the plaintiffs buy a 49 per cent shareholding in The Granary. The Granary owns the IP created by the Naveiras related to the virtual production studio. If the purchase had proceeded on the basis of The Granary shares, it would logically have followed that the parties would jointly benefit from both the MCH Grant and the virtual production IP. It seems likely that in addition the Naveiras were to devote their time for some period to The Granary and not compete with it as recorded in one of Suzanna’s emails. It was only because of Suzanna’s suggestion, to “avoid additional legal and accounting costs”, that the new company, Lumenosity, was formed. It would seem likely that the net effect was intended to be no different to a share purchase of The Granary.
[72] There does not seem to be documentation with regard to the position of The Granary or the consideration provided by the Naveiras for their 51 per cent shareholding in Lumenosity. Before me, they argued that the MCH Grant since received is the property of The Granary only and that Lumenosity would have had only a licence to use the VPE, the IP would otherwise remain in The Granary, which also would be free to use the IP and/or to licence to others. Such an outcome is materially different to the legal position which would have followed acquisition of 49 per cent of The Granary and without expressing any definitive view, seems implausible and would lead to a very one-sided “agreement”.
[73]The further issues that may arise are:
(a)What were the actual terms of the agreement or agreements reached between the plaintiffs and the Naveiras? In addition to the Naveiras’ claim regarding transfer of the VPE, was the intention that Lumenosity
take an assignment of the assets of The Granary, including the know- how/IP of The Granary and the MCH Grant? Were the Naveiras to commit their time and expertise to Lumenosity, with The Granary effectively ceasing to operate? Was that the means by which the Naveiras were to provide consideration for their 51 per cent shareholding in Lumenosity? Do the Naveiras therefore have their hands tied in terms of any future dealings with The Granary’s assets, including the MCH Grant and IP, in the same way as the Naveiras contend the plaintiffs do vis-a-vis the assets they purchased? Are the parties and the companies deadlocked?
(b)If the terms of the agreement or agreements are too uncertain, is the agreement (or agreements) void and, if so, what is the appropriate relief?
(c)Have either or both parties breached the shareholders’ agreement if one exists and, if so, what are the damages suffered by the other party?
[74] These matters all impact on the issues to be tried, what might be heard on a preliminary basis and/or whether a priority hearing is required of the proceeding as a whole. I consider both parties need to seriously address their realistic legal positions and the urgent need to resolve the issues between them for their mutual benefit.
[75] I agree with the plaintiffs that it is very important that the matter of sale of the VPE/boards be resolved speedily. As I understand it, the parties now agree that they should be sold. That is clearly a pragmatic step towards resolution of the issues between them. The parties need to resolve the question of whether the non-disclosure agreement expressly prevents the VPE being sold as one package. Hopefully, they can resolve this question urgently. In my view, it is as much in the Naveiras’ interests as in the plaintiffs’ interests that the sale price is maximised.
[76] Ideally, given the real difficulties faced by both parties in this case, they should be entering into negotiations with a commercial mediator to resolve all issues.
[77] I also agree with the plaintiffs that once the main issues are resolved, which might include some of the additional issues listed above, a number of the other issues, if not all, are going to fall away or take little if any time. This matter needs to be pragmatically addressed. The parties have already filed comprehensive affidavits and bundles of documents and it is difficult to see that a great deal more would be required by way of evidence for a trial of all issues, other than for the parties’ affidavits to be tested. It is likely that this case, at least on present impressions, will turn largely on the correspondence between the parties which spans a fairly short period of time. Again, it is in both parties’ interests to have this matter speedily resolved.
[78] In the circumstances, I have decided to adjourn the application for an order that a separate question be tried to a 20-minute tele-conference to be set down before me in the week beginning 4 September 2023. The parties can report on settlement and address the further matters set out above.
Orders
[79] The application for leave to commence summary judgment proceedings is dismissed.
[80] The application for an order that a separate question be tried is adjourned as set out above.
Hinton J
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