McVeagh Fleming Lawyers v Ijay Properties Limited
[2021] NZHC 3419
•14 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1059
[2021] NZHC 3419
IN THE MATTER of an interpleader application under rules 4.58, 4.63 and 4.64 of the High Court Rules
2016
BETWEEN
McVEAGH FLEMING LAWYERS
Plaintiff
AND
IJAY PROPERTIES LIMITED
First Defendant
AND
REX INNES-JONES
Second Defendant
AND
EVAN INNES-JONES
Third Defendant
Hearing: 4 November 2021 Appearances:
G Steyn for the Plaintiffs
A Hansen for the Second Defendant
R Hucker and M Swan for the Third Defendant No appearance for the First DefendantJudgment:
14 December 2021
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 14 December 2021 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
McVeagh Fleming, Albany Heismsath Alexander, Auckland Hucker & Associates, Auckland
McVEAGH FLEMING LAWYERS v IJAY PROPERTIES LTD [2021] NZHC 3419 [14 December 2021]
Introduction
[1] The plaintiff law firm acted for the first defendant, Ijay Properties Ltd (Ijay). In its capacity as Ijay’s solicitors the plaintiff received funds comprising the net proceeds of sale of a property owned by Ijay.
[2] Ijay’s directors and shareholders are the second and third defendants (Rex and Evan respectively). Rex owns 56.25% of the shares in Ijay. Evan owns the remaining 43.75%. Rex and Evan are brothers. They have fallen out. As a result, Ijay is deadlocked.
[3] Ijay is solvent but no longer trades. Because of the deadlock Ijay has been unable to instruct the plaintiff how to distribute its funds.
[4] The plaintiff issued these interpleader proceedings seeking orders that it pay the monies held by it for Ijay (less costs) either:
(a)to a bank account for Ijay or otherwise to its shareholders pro-rata according to their respective shareholdings in Ijay; or
(b)alternatively, into Court.
Procedural background
[5] The matter was called before Fitzgerald J in the Duty Judge List on 14 July 2021. By consent Fitzgerald J directed that, amongst other things, certain payments be made to Rex, Evan and various third parties; and that the balance of the funds held for Ijay in the plaintiff’s trust account ($219,112.28) be paid into Court. By consent, her Honour also directed counsel for Rex and Evan to file a statement of agreed issues by 30 July 2021 and made timetable directions for the exchange of affidavits and submissions.
[6] When making the timetable directions for the exchange of submissions, her Honour noted that:
I record that these will need to address the legal basis for each party’s position on the disposition of the remaining issues in dispute, and the Court’s jurisdiction to make any orders that are sought.
[7] In a joint memorandum of counsel dated 5 October 2021 (Joint Memorandum), counsel advised that Rex and Evan had been unable to agree on the issues to be determined and had therefore been unable to complete their evidence in accordance with Fitzgerald J’s timetable directions. However, counsel set out four issues which Rex and Evan both agreed required determination, and four issues which only Evan says require determination. I set out paragraphs 3 and 4 of counsel’s memorandum in full:
3.The issues which are agreed are as follows:
(a)How should the costs paid to McVeagh Fleming in respect of the interpleader proceeding be apportioned between the second and third defendants (if at all); and
(b)What orders as to costs (if any) ought to be made as between the Second and Third Defendants in this proceeding.
(c)What amounts (if any) should be paid in respect of the claims for payment to Heimsath Alexander for the invoice of
$8,849.25, Hornabrook McDonald invoice for $2,896.90 as properly incurred expenses of ljay Properties Limited;
(d)How is the amount paid to the second defendant and to the third defendant to be ascertained following the court's determination of the identified issues.
4.The third defendant considers the following additional issues require determination:
(a)What amounts (if any) should be paid in respect of the claims for payment to Ecovis KGA invoice for $9,182.75 as properly incurred expenses of ljay Properties Limited;
(b)What amount (if any) should be paid in respect of the claim to interest by Evan Innes-Jones on the $595,000 paid to him under the Deed of Gift;
(c)How should the transfer of the Lease for the premises at 2 Westhaven Drive and the Building on the 2 Westhaven drive site be recorded or accounted for if at all, in the financial statements of ljay Properties Limited;
(d)Who should be responsible for the payment of rent to ljay Properties Limited for the period from 1 June 2019 to 18 July 2019 in relation to the properties at 2 Westhaven Drive and at 9 and 10 Beaumont Street.
[8] It can be seen that these “issues” arise out of various disputes between Rex and Evan, including as to whether:
(a)invoices addressed to Ijay should be paid by Ijay or either of Rex or Evan personally;
(b)Rex owes Evan interest on a Deed of Gift; and
(c)Ijay is owed rent.
[9] Both parties filed lengthy affidavits and written submissions. Neither dealt with the jurisdictional issues Fitzgerald J identified in her Minute. At the commencement of the hearing I raised with counsel whether I had jurisdiction in the context of this interpleader proceeding to resolve the issues identified by Rex and Evan. I also queried whether, even if I did have jurisdiction, it would be more appropriate for the funds to be returned to Ijay and for Rex and Evan either to place Ijay into liquidation and/or issue separate proceedings to resolve the disputes between them.
[10] Counsel maintained that the Court could and should resolve the various disputes between Rex and Evan. As such, I heard argument in relation to each of the issues summarised in the Joint Memorandum. I reserved my decision including as to whether I have jurisdiction in the context of these interpleader proceedings to resolve Rex and Evan’s disputes.
[11] For the reasons set out below, I do not consider that I do have that jurisdiction. The issues set out at paragraph [7] above arise out of disputes directly between Rex and Evan. They are not claims to the funds that the plaintiff received as Ijay’s solicitors that are the subject of this proceeding. As such interpleader relief is not available. That is so regardless of the fact that Rex and/or Evan might use any of the funds that might eventually be distributed to them as Ijay’s shareholders to settle the various disputes between them.
[12] Mr Hucker, counsel for Evan, argued that when Fitzgerald J made the directions in her Minute, the Court assumed jurisdiction and is now obliged to determine the issues in the Joint Memorandum. I disagree. Justice Fitzgerald’s orders and directions were made at the parties’ request, by consent, in a Duty Judge list. This does not resolve any jurisdictional issues that may otherwise arise. In any event, as already noted, Fitzgerald J specifically directed the parties submissions in relation to the jurisdictional issues.
[13] If I am wrong and I do have jurisdiction, I would in any event make orders pursuant to r 4.63(2)(f) that Rex and Evan commence proceedings against each other (and/or Ijay and/or third parties) in order to determine the issues they have raised in the joint memorandum of counsel. The factual and legal bases for those various claims need to be pleaded in the usual way. Some of these matters are relatively complex. A single sentence summary in a memorandum of counsel is not a substitute for proper pleadings. Discovery, briefs of evidence and cross-examination may also be required in order to ensure that the issues are properly determined.
High Court Rules – interpleader proceedings
[14] The rules relating to interpleader proceedings make clear that they do not apply to the various disputes between Rex and Evan.
[15]High Court Rule 4.58 provides as follows:
4.58 Right to interplead
(1) When a person (A) who is under a liability in respect of a debt or in respect of any money or chattels is, or expects to be, sued for or in respect of the debt, money, or chattels by 2 or more persons making adverse claims, A may apply to the court, on notice to the persons making the adverse claims, for relief under rule 4.63.
[16]The learned authors of McGechan on Procedure explain that:1
HR4.58.02 Advantages of interpleader
Interpleader is a form of procedure which enables a person who is faced with competing claims from two or more persons and who does not have an interest in the subject-matter of the competing claims to
1 McGechan on Procedure (online loose-leaf ed, Thomson Reuters).
apply to the Court for relief to compel the competing claimants to have their claims determined by the court as between themselves (ie. to interplead). The advantages of the procedure for the applicant are that the applicant has the protection of a court order as to the subject- matter of the claims and, unless the Court orders otherwise, the claimants bear the expense of the application.
[17] Rule 4.57 concerns the interpretation of various terms for the purposes of the interpleader rules. It provides as follows:
4.57 Interpretation
In this rule and rules 4.58 to 4.64, unless the context otherwise requires,—
applicant means a person or an officer entitled under rule 4.58 to apply to the court for relief under rule 4.63
claimant means a person claiming against an applicant in terms of rule 4.58
[18] Rule 4.63 sets out the powers the Court has upon hearing the application under r 4.58. This provides as follows:
4.63 Powers of court
(1)Upon hearing an application under rule 4.58, the court may make whatever orders and directions justice requires.
(2)In particular, and without limiting subclause (1), the court may—
(a)stay a proceeding commenced by a claimant:
…
(c)adjudicate upon the competing claims on the affidavits filed, or adjourn the application for that purpose:
…
(f) order that one of the claimants commence a proceeding against any other or others to try the question involved or, if a proceeding has been commenced by a claimant, order that any other claimant be joined as a defendant to that proceeding:
…
(3)Subclause (4) applies to a claimant who has been served with an application and—
(a)does not appear on the hearing of the application; or
(b)having appeared, fails or refuses to comply with an order.
(4)The court may make an order declaring that the claimant and all persons claiming under that claimant may not continue or subsequently prosecute that claim against the applicant and all persons claiming under the applicant but that order does not affect the rights of the claimants as between themselves.
Application of rules
[19] The affidavit filed in support of the interpleader proceeding explains that the plaintiff could not get unanimous instructions from Evan and Rex as to how to distribute Ijay’s funds. The plaintiff received correspondence from Evan and Rex (or their solicitors) expressing different views as to whether third party creditors should be paid by Ijay or either of them personally; and whether additional funds should be paid to Ijay by the liquidators of a related company, Sailors Corner Ltd (in liquidation).
[20] However, it is clear that only Ijay is entitled to the funds the plaintiff received on Ijay’s behalf. Those funds are the proceeds of sale of Ijay’s property, and the plaintiff received those funds in its capacity as Ijay’s solicitors. Only Ijay is entitled to those funds, notwithstanding that Rex and Evan as directors and shareholders of Ijay may disagree about what Ijay should do with those funds.
[21] For the purposes of r 4.58(1), there is no suggestion that the plaintiff firm expected to be sued “for or in respect of” those funds “by two or more persons making adverse claims”. Only Ijay can claim those funds.
[22] In Tainui Enterprises Ltd v Ong Randerson J declined to grant relief under the interpleader rules in circumstances where only the applicant and one of the respondents claimed to be entitled to the yacht that was the subject of the application.2 Randerson J held that: 3
I am quite clear that the first part of this rule [r 4.58(1)] envisages a stakeholder, who does not have any interest in the outcome of the application other than costs, bringing an interpleader application where the shareholder is facing two or more adverse claims. In this case, not only is the applicant an interested stakeholder, but there is only one adverse claim, namely that of the judgment creditor.
2 Tainui Enterprises Ltd v Ong (1998) 12 PRNZ 503.
3 At 507.
[23] During the course of oral submissions Mr Hucker submitted that Rex and Evan as shareholders of Ijay have proprietary claims over Ijay’s assets, and that the claims between them should therefore be treated as claims to Ijay’s assets for the purposes of r 4.58. He says that the outcome of the disputes between Rex and Evan will affect the relative distribution to each of them as shareholders. As such he submits that on this basis Rex and Evan are “claimants” as defined in s 4.57; and that the Court should adjudicate on their competing claims pursuant to r 4.63(2)(c).
[24] I do not agree. It is well established that company’s shareholders have no legal or equitable right to the company’s assets.4 In Mahon v The Station at Waitiri Ltd the Court of Appeal cited Tipping J’s judgment in Tenpin Properties Ltd v Bowlarama (NZ) Ltd as follows:5
It is suggested that the registered proprietor bought the land in circumstances in which Bowlarama was to have an interest as shareholder in [Tenpin] and then it is said that by virtue of the intending shareholding of Bowlarama, Bowlarama as shareholder was entitled or is entitled to a share in the land [owned by Tenpin].
This seems to me to run quite contrary to the well established rule that a shareholder has no proprietary interest whether legal or equitable in the assets of the company in respect of which he [sic] holds his shares …
[25] Neither Rex nor Evan are making claims to the funds that were received by the plaintiff as solicitors for Ijay. As such, neither of them is a “claimant” under r 4.57 for the purposes of the interpleader rules. That is so regardless of whether Rex and Even might intend to use funds distributed to them as shareholders of Ijay to settle any personal claims between them.
The issues in dispute
[26] As noted above I received submissions and heard arguments in respect of each of the eight issues outlined by counsel for Rex and Evan in the joint memorandum.
[27] I will deal briefly with each of these issues in turn. I do so only to demonstrate why I do not consider that I have jurisdiction to resolve these issues in the context of
4 Mahon v The Station at Waitiri Ltd [2017] NZCA 387 at [33]-[37] citing Macaura v Northern Assurance Co Ltd [1925] AC 619 (HL) at [626], per Lord Buckmaster.
5 Tenpin Properties Ltd v Bowlarama (NZ) Ltd HC Christchurch M655/89 18 December 1989.
this interpleader proceeding (or alternatively, why I would make orders pursuant to r 4.63(2)(f) requiring that Rex or Evan (as the case may be) to commence proceedings against the other (and/or Ijay and/or third parties)). I express no view on the merits of the various arguments. These will need to be assessed by others elsewhere.
3(a)How should the costs paid to McVeagh Fleming in respect of the interpleader proceeding be apportioned between the second and third defendants (if at all).
[28] Mr Hucker points out that the costs of an interpleader proceedings made in good faith will normally be deducted out of the funds in dispute and will usually be borne by the unsuccessful claimant.6
[29] However, Rex says that these costs should be paid by Evan (or out of his share of the funds). He says the interpleader proceeding only became necessary because Evan did not comply with the terms of a settlement agreement previously entered into between them, and because Evan insists on an incorrect position in respect of the matters in dispute between them.
[30] Conversely, Evan says that the interpleader proceedings are required because Rex did not pay amounts due under the Deed of Gift that Evan says was part of the overall settlement arrangement between them. Evan also says that Rex declined to attend mediation as proposed by Evan. As such, Evan says that Rex should meet the costs of the interpleader action, as well as Evan’s costs in respect of this proceeding.
[31] The upshot is that both parties agree that any apportionment of McVeagh Fleming’s costs between them (other than in accordance with their respective shareholdings) will depend, at least in part, on the outcome of various disputes they have each received.
[32] As I have explained, I do not consider that I have jurisdiction under r 4.58 to resolve those disputes. Even if I did, I would order Rex and Evan to commence new
6 Shore v Weldon (1884) 2 NZLR 395, Walters v Icon Central Ltd & Ors [2011] NZHC 908 at [13](d)
proceedings to resolve their disputes. As such it would be inappropriate for me to make cost orders at this stage.7
3(b) What orders as to costs (if any) ought to be made as between the Second and Third Defendants in this proceeding
[33] For the reasons outline above I consider that costs as between Rex and Evan should lie where they fall.
3(c) What amounts (if any) should be paid in respect of the claims for payments to Heimsath Alexander for the invoice of $8,849.25, Hornabrook Macdonald’s invoice of $2,896.90 as properly incurred expenses of Ijay Properties Limited
[34] Evan says that Hornabrook Macdonald’s invoice of $2,896.90 (including GST) related to new leases that were obtained by two companies associated with Rex, namely Sailors Properties Ltd and Sailors Supplies Ltd. Evan says that although Ijay may have had the obligation to pay Hornabrook Macdonald’s invoices in the first instance, Ijay had no interest in the services they provided. As such Evan submits that Rex (or his companies) should pay those invoices.
[35]Evan makes the same point in relation to Heimsath Alexander’s invoice for
$8,849.25 (incl GST). He says Heimsath Alexander was involved in structuring and completing transactions for Rex and his companies, and that Rex should pay for these legal services.
[36] Evan acknowledges that some of Heimsath Alexander’s attendances to which their invoice relates included the drafting of a Deed of Gift entered into by Rex for Evan’s benefit. Evan accepts that this was in accordance with Evan’s instructions and some allowance should be made for the costs of drafting the Deed of Gift. Based on time records provided by Heimsath Alexander Evan says that this should not be more than $712.50.
7 I record here that in an interim judgment dated 29 October 2021 I ordered that the plaintiff should be paid in respect of this proceeding. As I made clear in that judgment, this was not so much an award of costs as a direction that the plaintiff’s outstanding invoices should be paid. For the avoidance of doubt I confirm that I remain of the view that McVeagh Fleming’s invoices should be paid, notwithstanding that I am declining to determine the issues in dispute between Rex and Evan. Both Rex and Evan (and therefore Ijay) considered that these interlocutory proceedings were necessary in order to resolve their disputes (although each of them blames the other for that).
[37] The combined value of these two invoices is $11,746.15. If Ijay is GST registered it would be able to deduct GST of $1,761.92, leaving an expense to Ijay of
$9,984.23. Evan accepts that Ijay should pay $712.50 leaving $9,271.73 which Evan says should be paid exclusively by Rex, rather than by Ijay. Taking into account their respective shareholdings (Rex 56.25%: Evan 43.75%), Evan’s claim that Rex and not Ijay should meet the costs of these invoices is effectively a claim by Evan against Rex in the amount of $4,056.38.
[38] For the reasons set out above, I do not consider that this is an issue that can be resolved within these interpleader proceedings. Evan’s assertion that Rex and not Ijay should pay these invoices is not a claim by Evan on the funds that McVeagh Fleming received for Ijay and which have now been paid into Court. The factual and legal basis for Evan’s claim is not clear. It is not pleaded. This needs to be clarified if the parties require a formal decision to be made.
[39] If I did have jurisdiction to deal with this issue I would exercise the Court’s powers pursuant to r 4.63(2)(f) to order Evan to commence proceeding against Rex and/or Ijay in order to resolve any issues as to who should pay these invoices.
3(d)How is the amount paid to the second defendant and to the third defendant to be ascertained following the Court’s determination of the identified issues
[40] It is unnecessary for me comment on this issue given my findings that I do not have jurisdiction to resolve Rex and Evan’s dispute in the context of this proceeding.
[41]I turn now to the four issues identified by Evan as requiring determination.
4(a) What amounts (if any) should be paid in respect of the claim for payment Ecovis KGA invoice for dollars $9,182.75 as properly incurred expenses of Ijay
[42] Evan says that he engaged Ecovis KGA in his capacity as a director of Ijay and as such Ijay should pay this invoice. Rex disagrees. He says that Evan acted alone and did not legitimately instruct Ecovis on behalf of Ijay.
[43] In his reply affidavit Evan says that he instructed Ecovis for “a number of difference purposes”. Rex says that Evan has not provided sufficient verification of his instruction to Ecovis. The only evidence produced is the invoice addressed to “Ijay, c/- Evan”.
[44] Counsel for Evan advised in submissions that he now claims that only half of the invoice should be paid by Ijay, that is $4,591.38. Once GST is deducted and the proportionate shareholdings in Ijay is taken into account, this amounts to a claim by Rex against Evan of $2,195.25
[45] This is not a claim by Rex to the monies that have been paid into Court. It is a claim by Rex against Evan. I do not consider I have jurisdiction to deal with it in the context of this interpleader application. If I did, I would order pursuant to r 4.63(2)(f) that Rex commence separate proceedings in relation to this claim.8
4(b)What amount (if any) should be paid in respect of the claim to interest by Evan Innes-Jones on the $595,000.00 paid to him under the Deed of Gift
[46] On 9 July 2019 Rex executed a Deed of Gift in favour of Evan. This provided that Rex would pay Evan $595,000.00 following the divestment of Ijay’s property assets and once the proceeds of that divestment were available to Rex and Evan as shareholders.
[47]Rex paid Evan the $595,000.00 in July 2021.9
[48] Evan said Rex delayed the divestment and availability of funds and is now therefore liable to pay him interest. However, counsel for Evan says that Rex received the consideration in exchange for which he entered into the Deed of Gift on 25 July 2019, and Rex should be required to pay Evan interest on a “compensatory basis”. He
8 During the course of the hearing I canvassed with counsel whether it might be possible to settle the competing claims in relation to the three invoices, noting that those claims were very small and would largely cancel each other out. Counsel took instructions but settlement could not be achieved. While it is a matter for the parties to determine whether they require judgment in relation to amounts which are trivial in the overall context, these claims should not be pursued in the High Court.
9 Counsel explained that the payment of Rex to Evan was effected through the payments that Fitzgerald J directed by consent to be made in her Minute of 14 July 2021.
refers to the Court of Appeal’s judgment in Day v Mead,10 the Interest on Money Claims Act 2016, and s 87 of the Judicature Act.
[49] On the other hand, Rex points out the Deed of Gift does not provide for the payment of interest, and says that the gift was not perfected until the payment was made in July 2021. In terms of Evan’s claim for interest under the Interest on Money Claims Act 2016, counsel for Rex relies on s 25 which provides that:
25 Court may not award interest unless procedural requirements complied with
(1) A court may not award interest under a section of this Act for a period unless the party who claims interest under the section for that period specifies the section and, as far as possible, the period in that party’s statement or notice of claim or counterclaim.
[50] Rex points out that Evan has not specified the relevant section and the interest period upon which he relies.
[51] The more fundamental problem, however, is that there is no statement of claim at all pursuant to which Evan sues Rex for interest. There needs to be. Evan’s claim against Rex for interest on the gift may (or may not) have merit, but it is not straightforward. It needs to be pleaded, and a proper interlocutory process would need to be followed. If I had jurisdiction under r 4.63(2)(f) that is what I would order Evan to do. However, this is clearly a personal claim by Evan against Rex. It is not a claim to the funds received by the plaintiff as Ijay’s solicitor. I do not have jurisdiction to resolve that claim in the context of this proceeding.
4(c) How should the transfer of the Lease for the premises at 2 Westhaven Drive and the building on the 2 Westhaven Drive site be recorded or accounted for if at all, in the financial statements of Ijay Properties Ltd
[52] In submissions counsel for both parties referred to various dealings between Ijay and other related companies (and liquidators). The resulting issues in dispute raised between Rex and Evan are complex. As matters stand, they are also un-pleaded.
10 Day v Mead [1987] 2 NZLR 443 (CA).
[53] Once again, it is clear that these respective claims are not claims to the monies presently held in Court. I have no jurisdiction to deal with them within the context of these proceedings. If Rex and/or Evan wish to pursue these matters, they will need to commence fresh proceedings. If I did have jurisdiction under r 4.58, that is would I would order them to do.
4(d)Who should be responsible for the payment of rent to Ijay Properties Ltd for the period from 1 June 2019 to 18 July 2019 in relation to the properties at 2 Westhaven Drive and at 9 and 10 Beaumont Street
[54] Evan says that Rex or entities associated with him owe Ijay rent. Rex says that he (or they) do not.
[55] Once again, counsels’ submissions revealed that the issues between Rex, Evan, Ijay and possibly others concerning the use of the properties between 1 June 2019 and 18 July 2019 are not straightforward. They do not amount to claims by either Rex or Evan to the funds that have been paid into Court. I have no jurisdiction to resolve them here. If Evan wishes to pursue these matters then he will need to issue proceedings (or arrange for Ijay to do so). I note that the quantum involved would appear to be at the lower end of the District Court’s jurisdiction.
Conclusion
[56] I do not have jurisdiction in the context of this proceeding to deal with the various issues raised in the Joint Memorandum. Those issues arise out of disputes between the Rex and Evan personally. They are not claims to the funds that were received by the plaintiff. Those funds belong to Ijay.
[57] If I did have jurisdiction to deal with the issues Rex and Evan have raised I would make orders pursuant to r 4.63(2)(f) requiring each of them to commence fresh proceedings against each other (and/or Ijay) in order to resolve those disputes. Given the sums involved those proceedings would not be issued in the High Court.
[58] During the case management process Rex and Evan have made it clear that they require their disputes to be resolved through judicial determination. Counsel also
suggested that Rex and Evan should be able to have their disputes resolved and not frustrated by procedural “technicalities”. However, the interpleader rules are not mere “technicalities”. They simply do not apply to Rex and Evan’s disputes. For these disputes to be formally determined proper procedures need to be followed. The disputes between them are such that proper pleadings are required. Discovery may be necessary. Briefs of evidence and cross-examination may be appropriate rather than affidavits.
[59] The funds that have been paid into Court should be returned to the plaintiff, The plaintiff should liaise with the Registry for that to occur. If the plaintiff no longer has instructions to hold funds for Ijay then counsel for Rex and Evan are to file a joint memorandum within 7 days providing details of another account owned by Ijay into which the funds are to be paid.
Result
[60] The funds that were paid into Court pursuant to the directions of Fitzgerald J dated 14 July 2021 should be paid to Ijay in accordance with paragraph [59] above.
Robinson J
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