Neutrino Trust Limited v Hamilton Cosmopolitan Club Incorporated
[2023] NZHC 2475
•5 September 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-026
[2023] NZHC 2475
UNDER Law of Equity and Property Law Act 2007 IN THE MATTER OF
Equitable easement enforcement, land
locked land and wrongly placed structure
BETWEEN
NEUTRINO TRUST LIMITED
Plaintiff
AND
HAMILTON COSMOPOLITAN CLUB INCORPORATED
Defendant
Hearing: 8 August 2023 Counsel:
F King for the Plaintiff
J M Rushton for the Defendant
Judgment:
5 September 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 5 September 2023 at 10.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
McKenna King Dempster, Hamilton Webb Gould Solicitors, Hamilton
NEUTRINO TRUST LTD v HAMILTON COSMOPOLITAN CLUB INC [2023] NZHC 2475
[5 September 2023]
Introduction
[1] The plaintiff, Neutrino Trust Limited (Neutrino) owns a residential property at 30 Claudelands Road, Hamilton (No 30). The defendant, the Hamilton Cosmopolitan Club Incorporated (the Club) owns the neighbouring property at 32 Claudelands Road (No 32), which is the Club’s premises.
[2] In this proceeding, Neutrino seeks a declaration that No 32 is subject to an equitable easement of right-of-way in favour of No 30. In the alternative, Neutrino seeks an order under s 328 of the Property Law Act 2007 (PLA) granting an easement over No 32 in favour of No 30. If its first two causes of action fail, then Neutrino seeks an order under s 325 of the PLA granting the easement on the grounds that there are wrongly placed structures on No 30.
[3] The Club denies that there is any basis for equitable or statutory relief in favour of Neutrino, and applies for orders striking out the proceeding, or alternatively for defendant’s summary judgment.
[4] Leave is required to bring the application for summary judgment because it was not served at the same time as the statement of defence. I am satisfied that this is an appropriate case for an application for summary judgment to be filed and determined at the same time as the strike-out application. Accordingly, leave is granted.
[5] Neutrino applied for leave to cross-examine Susan McLean, the deponent of the affidavit in support of the Club’s application. At the commencement of the hearing, I declined to permit cross-examination on the ground that the requirement of exceptional circumstances was not made out.
Background
[6] The Club was previously the owner of both properties, comprised in one title. In 1967, the Club subdivided the property into No 30 and No 32.
[7] No 30 was created with legal access to Claudelands Road by an access strip of land approximately three metres wide and 30 metres long, comprised in the Record of Title for No 30 (the access strip).
[8] It appears that the house on No 30 was in situ at the time of the subdivision in 1967. There is a separate garage adjacent to the house, located where the access strip meets the curtilage of No 30.
[9] Following the subdivision, the Club retained ownership of both properties. The Club subsequently acquired additional land for its carpark. That additional land is comprised in the Record of Title for No 32.
[10] The Club retained ownership of No 30 until 2005, when it was sold to a third party. In 2008, that party sold No 30 to a developer who subsequently subdivided the property. One lot was created with access from Te Aroha Street, and that property is not in issue in this proceeding. The balance of the land, including the access strip, is No 30. This property was sold by the developer to a third party in 2009, who thereafter sold it to Neutrino in 2013.
[11] The access strip is grassed. Services have been placed within the access strip, including a water toby, lamp pole and power box. There are likely to be water lines and power lines placed in the ground, and the parties accept they would need to be removed before a sealed driveway could be constructed.
[12] An email from WEL Networks (WEL), the entity responsible for the power reticulation, confirms that the lamp pole on the access strip is a “private light”. The lamp pole’s purpose is to light the Club’s carpark. There is no direct evidence that the lamp pole was placed on the access strip at the Club’s direction, but that is a reasonable inference.
[13] In addition, there is a WEL power pole on the Council owned road reserve immediately in front of where the exit from the access strip meets the road reserve.
[14] This state of affairs on the land appears to have existed since at least 2013, when Neutrino became the owner of No 30.
[15] At present, vehicular access along the access strip is not practical. Neutrino and its tenants gain vehicular access from Claudelands Road by driving across the Club’s carpark on No 32. No 30 has no registered legal right-of-way over No 32.
[16] From 2017 until recently, there was an acrimonious dispute between the Club and Neutrino’s tenant regarding use of the Club’s carpark to gain access to No 30. Neutrino’s tenant filed a claim in the District Court at Hamilton claiming nuisance by the Club. The tenant succeeded at first instance, but the District Court judgment was overturned on appeal.1 The judgment of Brewer J allowing the appeal sets out the background in full,2 which need not be repeated here.
Legal principles
Summary judgment
[17] Rule 12.2(2) of the High Court Rules 2016 (HCR) provides that the Court may enter judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[18] The test for defendant’s summary judgment was set out by the Court of Appeal in Stephens v Barron:3
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
1 Hamilton Cosmopolitan Club Inc v Lewis [2022] NZHC 2555.
2 At [4]–[18].
3 Stephens v Barron [2014] NZCA 82 at [9] (footnotes omitted).
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
[19]In Westpac Banking Corp v M M Kembla New Zealand Ltd,4 Elias CJ said:
[63] Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff's claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff's case prematurely before completion of discovery or other interlocutory steps and before the plaintiff's evidence can reasonably be assembled.
[64] The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.
[20] In Bernard v Space 2000 Ltd,5 Thomas J, referring to the predecessor of r 12.2(2), described the onus on the defendant as requiring a “king hit”:
[21] Rule 136(2), as indicated in Kembla (at 313), is only appropriate where the defendant has a “clear answer to the plaintiff which cannot be contradicted”. Summary judgment for a defendant “will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim”. (Emphasis added). The requirement that there be a clear answer which cannot be contradicted and a complete defence before judgment is entered for a defendant under r 136(2) is not to be disregarded. Examples which are given of appropriate cases for summary judgment under the subrule are where the wrong plaintiff has proceeded (Coastal Tankers Ltd v Southport NZ Ltd 17/5/99, Master Venning, HC Invercargill, CPI4/96) or where the situation is
4 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA).
5 Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 (CA).
clearly one of qualified privilege (Ferrymead Tavern Ltd v Christchurch Press Ltd 11/8/99, Master Venning, HC Christchurch, CPI84/98). Thus, the subrule contemplates an answer which is clear-cut; what in colloquial language would be described by counsel as a “king hit”.
Strike-out
[21] Pursuant to r 15.1(1) of the HCR, the Court may strike out all or part of a pleading if it:
(a)discloses no reasonably arguable cause of action; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the Court.
[22] The principles governing strike-out applications are summarised in the Court of Appeal decision in Attorney-General v Prince:6
(a)A strike-out application is to proceed on the assumption that the facts pleaded in the statement of claim are true unless those pleaded facts are entirely speculative and lack any foundation.
(b)It is only where, on the facts alleged in the statement of claim, however broadly they are stated, no private law claims of the kind or kinds advanced can succeed that it is appropriate to strike out the proceedings at a preliminary stage.
(c)The threshold for strike-out is high. Before a proceeding may be struck out the causes of action must be so clearly untenable that they cannot possibly succeed.
6 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
(d)The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.
(e)The fact that an application to strike out raises difficult questions of law, and requires extensive argument, does not exclude the jurisdiction.
[23] Under r 15.1(3), the Court has a discretion to stay all or part of the proceeding instead of striking out all or part of a pleading. It may be appropriate to make an order staying part of a proceeding if justice may require the cause of action to be determined at a later date.7
Equitable easements
[24] Like its predecessor, the Land Transfer Act 2017 (LTA) protects a registered owner of land against claims based on unregistered interests, such as the unregistered easement claimed by Neutrino in this case. That protection is described as indefeasibility of title.
[25] The principle of indefeasibility of title has exceptions, including fraud (referred to as Land Transfer Act fraud)8 and claims in personam against the registered owner, in this case the Club, based on the registered owner’s own conduct.9
[26]An in personam claim must have three characteristics:
(a)it must be a recognised cause of action;
(b)it must involve unconscionable conduct on the part of the current registered owner; and
(c)it must not be inconsistent with the objects of the Torrens system, which is the applicable system of land title in New Zealand pursuant to the LTA.10
7 Hyslop v Society of Lloyd’s (1992) 6 PRNZ 204 (HC) at 217.
8 Land Transfer Act 2017, s 52(1)(a).
9 Land Transfer Act, s 51(5). See also Frazer v Walker [1967] NZLR 1069 (PC) at 1078.
10 Regal Castings Ltd v Lightbody [2008] NZSC 87, [2009] 2 NZLR 433 at [157]–[159].
[27] In Infinity Enterprises NZ Ltd v Kinara Trustee Ltd,11 the Court of Appeal reviewed the legal principles applicable to two types of in personam claims for an equitable easement: an implied grant of an equitable easement and an equitable easement arising by estoppel. The former is relevant in this case.
[28] With reference to the rule in Wheeldon v Burrows,12 Clifford J summarised the legal test for an implied grant:13
[51] Wheeldon v Burrows is … authority for the proposition that — at equity as opposed to under the LTA — an easement can arise by implied grant when a parcel of land is subdivided, and one part passes into separate ownership either at the time of subdivision, or subsequently. An easement will be recognised as having been so created:
(a)where, before subdivision or subsequent transfer, the common owner uses their land in such a way as would require an easement if the relevant parts of the land were in separate ownership;
(b)the enjoyment of that easement is continuous and apparent or reasonably necessary for the reasonable enjoyment of the dominant tenement; and
(c)the common owner transfers the dominant tenement and retains the servient tenement.
(footnotes omitted)
The test is applied at the time of the transfer of the dominant tenement by the common owner.14
[29] At first instance, Duffy J described a hypothetical classic case for the application of the rule in Wheeldon v Burrows:15
… the owner of two adjoining blocks of land has used block A as if it were a right-of-way to gain access to block B and then later sells block B.
11 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd [2020] NZCA 309, [2020] 3 NZLR 626.
12 Wheeldon v Burrows (1879) 12 Ch D 31 (CA)
13 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd, above n 11.
14 At [52].
15 Kinara Trustee Ltd v Infinity Enterprises NZ Ltd [2019] NZHC 1526, (2019) 20 NZCPR 318 at [49].
[30] Notably, constructive notice of the contents of the Register, and therefore the absence of a legal interest, will not necessarily defeat an in personam claim.16 However, constructive knowledge of the absence of a legal right-of-way is fatal to an estoppel by silence claim.17
[31] In Infinity Enterprises, the Court of Appeal held that there was no evidence of continuous and apparent use of the driveway at issue at the applicable date of assessment, and the claim for an implied grant failed on that basis.18
[32] Despite that finding, the Court of Appeal went on to consider the implications of changes of ownership since the date of assessment of the implied grant, and the extent to which it is necessary for a claimant to establish LTA fraud against subsequent purchasers of the servient land.
[33] Clifford J cited with approval a passage from Hinde McMorland & Sim Land Law in New Zealand:19
If the easement was allegedly created by implied grant or reservation after the burdened land was brought under the Land Transfer Act, it is clear there cannot be a legal easement, but the transaction may be construed as a contract to create an easement, which takes effect as an equitable interest. As such it is enforceable between the parties to the original transaction under the in personam exception to indefeasibility, and could perhaps be converted into a registered easement by means of specific performance of the contract. But it would cease to be enforceable against a third party taking a registered interest in the burdened land without fraud.
[34] In the present case, the servient land has always remained in the Club’s ownership, so the issue of the consequences of changes of ownership of the servient land since the date of assessment does not arise.
[35] The Court of Appeal’s reasoning in Infinity Enterprises provides no guidance on whether the characterisation of implied grants as creatures of contract, by the
16 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd, above n 11, at [107].
17 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd, above n 11, at [110]–[112].
18 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd, above n 11, at [54] and [57].
19 At [58] citing DW McMorland and others Hinde, McMorland & Sim Land Law in New Zealand
(online ed, LexisNexis) at [16.036].
authors of Hinde McMorland & Sim Land Law in New Zealand, is also an impediment to a claim by a subsequent purchaser of the dominant land.
[36] In Infinity Enterprises, the dominant land had also changed hands since the date of assessment, but the implications of these changes of ownership did not feature in the reasoning of either the High Court or the Court of Appeal. It appears that the point was not argued. It is arguable that the transfer of the dominant land does not defeat an equitable easement arising by implied grant. The concept of indefeasibility of title is not engaged.
Landlocked land
[37] For the purposes of the PLA, land is landlocked if its lacks reasonable access.20 Reasonable access is defined to mean:21
… physical access for persons or services of a nature and quality that is reasonably necessary to enable the owner or occupier of the land to use and enjoy the land for any purpose for which it may be used in accordance with any right, permission, authority, consent, approval, or dispensation enjoyed or granted under the Resource Management Act 1991.
[38] Under s 327 of the PLA, an owner of landlocked land may apply to the Court for an order granting reasonable access to the land. To give effect to such an order granting reasonable access, the Court may, under s 328(1)(b) of the PLA, grant an easement over another piece of land for the benefit of the landlocked land.
[39] Section 329 of the PLA sets out matters that the Court must consider when exercising its discretion regarding relief for landlocked land:
329Matters court must consider in determining application for order for reasonable access
In determining an application for an order under section 328, the court must have regard to—
(a)the nature and quality of the access (if any) to the landlocked land at the time when the applicant purchased or otherwise acquired the land:
(b)the circumstances under which the land became landlocked:
20 Section 326.
21 Section 326.
(c)the conduct of the parties, including any attempts they have made to negotiate reasonable access to the landlocked land:
(d)the hardship that would be caused to the applicant by the refusal of an order, in comparison with the hardship that would be caused to any other person by the making of an order:
(e)any other relevant matters.
[40] Section 327 is concerned with whether reasonable access to the land presently exists, not whether reasonable access to the land can be formed.22 However, the ability to upgrade an existing legal access might be relevant to the Court’s exercise of its discretion regarding relief under s 328, if the threshold in s 327 is established.
[41] In Asmussen v Hajnal,23 the High Court accepted that reasonable access to the subject residential property meant vehicular or “drive-on” access.24 Wild J reviewed authorities with similar facts and stated the following principles as emerging from those cases:25
(a)Reasonable access does not invariably mean vehicular access.
(b)However, nowadays the situations in which non-vehicular access will be regarded by a Court as reasonable are likely to be few, as they are to be determined in the light of contemporary requirements as well as the general topography and nature of the area in question. There are, for example, enclaves of residential land in Auckland and Wellington which do not have, and are never likely to have, vehicular access. They include Karaka Bay in Auckland and parts of the historic zone in Thorndon, Wellington.
(c)Full recognition of the very great dependence people now have upon the motor vehicle must be given. The utility to people’s lives through being able to drive their vehicle upon their land cannot be underestimated.
(d)There is no force in a defendant proving that there are other residential properties in the locality without vehicular access, as each case must be assessed on its individual merits.
[42] By contrast, in Breslin v Lyons,26 the legal right-of-way was suitable for vehicles to gain access to the boundary of the plaintiff’s property, but it was not
22 See Asmussen v Hajnal (2005) 6 NZCPR 208 (HC) at [61].
23 Asmussen v Hajnal, above n 22.
24 At [57].
25 At [58].
26 Breslin v Lyons [2013] NZCA 161, (2013) 14 NZCPR 144.
physically possible to drive a vehicle from the boundary on to the property.27 The Court of Appeal held that existing pedestrian access on to the property was sufficient and as a result the property was not landlocked.28 However, even if the property was found to have been landlocked, the Court indicated that it would not have exercised its discretion in favour of relief because the plaintiff had knowledge that there was no right of vehicular drive-on access at the time of purchase.29
[43] Cases such as the present are not uncommon, and outcomes vary. Each case turns on its own facts.
Wrongly placed structures
[44] Under s 322 of the PLA, an owner of land affected by a wrongly placed structure may apply for relief. Under s 321 of the PLA, a wrongly placed structure means a structure that:
(a)is situated on or over the land affected, not being the land intended for the structure (whether or not the land intended adjoins the land affected); or
(b)is situated on or over the land affected but was not placed there—
(i)by, on behalf of, or in the interest of a person who was, at the time, the owner of the land affected; or
(ii)under a contract made with, or by way of a gift made to, a person who was, at the time, the owner of the land affected.
[45] If the relevant threshold in s 323 of the PLA is made out, the Court has a discretion regarding relief under s 325. Relief can include a grant of an easement over land for the benefit of the land affected by the wrongly placed structure, or an order directing any person to remove the wrongly placed structure.
Discussion
[46] Counsel for the Club submitted that ss 54 and 55 of the LTA apply. Those sections confer jurisdiction on the Court to make an order cancelling the registration
27 At [41]–[42].
28 At [43].
29 At [44].
of an interest where it would be manifestly unjust for the registered owner to remain so. This is not a case where the Club has registered an interest which Neutrino seeks to have removed. Sections 54 and 55 do not apply.
[47] The Club argues that a finding of an equitable easement would be inconsistent with the judgment of Brewer J that allowed the Club’s appeal and overturned the District Court’s findings of nuisance by the Club.30
[48] Brewer J held that Neutrino’s tenant possessed only a licence to use the Club’s land, which was revocable at will.31 The question of whether No 30 has an easement over No 32 by implied grant was not considered in the judgment. Neutrino was not a party to the proceeding in the District Court, so no cause of action or issue estoppel arises. The question of whether an easement arises by implied grant can be considered on fresh evidence in this proceeding.
[49] The Club transferred ownership of No 30 to a third party in 2005. That is the time for applying the test for the creation of an implied grant of an easement.
[50]There are two elements of the test to be assessed as at 2005:
(a)whether the Club was using No 32 and No 30 in such a way as would require an easement if the relevant parts of the land had been in separate ownership; and
(b)whether enjoyment of that easement was continuous and apparent or reasonably necessary for No 30.
[51] Neutrino’s claim is tenable as a matter of law. The Club was the owner of the dominant and servient land before subdivision, and remained the owner of the dominant and servient land until the dominant land was transferred to a third party in 2005. The other criteria for an implied easement raise questions of fact. There is no basis to strike out the cause of action.
30 Hamilton Cosmopolitan Club Inc v Lewis, above n 1.
31 At [72].
[52] At this summary stage of the proceeding, there is no direct evidence of how the occupiers of No 30 accessed the property from Claudelands Road prior to the sale of No 30 to a third party in 2005. The available evidence and inferences can be summarised as follows:
(a)It is reasonable to infer that the access strip was grassed before 2005. There is no evidence to suggest that the access strip has ever been prepared for use by vehicles, by either a loose chip or a hard top seal. One would expect remnants of such a surface to be present today, or for the Club to have some record of it.
(b)The power pole on the Council’s road reserve, immediately in front of the entry to the access strip, has been in place since 1989. This fact alone makes it very unlikely that the access strip was used by vehicles from 1989 to 2005.
(c)The services that were in or on the access strip in 2013, when Neutrino purchased No 30, are discussed in para [11] above. It is unlikely that the access strip was used for vehicular access with these services in place. Further, it is an arguable inference that these services may have been in place since before 2005. This may be able to be proved by direct evidence not currently before the Court.
[53]I find that it is reasonably arguable that:
(a)vehicular access to No 30 has been through the Club’s carpark on No 32 since before 2005;
(b)this access was continuous and apparent at the time of the Club’s sale of No 30 to a third party in 2005; and
(c)from 2005, continued access to No 30 Claudelands through the Club’s carpark was necessary for the reasonable enjoyment of No 30.
[54] Counsel for the Club submitted that the subdivision of No 30 in 2008 extinguished any equitable easement that existed. Counsel referred to the terms of the application for resource consent for that subdivision and the associated plans. The application relied on the access strip as providing legal access for No 30 to Claudelands Road, and the application and plans did not mention the equitable easement.
[55] However, as a matter of law it is possible for No 30 to have the benefit of legal access to Claudelands Road together with an equitable easement over No 32. The documentation associated with the subdivision in 2008 is not inconsistent with the existence of an equitable easement simply because the equitable easement is not mentioned. It is possible that the party that applied for the resource consent for the subdivision overlooked describing the equitable easement or considered it to be irrelevant to the grounds that the applicant had to establish to obtain the consent.
[56] This is not a case where the Club is able to deliver a “king hit” on the evidence. The Club cannot discharge the onus on it to prove that Neutrino’s claim cannot succeed. The Cub’s application for summary judgment accordingly fails.
[57] Given that the defendant’s application for summary judgment fails on the first cause of action, it is unnecessary to consider whether the Club can discharge the evidential onus upon it to obtain summary judgment on the causes of action under the PLA. However, it remains necessary to consider whether either of those causes of action can be struck out as untenable as a matter of law.
[58] As the registered owner of No 30, Neutrino has standing under s 322 and s 327 of the PLA to apply for relief, alleging that No 30 has wrongly placed structures upon it or is landlocked.
[59] The services that have been placed on the access strip are structures. Neutrino’s claim that they are wrongly placed structures is tenable as a matter of law. Whether they are wrongly placed, as defined in s 321 of the PLA, is dependent on the facts.
[60] Neutrino’s claim that it does not enjoy reasonable access is similarly tenable as a matter of law. Whether No 30 is landlocked, because Neutrino does not enjoy reasonable access to Claudelands Road by the access strip, is dependent on the facts.
[61] Neutrino has legally tenable claims that it has met the thresholds in ss 322 and 327, entitling it to an exercise of the Court’s discretion regarding relief. There is no basis to strike out Neutrino’s claims under the PLA.
[62] Although it is unnecessary for me to make findings on the Club’s application for summary judgment in respect of Neutrino’s claims under the PLA, I record my view that both the claim under s 322 and the claim under s 327 are reasonably arguable on the available evidence. The Club has not discharged the onus upon it to establish that these claims cannot not succeed.
Costs
[63]Neutrino is the successful party and costs should follow the event.
Result
[64] The defendant’s application for orders striking out all or parts of the proceeding is dismissed.
[65]The defendant’s application for summary judgment is dismissed.
[66] The defendant shall pay the plaintiff’s costs on a 2B basis, together with disbursements as fixed by the Registrar.
[67] The proceeding is adjourned for a case management conference to be allocated by the Registrar on the first available date.
Associate Judge Brittain
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