Osiris Properties Investments Number One Ltd v Meadows HC Auckland CIV-2007-404-251

[2007] NZHC 1781

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-251

BETWEEN  OSIRIS PROPERTIES INVESTMENTS NUMBER ONE LTD

Plaintiff

AND  JASON ROBERT MEADOWS First Defendant

AND  OLIVERS TRUSTEE LTD Second Defendant

AND  LONDON PROPERTY INVESTMENTS LTD

Third Defendant

Hearing:         27 and 30 April and 3 May 2007

Appearances: Simon Judd for Plaintiff

Daniel McLellan for Defendants

Judgment:      1 June 2007

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

5.00 pm on 1 June 2007

SOLICITORS

Phillips Solicitors (Auckland) for Plaintiff
Fletcher Law (Hamilton) for Defendants

COUNSEL

Simon Judd; Daniel McLellan

OSIRIS PROPERTIES INVESTMENTS LTD V MEADOWS AND ORS HC AK CIV-2007-404-251  1 June

2007

Introduction

[1]      In this proceeding the plaintiff, Osiris Property Investments No.1 Ltd, alleges that the first and second defendants, Jason Meadows and Oliver’s Trustee Ltd (collectively Mr Meadows) hold and have always held all the shares in the third defendant, London Property Investments Ltd (in receivership), on trust for it.  Osiris seeks to retrieve legal ownership and control of London through an application for specific performance, based upon the valid exercise of an option to purchase all of the company’s shares.

[2]      On  31 January  2007  I  made  an  order  on  Osiris’  application  appointing Mr John  Gilbert  as  London’s  receiver  for  the  purpose  of  preserving  its  assets pending  trial.     The  application  was  properly  served  but  due  to  an  oversight Mr Meadows’ solicitor failed to take any steps in opposition.  The order was made unopposed.   Nearly a month later Mr Meadows filed this application for an order rescinding the appointment.

[3]      The parties filed a number of affidavits in support of and opposition to the application.   I heard careful argument from Mr Daniel McLellan for Mr Meadows and Mr Simon Judd for Osiris.  Regrettably, as I forecast to counsel on 3 May, I have been  unable  to  deliver  an  earlier  judgment  because  of commitments  elsewhere. However, on that date I ordered a priority fixture for trial which I understand from the registry is now scheduled for some time in July 2007.  That event is relevant to the result of Mr Meadows’ application, as I shall explain later.

Jurisdiction

[4]      Mr Meadows has applied to rescind or vary the receivership order on three alternative grounds: review under R259 High Court Rules; invoking the Court’s inherent   jurisdiction  to   vary  or  rescind   interlocutory  orders;  or  under   s 35

Receiverships Act 1993.   Mr McLellan directed much of his written synopsis to identifying the appropriate jurisdictional basis.   However, Mr Judd, properly and responsibly in my view, concedes inherent jurisdiction and is content for the issue to

be decided de novo according to the test of whether proper grounds exist to justify

Mr Gilbert’s continuing appointment.

[5]      It is common ground between counsel that the High Court is to exercise its jurisdiction on appointment and removal of receivers in accordance with equitable principles.  They necessarily vest a wide discretion in the Court to do what is just and necessary in the particular circumstances.  Whether to justify an appointment or continuation of receivership, Osiris must show there is both a danger of London’s property being dissipated before trial and the unavailability of another remedy to preserve the company’s assets.    Jeopardy will  be  established  where  the  subject company has disposed or threatens to dispose of the whole or a major part of its undertaking and assets otherwise than in the ordinary course of business. Appointment of a receiver has been described as a remedy of last resort or a drastic step for the reasons that it violates rights of property and privacy and raises the risk of irreparable harm to the person lawfully in control of the company: see Laws of New Zealand, Receiverships, at paras 101-102.

[6]      The effect of an order appointing a receiver is to operate as an injunction, combining both mandatory and prohibitory elements.   Accordingly, the principles relating  to  the  granting  of  interlocutory  relief  in  the  equitable  jurisdiction  are relevant.  In that respect, the Court must be satisfied that Osiris has an arguable legal or equitable right which requires the receiver’s appointment: Bond Brewing Holdings Ltd v National Australia Bank Ltd (1990) ACLC 330 at 342-346. The right must be one which the Court has jurisdiction to enforce by final judgment.

Background

[7]      London owns four commercial properties in the Auckland Central Business District: the Occidental Building at 6-8 Vulcan Lane, the Eady Building at 10 Vulcan Lane, the Queen’s Ferry Hotel at 12 Vulcan Lane, and Unit 10, Mid City, Queen Street.

[8]      Before  October  2003  these  four   properties,   together   with  two   other commercial properties at 100 Queen Street and Newmarket, were owned by entities

under the control of Mr Mark Lyon through companies and trusts established for the ultimate benefit of himself and his children.  Osiris’ statement of claim alleges that Mr Lyon directed London’s incorporation in mid 2003 as the vehicle to own the properties  for  the  benefit  of himself  and  his  children;  and  that,  at  his  request, Mr Meadows along with two others, Messrs Richard Shores and Barry Smith, agreed to  become  the  company’s  shareholders  and  directors;  that  the  basis  for  their agreement was that they would control London for up to 36 months for Mr Lyon’s ultimate benefit in exchange for certain fees on terms set out in an option agreement and deed of undertaking; and that London was incorporated on 21 October 2003 accordingly.

[9]      According to Mr Lyon, the purpose of the transactions was to remove him from an outward association with ownership of the properties for a short period. Vulcan Investments Ltd, the registered proprietor which held title to the four properties for the Lyon interests, had defaulted in meeting its obligations under a mortgage in favour of Westpac.   There was a risk of a mortgagee sale.   Vulcan’s property portfolio required restructuring and refinancing.

[10]     Mr Lyon was then in difficult personal circumstances which had attracted the sanction of the criminal law and some adverse publicity.   He would  have  been unable to deal directly with third party financiers.  He wanted somebody whom he could trust to manage the properties until his personal circumstances improved.

[11]     An  intermediary  introduced  Mr Lyon  to  Mr Meadows.     He  was  then employed by a company called Global Pacific Ltd, a financier.  Mr Lyon says that he and the two others agreed to act jointly in the role of manager and custodian for the three year period and undertake the restructuring and refinancing in exchange for a fee, and were then to return the properties to his control.

[12]     The legal mechanism employed to effect these alleged arrangements was unorthodox  and  convoluted.     On  30 September  2003  Vulcan  entered  into  an agreement to sell to London the three properties at 6-8, 10 and 12 Vulcan Lane for

$3.6 million.    Settlement  was  due  on  the  same  date.    At  the  same  time  Lyon companies  transferred  to  London  by  separate  agreements  100 Queen  Street  for

$3.4 million and Newmarket for $1 million.  These two properties were subsequently on-sold.

[13]     On  21 October  2003  Mr Meadows,  his  company  and  Messrs  Shores  and Smith, acting in their capacities as shareholders of London, entered into an option agreement with Osiris.  In summary, they granted Osiris a call option whereby after a period  of  24 months  following  execution  Osiris  was  entitled  to  purchase  all London’s 200 shares for $1,500 per share.  On that basis the value of the company’s shares, represented by its equity in the three properties, was $300,000 ($1,500 x 200 shares).  An additional fee of $62.50 per share was also payable by Osiris for each month after the two year anniversary of the agreement.  However, if Osiris did not exercise  the  call  option  within  three  years,  then  it  would  be  deemed  to  have exercised it on that anniversary, 21 October 2006.

[14]     Contemporaneously the same parties entered into what is described as a deed of undertaking.  It is a schedule of onerous undertakings assumed by Mr Meadows and the others not to exercise any of the important legal powers available to shareholders and directors who beneficially own and control a company.  The deed prohibited them from placing London in liquidation or receivership, issuing shares, making distributions, authorising a major transaction or financial assistance, borrowing money, selling the properties, or owning shares in any other company without Osiris’ written approval.

[15]     Osiris was incorporated as a special purpose company to manage the Lyon interests.  Its sole shareholder and director was Mr Brett Oliver.  At the time he was in his late 20s and had just graduated from Auckland University with degrees in architecture and mechanical engineering.   He had been for some years a friend of Mr Ben Lyon.    The latter  is Mr Mark  Lyon’s  nephew.    He  was  a  lawyer  then employed  by  Bell  Gully  who  now  works  in  London.    Mr Ben  Lyon  was  also acquainted with Mr Meadows.  Together they were apparently the architects of this structure.

[16]     Mr Oliver  says that  he became  involved  at  Mr Ben  Lyon’s  request.    He understood that Mr Mark Lyon wanted a neutral party who could be trusted to hold

the shares in a company which would control an option effectively allowing ownership of Vulcan’s properties to be vested in the option holder at a later date.  He agreed with Mr Ben Lyon to look after Osiris for the three year period for payment of an annual fee of $20,000 plus GST.

[17]     Mr Mark Lyon says that Mr Meadows and others did not pay any money to acquire the London shares.  He says its assets were then subject to a first mortgage securing about $3 million but were worth substantially more; and that in late 2005 he met with Mr Ben Lyon and Mr Meadows and instructed the former to cause Osiris to exercise its option to purchase the London shares.  He also approved an increase in London’s mortgage by $300,000 to effect payment to Mr Meadows and the others under the option agreement.  He was hospitalised shortly afterwards.   He does not know now why his instructions were not implemented.

[18]     Mr Lyon says this in his affidavit:

Mr Meadows seems to be suggesting in his affidavits that he is entitled to retain ownership of all the shares in London.   At no time in any of my discussions with Mr Meadows, Ben Lyon or anyone else involved in these transactions has anyone suggested that Mr Meadows would be entitled to keep the shares for himself.  This would mean that he is the effective owner of properties worth over $10 million that he did not pay anything to acquire. If he is right then he would be able to sell the properties, pay off the debt and receive a windfall of over $6 million in cash.  This was not the intention of the parties.

[19]     Mr Meadows  asserts  legal  and  beneficial  ownership  of  all  of  London’s shareholding.  He says that in July 2003 he became aware that certain of Mr Lyon’s properties were to be sold by Westpac in exercise of its rights as mortgagee.   He arranged a meeting with Mr Lyon.   They agreed that Mr Lyon would sell his four companies to a company which Mr Meadows would incorporate for that purpose. He would organise the finance required to complete the acquisition.

[20]     Mr Meadows says, though, that he set up the structure to enable Mr Lyon ‘to have the option to buy back some of the properties on commercial terms’.  He denies the existence of any trust relationship.

[21]     Mr Meadows says that all his subsequent dealings were with Mr Ben Lyon. He and Messrs Shores and Smith set up what he describes as ‘our joint venture vehicle’, to acquire the properties on 14 August 2003.   Following the transfer he dealt predominantly with Ben Lyon or Brett Oliver.  Later he arranged for the three mortgages secured over the properties to  be refinanced with one  mortgage from ASB, securing a total funding facility of $4.75 million.   In accordance with the October 2003 deed, he obtained Mr Oliver’s consent to the transaction.

[22]     Later Mr Meadows fell out with Messrs Shores’ and Smith’s interests.   He purchased their 66.6% shareholding in London for a total of $250,000; $125,000 for each separate interest .  He also reduced London’s shareholding to 67 shares.

[23]     Mr Meadows   notes  that  the   option  agreement   precluded   Osiris   from exercising its call option before 21 October 2005.  He says that it has not exercised the option since that date.  He says that he and Ben Lyon met in late 2005 to discuss Osiris’ option; that at that meeting Ben Lyon advised that Osiris was not going to have the capacity to discharge its obligations; and that on 25 September 2006 Ben Lyon sent him an email purporting to cancel the option which was confirmed in subsequent telephone conversations.   I note that Ben Lyon was not an officer of Osiris.

[24]     Mr Oliver says this:

I confirm that at no time during my directorship of Osiris did I agree to terminate the option agreement or the deed of undertakings.  Ben Lyon never said to me that these agreements had been terminated and, before the beginning of this recent contest of ownership, neither had Jason Meadows.

(1)      Arguable Case

[25]     Against this background, Osiris pleads four causes of action.  First, it alleges that  London’s  shareholders,  principally  Mr Meadows,  are  in  breach  of  their contractual obligations under the option agreement by refusing to transfer London’s shares  to  them.    Second,  it  alleges  breaches  under  the  deed of undertaking  by Mr Meadows in causing London to pay, otherwise than as authorised distributions, at least  $100,000 to Mr Meadows and companies and entities associated with him.

Third, it alleges that Mr Meadows has breached his duties as fiduciary.   Fourth, it pleads the existence of a resulting or constructive trust.

[26]     Mr Meadows’ primary defences relate to Osiris’ alleged non-performance of its obligations under the option agreement and cancellation.   However, at the brief final hearing of this application on 3 May Mr McLellan conceded that Osiris has an arguable case.  His concession was appropriate.  Accordingly, Osiris has an arguable legal or  equitable right  in London’s shares which this Court  has  jurisdiction to enforce by final judgment: Bond Brewing Holdings Ltd.

(2)      Dissipation of Assets

[27]     The principal questions are:

(1)      Whether or not there is a danger or risk that London’s property will be dissipated before trial if the receiver’s appointment is terminated; and

(2)       If so, whether there is any other remedy available to preserve the company’s assets.

[28]     Mr Gilbert, in his capacity as Court appointed receiver, has filed a number of affidavits material to the first question.   Some of them are of a contentious nature and  deal  with  issues  of  peripheral  if  any  relevance.    I  rely  primarily  on  two affidavits, one setting out his report on London’s financial circumstances and another filed since the hearing.

[29]     London,  acting  under  Mr Meadows’  control,  has  prepared  management accounts for the periods from 1 April 2005 to 31 December 2006.  In summary they consistently  list  its  three  properties  as  its  principal  assets  at  a  book  value  of

$3.6 million, the purchase price paid on 30 September 2003.   However, a funding proposal prepared by Mr Meadows on 7 September 2005 estimated their total value at $9.1 million (presumably he would estimate a higher value today).   London’s borrowing of $4.6 million was reported to be virtually constant since 1 April 2005 (Mr Lyon alleged this amount is about $1 million more than was secured by the

Westpac mortgage in September 2003) and is secured by way of first mortgages over the properties.    As noted, ASB Bank  was the original  lender  but  the  debt  was refinanced in September 2006 through NZ Guardian Trust.   I shall return to this subject shortly.  Current liabilities are $55,000.

[30]     The history of movements in current  assets is of interest.   They totalled

$32,902  on  1 April  2005.    However,  they  had  increased  to  $1.128 million  by

31 December  2006.    The  principal  components  are  loans  to  Mr Meadows  and companies under his control to a total of about $800,000.  Loans to Messrs Shores and Smith of $125,000 each are also recorded, although Mr Meadows is arguably the real borrower; the total of $250,000 equates with the amount paid for their shareholdings in London.

[31]     These advances totalled $1.04 million at 30 September 2006, a matter of days before the three yearly anniversary of the option agreement and deed of undertaking. Both instruments were due to terminate on 21 October 2006 when Osiris’ option was deemed to be exercised if it had not been exercised before.

[32]     Arguably the substantial advances made by London to Mr Meadows and his interests in 2005 and 2006 were a breach of his undertakings to Osiris.   Taken together they are either a major transaction or provision of financial assistance.  Each required Osiris’ written consent which was not given.  To compound the position, no security was sought or given.  Mr McLellan relies on an affidavit from Mr Meadows to the effect that Osiris knew of and approved this increase in indebtedness.  But he does not assert Osiris’ provision of written consent and his evidence on the point is, with respect, unsatisfactory.

[33]     Three affidavits filed since the hearing are particularly relevant.  The first is from Mr Richard Phillips, Osiris’ solicitor, and was sworn on 18 May 2007.   He produced  evidence  that  a  property  owned  by  Mr Meadows  and  his  father  at

65 St Mary’s Bay Road, Ponsonby, Auckland, as trustees of a family trust, is to be sold by the ASB in exercise of its powers as mortgagee at auction on 6 June 2007. The current market value of the property is said to be in the vicinity of $3 million. Osiris  alleges  but  Mr Meadows  denies  that  some  of  London’s  advances  to

Mr Meadows were used to meet renovation and maintenance costs for the property. London has lodged a caveat against the title to protect its position as a beneficiary under an alleged constructive trust.

[34]     Mr Meadows swore an affidavit in answer on 22 May 2007.  He alleges that his difficulties with the ASB Bank are due in part to Mr Phillips’ communications with it since 11 December 2006.  He says that normally there would be no trouble in refinancing the loan but alleges that he has been unable to do so because of Osiris’ claims and London’s receivership.  He says he has arranged for refinancing which was  due  on  24 May  2007.     (I  am  unaware  of  whether  he  was  successful.) Mr Meadows says also that, based upon a current market valuation of $3.16 million, there is a net equity in the property of $1.64 million.  From this I infer that he says his net indebtedness to ASB is in the vicinity of $1.5 million.

[35]     Mr Gilbert swore a further affidavit on 24 May.  As a result of his inquiries and access to primary documents he has discovered additional information.   First, Mr Meadows’ personal indebtedness to ASB exceeds $7.6 million.   However, its rights under the mortgage secured over 65 St Mary’s Bay are limited to a recovery of

$1.5 million, as Mr Meadows implies.  London, through Mr Meadows, was a party to  a  loan  agreement  entered  into  with  ASB  on  14 October  2005  together  with memoranda of mortgage.  These documents secured the loan of $4.6 million which was refinanced by NZGT a year later.  However, the amount of London’s residual indebtedness to ASB may be considerably higher.

[36]     Second, on or about 27 September 2006 London and Mr Meadows borrowed a  total  of  $7.73 million  from  New Zealand  Guardian  Trust.     Of  this  sum,

$4.63 million  was  applied  in  discharge  of  ASB’s  loan  and  secured  by  way  of substitute first mortgages over London’s three properties.  However, the balance of the loan of $3.1 million constitutes a separate and additional loan from NZGT to London.   The total advance of $7.73 million is secured under the first mortgages which provide a priority sum of $13.22 million.   London and Mr Meadows, along with Aurora Property Ventures Ltd, have entered into a guarantee and indemnity to NZGT to provide further security.

[37]     Mr Meadows owns or controls Aurora.   In or about September or October

2006 it purchased the Aurora Tavern at 75 Victoria Street, Auckland.   Mr Gilbert infers that NZGT’s second or additional loan of $3.1 million, which I repeat is also secured against London’s three properties, was used to settle this purchase.

[38]     In  the  light  of  Mr Gilbert’s  advice,  I  have  carefully  read  Mr Meadows’ affidavits again.   He has not given details of the NZGT loan.   His management accounts for London prepared for the  periods  ending  30 September,  31 October,

30 November and 31 December 2006 continue to record its indebtedness to NZGT at

$4.6 million.  They do not disclose its additional liability of $3.1 million.

[39]     Mr  Meadows’ affidavit  sworn on 23 February 2007 refers  briefly  to  this topic, saying:

I have several commercial property investments which have been funded by

[NZGT] including properties owned by [London].

[40]     Mr Meadows mentioned a proposed loan facility from NZGT which was cancelled as a result of the receivership.  Significantly, though, he has not disclosed the nature and extent of the  September  2006  transactions and  the  consequential increase in London’s secured liability to $7.3 million.  His omission is significant.

[41]     In his careful submissions made on 27 April, Mr McLellan discussed Osiris’ allegation (then made without knowledge of the full extent of London’s borrowing from NZGT)  that  London’s  indebtedness had  increased  by $1 million while  the company was under Mr Meadows’ control.  He referred expressly to and relied upon evidence from Mr Meadows’ affidavit dated 23 April that ‘[London] has increased its borrowings to some extent, but not by $1 million …’.   Mr McLellan submitted that the real level of increase was $616,000.  I can only assume that Mr Meadows did not disclose to Mr McLellan, as he failed to disclose to the Court, that London under his control borrowed an additional $3.1 million from NZGT in September 2006.

[42]     The evidence available from London’s management accounts prepared by Mr Meadows is that the company advanced large sums to  Mr Meadows and his companies.   Also, if Mr Gilbert’s evidence is verified, London has borrowed an

additional $3.1 million from NZGT to finance Mr Meadows’ commercial activities in Aurora and he will have been guilty of a material non-disclosure of information. If Osiris’  allegations  that  Mr Meadows  acted  in  breach  of his  undertakings  are sustained at trial, they will establish that he has been responsible for a major dissipation of the company’s assets.

[43]     A  number  of  other  factors  relating  to  Mr Meadows’  own  position  are relevant.   First,  he  is also  indebted to  Auckland  Finance  Ltd  for  $7.48 million, apparently secured against  other properties but  exposing  him to  a  high  level of personal liability.  Second, he was formerly a shareholder and director of Kanadale Ltd, which was placed  in liquidation by this Court on 21 September 2006 on a petition from the Commissioner of Inland Revenue.  The company’s only asset was Mr Meadows’ overdrawn current account and there was no apparent recovery for creditors.  Third, a little earlier, on 11 September 2006, the Commissioner obtained a judgment  against  Mr Meadows  in  the  District  Court  at  Auckland  for  $21,140 (Mr McLellan rather disingenuously submits there is no evidence that this debt was not repaid).   Fourth, companies owned by Mr Meadows – E2M Ltd and Bearing South Ltd – are at least four months in arrears of rental payable for premises leased from London at 10 Vulcan Lane, to a total of $25,770.

[44]     I am conscious that London’s core business is very straightforward.   It is a property owning company.   Its annual rental income is in excess of $1 million. Outgoings are restricted to  mortgage repayments,  rates, insurances and miscellaneous expenses.  There is a large monthly surplus.

[45]     In these circumstances Mr Judd for Osiris submits that the risk of further dissipation will continue if Mr Meadows remains in control of London’s assets.  The risk  is  aggravated  by  evidence  of  Mr Meadows’  current  financial  difficulties. London  may  well  be  the  only  available  source  of funds  available  for  financial salvation from his current predicament.

[46]     The events which I have outlined provide a sufficient evidential foundation for a provisional finding that Mr Meadows has been responsible for a significant dissipation of London’s assets since September 2003.   His conduct has arguably

eroded its equity in its three properties to the extent where it can be said that he has disposed of a major part of its assets.  Even if London’s security to NZGT for the additional loan of $3.1 million is in a sense collateral to the mortgage over Aurora’s property, it remains liable as a principal debtor.

[47]     Evidence  of  Mr  Meadows’  personal  financial  difficulties  is  a  cause  of additional concern.   The facts do  not portray him as  a successful or  competent businessman.  I appreciate that Mr Meadows claims that he owns London and was entitled to act independently.  But I am satisfied that London’s assets will remain at risk of further dissipation if the receivership is terminated and Mr Meadows’ powers as director are restored.

[48]     The second or consequential question is whether or not the risk of dissipation of London’s assets can be overcome by some means other than appointment of a receiver.  Mr Meadows has offered to give an undertaking or to consent to a Court order which prevents London from making further advances to him or associated entities, or from borrowing further money, or from selling, encumbering or otherwise dealing with its assets, or transferring any of its shares.  Mr McLellan says the terms of such an undertaking or proposed order provide sufficient protection to Osiris, justifying termination of the receivership.  Mr Judd submits that the undertaking is insufficient, given Mr Meadows’ financial track record.

[49]     This issue has caused me to consider the merits carefully.  On reflection, and taking into account all factors that I have summarised, I am not satisfied that an undertaking would provide sufficient protection to Osiris if its claim succeeds.  I am particularly influenced by Mr Meadows’ recent financial track record, and the difficulties for Osiris of enforcing performance of an undertaking.

[50]     Also,   the   circumstances   tend   to   diminish   the   rationale   for   treating receivership prior to trial a measure of last resort because of its invasive nature and the damage which it can and does inflict upon a company, its directors and shareholders.   In this case the damage, if any, was done by the order made on

31 January 2007 appointing Mr Gilbert as London’s receiver.  Mr Meadows did not apply for an order setting aside or varying the appointment until 23 February 2007.

In the meantime he had surrendered all records and effective control of the assets and undertaking of London to Mr Meadows.

[51]     Mr Meadows says that no steps were taken to oppose Osiris’ application for appointment  of a  receiver  because  of  an  oversight  by  his  solicitor,  Mr Charles Fletcher.  Mr Fletcher swore an affidavit in late April explaining the reasons for his failure  to  act  on  Mr Meadows’  instructions.     Without  going  into  detail,  his explanation is unsatisfactory.

[52]     In the result, London has been in receivership for four months.  The registry has given a priority fixture for trial in July 2007.  Sufficient time should be available for the trial Judge to write a decision reasonably promptly after the hearing.  I have taken this factor into account when deciding against Mr Meadows’ application.

Result

[53]     The application made by Mr Meadows and Mr Oliver on 23 February 2007 for an order setting aside the order made on 31 January 2007 appointing Mr Gilbert as London’s receiver is dismissed.

[54]     Mr Meadows is ordered to pay Osiris costs for one counsel for 1.5 days hearing calculated according to category 2B together with disbursements.

Rhys Harrison J