Penney v Ng
[2014] NZHC 1486
•30 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-5790 [2014] NZHC 1486
BETWEEN STEPHEN JOHN PENNEY AND
MACUSHLA EILEEN BURNS Plaintiffs
AND
DANNY NG First Defendant
STUDORP LTD (previously JAMES HARDIE BUILDING PRODUCTS LTD) (discontinued)
Second Defendant
JAMES HARDIE NEW ZEALAND LTD (discontinued)
Third Defendant
HARCOURTS GROUP LTD (discontinued)
Fourth Defendant
HOBSONVILLE REALTY LTD Fifth Defendant
EILEEN TAUA Sixth Defendant
GRAHAM LEWIS Seventh Defendant
Hearing: 10 and 11 February 2014 Counsel:
AJ Thorn and M Bullivant for Plaintiffs
No appearance by or on behalf of First Defendant
PJ McDonald and MC Donovan for Fifth, Sixth and Seventh
DefendantsJudgment:
30 June 2014
JUDGMENT OF BREWER J
PENNEY & BURNS v NG [2014] NZHC 1486 [30 June 2014]
This judgment was delivered by me on 30 June 2014 at 4:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Introduction
[1] In 2007 the plaintiffs bought a house from the first defendant. It is built using the monolithic cladding system which is notorious for leaking. Some three years after the purchase the plaintiffs discovered that their house leaks. They sue for redress.
[2] The first defendant, the vendor, is bankrupt. He did not take part in the trial, notwithstanding the Court has given leave to the plaintiffs to continue their claim against him.1
[3] The claims against the second, third and fourth defendants have been discontinued.2
[4] The last defendants standing are the fifth, sixth and seventh defendants (“the agents”). The fifth defendant is the real estate company which marketed the house as agent of the first defendant. It employed the sixth and seventh defendants as sales people, and it was they who dealt with the plaintiffs as prospective purchasers.
The claims against the agents
[5] The plaintiffs’ claims against the agents arise from representations made in marketing the house. Advertising described the house as:
(a) Situated amongst prestigious quality dwellings;
(b) A meticulous home; and
1 Teleconference Minute of Venning J, 29 January 2014. The same leave was granted to the fifth, sixth and seven defendants in relation to their cross-claim against the first defendant.
2 A set-off of $17,414 is available as a result of settlements with the second and third defendants.
(c) Constructed with treated timber.
[6] The “treated timber” representation was contained in an internet sales webpage.3 It did not appear in other advertising, nor in the listing card put into evidence.4 The evidence of the sixth defendant is that when filling out the listing authority form5 with the first defendant, he told her that the house was built using a cladding called Harditex and that the framing was treated timber. The sixth
defendant noted those representations on the form, which was signed by the first defendant in two places. The first conferred an exclusive and sole agency. The second included a warranty that “the listing details of the property as set out herein are a fair and accurate description of the property”.
[7] The plaintiffs gave evidence that the representation that the house was built using treated timber was made also to them orally by the sixth and seventh defendants.6
[8] It is pleaded, and the plaintiffs in evidence averred, that these representations induced them to enter into the agreement to purchase the house.7
[9] It is common ground that the house was not built with treated timber.
[10] The statement of claim inserts the pleaded facts into as many legal pigeonholes as they might fit:
(a) First cause of action against (now only) the fifth defendant:
misrepresentation;
(b) Second cause of action against (now only) the fifth defendant:
negligent misstatement;
3 Agreed bundle of documents, at 37.
4 At 30.
5 Property System Listing Authority, agreed bundle of documents, at 28.
6 By the seventh defendant to both plaintiffs at their first viewing of the house: per Mr Penny, notes of evidence, at 4; per Ms Burns at 26. By the sixth defendant to Ms Burns at a later inspection: per Ms Burns, notes of evidence, at 27.
7 There was a further representation pleaded: “That the home had not had any weathertightness repairs, including re-cladding, undertaken to it”. There was no evidence called to establish this and so I disregard it.
(c) Third cause of action against (now only) the fifth defendant: breach of s 9 of the Fair Trading Act 1986;
(d) Fourth cause of action against (now only) the fifth defendant:
vicarious liability; and
(e) The first three causes of action are repeated against the sixth and seventh defendants.
The points of contention
When did the plaintiffs see the webpage advertisement?
[11] The plaintiffs’ evidence is that they saw the webpage advertisement and noted the reference to treated timber. They are sure they saw it after they first viewed the property and before they signed their first offer to purchase the house. Mr McDonald cross-examined to the effect that the webpage might not have been put on-line until after the first offer was signed. The exhibit copy was not printed until the day the final offer was accepted.
[12] The onus of proof is on the plaintiffs, and the standard of proof is the balance of probabilities. I find it is more likely than not that the plaintiffs saw the webpage advertisement before they signed their first offer to purchase because:
(a) The listing authority was given on 4 October 2007.
(b)The plaintiffs first viewed the house on 10 October 2007. They made their first offer to purchase it on 12 October 2007. Seven days is a reasonable period for a simple advertisement listing a property to be placed on the internet.
(c) The plaintiffs were actively searching the internet for advertisements for properties in their area. I accept their evidence that this was a nightly occurrence. They actually made an offer for another property before they settled on the one which is the subject of this case.
(d)There is no evidence that the webpage advertisement was not in place prior to 12 October 2007. There is only speculation that it might not have been because sometimes it can take a week or longer for a webpage advertisement to be posted.
Did the seventh defendant represent that the house was built with treated timber?
[13] The determination of this issue requires me to choose between the evidence of the plaintiffs and the evidence of the seventh defendant, Mr Lewis. I have no reason to doubt the honesty of any of the witnesses. I do bear in mind that all of them gave evidence of a conversation which occurred over six years ago and it would only be natural for recollections to be tinged with self-interest. Accordingly, I look at the evidence and the inferences which might properly be drawn from it:
(a) The listing authority form completed on 4 October 2007 contains a representation that the framing was treated timber.
(b)The seventh defendant’s evidence is that the listing authority form was given to the office administrator whose task was to input the data on it to the listing card. There is no evidence that the office administrator’s task included choosing which data to input.
(c) The seventh defendant’s evidence is that when he showed the property to the plaintiffs on 10 October 2007 he would have followed standard practice of getting a printout of the listing card. Having no personal knowledge of the property, he would have repeated to the plaintiffs the information on the listing card.
(d)The listing card does not contain the representation about treated timber. That would be powerful evidence that the plaintiffs are mistaken in their recollection of the representation being made by the seventh defendant if there was also evidence that once data is entered into the computer as part of a listing card it cannot be changed. But that is not the evidence. The evidence is that the data entered for the listing card can be, and is, changed as circumstances require. For
example, the listing card edition in evidence was printed out on
25 October 2007 so that it could be kept with a copy of the agreement for sale and purchase as part of the records of the fifth defendant. It contains the purchase price which was eventually agreed. That could not have been entered by the office administrator when the listing authority form was first provided.
(e) Other advertising did not have the treated timber representation. For example, the exhibit at tab 15 of the agreed bundle advertises the house using similar descriptive terms as the webpage advertisement but omits any reference to its construction. The same is true of the advertisement at tab 12 in the agreed bundle.
[14] I infer from the above that at some point it was decided not to include in marketing material that the house was built with treated timber, and the listing card was amended accordingly. However, given that the webpage advertisement seen by the plaintiffs between them first viewing the house and first offering to buy it did contain the representation, it can be inferred that that decision was probably not made until after the seventh defendant showed the plaintiffs the house.
[15] With that inference, I conclude on the balance of probabilities that the seventh defendant had with him a listing card when he first showed the plaintiffs the house and that the listing card had all of the data entered by the office administrator from the listing authority form. This included the treated timber representation and, of course, the seventh defendant would have relayed the contents of the card to the plaintiffs.
[16] The plaintiffs’ briefs of evidence do not allege that the seventh defendant made the representation and neither is it pleaded. In oral evidence, Mr Penney said that they remembered the representation only when they saw the listing authority form shortly before the commencement of the trial. This caused them to remember that the seventh defendant had an A4 sized piece of paper with him when he showed them the house for the first time and that he was reading the details of the property, such as floor area, from it. They also remembered that afterwards when they were
conducting their own inspection of the exterior to the property, looking for cracks, Ms Burns reassured Mr Penney by saying words to the effect that water getting in would not matter because the house was built with treated timber.
[17] The seventh defendant’s evidence that he never mentioned treated timber must be considered against the passage of time and the unremarkable circumstances of showing one house out of many to prospective purchasers as part of his job.
[18] I find, on the balance of probabilities, that the seventh defendant made the representation that the house was built with treated timber.
Did the sixth defendant represent that the house was built with treated timber?
[19] The determination of this issue requires me to choose between the evidence of Ms Burns and the sixth defendant, Ms Taua.
[20] The agreement for sale and purchase of the house was conditional on the plaintiffs obtaining a satisfactory report from a building inspector. The inspection took place on 25 October 2007. Ms Burns and Ms Taua were present. The evidence of Ms Burns is that while in the lounge she had general “chitchat” with Ms Taua during which Ms Taua:8
... went over the fact that I would be happy here with my family and my grandchildren, it was a wonderful property, well built, she had a really good rapport with Mr Ng as she’d sold several of his houses and they were always well built and used treated timber. Then we just went on after that general discussion, then we talked about grandkids, how work was going and ’cos like there was another hour pretty much that we filled in general chitchat taking in the view sitting in the lounge.
[21] This evidence was not forecast by Ms Burns’s brief of evidence. It was given
orally in response to supplementary questions.
[22] Ms Taua’s brief of evidence did not refer to this conversation, no doubt
because there was no mention of it in Ms Burns’s brief of evidence. When asked
during her evidence-in-chief whether during the conversation she had given the representation about treated timber, Ms Taua replied:9
No I did not say that because the building inspector was there, and I didn’t know if Danny used treated timber for his other houses, but that has to be a no.
[23] In cross-examination it became clear, understandably so, that Ms Taua had very little memory of this conversation. Her denial, I infer, was based more on her view that she would not have made such a representation rather than a recollection of the contents of the conversation.
[24] I remind myself again that the onus of proof is on the plaintiffs and that the standard of proof is the balance of probabilities. Having heard the witnesses, I think there is some persuasiveness in Ms Taua’s denial. In the context of a building inspection of a monolithic design house she was unlikely to have made sweeping endorsements of Mr Ng’s building standards. I accept her evidence that she did not know whether treated timber had been used for his other houses.
[25] On the other hand, Ms Burns’s recollection of this aspect of a conversation which took place so long ago has an element of wishful thinking. I do not doubt Ms Burns’s sincerity, but I do not find that it is more likely than not that the representation was made.
[26] I am not sure that anything turns on this point. If the representation was made then it was made after the agreement was signed and while it was subject only to the obtaining of a satisfactory building report. Any such representation could not have been relied upon and could not have been causative of any loss.
Did the plaintiffs rely on the representation?
[27] It is trite that if a party makes a pre-contractual misrepresentation it will not be actionable at common law unless another party relied upon it. The reliance must be causative of loss.
[28] In this case the plaintiffs’ evidence is that they relied on the representation that the house was built with treated timber. Mr Penney’s oral evidence is that without it they would not have entered into the agreement to buy the house.10
Ms Burns, however, did not give evidence corroborating him.
[29] The agents’ argument is that this categorical statement is not credible. Neither of the plaintiffs’ briefs of evidence contains it. Mr Penney’s brief (adopted by Ms Burns in her brief) contains the following passages:11
Cushla and I felt assured by the advertisement as to the condition of the property, particularly the reference to treated timber.
Cushla and I had previously walked around the outside of the house, checking the cladding for cracks (there were not any visible) and looked under the house (nothing looked out of place). We felt comfortable knowing there was treated timber framing.
[30] Counsel for the agents submits further that it was the building inspector’s report that the plaintiffs relied on. When that report revealed elevated moisture in an external wall the plaintiffs agreed a variation to the agreement whereby Mr Ng undertook to repair the area and provide written confirmation of it by the qualified tradesman who did the work.12 The report, which was accepted by the plaintiffs, said there was no problem found. There was no mention in the report of treated timber. There was no inquiry by the plaintiffs as to whether the framing timber revealed in the investigation of the potential problem was treated or not.
[31] The evidence is clear that the plaintiffs knew that the house was built with a monolithic cladding system. They knew that there were risks in buying such a house. They knew that monolithic clad houses were prone to leaks. This is why they made a careful personal inspection of the exterior of the house looking for cracks. This is why they engaged a qualified building inspector to give them a report, and why Ms Burns personally attended at the house during the inspection.
[32] It is also clear that the plaintiffs very much wanted to buy the house. When
the building inspector’s report revealed an elevated moisture content in an exterior
10 Notes of evidence, at 7.
11 Brief of evidence of Stephen John Penney, at [5].
12 Variation to Contract, agreed bundle of documents, tab 20.
wall they did not take alarm and walk away from the agreement. Instead, they agreed a variation which, in effect, said: “you fix the problem, get the builder to confirm it’s fixed, and we’ll still buy it”.
[33] In my view, Mr Penney’s brief of evidence accurately sets out their situation. They took comfort from the representation that there was treated timber. It meant, to them, that if the house leaked it would not be such a problem. But they did not, of course, expect the house to leak.
[34] The plaintiffs were, naturally, horrified when they discovered the extent of the leaks problem with their home. It has had very serious effects for them financially. It is only natural that when thinking back on how they came to buy the house they would eventually elevate the representation as to treated timber from a comfort factor to a representation which they relied upon to such an extent that without it they would not have agreed to buy the house.
[35] Therefore, I find that the reliance the plaintiffs placed on the treated timber representation did not induce them to enter the agreement, and so was not causative of their loss.
[36] In my view, the representation was a background factor. The plaintiffs wanted very much to buy the house, were aware of the risk of leaking associated with monolithic clad houses and relied on their building inspector’s report. Indeed, when possible water entry was found, their response was to agree to the problem being fixed rather than to invoke their ability to cancel the agreement.
Did the plaintiffs rely on other representations?
[37] The other representations advertised and pleaded as being misrepresentations which were relied upon are:13
(a) Situated … amongst prestigious quality dwellings …
(b) … meticulous home
13 For example, statement of claim dated 26 September 2012, at [75].
[38] There was some contention between counsel as to whether these representations were of a character that could be relied upon, or were mere advertising puffery. Although I think that the representations belong in the ranks of advertising hyperbole, I do not need to analyse them closely. I am quite clear that they were not relied upon by the plaintiffs in making their decision to buy the house. There is no causative link between the making of the representations and the loss the plaintiffs have suffered.
Consequences for causes of action: fifth, sixth and seventh defendants
[39] The first cause of action against the fifth defendant is misrepresentation. The representations are those discussed above. I have found that there is no causative link between the representations and the plaintiffs’ loss. The cause of action cannot succeed.
[40] The second cause of action against the fifth defendant is negligent misstatement. It relates to the same representations. Classically, a plaintiff has a claim under the tort of negligent misstatement where a party makes a statement to the plaintiff upon which the plaintiff relies to his or her detriment, in circumstances where the other party knew the statement was false or was reckless as to whether it was true.14
[41] Reliance, in this tort, is an essential element. Without it, the chain of causation is snapped. Here, there was no material reliance and the cause of action cannot succeed. Furthermore, even if it could be found that there was reliance, that reliance did not induce the plaintiffs to enter into the contract and was not causative of loss. Therefore, the causation requirement of negligent misstatement is also not met.
[42] The third cause of action against the fifth defendant is breach of s 9 of the Fair Trading Act 1986 (the Act). I am assisted by the decision of the Supreme Court in Red Eagle Corporation Ltd v Ellis.15
[43] Here, s 9 was breached. The representation in the internet sales webpage (repeated orally by the seventh defendant as agent) that the house was constructed with treated timber was wrong. There is no question that a reasonable person in the plaintiffs’ situation would likely have been misled or deceived. As indeed they were.
[44] However, breach of s 9 does not establish liability. Section 43 of the Act requires causation:16
Then, with breach proved and moving to s 43, the court must look to see whether it is proved that the claimant has suffered loss or damage “by” the conduct of the defendant. The language of s 43 has been said to require a “common law practical or common-sense concept of causation”. The court must first ask itself whether the particular claimant was actually misled or deceived by the defendant’s conduct. It does not follow from the fact that a reasonable person would have been misled or deceived (the capacity of the conduct) that the particular claimant was actually misled or deceived. If the court takes the view, usually by drawing an inference from the evidence as a whole, that the claimant was indeed misled or deceived, it needs then to ask whether the defendant’s conduct in breach of s 9 was an operating cause of the claimant’s loss or damage. Put another way, was the defendant’s breach the effective cause or an effective cause? Richardson J in Goldsbro spoke of the need for, or, as he put it, the sufficiency of, a “clear nexus” between the conduct and the loss or damage. The impugned conduct, in breach of s 9, does not have to be the sole cause, but it must be an effective cause, not merely something which was, in the end, immaterial to the suffering of the loss or damage. The claimant may, for instance, have been materially influenced exclusively by some other matter, such as advice from a third party.
[45] In this case, as with Cole v Xiang,17 the representations were background factors. They were not relied upon by the plaintiffs in deciding to enter the agreement to buy the house. This cause of action cannot succeed.
[46] The fourth cause of action against the fifth defendant is based on vicarious liability for the actions of the sixth and seventh defendants. It is, of course, only applicable where a tort or other civil wrong has been committed by the parties from whom vicarious liability arises. Here, no such wrong has been established. The cause of action does not succeed.
[47] Likewise, the identical causes of action against the sixth and seventh defendants for misrepresentation, negligent misstatement and breach of s 9 of the Act do not succeed.
The position of the first defendant
[48] The first defendant filed a statement of defence but took no part in the hearing. I approach the case against him on a formal proof basis.
[49] The first cause of action against the first defendant is misrepresentation. Section 6 of the Contractual Remedies Act 1979 is relied upon.
[50] The pleading is to the effect that the first defendant, on two occasions, had the house substantially re-clad in an effort to remedy leaks. The statement of claim goes on:
36.The first defendant had a duty to disclose to the plaintiffs the Defects and/or Damage and/or moisture ingress generally and/or to disclose the purpose of the Recladding Works.
37. In breach of the first defendant’s duty to disclose, at no time before
25 October 2007 did Mr Ng (or Mr Ng’s agent) disclose the Defects
and/or Damage and/or moisture ingress generally and/or purpose of the Recladding Works.
38.In the circumstances, Mr Ng’s conduct amounts to the making of misrepresentations of fact as to these matters (the Misrepresentations).
39.The Misrepresentations induced the plaintiffs to enter the agreement for sale and purchase, and Mr Ng intended them to act in this way.
[51] Bound up in this cause of action are the representations discussed above in relation to the other defendants.
[52] Section 6 of the Contractual Remedies Act 1979 provides (relevantly):
(1) If a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to him by or on behalf of another party to that contract—
(a) he shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken; and
(b) he shall not, in the case of a fraudulent misrepresentation, or of an innocent misrepresentation made negligently, be entitled to damages from that other party for deceit or negligence in respect of that misrepresentation.
[53] I cannot find this cause of action proved. The representations discussed above did not induce the plaintiffs to enter the agreement. The first defendant, as vendor, did not have a duty to disclose to the plaintiffs the fact that he had had work done on the house to remedy a problem with leaks. His silence on that point did not amount to a misrepresentation. Misrepresentation by silence only occurs where a party makes a positive representation but deliberately omits an important fact. In such a circumstance a representation by silence has occurred. However, in this case no representation by the vendor was made at all, the vendor remained silent, which he was entitled to do.
[54] The second cause of action (deceit) is no longer relied on.
[55] The third cause of action is breach of contract. The agreement for sale and purchase has a warranty at cl 6.2(5):
The vendor warrants and undertakes that at the giving and taking of possession:
(5) Where the vendor has done or caused or permitted to be done on the property any works:
(a) any permit, resource consent or building consent required by law was obtained; and
(b) the works were completed in compliance with those permits or consents; and
(c) where appropriate, a code compliance certificate was issued for those works.
[56] The evidence is that a building consent was required for the re-cladding work, but never obtained. No code compliance certificate was issued.
[57] I find that the first defendant breached the warranty in cl 6.2(5) of the agreement for sale and purchase.
Damages
[58] The plaintiffs are entitled to damages for breach of the warranty. As
Chambers J said in Gunton v Aviation Classics Ltd:18
[175] At all times, it is important to remember that the fundamental object of contract damages is to restore the plaintiff financially to the position which it would have occupied had the contract been performed: Bloxham v Robinson (1996) 7 TCLR 122 (CA) at 133. Flexibility must be maintained to accommodate the facts of each particular case: J & B Caldwell Limited v Logan House Retirement Home Limited [1999] 2 NZLR 99 at 104.
[176] In theory the two approaches advocated [cost of repairs or diminution in value] should lead, in most cases, to the same result.
[59] Mikitasov v Collins contained almost identical facts to this case. The vendor in that case had undertaken substantial repair work for water ingress issues but no building consent was ever obtained for that work and no code of compliance certificate was ever issued. Accordingly, the vendor breached cl 6.2(5). In calculating the award of damages appropriate in such a circumstance, Courtney J said:19
The usual measure of damages for breach of a contractual warranty would be the amount required to place Mr Mikitasov in the position he would have been in had Mr Collins performed his obligations under the contract. This equates to the cost required to obtain certificates of acceptance for the work.
[60] The plaintiffs’ claim for damages is as follows:
(1) Estimated repair costs - $327,946.00 (GST inclusive).
(2)Professional fees estimated at 10% ($32,794.00) of the estimated repair costs.
(3) Consequential expenses (accommodation etc) - $17,206.00.
[61] The difficulty with making a special damages award now is that the estimated repair cost is for all of the defects identified by the experts. On a breach of warranty,
a plaintiff is entitled to be put in the situation he or she would have been in if the
18 Gunton v Aviation Classics Ltd [2004] 3 NZLR 836 (HC) at [175]-[176].
19 Mikitasov v Collins (2011) 11 NZCPR 617 (HC) at [26].
situation warranted pertained. Here, I do not know how much of the estimated repair cost relates to the re-clad portions of the house to which the warranty applies.
[62] A claim of general damages of $25,000 is made. Mouat v Clark Boyce was the first New Zealand decision in this context to consider the circumstances in which general damages for distress might be awarded. On this point, Cooke J said:20
In my opinion, when the plaintiff has a cause of action for negligence, damages for distress, vexation, inconvenience and the like are recoverable in both tort and contract, at least if reasonably foreseeable consequences of the breach of duty.
[63] It is now generally accepted by the Courts that an award of general damages is appropriate in cases where defects in homes cause distress to the home owners. Courtney J in Mikitasov v Collins gave general damages for a breach of warranty of cl 6.2(5) and said:21
Mr Mikitasov also seeks general damages. He has given evidence about the stress and upset that he and his family have suffered as a result of the defects to the house and the work required to rectify them. In recent times this Court has recognised through an award of general damages the distress and anxiety suffered by occupants of leaky homes, with awards of $20,000-25,000.
[64] Similar awards of $20,000-$25,000 were given by the Courts in Smith v Singh22, Body Corporate No. 188529 v North Shore City Council23 and Body Corporate No. 189855 v North Shore City Council.24
[65] I am prepared to make an award of general damages in the sum of $20,000.
Decision
[66] The plaintiffs’ claims against the fifth, sixth and seventh defendants are
dismissed.
20 Mouat v Clark Boyce [1992] 2 NZLR 559 (CA) at 568.
21 Mikitasov v Collins, above n 19, at [34].
22 Smith v Singh HC Wellington CIV-2004-485-1169 27 March 2007 Simon France J.
23 Body Corporate No. 188529 v North Shore City Council HC Auckland CIV-2004-404-003230
30 September 2008 Heath J.
24 Body Corporate No. 189855 v North Shore City Council HC Auckland CIV-2005-404-005561
25 July 2008 Venning J.
[67] The plaintiffs’ claim against the first defendant for breach of warranty is allowed. I reserve leave to the plaintiffs to file a memorandum on how I should proceed to determine quantum. Effectively, this is an interim judgment on liability with quantum to be determined.
[68] I award the plaintiffs, against the first defendant, $20,000 in general damages.
Costs
[69] The fifth, sixth and seventh defendants are entitled to costs against the plaintiffs. I am inclined to award these on a 2B basis and to task the Registrar with setting them. Counsel may file memoranda opposing this level of award by 25 July
2014. If no memoranda are received, the costs award on a 2B basis will crystallise on that date.
[70] The plaintiffs are entitled to costs against the first defendant. I would also be inclined to award them on a 2B basis and memoranda opposing may be filed by
25 July 2014. If no memoranda are received, the costs award will crystallise on a 2B
basis on that date.
Brewer J
Solicitors: Adina Thorn (Auckland) for Plaintiffs
Peter McDonald (Auckland) for Fifth, Sixth and Seventh Defendants
3