Plateau Retail Services Limited v CBI Company Limited

[2020] NZHC 1862

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002735

[2020] NZHC 1862

BETWEEN

PLATEAU RETAIL SERVICES LIMITED

Plaintiff

AND

CBI COMPANY LIMITED

Defendant

Hearing:	1 July 2020
Appearances:	N G Lawrence for Plaintiff E J Grove for Defendant
Judgment:	29 July 2020

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by me on 29 July 2020 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors / counsel:

Fencible Law, Auckland

Couch Harlowe Kovacevich, Auckland C Patterson, Auckland

PLATEAU RETAIL SERVICES LTD v CBI COMPANY LTD [2020] NZHC 1862 [29 July 2020]

Introduction

[1]    The plaintiff, Plateau Retail Services Ltd (PRS), seeks summary judgment against the defendant, CBI Company Ltd (CBI), in the context of a failed agreement for the sale and purchase of the Al’s Deli Café business (Business) in central Auckland.

[2]    PRS says that CBI has failed to make any payment at all for its purchase of the business from PRS. PRS seeks a declaration that the sale and purchase agreement was cancelled, and an order that CBI deliver up to PRS the chattels that CBI uplifted from the café premises in March/April 2020.

[3]    CBI contends that PRS has not complied with the strict procedural requirements under the High Court Rules 2016 (HCR) for summary judgment. It also claims to have an insolvency set-off under s 310 of  the  Companies  Act  1993  (1993 Act) in relation to the chattels. CBI says that the purchase of the Business was a financial disaster and has caused it significant loss. It claims that there were multiple breaches of the sale and purchase agreement by PRS, including a failure to provide hand-over support, and a complete absence of business records. CBI says it could not obtain a liquor licence because the lease of the café premises could never be transferred to it.

Factual background

[4]In 2018, CBI and PRS entered into:

(a)A sale and purchase agreement dated 5 March 2018;

(b)a variation of the sale and purchase agreement dated 5 March 2018; and

(c)a  second  variation  of  the  sale  and  purchase  agreement  dated     29 June 2018.

(Together, the SPA.)

[5]The relevant terms of the SPA are as follows:

(a)CBI would purchase the assets of the Business;

(b)The purchase price of $550,000 was to be paid in the following way;

(i)$100,000 payable in monthly instalments of $10,000  from CBI to PRS, starting 29 July 2018;

(ii)$50,000 from CBI to PRS by 29 September 2018;

(iii)$50,000 from CBI to PRS by 29 December 2018; and

(iv)$330,000 balance less a lease compromise amount of $19,904 from CBI to PRS by 29 June 2019.

(c)If CBI failed to pay any instalment, PRS could give notice for the full purchase price which, upon service of the notice, would become immediately due and payable.

(d)PRS would remain the lessee until such time that CBI could on-sell the business and arrange for a transfer of the lease, or until the lease was terminated.

(e)CBI would ensure, after settlement date, that all rent and other outgoings associated with the lease were kept current and up-to-date.

(f)The chattels and other assets owned by PRS were to be transferred to CBI on the settlement date (subject to a general security agreement over all of CBI’s present and after-acquired property).

[6]    On 3 July 2018,  CBI  took  possession  of  the  Business  at  the  premises.  In September 2018, Mr Reece Logan and Mr Rhys Cain, insolvency practitioners of Christchurch, were appointed liquidators of PRS by this Court.

[7]    As at 29 September 2018, CBI failed and/or refused to make the first $50,000 instalment payment due and owing under the SPA.

[8]As at 29 December 2018, CBI failed and/or refused to make the second

$50,000 instalment payment due and owing under the SPA.

[9]    As at 29 June 2019, CBI failed and/or refused to make final payment under the SPA of $330,000, and all $10,000 monthly instalments.

[10]   As at the date of this judgment, CBI had not made any payments it agreed to under the SPA.

[11]On 18 October 2019, the liquidators gave notice to CBI demanding it pay the

$550,000 outstanding under the SPA, as CBI had failed to make any instalment payments, plus interest of 12 per cent.

[12]   On 2 November 2019, CBI responded by way of its solicitors, claiming that PRS was in breach of subcls 2.5(2) and (3) of the SPA by failing to transfer an assigned authority for information concerning web pages, customer details, and intangible assets; and alleged that this reduced the value of the business by $312,000. CBI made an offer to settle for $75,000. CBI also alleged that the director of PRS agreed to discount the sale price by $150,000 if he did not return to New Zealand to take up employment with CBI. CBI provided a PDF copy of an email, dated 27 June 2018, between its principal Mr Denize and PRS’ principal at the time, Mr Lazic.

[13]   On 7 November 2019, the liquidators responded (by way of their solicitors) that the alleged loss of value of $312,000 did not represent a realistic value on any objective analysis; and that much of the information which allegedly had not to been transferred, had in fact been provided to CBI. Further, the liquidators investigated the allegation that there was a $150,000 reduction agreed between the parties – upon receiving the original version of the 26 June email from Mr Lazic, they formed the view that Mr Denize’s PDF version was an alteration of that email as there was no reference to any reduction in the original version. The liquidators proposed to meet with CBI to negotiate a resolution.

[14]   During the second half of November and early December 2019, the liquidators requested documents from CBI to support its claims. CBI provided some documents, but the liquidators say they were incomplete.

[15]   On or around 14 December 2018, the liquidators gave notice to CBI, pursuant to s 261 of the 1993 Act, requiring CBI’s director, Mr Denize, to be examined on oath about matters relating to the affairs of PRS.

[16]   On 19 December 2018, CBI (by way of its solicitors) provided some of the requested documents and advised that Mr Denize was available to meet in January 2019. CBI also made an offer to settle for $150,000.

[17]   On 20 December 2018, the liquidators (by way of their solicitors) again gave notice to CBI, pursuant to s 261, requiring Mr Denize to be examined on oath about matters relating to the affairs of PRS, and to provide documents about PRS.

[18]   On 14 January 2019, Mr Denize attended the offices of the liquidators, but the proposed meeting never took place. The liquidators say that they were waiting in a room for Mr Denize, but because he either declined to or was unable to tell the receptionist who he was meeting, the meeting never took place and Mr Denize left the premises.

[19]   On 17 January 2019, the liquidators, yet again, gave notice to CBI, pursuant to s 261, requiring Mr Denize to be examined on oath about matters relating to the affairs of PRS and to provide documents.

[20]   On 24 January 2019, Mr Denize again attended the offices of the liquidators, to be examined. Mr Denize promised to provide accounts to show that the business earnings decreased after settlement due to an inability to access the business’ website and social media accounts. The liquidators say he failed to provide those accounts.

[21]   On 14 February 2019, the liquidators again gave notice to CBI, pursuant to    s 261, requiring Mr Denize to provide documents about PRS.

[22]   On 15 May 2019, with no resolution being reached, and no payment being received under the SPA, the liquidators made a further demand to CBI for either

$550,000, or such other sum as agreed by the liquidators.

[23]   On 12 September 2019, the liquidators served CBI with a notice under ss 28 and 29 of the Property Law Act 2007 (PLA) setting out that CBI was in breach of the SPA by failing to make payment, and that such breach could be remedied by making payment of $356,400 to the liquidators of PRS within 12 working days (the PLA notice).

[24]   At the expiry of the 12 working days from the PLA notice, CBI had not complied with the notice.

[25]   By its statement of claim dated 13 December 2019, PRS seeks an order for cancellation of the SPA and possession. No order is sought in relation to the chattels. The interlocutory application for summary judgment dated 13 December 2019, likewise, does not seek any order in relation to the chattels.

[26]   Sometime during the COVID-19 level 4 lockdown (in late March or April 2020), CBI (or its agents) entered the café premises and removed the ovens, chairs, a sign, and a cash register.

[27]   Prior to 24 April 2020, the landlord re-entered the premises due to CBI failing to pay rent.

[28]   On 12 May 2020, PRS’ solicitors wrote to the solicitors for CBI seeking an undertaking that CBI would – not dispose of or treat the chattels that had been removed, including any other assets in CBI’s possession; and keep them in whole until the outcome of the litigation. PRS claimed that a GSA was never granted and, as such, title to the chattels never transferred.

[29]On 12 May 2020, PRS gave notice to CBI of the cancellation of the SPA.

[30]   PRS filed an amended interlocutory application  for summary judgment  on 12 May 2020, which included, in terms of relief, an order that CBI deliver up all chattels it removed from the café premises.

[31]   On 23 June 2020, after CBI had filed an amended Notice of Opposition dated 3 June 2020, Ms Logan swore an affidavit in support of the amended interlocutory application for summary judgment.

[32]   A second affidavit was sworn by Ms Logan in support of the application for summary judgment on 30 June 2020.

Relevant legal principles

[6]Rule 12.2(1) of the HCR provides:

The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[7]The principles are summarised in Krukziener v Hanover Finance Ltd:1

[26] The principles are well settled. The question on a summary judgment

application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v

Letchumanan [1980] AC 331 (PC) at 341. In the end the court’s assessment of the evidence is a matter of judgment. The court may take a robust and

realistic approach where the facts warrant it: Bilbie Dymock Corporation Ltd v Patel (1987) 1 PRNZ 84 (CA).

(Emphasis added.)

1            Krukziener v Hanover Finance Ltd [2008] NZCA 187.

[8]In Gardner v Gardner, Associate Judge Osborne summarised the general principles of summary judgment. These include:2

(a)Common-sense, flexibility and a sense of justice.

(b)In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to determine and reject spurious defences or plainly contrived factual conflict. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.

(c)In assessing a defence, the Court will look for appropriate particulars and a reasonable level of detailed substantiation — the defendant is under an obligation to lay a proper foundation for the defence in the affidavits filed in support of the notice of opposition.

(d)In weighing these matters, the Court will take a robust approach, and enter judgment even when there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.

(e)The need for judicial caution in summary judgment applications must be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case.

Analysis and decision

[33]There are four issues for determination:

2      Gardner v Gardner [2015] NZHC 2018 at [20].

(a)Does the second verifying affidavit of Ms Logan, sworn 30 June 2020 (and filed in support of the amended application for summary judgment), comply with rr 9.8(2) and 12.4(5) of the HCR?

(b)Has PRS, as plaintiff, established that CBI has no defence to its claim for a declaration that the SPA has been cancelled?

(c)Can the Court make an order for delivery of the chattels when no such order is sought in the statement of claim, but has been sought in the amended interlocutory application for summary judgment?

(d)If so, has PRS, as plaintiff, established that CBI has no defence of insolvency set-off under s 310 of the 1993 Act in relation to the chattels?

(a)   Does the second verifying affidavit of Ms Logan comply with the HCR?

[34]      The first affidavit filed by PRS in support of the original application for summary  judgment,  namely,  the  affidavit  of   Mr  Rhys  Cain,  liquidator  (sworn 6 December 2019) did not comply with r 12.4(5)(b) of the HCR – it did not verify the allegations in the statement of claim which alleged the defendant has no defence, and did not depose to any belief that the defendant has no defence to the allegations. The first affidavit of Ms Logan, a senior manager of corporate restructuring at Ernst Young, filed in response to the affidavit of Mr Peter Denize (sworn 3 June 2020) on behalf of CBI, likewise, makes no attempt to address the requirements of r 12.4(5).

[35]      In her second affidavit, sworn 30 June 2020, Ms Logan, who says she is working for and assisting the liquidators of PRS, says at para 4:

I verify the allegations contained in the statement of claim and say that to the best of my belief the defendant in this proceeding has no defence to the allegations contained in the statement of claim.

[36]      Mr Grove for CBI submitted that there were multiple procedural irregularities with PRS’ application for summary judgment which, in combination, are fatal to the

summary judgment application. That includes, but it is not confined to, the objections CBI takes to Ms Logan’s second affidavit.

[37]      In relation to that second affidavit, Mr Grove submitted that it is “recursive”, and was given on behalf of the liquidators, not the company, as it should have been (implying there is inappropriate delegation going on). No mention of the company is made in that affidavit. He further submitted the deponent has not adequately set out the grounds for her belief in a lack of defence, and that it is unclear whether she has actual knowledge of the matters to which she deposes.

[38]      In my view, these objections are not wholly without merit. However, in the circumstances, I find there has been substantial compliance with r 12.4(5) and, therefore, that there is no proper basis to reject the affidavit. Rule 1.5 provides that a failure to comply with strict requirements is not to be treated as a nullity, but rather, as an irregularity, and the Court has a discretion as to the way in which that irregularity is to be treated. I also note that a liberal approach is appropriate, to prevent injustices caused by mindless adherence to technicalities.3

[39]      In my view, it is apparent from the affidavit that Ms Logan has personal knowledge of matters at issue. She is a senior manager of corporate restructuring and is working for and assisting the liquidators. It is perhaps regrettable and incorrect for Ms Logan to have referred to her affidavit as “a formality”. Likewise, and strictly speaking, the affidavit should have been sworn on behalf of PRS. However, those matters are, in the context here, highly technical irregularities, and have not in any real way given rise to any prejudice.

[40]      In my view, this is a different case from Rafiq v Mediaworks TV Ltd,4 where there was no compliance with r 12.4, and a need for a correcting affidavit to be filed.

[41]      As to whether there has, in combination, been so many irregularities with respect to the summary judgment procedural requirements that I should refuse

3      See approach of UK Court of Appeal in Singh v Atombrook [1989] 1 All ER 385.

4      Rafiq v Mediaworks TV Ltd [2014] NZHC 1699 at [15].

summary judgment. That is a matter I consider below in relation to the relief claimed for the delivery of the chattels.

(b)   Has PRS established that CBI has no defence to the claim seeking an order for cancellation?

[42]      Mr Grove for CBI makes no fundamental objection to an order for cancellation. Rather, the consequences of cancellation are really at issue between the parties – and in particular, the fate of the chattels, which appear to be the only assets of any value.

[43]      In the statement of claim, PRS relies upon ss 28 and 29 of the PLA as the basis for cancellation. It claims to have served CBI with a s 28 notice, complying with s 29, and at the expiry of the relevant notice period, the breach complained of had not been remedied.

[44]      Mr Grove contended that a notice under s 28 of the PLA can only be issued where there is an agreement for the sale and purchase of land. In this case, while the SPA did provide for the transfer of the lease of the café premises to CBI, that had never occurred. At all times, the lease remained with PRS and the landlord cancelled the lease by way of notice to PRS.

[45]      Section 28 of the PLA applies to a right to cancel an agreement for the sale and purchase of land. Section 8 provides that the PLA applies to land in New Zealand. The critical issue is whether the SPA was an agreement for the sale and purchase of land and, if not, could the parties nevertheless agree to the application of ss 28 and 29 of the PLA by way of contract.

[46]      While no lease was formally transferred to CBI, PRS, as lessee, granted CBI the right to occupy the premises and enjoy the benefits of the lease under the terms of the SPA. In my view, CBI had a legal interest in the land and the SPA can, for the purposes of the PLA, properly be categorised as an agreement for the sale and purchase of land.

[47]      I also incline to the view that it was open to the parties to agree to use and apply, with modifications, the standard PLA cancellation provisions regarding notice

and cancellation. The parties agreed to the application of the relevant provisions of the PLA as a matter of contract. In this regard, I note that cl 9.1.3 of the SPA provides that, if the purchaser is in possession of the premises, the vendor’s right to cancel will be subject to ss 28-36 of the PLA.

[48]      In any event, regardless of whether the PLA applied, PRS was entitled to give notice to cancel the SPA and has established that CBI has no defence to an order for cancellation. The SPA was clearly at an end. In my view, this is a case of cancellation, not frustration, as Mr Grove suggested. This is not a case where there is no default by either party, nor is there some supervening event which has frustrated the parties’ object.

[49]      In accordance with s 37 of the Contract and Commercial Law Act 2017 (CCLA), the payment of the purchase price was clearly an essential term of the SPA, and CBI’s breach of that essential term substantially reduced the benefit of the contract to PRS, as the cancelling party. As Mr Lawrence submitted, the failure to pay the purchase price, in fact, eliminated all benefit of the SPA to PRS; and the non-payment of rent by CBI resulted in the landlord’s re-entry, and loss of the premises from the pool of assets that would have otherwise been available to the liquidators of PRS.

[50]      I also find that the SPA was cancelled in accordance with the provisions of the CCLA.

(c)   Can the Court make an order for delivery of the chattels when no such order is sought in the statement of claim, but is claimed in the amended interlocutory application for summary judgment?

[51]Rule 5.31 of the HCR provides:

Specifying relief sought

(1)        The relief claimed must be stated specifically, either by itself or in the alternative.

(2)          Despite subclause (1), it is not necessary to ask for general or other relief but the court may, if it thinks just, grant any other relief to which the plaintiff is entitled, even though that relief has not been specifically claimed and there is no claim for general or other relief.

[52]      Essentially, there is a two-stage test to determine whether the Court should exercise its discretion under this rule. The first inquiry is whether the plaintiff is “entitled” to the relief sought on the facts. If that is the case, then the second inquiry is whether it is “just” for the Court to do so.5

[53]      The question of the delivery of the chattels was squarely at issue in the argument before me at the hearing. CBI was on notice that the delivery of the chattels was at issue and specifically addressed it in its submissions and amended notice of opposition. In the circumstances, there is no real prejudice or breach of natural justice in allowing, as a matter of discretion, PRS to now claim an order for delivery of the chattels.

[54]      I further note that the issue of delivery of the chattels did not arise until March/April this year (after the summary judgment proceedings had been filed), when CBI removed them from the premises.

[55]      I find that PRS is entitled to the relief sought, namely, an order for the delivery of the chattels (subject to the defence of insolvency set-off addressed below). The discretion under r 5.31 is to be exercised in PRS’ favour.

[56]      I further note that the exercise of discretion arises in a context where the only assets of any substance (namely, the chattels) appear to have a modest value and the liquidators of PRS are trying to act in the most cost-efficient way, with a view to protecting the interests of the creditors. There is a clear need for some finality and resolution.

[57]      I acknowledge that there are several procedural irregularities associated with these proceedings. They are regrettable and, in another context, possibly fatal to a plaintiff’s claim. However, in viewing the matters in this case overall, I find that the combination of the irregularities is not disqualifying. The defendant, CBI, can point to no real prejudice.

5      McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR5.31.04].

(d)   Has PRS, as plaintiff, established that CBI has no defence of insolvency set-off under s 310 of the 1993 Act in relation to the chattels?

[58]      CBI contends that, since PRS went into liquidation in September 2018, it was entitled to apply (as against the purchase price) a statutory set-off pursuant to s 310 of the 1993 Act. CBI claims this is because the debt allegedly owed to PRS (the purchase monies) and the losses caused to CBI (from alleged misrepresentation, breach of warranty, and the like) flow from the same transaction – namely, PRS’ sale of its business to CBI.

[59]      As noted, the focus of the statutory set-off claim is on the chattels, currently held by CBI. The factual circumstances pertaining to the chattels are important in determining whether the statutory set-off claimed is plausible and/or capable of meeting the threshold of a reasonably arguable defence.

[60]      CBI took possession of the café premises in late June 2018 and made use of the chattels in the operation of the Business. As Mr Denize of CBI acknowledged, CBI purchased the Business knowing it was “in severe financial trouble”. CBI vacated the premises and shut the Business down in March 2020. At no time did CBI pay any of the purchase price, yet, it uplifted the chattels sometime in late March or April 2020. Mr Denize described the chattels as the “only salvageable assets”. PRS, as the plaintiff, has of course claimed that CBI is indebted to it in the sum of $550,000 plus interest (though does not seek that amount be paid to it, only that the SPA and possession be cancelled on the grounds of non-payment).

[61]      PRS contends that title to the chattels never passed to CBI. PRS relies upon subcl (d) of the second variation to the agreement, dated 29 June 2018, which states:

The chattels and other assets owned by Platinum Retail Services Ltd are to be transferred to CBI Company Ltd on the settlement (subject to the GSA, as defined below).

[62]      The GSA was defined under subcl (g) of the second variation, and required CBI to provide PRS with a general security over all of CBI’s present and after-acquired property.

[63]      On this basis, PRS submits that the transfer of title was contingent on CBI granting a GSA. However, because CBI never granted PRS a GSA, PRS says that title never transferred.

[64]      In its response submissions, dated 8 July 2020, CBI contends that because the transfer of title was expressed to be subject to the granting of the security interests, that is to be treated as title having passed, subject to the plaintiff’s right to have a security interest (with that right having been extinguished through the s 310 set-off arising).

[65]      Generally, set-off under s 310 is available if all the following elements can be satisfied:6

(a)The claims of the creditor against the insolvent company must be provable in the liquidation;

(b)each of the claims must have been incurred before the commencement of the liquidation;

(c)each of the claims must be reduceable to a money claim, only then can an account be taken;

(d)there must be mutuality between the parties so that in relation to the claim that is sought to be set off there are only two parties (both debtor and creditor of the other), and that each claimant is acting in its own right – that is, they are both beneficial owners of the debt or other claim and are personally liable;

(e)none of the claims in which the set-off is sought to be exercised have been incurred during the prescribed period (s 310(2)).

6      Company Law (online looseleaf ed, Thompson Reuters) at [CA310.03].

[66]      Set-off under s 310 (otherwise known as insolvency set-off) is mandatory and self-executing. Insolvency set-off operates automatically to extinguish credits, debts, and dealings that fall within its scope.7

[67]      I accept it is arguable that CBI could (if a debt is proven) have a claim in liquidation; and that the claim, arguably, occurred prior to liquidation.

[68]      However, in my view, there is no tenable basis for concluding that elements (c) and (d) above have been satisfied. First, it is difficult to ascertain where the claimed debt (whatever the amount) has actually arisen from. CBI never paid any part of the purchase price for the business and/or the chattels. There is thus no purchase price against which to claim the set-off. While I accept it is arguable that CBI did not get what it bargained for, it is quite another thing to claim that it owes no part of the purchase price at all, and in addition to that, can claim that when proper account is taken of the mutual credits and debts, PRS owes it money.

[69]      No attempt has been made by CBI to reduce its claim to a money claim for the Court to conclude there is an arguable net balance that could then be calculated in accordance with the requirements of s 310. There is also no documentary evidence to support the bare assertion that CBI paid a deposit of $50,000. In my view, it is implausible that CBI is not indebted at all to PRS, and that PRS (as a matter of net balance) is indebted to CBI in a sum equivalent to, or greater than, the value of the chattels. CBI purchased the Business knowing it was in severe financial difficulty and now seeks to walk away, free of any legal obligation to pay any of the purchase price, while also retaining the chattels, being the only asset of value. CBI had of course previously agreed to settle in the sum of $150,000.

[70]      In substance, what CBI has done here is take the chattels (the title of which, in my view, remains with PRS) on the grounds that it did not get what it bargained for, and it now wrongly relies on s 310 as a justification for its improper actions. It does so without making any credible attempt to quantify what the net balance might be. Moreover, I do not see how the provisions of the Personal Property and Securities Act 1999 can assist CBI.

7      Finnigan v He HC Auckland, CIV-2009-404-753, Duffy J, 1 December 2009.

[71]      I find that the plaintiff, PRS, has established that CBI has no defence based on a set-off under s 310 of the 1993 Act, and otherwise has no other defence to the order that CBI deliver the chattels to PRS.

Result

[72]      I grant the orders sought at paras 1(b), (c) and (d) of the plaintiff’s amended interlocutory application for summary judgment, dated 12 May 2020.

[73]      I declare that the sale and purchase agreement, inclusive of its variations between PRS and CBI, was cancelled on 12 May 2020.

[74]I order that CBI is to deliver to PRS all chattels it removed from the premises.

[75]      As to costs, I am of the preliminary view that, having succeeded, PRS is entitled to costs on a 2B basis plus disbursements. If costs cannot be agreed, then memoranda (no more than three pages) are to be filed and served within 14 days.

Associate Judge P J Andrew