Robb v Savage HC Invercargill CP17/01

[2001] NZHC 1171

IN THE HIGH COURT OF NEW ZEALAND
INVERCARGILL REGISTRY CP17/01

BETWEEN JOANNE SALLY ROBB AND ORS AS TRUSTEES OF THE ADVANCE TRUST
First Plaintiff

AND JOANNE SALLY ROBB AND ANOR AS TRUSTEES OF THE ARROW TRUST
Second Plaintiff

AND ARTHUR WATSON SAVAGE
First Defendant

AND JEFFREY BERNARD WALKER
Second Defendant

AND JEFFREY BERNARD WALKER AND ANOR
Third Defendant

Hearing: 19 November 2001

Appearances: RGR Eagles for Plaintiffs
M A Gilbert for First Defendant
R S Cunliffe for Second and Third Defendants

Judgment: 30 November 2001

JUDGMENT OF MASTER VENNING On Application For Summary Judgment

Solicitors:
Eagles Eagles Dawkins & Redpath, Invercargill for Plaintiffs
Chapman Tripp Sheffield Young, Auckland for First Defendant
Buddle Findlay, Christchurch for Second and Third Defendants

APPLICATION

[1] The Plaintiffs seek summary judgment for liability against the Defendants. The Second Defendant, Mr Walker, is a solicitor. The Plaintiffs’ claims against the Defendants arise out of Mr Walker’s dealings with a former client, Mr Wayne Woodward. Mr Woodward died 20 July 2000.

PARTIES

[2] Mr Walker was a partner in the First Defendant firm of Arthur Watson Savage from November 1984 until 30 April 1999. For the months of May and June 1999 he was paid a salary by the First Defendant. He practised on his own account from 1 July 1999. Mr Walker was joined in partnership by Ms Restieaux, the second named Third Defendant from 1 January 2000. The Plaintiffs are the trustees of The Advance Trust and The Arrow Trust.

[3] The Advance Trust was established in 1993 by Mr Walker on Mr Woodward’s instructions. The initial trustees were Mr Woodward and Ms Robb until either of their deaths, upon which event Mr Walker had the power to appoint. On Mr Woodward’s death Mr Walker appointed Leslie and Paul Woodward (Mr Woodward’s father and brother respectively), at Ms Robb’s request. The initial beneficiaries of The Advance Trust were Mr Woodward, the four children of his first marriage and any children that Mr Woodward and Ms Robb may have had. In fact they had none. Ms Robb became a beneficiary by an amendment to the trust deed in November 1999. The trust purchased a number of properties in and around Invercargill. It also purchased the client base of W L Woodward & Associates Ltd.

[4] The Arrow Trust was established on 29 January 1996. The trustees of that trust are Ms Robb and Mr Alsweiler, her brother in law. The Arrow Trust purchased a residential property at Arrowtown. The beneficiaries of The Arrow Trust are Ms Robb, the children of Mr Woodward, the children of Gillian Anne Robb, and any children of Mr Woodward and Ms Robb, together with any children or great-grandchildren of those parties.

BACKGROUND

[5] Mr Woodward commenced living with Ms Joanne Robb in late 1990. At that time he operated a company, W L Woodward & Associates Ltd. Mr Woodward was a director and shareholder of the company. Mr Woodward used the vehicle of the company to operate an insurance agency. The company employed Mr Woodward to sell insurance services.

[6] The insurance agency was successful. Mr Woodward established The Advance Trust and, later, The Arrow Trust.

[7] Mr Woodward was diagnosed with cancer in 1995.

[8] Mr Woodward made a will on 19 March 1996. Pursuant to that will he gave the trustees of The Advance Trust a cash sum equal to the amount of any indebtedness owing by the trust to him at the date of his death. In addition, he gave the residue of his estate, after payment of expenses, taxes and debt, to The Arrow Trust.

[9] Ms Robb and Mr Woodward went through a ceremony of marriage on 27 July 1996 and were formally married on 4 September 1996. The marriage revoked the will made on 19 March 1996.

[10] Mr Woodward’s cancer worsened.

[11] Ms Robb and Mr Woodward attended Mr Walker’s offices on a number of occasions to deal with the trust and personal issues. Mr Walker’s file note of an attendance on 22 July 1999 records:

“Advance Trust Management

We are to draft a management agreement between the trust and Joanne to take effect on Wayne’s death. This will appoint Joanne manager of the trust and set her remuneration as being the net income of the trust. That same provision has got to be put into Wayne’s will.

Wayne’s Will

It needs to make the provision above for the management of the Advance Trust by Joanne.

1. It needs to forgive any amount owed to Wayne by the Advance Trust.

2. It needs to provide that the children are paid out their loan account and are lent the difference between the balance of their loan account

. . .”

[12] On the same day, 22 July 1999, Ms Robb signed a will that Mr Walker had prepared for her. The will referred to and recorded Mr Woodward as her husband.

[13] Mr Woodward was admitted to hospital on 9 June 2000 and died 20 June 2000 without making another will.

[14] The Advance Trust owes Mr Woodward’s estate $156,563.18. The Arrow Trust owes the estate $104,173.99.

THE PLAINTIFFS’ CLAIM

[15] In these proceedings the Plaintiffs allege that the Defendants all owed them a duty of care and were each negligent in a variety of ways, including:

• Overlooking the fact that Mr Woodward and Ms Robb were engaged to be married (First Defendant);

• Failing to inquire as to the state of the relationship between them and thereafter failing to advise Mr Woodward and the Plaintiffs that marriage revoked a will (First Defendant);

• After 3 September 1996 failing to advise Mr Woodward that marriage revoked a will (First Defendant);

• Continuing to act for Mr Woodward in 1999 having knowledge of his affairs and failing to advise Mr Woodward and the Plaintiffs that marriage revoked the previous will, that a fresh will could have been made after marriage which would have been effective upon death (Second Defendant);

• Failing to advise Mr Woodward and the Plaintiffs that marriage revoked the will of 19 March 1996 (Third Defendant);

• Failing to advise Mr Woodward to make a fresh will (Third Defendant);

• Failing to ensure the Plaintiffs were relieved of any liability to Mr Woodward in the event of his death (Third Defendant).

[16] The Plaintiffs seek judgment for the sums that each trust owes the estate.

GROUNDS OF OPPOSITION

[17] The Defendants oppose the application for summary judgment on the grounds:

• The summary judgment procedure is not appropriate to deal with the mixed issues of fact and law that relate to these allegations of professional negligence;

• The Defendants did not owe a duty of care to the First and Second Plaintiffs as alleged;

• The Defendants were not negligent; and

• Even if the duties were owed and breached, the Defendants’ negligence was not causative of any loss.

DUTY OF CARE

[18] The first issue is whether the Plaintiffs can satisfy the Court that the Defendants, or any of them, owed the Plaintiffs a duty of care in the circumstances of this case.

[19] Mr Eagles submitted that the Court should consider the degree of proximity or relationship between the Defendants and the Plaintiffs, and then whether there were policy considerations which might negative or restrict a duty in this case. He submitted that the degree of proximity in this case was very close in that both The Advance and The Arrow Trusts had been created by Mr Woodward, the person giving Mr Walker the instructions. Mr Walker had formed the trusts and was aware of Mr Woodward’s intention as to the disposition of his assets. Mr Eagles then submitted that there were no policy considerations which might tend to negative or restrict the duty. He referred to and relied upon the decisions of Gartside v Sheffield Young & Ellis [1983] NZLR 37, Hill v Van Erp (1997) 188 CLR 159, and White v Jones [1995] 1 All ER 691.

[20] In Gartside’s case the testatrix, aged 89, instructed the defendant firm that she wished to make a new will. Three days later a member of the firm visited her and took instructions to draw up the will. The instructions were to leave the residue of her estate to the plaintiff. The testatrix died seven days later, before any will had been presented to her for execution. Probate was granted of a previous will which named another person as residuary beneficiary. The plaintiff sued the defendant firm. The Court of Appeal held that in the circumstances of the case a duty of care was owed. Richardson J said:

“The first question then is whether there was a sufficient degree of proximity to give rise to the duty of care relied on by the plaintiff. There are three considerations which seem to me to require particular examination. The first is that a solicitor who accepts instructions from a client to draw a will which is intended to benefit a designated third party must appreciate or be taken to appreciate that a careless failure on his part to have the will drawn and presented for execution may deprive the third party of that intended benefit. Particularly is this so where the age or health or other circumstances affecting the client dictate urgency. The whole purpose of instructing the solicitor is to provide effectively for the disposition of the client’s estate on death and in accordance with his testamentary wishes. The client’s intention to confer benefits in that way could not be more evident and if his expectations in that regard are defeated the intended beneficiary suffers the loss of that benefit. In those circumstances the designated beneficiary under the proposed will is so obviously and foreseeably likely to be closely and directly and adversely affected by any carelessness on the part of the solicitor in that regard that the latter should have his interests in mind.”

P46-47

The Court of Appeal held the solicitor owed a duty of care to the disappointed beneficiaries.

[21] In the Van Erp case a solicitor had prepared a will for a client upon the client’s instructions. The will was to provide for a friend of the client. When the will was being executed the solicitor asked the husband of the intended beneficiary to attest it. That had the effect the disposition was null and void. The intended beneficiary sued. The High Court of Australia held that in the circumstances the solicitor owed a duty of care to the intended beneficiary. The head note records that Gummow J held that the factors that give rise to a duty to an intended beneficiary under a will are:

• The retainer to enhance the economic position of the intended beneficiary;

• The control exercised by the solicitor over the realisation of the testamentary dispositions;

• The closeness of the solicitor’s act and its direct legal effect, being the failure of the gifts; and

• Public interest in promoting professional confidence and the avoidance of disappointment of testators and beneficiaries by negligent actions of solicitors.

The duty of care was held to exist.

[22] In White v Jones the testator made a will cutting the plaintiffs out of his estate in March 1986. In June of the same year he reconciled with them and instructed his solicitors to prepare a new will to include gifts of £9,000 each to the plaintiffs. The solicitors received the letter of instructions on 17 July but failed to have the fresh will prepared and executed prior to the testator’s death on 14 September.

[23] The House of Lords held by a majority of three to two that a duty of care existed. Lord Browne-Wilkinson considered the matter in the following way:

“Has the intended beneficiary a cause of action based on breach of a duty of care owed by the solicitor to the beneficiary? The answer to that question is dependent upon whether there is a special relationship between the solicitor and the intended beneficiary to which the law attaches a duty of care. In my judgment the case does not fall within either of the two categories of special relationships so far recognised. There is no fiduciary duty owed by the solicitor to the intended beneficiary. Although the solicitor has assumed to act in a matter closely touching the economic well-being of the intended beneficiary, the intended beneficiary will often be ignorant of that fact and cannot therefore have relied upon the solicitor.

. . .

The solicitor who accepts instructions to draw a will knows that the future economic welfare of the intended beneficiary is dependent upon his careful execution of the task. It is true that the intended beneficiary (being ignorant of the instructions) may not rely on the particular solicitor’s actions. But, . . . in the case of a duty of care flowing from a fiduciary relationship liability is not dependent upon actual reliance by the plaintiff on the defendant’s actions but on the fact that, as the fiduciary is well aware, the plaintiff’s economic well-being is dependent upon the proper discharge by the fiduciary of his duty. Second, the solicitor by accepting the instructions has entered upon, and therefore assumed responsibility for, the task of procuring the execution of a skilfully drawn will knowing that the beneficiary is wholly dependent upon his carefully carrying out his function. That assumption of responsibility for the task is a feature of both the two categories of special relationship so far identified in the authorities.”

P 717-718

[24] The common thread running through all the above authorities is that the expected beneficiary’s loss was caused by the failure of the solicitors to implement their client’s instructions. In each case there was a specific instruction by the client to the solicitors to take certain steps which would have been for the benefit of the intended beneficiaries. The solicitor had accepted responsibility to implement the instructions, but had either failed to do so or had been negligent in the performance of the instructions.

[25] The House of Lords reiterated in White v Jones (supra) that the general rule is well established that a solicitor acting on behalf of a client owes a duty of care only to his client. When a solicitor is performing his duties to his client he will generally owe no duty of care to third parties: per Lord Goff of Chieveley at 698-699. Reference can also be made to Allied Finance & Investments Ltd v Haddow & Co [1983] NZLR 22 and Connell v Odlum [1993] 2 NZLR 257.

[26] In each of the disappointed beneficiary cases referred to above the solicitor had been given express instructions by the deceased to benefit the plaintiffs by testamentary disposition. The duty of care found was based upon the existing duty to give effect to the client’s (the deceased’s) instructions which coincidentally had the effect of benefiting the beneficiary. It was particularly significant in each of the cases referred to above that there was no potential for conflict between the client’s interest and the intended beneficiary’s interest. In short, it was by giving effect to the client’s instructions that the intended beneficiary was benefited.

[27] As noted by Cooke J in Gartside v Sheffield Young & Ellis (supra):

“There is no suggestion of a conflict of interest between testator and beneficiary. The duty of reasonable expedition in all the circumstances would be identical from the points of view of both testator and beneficiary. That is important, as it is difficult indeed to suppose that a solicitor could ever owe to an intended beneficiary a duty which in any way militated against his responsibility to his client.”

P 43

That is the common theme that runs through the decisions in this area.

[28] The duty alleged in the present case is, however, of a different nature. Specifically the First Plaintiffs say that the First Defendant firm owed a duty to them in rendering advice to the deceased about his will of 19 March 1996 as a party who could be foreseeably affected by any disposition which the deceased made or refrained from making.

[29] The Second Plaintiffs say that the First Defendant firm owed them a duty in composing the will in March 1996 as persons likely to be affected by any disposition which the deceased made or refrained from making, and also an ongoing duty of care to alert the deceased to the fact that the will not made in contemplation of marriage would be revoked by marriage.

[30] Both Plaintiffs allege that the Second Defendant, Mr Walker, had a duty to alert the deceased and the Plaintiffs to the fact that the marriage of the deceased and Ms Robb revoked the deceased’s previous will.

[31] Both Plaintiffs also allege that the Third Defendants had an ongoing duty of care to alert the deceased and the Plaintiffs to the fact that marriage had revoked the will.

[32] As there are allegations against the First Defendant concerning the March 1996 will, it must be noted that the will of 19 March 1996 was a valid and effective will, and remained so until revoked by Mr Woodward’s marriage to Ms Robb on 4 September 1996. The will provided for the benefits that the deceased wish to provide in favour of the Plaintiffs.

[33] To that extent this case is distinguishable from the disappointed beneficiary cases where either the solicitors had failed to prepare the will at all or, because of invalidity in execution, the will had no effect from the outset.

[34] Whether a solicitor owes a duty to advise a client of the potential effect of marriage on a will or not, will depend on the circumstances the solicitor faces in each case. If the solicitor is aware the client is to be married shortly, and the will is made in contemplation of marriage, then it is not difficult to find the solicitor will owe a duty to the client to advise him or her that marriage will revoke the will, unless it is recorded as made in contemplation of marriage, and may be in breach of that duty if he or she fails to do so. In those circumstances it may also be a duty will be owed to the disappointed beneficiary if the solicitor fails to so advise his or her client testator.

[35] In the present case there is a factual dispute about the extent of Mr Walker’s knowledge concerning the deceased’s and Ms Robb’s wedding plans. There is a dispute about when Mr Walker became aware of their engagement. However, of more significance is his knowledge of their wedding plans. The evidence is inconclusive on this point.

[36] Ms Robb’s evidence is that:

“24. When instructions were being taken by Mr Walker for Wayne’s Will in March 1996, I cannot remember any enquiry as to our marital status. I am quite certain that Mr Walker knew that we were engaged. . . .”

[37] And later:

“. . . At the time when the Will was made for Wayne on 19 March 1996 a date had already been set for the marriage i.e. 27 July 1996.

26. A wedding ceremony took place on 27 July 1996 but, just beforehand, Wayne and I found that the marriage certificate had not been obtained. We went ahead with the ceremony anyway, but a re-marriage had to take place and did take place on 4 September 1996 at Invercargill. Mr Walker knew that we were getting married because I remember a discussion in his office when Wayne told him that he (Wayne) had Vaughan Fisher (a local fisherman) getting him crayfish and oysters for the wedding. They were both laughing at the extravagance. From 27 July 1996 I always wore a wedding ring alongside my engagement ring. The rings never came off.”

[38] And later:

“27. I believe that in March 1996 Mr Walker was very well aware of the close association between Wayne and me. . . .”

[39] Even on Ms Robb’s evidence there is no specific allegation that as at March 1996, when the instructions for the will were given and the will completed, Mr Walker knew the parties were definitely going to be married and that a date had been fixed the wedding.

[40] Mr Walker’s evidence is:

“28. . . . At no time did either Wayne Woodward or Joanne Robb advise me that they were to get married. On the contrary, I had formed the view that they were not going to get married from comments made to me by Wayne Woodward.”

[41] And later:

“35. I was not aware and I was not told by either Wayne Woodward or Joanne Robb that a date had been set for their marriage. For the whole time I had known them they were a de facto couple. There was nothing said to me by either of them which suggested a forthcoming change to their status.

36. I do not recall Wayne Woodward telling me that he was Vaughan Fisher to get him crayfish and oysters for his wedding. I did know that he was friendly with Vaughan Fisher and on a number of different occasions he had said that he had got crayfish and other seafood from him. . . .”

[42] At best from the Plaintiffs’ point of view, the issue is in dispute. The fact that Mr Walker knew the parties were engaged is not particularly significant. The parties had become engaged in 1991, but had still not married by March 1996. Further evidence is required to clarify this issue.

[43] The other allegations of a duty are all to the effect that the Defendants had an ongoing duty to the Plaintiffs to alert Mr Woodward to the fact that marriage had revoked the previous will. There is an allegation that the Defendants were under a continuing duty to alert Mr Woodward to that fact. The duty asserted, namely that of an ongoing duty, is of a quite different nature to that found in the disappointed beneficiary cases referred to above.

[44] In Clarke v Bruce Lance & Co [1988] 1 All ER 364 the Court of Appeal rejected an allegation that there could be such an ongoing duty to a beneficiary. In that case the testator executed a will in 1973. The will was prepared and drawn by the defendant solicitors. It provided for the plaintiff to be devisee of a service station owned by the testator. Some months later the testator leased the service station to a third party for 21 years. In 1978 the solicitors were retained by the testator to act on his behalf in drawing up a variation to the lease to include an option to purchase in favour of the lessee at a fixed price. The testator died in 1981. By that time the value of the service station had increased substantially. The plaintiff brought an action against the solicitors claiming damages for negligence, contending that the solicitors had breached the duty they owed to the testator, and to the plaintiff beneficiary knowing that his interest would be affected, and to advise the testator that the fixed price option was an uncommercial transaction.

[45] Balcombe LJ, delivering the decision of the Court of Appeal, held that amongst his reasons for declining to find that a duty existed:

“(3) If the defendants were under a liability to a potential beneficiary of the property, it cannot have been to the plaintiff alone. As a matter of logic, the plaintiff, at the time of the grant of the option, was in no different a position vis-a-vis the defendants than anyone to whom the testator might have given the property during his lifetime, or to whom it might pass under his will or intestacy. So if the defendants owed a duty to anyone other than their client, the testator, it must have been to the whole of this indeterminate class of potential donees or beneficiaries. It would indeed have exposed them to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.”

P370

Balcombe LJ rejected the submission there could be such an ongoing duty to the beneficiaries.

[46] There are other features of this particular case that count against the imposition of a duty of care.

[47] The Plaintiffs allege an ongoing duty of care to all Plaintiffs as trustees of The Advance and The Arrow trusts. However, there is, at the least, potential for conflict between the interests of the Plaintiffs, quite apart from the potential for conflict between the interests of the Plaintiffs and Mr Woodward, the testator. The will executed in accordance with Mr Woodward’s wishes records that The Advance Trust is to be paid a cash sum equal to the amount of any indebtedness which happened to be owing as at the date of his death. The provision for The Arrow Trust is, however, for payment of the balance of the residue of the estate. As the financial position of Mr Woodward fluctuated and his relationship and dealings with the trusts altered over time, there existed the potential for significant conflicts between the interests of the trustees of The Advance Trust and the trustees of The Arrow Trust. It is of note that as at 31 March 1996, shortly after the will was executed, The Advance Trust owed Mr Woodward $3,514 and owed W L Woodward & Associates Ltd $37,319. By 31 March 1997 the position was significantly different. By that date the trust owed Mr Woodward $125,647 and W L Woodward & Associates Ltd $40,677. By 31 March 1998 the position had changed again. The amount owing to Mr Woodward had increased again to $136,499. Only $12,700 was owed to W L Woodward & Associates. The amount owing to Mr Woodward was reduced slightly by 31 March 1999 to $129,955. By that date nothing was left owing to W L Woodward & Associates Ltd advance account.

[48] To the extent that the debt The Advance Trust owed Mr Woodward (but was to be written off) increased, it reduced the residue available to The Arrow Trust, hence the obvious conflict of interest between the two Plaintiffs.

[49] In Knox v Till [1999] 2 NZLR 753 the potential for conflict between the appellant beneficiaries and intended beneficiaries was a factor that led Henry J to distinguish that case from the disappointed beneficiary cases such as Gartside (supra). The point applies with equal force here.

[50] The issue of conflict was also addressed by Balcombe LJ in Clarke v Bruce Lance & Co (supra) case as follows:

“Far from the interests of the testator and the plaintiff marching hand in hand, there was an obvious conflict of interest. Supposing the defendants had warned the testator that the option he wished to grant Hoare was improvident from the point of view of the persons who might ultimately become entitled to the property after the testator’s death, then in the context of the fact that the option formed but one term of a larger transaction (the deed of variation) into which the testator wished to enter, he might well have instructed the defendants to go ahead in any event. But if they owed a duty of care to the plaintiff, they would have been bound to try and dissuade him: an intolerable position for any solicitor.”

P370

[51] The logical conclusion to the Plaintiffs’ submissions in this case is that the Defendant solicitors owed them an ongoing duty of care to advise the Defendants’ client, Mr Woodward, to make a new will after the marriage on 4 September 1996 to benefit the Plaintiffs. That is to take the law some distance from where I understand it to be at present.

[52] The ongoing nature of obligation alleged is also some considerable distance from another significant factor common to all the disappointed beneficiary cases. In those cases the solicitor assumed a responsibility towards his or her clients which was coincidental to the duty to the client. The two, the duty and the assumption of responsibility, go hand in hand. The duty arises because the solicitor had undertaken or assumed a responsibility to do something for the client. Conceptually an ongoing liability is something quite different and distinct.

[53] Before leaving the matter I should refer to a final point made by counsel for the Second and Third Defendants. The claims are brought by the trustees of The Advance and The Arrow trusts. The ultimate beneficiaries if the claims are successful are, however, the beneficiaries of the trusts. The reality of the beneficiaries’ interests must be recognised. Some at least of the beneficiaries will take under the provisions of the Administration Act, namely Ms Robb as the deceased’s wife and his children. To the extent the Plaintiffs were to recover against the Defendants in this case those same parties would receive compensation in these proceedings. One of the reasons for finding a duty in the will cases was to avoid the situation where there would be no remedy for the loss caused by a solicitor’s negligence and the beneficiary missed out entirely. That consideration does not apply with the same force here.

[54] Before leaving the issue, I also record that I do not overlook the file note of 22 July 1999 referred to above. Ms Robb’s evidence is that the file note “appears to contemplate a new will for Wayne”. She does not expressly say that there were definite instructions to prepare a fresh will. Mr Walker’s evidence is that while a fresh will was contemplated, the deceased subsequently decided to include Mrs Robb as a beneficiary in The Advance Trust and there was no longer any need for changes to the deceased’s will. If that is correct, then this is not a case where instructions to make a new will were not implemented.

[55] For all of the above reasons I find that the Defendants have arguable defences to the application for summary judgment. It must be declined.

[56] In the circumstances it is strictly unnecessary for me to consider the other grounds raised by the Defendants’ counsel in argument. However, I observe that in any event, given the complex background and the factual disputes of this case, it is unsuitable for summary judgment. A careful examination of and findings on material facts will be required to enable the Court to make rulings on what may be an important development of the law in this area. The issue of loss and damages should also be addressed at the same time. The observations of McGechan J in Economy Services Ltd v Smith (1989) 2 PRNZ 657 as to summary judgment in professional negligence cases are apposite:

“Given the usual nature of negligence cases, and a fortiori professional negligence cases, in reality the required degree of satisfaction as to absence of defence is not easily achievable. Frequently, there will be differences over matters of primary fact with decisions required upon credibility. Any motor vehicle collision case furnishes an example. . . . In the particular professional negligence area, particularly if matters actually reach the litigation stage, there may well be a sharp conflict as to both the events which occurred and the professional standards involved. . . .”

P660

The learned Judge’s comments are directly applicable to the present case.

ORDERS

[57] The Plaintiffs’ application for summary judgment as to liability against the Defendants is declined.

[58] The Plaintiffs are to file and serve any amended statements of claim by 21 December 2001.

[59] The Defendants are to file and serve any amended statements of defence by 31 January 2002.

[60] Verified lists of documents are to be filed and served by 28 February 2002.

REVIEW

[61] The proceedings are to be reviewed before me at 9.00am on 12 March 2002.

COSTS

[62] Costs are reserved. My present inclination would be to fix costs on a 2B basis but reserve liability to trial, but if counsel wish to make direct submissions as to the issue of costs they may do so by memorandum.