Rollex Group (2010) Limited v Chaffers Group Limited

[2012] NZHC 2821

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-166 [2012] NZHC 2821

BETWEEN  ROLLEX GROUP (2010) LIMITED AND ROBERT JOHN LAURIE

Plaintiffs

ANDCHAFFERS GROUP LIMITED First Defendant

ANDJARED WILLIAM THOMPSON Second Defendant

ANDGAVIN RONALD SNOWSILL Third Defendant

ANDGLENN CHARLES TULLOCH Fourth Defendant

ANDCHAFFERS FINANCE LIMITED Fifth Defendant

Hearing:         25 October 2012 (Heard at Wellington)

Counsel:         I. Millard QC - Counsel for Plaintiffs

N. Burley - Counsel for Defendants

Judgment:      25 October 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Talbot Law, Solicitors, PO Box 24232, Abels, Hamilton

Johnston Lawrence, Lawyers, PO Box 1213, Wellington

ROLLEX GROUP (2010) LIMITED AND RJ LAURIE V CHAFFERS GROUP LIMITED & ORS HC WN CIV-2011-485-166 [25 October 2012]

Introduction

[1]      Before the Court are two applications.  The first application is one brought by the first and fourth defendant seeking an order for security for costs against the plaintiffs.  The second application is one brought by the fifth defendant also seeking an order for security for costs against the plaintiffs.

[2]      There is no application for security for costs before this Court by the second or third defendants.

[3]      Essentially, as I understand the submissions advanced to me by Mr Burley for the first, fourth and fifth defendants, security for costs in the order of approximately

$100,000.00 is sought against the plaintiffs here.  This amount is calculated broadly speaking on the basis of $50,000.00 sought for the first and fourth defendants and a further $50,000.00 sought for the fifth defendant.  It is clear that Mr Burley appears as counsel for all three defendants.   Notwithstanding this, he contends that two amounts by way of security should be ordered in the circumstances prevailing in this case.

[4]      As I understand his argument, there is a suggestion from Mr Burley that second counsel will be required to  appear on  behalf of these defendants at the hearing of this matter and this along with the other circumstances here justifies what is in effect a double award of security for costs.

[5]      Mr Millard QC for the plaintiffs confirms that the plaintiffs oppose any award of security for costs here but in particular Mr Millard QC states that if he is unsuccessful in persuading the Court to dismiss the present application, only one award of security for costs totalling something less than $50,000.00 should be entertained.

[6]      I make these comments simply by way of introductory remark to set the scene for the applications which are before the Court.

[7]      Before turning to consider those applications some brief background facts with respect to this proceeding are required.

Background

[8]     This proceeding came before this Court on 23 April 2012 on another interlocutory matter which was dealt with by His Honour Justice Kós.  In a judgment delivered by His Honour Justice Kós on 13 June 2012 he set out the background facts to this proceeding.

[9]      I now repeat those background facts but also interpolate certain additional matters which I believe are of some relevance to the issue before me.

[10]     In October 2009 the New Zealand business of the first defendant, Chaffers Group Limited was put up for sale.  It was formerly called Rolex Group Limited. As I  understand  the  position  the  first  defendant  sold  supermarket  and  industrial packaging equipment and material.  It had sole New Zealand distribution rights for certain lines of butchery and delicatessen equipment including film wrapping machines.   It also supplied film and had started to sell an electronic shelf price labelling system to supermarkets.

[11]     Glen Charles Tulloch (Mr Tulloch) the fourth defendant was a director of and majority  shareholder  in  the  first  defendant.     Jared  William  Thompson  (Mr Thompson) the second defendant, as I understand it, was its Managing Director. Gavin  Ronald  Snowsill  (Mr  Snowsill)  was  the  Technical  Director.     Messrs Thompson & Snowsill were minority shareholders in the first defendant.

[12]     In preparing the company’s business for sale, an information memorandum was prepared by or on behalf of the first defendant in October 2009.   Prospective purchasers were provided with this information memorandum.   The memorandum sets  out  the  first  defendant’s  2009   EBITDA  (earnings  before  interest,  tax, depreciation and abnormal items) as something over $930,000.00.  The asking price for the sale of the business was said to be three times that figure $2.81 million plus stock.  EBITDA for the first five months of the current financial year was said to be

$430,047.00.  Projected EBITDA for the 2010 year was given as $956,967.00.

[13]     The information memorandum also said that the first defendant company had sold  five Atmopacks.    This  was  a  new  poultry  packaging  method.    Foodstuffs Wellington was said to want to phase in packaging of all fresh chicken using Atmopacks.  The memorandum said that this would hugely increase the amount of film supplied by the first defendant’s business and it could add $400,000.00 to the bottom line on an annual basis.   If Foodstuffs Auckland and South Island came aboard too, it is said this could add another $1 million per annum.  However, it was noted this was “by no means a certainty”.

[14]     On 24 November 2009 a conditional agreement for sale and purchase of the first defendant’s business was entered into with a purchaser described as Robert John Laurie (Mr Laurie) the second-named plaintiff or his nominee.   This agreement culminated after a significant number of dealings between the respective parties and exchange of a range of information.  Mr Laurie nominated the first-named plaintiff Rollex Group (2010) Limited into the agreement as purchaser.  The agreed purchase price under the agreement was $3.63 million (plus GST).  Assets sold included all “computer equipment, software and laptop computers” owned by the vendor and its “business records”.  There was a ten year restraint of trade clause binding the vendor and its directors although Mr Tulloch alone was arguably affected by this, as the agreement appeared to expressly exempt Messrs Thompson & Snowsill.   This it seems was on the basis as outlined in the agreement itself that “at this stage the intention is for both .... to continue working in the business under the new ownership structure”.  It was agreed separately as I understand it that Mr Thompson was to be the General Manager and Mr Snowsill, Technical Manager.

[15]     The agreement for sale and purchase was conditional on due diligence being undertaken and this took place.  The agreement was then varied in about December

2009, the due diligence condition confirmed, with the sum payable for goodwill reduced   by   $880,000.00   and   the   estimated   amount   of   stock   increased   by

$450,000.00.

[16]     Settlement of the sale and purchase occurred on 29 January 2010.

[17]     In the meantime, the first defendant had it seems incorporated or acquired a shelf company, the fifth defendant Chaffers Finance Limited.  It used this company solely for the purpose of providing vendor finance for the transaction I understand in the region of $800,000.00 to the first-named plaintiff as purchaser of the business.  It is quite unclear, however, how the first defendant transferred to the fifth defendant this vendor finance debt owing to it for the sale of the business.

[18]     What does appear clear, however, is that the directors and shareholders of the fifth defendant company are identical to the directors and shareholders of the first defendant company.

[19]     After settlement of the sale and purchase it seems that Mr Thompson the second defendant and Mr Snowsill the third defendant resigned their positions and, as  I understand it, on 15 March 2010 they incorporated another company New Zealand Electronic Shelf  Labelling  Limited.   That  company,  it  seems  was  then granted exclusive New Zealand sales rights in the supermarket shelf labelling system that the first defendant had been selling (other than for Foodstuffs Wellington).

[20]     In their present claim, the plaintiffs plead various causes of action. They seek “an order that the sale be cancelled”, repayment of the purchase price and damages. The plaintiff’s claim is brought alleging breaches of contractual provisions, breach of covenant, claims under the Contractual Remedies Act 1979 and the Fair Trading Act

1986 and claims alleging fraud and deceit on the part of the defendants.

[21]     The plaintiffs allege that they were induced to enter into the agreement for sale and purchase and to confirm it as unconditional by misrepresentations on the part  of  the  defendants.    Allegations  are  made  that  the  EBITDA figures  in  the information memorandum were wrong when contrasted with internal documents of the first defendant.  It is also alleged there have been no sales of Atmopack in the current financial year, only four sales in the previous years and that serious problems Ingham  (a  purchaser  of  the  Atmopack  system)  were  having  with  it  were  not disclosed.

[22]     Other claims are advanced for breach of contract against the first defendant for deceit, as I understand it, against the second and third defendants, and for alleged breach of the Fair Trading Act 1986 against all defendants.

[23]     In response the defendants appear to deny misrepresentation and deception of any kind.  They contend that Mr Laurie is an experienced businessman and further that the information memorandum they provided contained disclaimers on which they may rely.  They argue that Mr Laurie undertook due diligence in accordance with the condition in the sale agreement and they say that as a result of that exercise the purchase price was negotiated down by the plaintiffs by over $400,000.00.

Counsels’ Argument and My Decision

[24]     As I have noted above the applications before me seek orders by way of security for costs against the plaintiffs.

[25]     Rule 5.45 High Court Rules governs the making of an order for security for costs. That rule provides where relevant:

5.45      Order for Security of Costs

(1)        Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

......

(b)       that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

.......

(2)        A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

[26]     The Court of Appeal provided a useful summary of the general approach to be applied in such applications in AS McLachlan Limited v MEL Network Limited (2002) 16 PRNZ 747 as follows:

13.       Rule 60(1)(b) High Court Rules (now r 5.45(1)(b) provides that where the Court is satisfied, on the application of the defendant, that there is reason to believe that the plaintiff will be unable to pay costs if unsuccessful, “the Court may if it thinks fit in all the circumstances order the giving of security for costs.” Whether or not to order security and, if so, the quantum are discretionary. The matters for the Judge if he or she thinks fit in all the circumstances.   The discretion is not to be fettered by constructing “principles” from the facts of previous cases.

14.       While collections of authorities such as that in the judgment of Master

Williams in Nikau Holdings Limited v Bank of New Zealand (1992) 5

PRNZ 430, can be of assistance, they cannot substitute for a careful assessment of the circumstances of the particular case.  It is not a matter of going through a check list of so called principles. That creates a risk that a factor accorded weight in a particular case will be given disproportionate weight, or even treated as a requirement for the making or refusing of an order, in quite different circumstances.

15.       The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs.   That must be taken as contemplating also that an  order for  substantial security may in  effect prevent the plaintiff from pursuing the claim.  An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success.   Access to the Courts for a genuine plaintiff is not lightly to be denied.

16.       Of course, the interests of defendants must also be weighed.  They must be protected against being drawn into unjustified litigation, particularly where it is overcomplicated and unnecessarily protracted.

Threshold Requirement - Impecuniosity of the Plaintiffs

[27]     As noted above, r 5.45 provides for a threshold requirement on applications of this type.  This is to the effect that, for the application to succeed, the plaintiffs generally must be shown to be impecunious.  In the absence of a concession as to impecuniosity  (which  is  the  case  here),  the  defendants  are  required  to  identify credible  evidence  of  surrounding  circumstances  from  which  may be  reasonably inferred that the plaintiff if unsuccessful will not be able to pay the defendants’ costs.

[28]     In  the  present  case  there  are  two  named  plaintiffs  Rollex  Group  (2010) Limited the purchaser company and Mr Laurie personally.

[29]     Before me, the principle thrust of the defendants’ arguments as I understand them. were directed at the solvency of the plaintiff company Rollex Group (2010) Limited.  On this, evidence was provided for the defendants, albeit rather late in the piece, by way of an affidavit of John Marshall Scutter (Mr Scutter) a chartered accountant in an affidavit dated 28 September 2012.   This is a detailed affidavit which, as I understand it, concludes that the plaintiff company is impecunious in the sense that it would be unable to meet costs awards in the vicinity of $100,000.00 -

$120,000.00 if unsuccessful in this litigation.

[30]     Mr  Millard  QC  counsel  for  the  plaintiff  took  strong  exception  to  this evidence.   He contended that it misused financial information about the plaintiff company which had been provided by the plaintiffs for other purposes.  As a result, Mr Millard urged upon me the argument that I should not consider this evidence of Mr Scutter and therefore there was little other material before the Court on which to make a finding of impecuniosity as against the first-named plaintiff company.

[31]     Detailed argument was advanced to me on this point both by Mr Millard QC and by Mr Burley in response.   This addressed issues  over whether or not the financial information provided by the plaintiff company (as a debtor) in terms of requirements included in finance documents held by the fifth defendant Chaffers Finance Limited (as lender) was able to be used for the present application.

[32]     I leave those arguments on one side however.  They are matters upon which I do not need to make a formal finding at this point for reasons which will become apparent later in this judgment.

[33]     It is sufficient to say for present purposes that I will simply assume here first, that  this  evidence  of  Mr  Scutter  can  be  accepted  and  taken  into  account  and secondly, that on its face it would seem to raise issues as to the solvency of the first- named plaintiff company.   In response to Mr Scutter’s affidavit, there has been nothing provided to the Court by the plaintiff company which could be considered definitive to support claims that it is unequivocally solvent here.  I will proceed on the basis that the plaintiff company is impecunious here.

[34]     I turn now to consider the question as to whether or not the second-named plaintiff Mr Laurie might also be considered to be impecunious.   He is after all a second-named plaintiff and if indeed I find that he is not impecunious then presumably the threshold test under r 5.45 will not be met and this application will fall away.

[35]     As to this aspect, the defendants have endeavoured to place before the Court certain “evidence” concerning Mr Laurie’s position.  This evidence so called merely seems to indicate that, despite extensive enquiries made on behalf of the defendants,

they have been unable to ascertain whether Mr Laurie may have any assets of his own.

[36]     Comments were made concerning a property owned by Mr Laurie it seems as trustee of a Family Trust and it is suggested that this property may well be heavily mortgaged  to  the  bank.    It  adds  little,  however,  to  questions  over  Mr  Laurie’s personal financial position.

[37]     Regarding this aspect, Mr Laurie has chosen to file and serve an affidavit for the present applications, again rather late in the piece, this affidavit being sworn on

16 October 2012.   In fairness to Mr Laurie the affidavit itself notes that it is in response to a very late affidavit received on behalf of the defendants on Friday, 12

October 2012 which was unexpected.

[38]     Nevertheless, Mr Laurie does address in some way his financial position in this affidavit. This is in a reference at para 3.11 of the affidavit where he states:

3.11     In relation to my own personal position, and leaving aside any interest in Rollex 2010, I have net assets of approximately $500,000.00.

[39]     This appears to be the only reference by Mr Laurie to his financial position. Given the fact that this affidavit was sworn only just over one week ago, it is not altogether surprising that there has been no further attempt by the defendants to file any response affidavit on this aspect.

[40]     What is clear to me is that the only evidence before the Court as to Mr

Laurie’s financial position is this two line sentence at para 3.11 of his 16 October

2012 affidavit.  He does not in this affidavit explain the extent of those assets, what they may comprise, what his liabilities may be and the like.

[41]     Before me Mr Millard QC as I understand it suggested that I should accept this sworn statement by Mr Laurie as unequivocal evidence of his financial position and his ability to meet any costs award in favour of the defendants here.  If I am to do so, then clearly with Mr Laure having net assets of some $500,000.00, it would

seem to me that he could not be considered to be impecunious here and could therefore meet any likely award of costs made in favour of the defendants for this proceeding which has now been set down for an 8 day trial.

[42]     On   this   particular   aspect   however   McGechan   on   Procedure   at   para

HR5.45.02 in addressing the threshold test states:

Although the Court will give due weight to a plaintiff ’s sworn assertion that it will be able to meet costs awarded, that will not be decisive, Nikau Holdings Limited v BNZ (1992) 5 PRNZ 430 at 436.

[43]     Before me counsel for the defendant also referred to the decisions in Arklow

Investments Limited v MacLean (1994) 8 PRNZ 188 and Davy v Howell (1993) 7

PRNZ 141.

[44]     In Davy v Howell, Barker J found that to resist an order for security for costs a plaintiff must describe his or her assets with itemised particularity so as to satisfy the onus that upon sale the assets would realise sufficient to provide a net surplus. Thus  if  this  had  been  done,  he  found  the  plaintiff  could  not  be  said  to  be impecunious.

[45]     In Arklow Investments Limited v MacLean, once the threshold test in r 5.45 is met (being “reason to believe” that an unsuccessful plaintiff would be unable to pay costs) presumably in a situation where the defendants can adduce some evidence to show  that  the plaintiff lacks  substance,  the plaintiff is  then  required  to  provide something which controverts that evidence before s/he is able to assert that s/he is not impecunious.

[46]     In the present case, the plaintiff Mr Laurie has done very little.  It is clear that in his affidavit he has confirmed a net asset position of $500,000.00 without further.

[47]     In light of the decisions referred to above, under the circumstances here, I am of the view that this is not sufficient however.  Mr Laurie in my view should clearly have gone further, given the circumstances prevailing in this case, and provided some evidence ideally independently verified of his financial position and his ability to meet a costs award if unsuccessful.

[48]     I  reach  this  conclusion  by  a  reasonably  fine  margin,  however,  I  remind myself that Mr Laurie has sworn an affidavit albeit rather late in the piece as to having $500,000.00 by way of net assets.  On its face this is not controverted in any way.

[49]     It must follow therefore, but again I repeat by only a rather slim margin, that the defendants have done sufficient here to establish the threshold impecuniosity requirement against Mr Laurie too.  Their allegations in this regard have not been adequately responded  to by the plaintiffs.    I reach  the conclusion  here,  for the purposes of r 5.45, that the plaintiff Mr Laurie is also impecunious.

[50]     I now turn to consider the discretion factors to be taken into account in terms of r 5.45.   In doing so it is useful here to consider first whether the plaintiffs’ impecuniosity in this case may have been caused by the actions of the defendants.

Plaintiffs’ Impecuniosity Caused by the Actions of the Defendants

[51]     The first-named plaintiff company was incorporated in 2010 specifically to take over and purchase the New Zealand business of the first defendant.   As I understand the position, it has simply carried on that business ever since.  The case of the plaintiffs here is that the first-named plaintiff paid much more than what the first defendant’s business was worth because of misrepresentations and misconduct on the part of the first defendant vendor and its agents and particularly the second and fourth defendants.

[52]     It is suggested for the plaintiffs that any impecuniosity or lack of means on the part of the plaintiff company is a direct result of the business being sold by the first defendant not being worth what it was represented to be worth and not as profitable as it had been represented to be.  In essence, in the words of Mr Millard QC the plaintiffs say to the defendants “You sold us a pup and we should not be required to put up security here because of actions you took which have caused our present financial predicament”.

[53]     In response, Mr Burley for the defendants argues that the impecuniosity of the plaintiffs has not been caused by the defendants.  As I understand his argument he makes much of the fact that the second-named plaintiff Mr Laurie is a highly experienced businessman who has been involved with the acquisition and operation of a range of different businesses over the years.  According to the defendants, Mr Laurie and his interests purchased this business with their eyes fully open and if there has been any down-side in the business since, that is solely as a result of their own actions.

[54]     Weighing up all these matters and considering the circumstances prevailing in this case, I find that if indeed the plaintiffs here may be considered impecunious (and I have found so earlier in this judgment by a relatively fine margin) there is a reasonable argument open to those plaintiffs that this impecuniosity has to a significant extent been caused by the actions of the defendants here.  Certainly, so far as the plaintiff company is concerned its sole reason for existence was to acquire this business from the first defendant.  If it is now seen as impecunious, this has resulted it seems to me in large measure from the defendants’ actions which are the subject of this litigation including the operation of the business from early 2010 and issues over its viability.  These must draw into consideration the claims over the original sale of the business.

[55]     I conclude therefore that in this case any impecuniosity of the plaintiffs must be seen as having arguably been caused in large measure by the defendants.  The Court should therefore exercise its discretion to refuse the order for security for costs sought by the defendants here.

[56]     That effectively disposes of this application.  For the sake of completeness, however, I will go on to briefly mention the other discretionary factors which come into play here.

[57]     The next factor to be considered in applications of this type relates to the merits of the claim by the plaintiffs against the defendants.  Here, before me perhaps not surprisingly both parties contend that they have a strong case against the other.

[58]     In  endeavouring  to  assess  the  merits  and  prospects  of  success  of  the plaintiff’s claim it must be acknowledged in cases of this type that there is a very real limit as to how far such an enquiry can be made particularly at this early stage of the proceeding – see Meates v Taylor (1992) 5 PRNZ 524 (CA).

[59]     In the present case the claims advanced by the plaintiff against the various defendants are complex, substantial and serious.   These complaints amongst other things allege fraud and deceit which are very serious allegations.

[60]     Clearly there are likely to  be substantial  evidential  disputes  between  the parties in this case on virtually all matters which have occurred in relation to the marketing, lead up to and sale of this business.   That said, and given my earlier conclusion I can say nothing more on this merits point.  No reasonable conclusion on the merits of this application can be reached here.

Undue delay in bringing the security for costs applications

[61]     The present proceeding was commenced by an initial statement of claim filed by the plaintiffs on 4 February 2011.   Finally an amended statement of claim was filed by the plaintiffs on 12 March 2012.

[62]     The initial February 2011 statement of claim was against the first, second and third defendants only.   The fourth and fifth defendants were added by way of the amended statement of claim.

[63]     In  September  2012  this  proceeding  was  set  down  for  an  8  day  trial commencing on 4 March 2013.   Subsequently on 28 September 2012 the present security for costs applications were filed.  Admittedly these applications had been foreshadowed by the defendants in an earlier directions conference held in July 2011.

[64]     Notwithstanding this,  the applications  themselves  were not filed until  28

September 2012.   As I understand the position, a late supplementary affidavit in support of these applications was also required on behalf of the defendants.

[65]     In Oceania Furniture Limited v Debonaire Products Limited HC, Wellington, CIV-2008-485-1701, 24 April 2009, His Honour Justice Clifford dealt with questions of delay in considering a security for costs application.  In that case, an application was made shortly before trial of the proceeding which was regarded in the circumstances as unacceptable.

[66]     Here, the applications before me were not made finally until September 2012. This is some six months before trial.   Certainly this proceeding has a long and complex history and it has involved the plaintiffs in considerable work and costs to date.

[67]     Although the delay in bringing this application on the part of the defendants is not quite in the same category as that  which occurred  in  Oceania  Furniture Limited nevertheless, there has been delay in bringing the application and in my view this should weigh to some extent against the making of any security for costs order which might otherwise be contemplated.

[68]     And, in The Complete Garden New Zealand Limited & Ors v Akitio Holdings Limited & Ors, HC, Napier, 15 December 2011, CIV-2009-441-887 unexplained delay in bringing a security for costs application by the defendants meant that it was brought only some four months before the allocated trial date.  In that case, the Court found that the reasons which the defendants purported to give for this delay were scarcely adequate and the fact of the delay seriously weighed against the making of an order for security for costs.

[69]     In the present case, although it is not necessary for me to make a finding on this aspect given the comments earlier in this judgment, I would tend to the view here that there has been delay on the part of the defendants and in particular the first defendant in bringing this application such that it should weigh to some extent against the making of any order for security.

[70]     Finally  in  considering  applications  such  as  the  present,  the  Court  in exercising its discretion is required to balance the interests of the plaintiff and the defendant – AS. McLachlan Limited v MEL Network Limited.

[71]     It is, of course, relevant if an order for substantial security made at this point in the current proceeding might be likely to result in the plaintiff being prevented from  pursuing  their  claims  against  their  defendants.    As  the  authorities  note, however, this must be balanced against the interests of the defendants who are to be protected against being drawn into unjustified litigation at considerable expense with little or no likelihood of recovering costs from an unsuccessful plaintiff – Orakei Technologies Limited v Geostel Vision Limited HC, Hamilton, 13 December 2007 – CIV-2005-419-809.

[72]     In the present case, for the reasons I have outlined above and given the closeness of the impending trial, I am of the view that the proper balancing of the interests of the parties here must finally fall on the side of the plaintiffs.  The fact that the defendants might possibly be out of pocket if they are successful at trial because of what may turn out to be the relative impecuniosity of the plaintiffs here is unfortunate.  In my view, however, it is outweighed by the interests of the plaintiff in having this case properly determined by the Court.

Conclusion

[73]     For all these reasons I conclude therefore that the present application for security for costs by the defendants must be dismissed.  An order to this effect is made.

[74]     Issues of quantum which were mentioned in argument before me therefore do not arise.

[75]     As to costs on the present applications, there was no real argument by counsel before me on the question of costs.  Nevertheless, the plaintiffs have been successful in opposing the present applications for security for costs and I see no reason why they should not be entitled to costs in the usual way.

[76]     Costs are therefore awarded to the plaintiffs against the defendants on these applications on a category 2B basis together with disbursements as fixed by the Registrar.

Postscript

[77]     At counsels’ request, I now direct that this proceeding is to be the subject of a case management telephone conference at 9.00 am on 5 November 2012 for any further directions that may be required.

‘Associate Judge D.I. Gendall’