S v M

[2025] NZHC 102

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-161

[2025] NZHC 102

IN THE MATTER OF

an appeal from the Family Court

BETWEEN

G S

Appellant

AND

L M

Respondent

Hearing:

28 November 2024 (further submissions received 17 December

2024)

Appearances:

Appellant in person

L Herbke for Respondent

Judgment:

10 February 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 10/02/2025 at 3 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel: Corban Revell, Auckland B Keith, Wellington

Copy to: Appellant

G S v L M [2025] NZHC 102 [10 February 2025]

Introduction

[1]                  This is an appeal against a decision of Judge A R H Laurenson declining to remove a standard condition relating to firearms from a protection order in force against Mr S.1

[2]                  Mr S is a designer and manufacturer of specialist firearms and was previously the holder of a firearms licence. His firearms licence was revoked upon the granting of the final protection order on 7 December 2020.2

[3]                  Mr S submits that the firearms condition is not necessary and has significant consequences for his ability to earn a living.

[4]                  The respondent, Ms M, opposes the application.  Mr Herbke, counsel  for   Ms M, first submits that the application is moot because Mr S is automatically disqualified from holding a firearms licence until 2030 by virtue of s 22H of the Arms Act 1983. Mr Herbke invites this Court to revisit Judge Laurenson’s decision not to strike out the application on this basis.

[5]                  Mr Herbke further submits that the standard condition is necessary for Ms M’s protection. Ms M has a very real and reasonable fear that violence will escalate without legal protection in place. He says that Ms M has been left exhausted through seemingly never-ending court battles since the protection order was first made and submits this appeal only serves to cause further psychological and economic distress to her.

Background

[6]                  Mr S and Ms M were previously in a relationship. They separated in 2018. They have one child together who was aged under five at the time of the separation. The separation was acrimonious, and a temporary protection order was granted in favour of Ms M on 30 October 2018. That order was discharged on 14 August 2019.

1      [S] v [M] [2023] NZFC 13715.

2      [M] v[ S] [2020] NZFC 10445.

[7]                  However, following further unwanted contact in October 2019, Ms M applied for a second  temporary  protection  order  which  was  granted  in  her  favour  on  18 October 2019. The nature of some of that contact was abusive and threatening although the threats were not of physical harm. The protection order was made final on 7 December 2020.

[8]                  Judge M Southwick KC, who granted the final protection order, described  Mr S’s behaviour, including emails distributed to various third parties, as psychologically abusive. The Judge’s view in December 2020 was that Mr S demonstrated an inability to understand the impact of many of his actions. The Judge noted when granting the final protection order that there was no suggestion of any abuse other than psychological abuse, but Mr S was psychologically abusive towards both Ms M and his son. The Judge noted that police reports reflected observations of Ms M as fearful. The Judge said that Ms M’s demeanour when giving evidence was that of a person who was afraid of what steps the respondent would next take in order to deliberately distress her. Mr S made it clear to Judge Southwick that, if the protection order were to remain in force, his behaviour was likely to be worse. The Judge described that as reflecting Mr S’s need to control the situation.

[9]                  Mr S opposed the making of the final protection order partly on the grounds that the consequences of such an order would be seriously detrimental for his business. The Judge found that was not something she could take into account when deciding whether to grant the final protection order.

[10]                The final protection order contained the standard conditions prohibiting Mr S from holding a firearms licence and deeming his existing firearms licence to be revoked pursuant to ss 98 and 99 of the Family Violence Act 2018 (FVA). The Judge did not address s 158 of the FVA which gives the Court the power to vary or remove the standard firearms conditions.

[11]              On 24 December 2020, s 22H of the Arms Act came into force. Section 22H provides that a person is disqualified from holding a firearms licence if he or she has had a protection order, other than a temporary order, made against them in the past

10 years. Section 23(1)(c) of the Arms Act provides that a person may not apply for a firearms licence if disqualified under s 22H.

[12]              Section 27B of the Arms Act provides that any licence held by a person who becomes disqualified under s 22H is revoked without any right of review or appeal.

[13]              Clause 10 of the first schedule to the Arms Act is a transitional provision and provides that a person who held a firearms licence immediately before the commencement of s 22H is not disqualified if a protection order had been made against them in the 10-year period ending on the date s 22H commenced.

[14]              Mr S appealed the granting of the final protection order to the High Court. In his appeal, Ms S also said that Judge Southwick erred by failing to vary the standard conditions of the final protection to remove the firearms condition. That appeal was dismissed on 24 September 2021.3 Katz J held that Judge Southwick was correct to make a final protection order.

[15]              As to whether the Judge should have removed or modified the standard firearms condition, Katz J found that the evidence regarding Mr S’s need for a firearms licence was advanced in the context of a submission that a protection order was not necessary—a submission the Judge rightly rejected. Mr S did not file a formal application for the condition to be removed or varied. Judge Southwick made repeated reference to the need for further submissions to enable her to make a determination on the firearms issue. Mr S did not file any further submissions or evidence regarding why the standard condition should be removed, what his role was in the various stages of production of the firearms, available supervision or the terms of the proposed variation.

[16]              While Katz J accepted that Judge Southwick was not precluded from considering whether to vary the standard firearms conditions, she found there was insufficient information before the Judge to reach a final view on the appropriateness of such a variation. The onus was on Mr S to establish that the standard firearms condition was unnecessary, and he had not done so. Katz J then noted that it might

3      GS v LM [2021] NZHC 2522, [2021] NZFLR 673.

still be open to Mr S to apply to the Family Court under s 159 of the Act for an order varying the terms of the protection order to remove or modify the standard prohibition on firearms.

[17]              Mr S applied for leave to bring a second appeal in the Court of Appeal. That application was declined by the Court of Appeal on 11 July 2022.4

[18]              Mr S then applied to recall the Court of Appeal decision. That application was declined with a warning that further meritless applications would put Mr S in jeopardy of an increased costs award being made against him.5

[19]              Mr S filed an application to vary the standard firearms conditions in 2021. Judge Laurenson’s decision declining the application was released on 11 December 2023 and is the decision under appeal.

The Family Court decision

[20]              Judge Laurenson dealt first with an application by Ms M to strike out Ms S’s application on the basis that it was moot because s 22H of the Arms Act operated to disqualify Mr S from holding a firearms licence until 2030. Ms M said that no reasonable purpose could be served by the application.

[21]              Mr S denied that the application was moot. He urged the Judge to consider the application to remove the standard condition at which point it would be for him to reconcile the status of his firearms licence with the provisions of the Arms Act.

[22]                   The Judge referred to s 165 of the FVA which provides that the Arms Act is not limited or affected by the provisions of ss 98 to 102 and 158 to 164 of the FVA. He noted that before s 22H was inserted into the Arms Act, a respondent who was no longer the subject of the standard condition under a protection order was not disqualified from applying for a new firearms licence. Section 22H of the Arms Act changed that position so that a person against whom a final protection order has been made within the last 10 years is disqualified from holding a firearms licence. The only

4      GS v LM [2022] NZCA 305.

5      GS v LM [2022] NZCA 600.

exception to that position is when a person who was the holder of a firearms licence at the time s 22H came into force. In that case a person is not disqualified from holding a firearms licence by virtue of s 22H.

[23]              The Judge recorded that the final protection order was made against Mr S on 7 December 2020 at which point he was not entitled to hold a firearms licence under s 98(1)(b) of the FVA and was required to surrender it immediately. The Judge found that Mr S was therefore not a holder of a firearms licence immediately before the commencement of s 22H on 24 December 2020. The Judge was satisfied that the exception in the transitional provisions did not save Mr S from disqualification under the Arms Act. Mr S is disqualified until December 2030, and he may not hold a firearms licence or apply for a new one for the duration of the disqualification. That is regardless of whether the standard conditions remain in respect of the protection order.

[24]              The Judge then turned to consider whether that meant Mr S’s application should be struck out.

[25]              The Judge found that Mr S’s hope to hold a firearms licence is doomed in terms of the Arms Act as long as he is a disqualified person. The new provision of the Arms Act may be at odds with the Family Court’s discretion to determine whether the standard condition should be removed but the FVA and Arms Act serve different purposes. Despite the new provisions in the Arms Act, the Family Court retains the ability to determine whether the removal of the standard condition will serve the purposes of the FVA, and in particular the need to ensure protected persons are safe. The Judge agreed with Mr S that what this then means for him under the Arms Act will be for him to reconcile and found that Mr S’s application was not clearly untenable.

[26]                If Mr S succeeds in having the standard condition removed, that would entitle him to apply for a firearms licence in December 2030 when his disqualification under s 22H of the Arms Act lapses. While the decision to make that application seven years before the disqualification ends might be questionable, the application was not absolutely pointless. The Judge declined the strike out application saying that the

jurisdiction to strike out should be used sparingly, and the Court should be slow to invoke it in developing areas of law.

[27]              The Judge then turned to the application to remove the standard condition which is permitted by s 159(b) of the FVA. The restrictions on that discretion are set out in s 157 of the FVA. The need to protect those people for whose benefit the protection order applies is the paramount consideration.6 Without limiting that paramount consideration, the Court must then have regard to the following matters:7

(a)whether the people, for whose benefit the protection order applies, consent;

(b)the nature, seriousness and recentness of any family violence that is relevant;

(c)the effect that the standard condition is having on or will have on the person to whom the standard condition applies; and

(d)any other matters.

[28]              Ms M did not consent to the removal of the standard condition. She said that she would not be safe if it were removed. She alleged further psychological abuse by Mr S, also involving their son, A, who is now aged about 10 years old. Some of the psychological abuse alleged had concerning undertones including an allegation that, subsequent to a discussion during a Family Court hearing about an unrelated father dousing his family in lighter fuel, A had returned to her from Mr S’s home with a can of lighter fluid in his possession. Ms M had also told the Court that she was concerned that A has recently returned to her home with a knife that she said was given to him by Mr S. Ms M said that her son’s behaviour is out of control, and he is starting to act violently towards her. She said that she would be petrified if Mr S has access to firearms.

6      Family Violence Act 2018, s 157(4)(a).

7      Section 157(4)(b).

[29]              The Judge recorded Mr S’s denial that any conduct by him is part of an ongoing pattern of intimidation. Mr S said that there was no basis for Ms M’s concerns and that the recent Family Court determination that A would be in equal shared care illustrates that Ms M’s worries about ongoing psychological abuse are unfounded.

[30]              The Judge said that if a protected person does not consent to the removal of the standard condition this creates a significant hurdle for a respondent to overcome because the principles of the FVA ensure that the views of victims of family violence are respected unless doing so would or may compromise their safety. The Judge said that, when making safety determinations, the Court must properly consider a victim’s right to feel safe.

[31]              The Judge pointed out that, by the time the Court is considering an application for removal of standard conditions, it has already been determined that the respondent has inflicted family violence against the applicant and that a protection order is necessary. The Judge said that it is not the purpose of s 159 to revisit those findings or to provide the respondent an opportunity to again challenge the making of the final protection order.

[32]              The Judge noted Mr S’s submission that the condition was affecting him financially as he cannot work as a manufacturer of specialist hunting rifles. Given the Arms Act prohibition, the removal of the standard condition would do nothing to address the financial impact on Mr S.

[33]              Mr S claimed that he could earn $20,000 or more per specialist rifle that he produces and sells. The Judge said that other than this very general information, Mr S did not provide any detailed evidence showing exactly what income he had previously made from this enterprise. He did not provide any financial accounts or detailed business plan for what he might now earn if he could possess the firearms for that purpose. Additionally, the Judge was not satisfied that Mr S could not oversee the manufacture of the rifles and then ensure that they are in the possession of another person who holds a firearms licence at the point they become weapons. Overall, the Judge was not satisfied that Mr S needed a firearms licence to benefit from the manufacture of firearms. The Judge said that even if Mr S were able to satisfy him on

those matters, that would need to be considered alongside Ms M’s need to be protected and her right to feel safe.

[34]              The Judge then turned to consider the nature, seriousness, and recentness of any family violence. The Judge acknowledged that the serious allegations made by Ms M are denied by Mr S and said that the disputed allegations aside, there is no other evidence of any further family violence being inflicted by Mr S since prior to the protection order being made in December 2020. The Judge said that this may weigh in favour of Mr S’s application but does not persuade him to remove the standard condition in light of the other findings relating to the impact the standard conditions were having and the application of s 22H of the Arms Act. The application to remove the standard firearms condition was declined.

Approach on appeal

[35]              The appeal proceeds under s 177 of the FVA. It proceeds by way of rehearing.8 The Court of Appeal has clarified that an appeal against a decision to make or a refuse to make a protection order is a general appeal.9 I take the view that the question of whether a standard condition should be removed or varied is also evaluative and the principles noted in Austin, Nichols & Co Inc v Stichting Lodestar apply on appeal.10 The appellant bears the onus of satisfying this Court that it should differ from the earlier decision and identify error in that decision, but this Court must also reach its own conclusion on the merits of the case.

Submissions on appeal

Necessity of conditions

[36]              Mr S, who represented himself at the appeal, but instructed a lawyer, Mr Keith, to file additional submissions following the hearing, submits that the standard firearms conditions are not necessary and should be removed. He says that Judge Laurenson failed to take into account that the final protection order was based on psychological abuse in the form of texting and emails and that the content of those communications

8      District Court Act 2016, s 127.

9      SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [46].

10     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

did not include any threats to Ms M’s physical or sexual safety. He says that the Court failed to determine that the nature and seriousness of any psychological harm was at the very lowest end of the family violence spectrum. Further, Mr S says the Court failed to consider that the last accepted psychological harm was in April 2020 — some three and a half years prior.

[37]              Mr S says the Court also failed to take into consideration that there were no findings of family violence following a four-day final parenting order hearing and the Court awarded full shared care of their son to Mr S. Mr S complains that the Court has not taken into consideration that he has no criminal history let alone any history of physical violence in 60 years other than one finding of domestic violence in 2018 at the time of the relationship breakdown, which he says was an assault with a pillow.

[38]              Mr S submits that the Court wrongly interpreted and applied the test set out in Surrey v Surrey and determined that Ms M has a “right to feel safe” when the test is whether or not there are “reasonable subjective fears of future violence”.11 Mr S submits that the failure to properly consider the nature, seriousness and recentness of the family violence meant that the Court did not properly determine whether the views of the protected person, that Mr S would harm her with a firearm, were “reasonable subjective fears”.

[39]              Mr S submits that the circumstances which were the catalyst for the protection order being made were and are no longer present. Mr S and Ms M are not living together which was a major source of conflict, and the shared custody decision has also extinguished the other main source of conduct. He says that the Family Court was manifestly wrong to determine that as a firearms manufacturer he does not need a firearms licence to conduct his business and further says that the Family Court provided no reasons to support this finding. Mr S says the Court wrongly weighted the respondent’s inferred fears of being shot with a firearm over the appellant’s need to have a firearms licence to conduct his trade; provide meat for the table; shoot pests; and teach his son how to safely handle firearms.

11     Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.

Section 22H of the Arms Act

[40]              Mr Keith, in supplementary written submissions, submits that this appeal should be decided without reference to s 22H of the Arms Act. First, Mr Keith submits that the Arms Act should be interpreted such that the ban does not apply where the Court removes or varies the standard condition under the FVA scheme as it is being asked to do so here. In the alternative, he argues that the transitional provisions in the Arms Act would allow Mr S to hold a firearms license in his specific circumstances.

[41]              Mr Keith first submits that the two acts, the Arms Act and the FVA, are incompatible. He submits that the starting point for the interpretation of the FVA scheme together with s 22H of the Arms Act is the well settled principle that:12

… all statutory enactments must be read and applied together in so far as they are not inconsistent. The Court must strive to find a construction which reconciles any apparent inconsistency and allows two statutory provisions to stand together.

[42]              Mr Keith submits that the first question is whether there is an irreconcilable inconsistency between the Arms Act and the FVA. He says that the Arms Act did not expressly repeal the FVA scheme, and it cannot be inferred to have implicitly repealed it. Mr Keith says there is no reason to interpret the Arms Act as having excluded the jurisdiction of the Family Court to remove the standard condition relating to firearms.

[43]              Mr Keith argues for an interpretation of s 22H which would mean that s 22H applies except in respect of a final protection order in which the standard firearms condition has been modified or discharged.

[44]              In the alternative, Mr Keith submits that s 22H of the Arms Act does not apply to Mr S because the transitional provision exempts those who held a firearms licence as at 24 December 2020.   The protection order at issue in this case was made on     7 December 2020 but Mr Keith says Mr S has challenged the standard conditions relating to firearms throughout the proceeding. Mr Keith submits that the Arms Act does not address what he describes as “pending proceedings” which he says Mr S’s

12     Terranova Homes and Care Ltd v Faitala [2013] NZCA 435, (2013) 10 NZELR 849 at [26] (footnote omitted).

situation falls within. Mr Keith argues that Judge Laurenson should have disregarded the impact of s 22H of the Arms Act when considering the effect of the standard firearms condition on Mr S.

[45]              I understand that Mr S intends to apply for a reinstatement of his firearms license if the standard condition is removed and to argue that once the standard condition is removed, he should be deemed to have been in possession of a firearms licence on 24 December 2020.

[46]              Essentially Mr Keith argues that Mr S finds himself in a catch-22 situation. He seems to be suggesting that, if this Court upholds his appeal, Mr S should be deemed to have been in possession of a firearms licence on 24 December 2020 when s 22H of the Arms Act came into effect. The exception would therefore apply to him and s 22H would not operate to disqualify  him  from  holding  a  firearms  licence.  The  Family Court, in declining to remove the standard condition under the FVA, relied on the operation of s 22H of the Arms Act to decline the application saying that the standard condition had no practical impact on him. Mr Keith says this is circular and the matter should be decided without reference to the effect of s 22H because, unless the Court finds that the standard condition should remain, s 22H does not apply to his situation. According to Mr Keith, whether or not Mr S is deemed to have held a firearms licence at the time s 22H came into effect is the very question that the appeal must answer.

Discussion

[47]              Mr S argues for an interpretation of s 22H which is contrary to the clear wording of that section. He says that it should be read as applying only where a final protection order is made that contains the standard firearms condition. I reject that submission. It would have been open to Parliament to draft the legislation in that way and Parliament chose not to do so. Section 22H imposes a lengthy and absolute prohibition on a person, against whom a final protection order is made, holding a firearms licence. It removes the previous discretion. That was clearly a deliberate decision by Parliament, and it is not for this Court to reshape Parliamentary intention. Further such an interpretation would be contrary to s 165 of the FVA which specifically

provides that 158 of the FVA does not limit or affect any provision of the Arms Act that authorises or permits the revocation of any firearms licence.

[48]              I am also not satisfied that this proceeding could be considered pending since before the time that s 22H came into effect. When Judge Southwick made the final protection order, it contained the standard firearms conditions. Mr S raised his occupation with Judge Southwick, but she did not remove those standard conditions. That decision was appealed unsuccessfully, and the Court of Appeal declined leave for a second appeal. The current application was not filed until October 2021. By that stage, the final protection order, including the standard conditions had been in place for almost one year. Mr S’s firearms licence was revoked on 7 December 2020. Therefore, Mr S’s submission that the current proceeding was pending at the time that s 22H came into effect on 24 December 2020 is not correct. He did not hold a firearms licence on 24 December 2020 when s 22H came into effect and the transitional provisions do not apply to him. Furthermore, by virtue of s 181 of the FVA the filing of an appeal would not stay the operation of the previous order even if this appeal related to Judge Southwick’s decision, which it does not.

[49]                On any interpretation,  Mr S was not the holder of a firearms licence  on     24 December 2020. He is caught by s 22H of the Arms Act and prohibited from holding a firearms licence until 2030. Even if Judge Laurenson had removed the standard condition on the grounds that it was no longer needed in 2023, that decision would not mean that the standard condition was not in effect from 7 December 2020.

[50]                I turn now to the decision of Judge Laurenson in 2023 which is the subject of the current appeal.

[51]              Mr Herbke submits that the removal of the standard condition would have no material effect until 2030 and the only reason for Mr S’s application is to put Ms M through yet another meritless hearing. He says that the application should have been struck out. Mr S on the other hand does not accept that Ms M is actually afraid for her safety. He is firmly of the view that her opposition to the removal of the firearms conditions is motivated by malice and a desire to prevent him from earning a living.

[52]              It is clear that there is no goodwill between the parties. Both attribute the worst possible motives to the other. It goes without saying that the situation for their child would be better if they could rebuild some semblance of trust. Mr S seems to be incapable of understanding that Ms M could be genuinely afraid for her safety and that of her son. The refusal to accept court orders or to follow them is a form of psychological abuse because such behaviour can intimidate. Behaving as if rules around contact don’t apply and being overly litigious and unpredictable are all behaviours that might reasonably unsettle Ms M and make her unsure what Mr S is capable of. Mr S says that he is not a danger and I tend to accept that based on his history — but he wants Ms M to simply accept his assurances about that on his terms. If Mr S wants Ms M to trust him, he needs to demonstrate that he is trustworthy and will not behave unpredictably or impulsively. He needs to understand that his behaviour is feeding her fears. If it is true that he sent A home with lighter fluid or a knife, that would obviously cause her terror. I do not make any finding that he did that as I have not heard evidence on the point, but Mr S should be mindful of the need to comply with the protection order and avoid behaviour that could intimidate Ms M even if he thinks her fears are unfounded.

[53]              I do not accept however that Mr S’s motivation is, as Ms M believes, to put her through a meritless hearing. I have no doubt that Mr S genuinely believes that the standard condition is unnecessary and a hindrance to his ability to make and sell firearms. I formed the impression that he is offended by the condition and finds it absurd that such a condition should be imposed on him. Mr S very much sees his situation and behaviour through his own eyes.

[54]              I agree with Judge Laurenson’s decision not to strike out the application. The fact that a person is subject to the s 22H prohibition does not mean that the standard condition in the FVA should remain if it is not necessary. The fact that the standard condition is removed or retained may well have a bearing on an applicant’s eventual application for a firearms licence when the Arms Act prohibition lapses.

[55]              I also agree with Judge Laurenson that s 22H of the Arms Act is relevant to the application to remove the standard condition. One of the factors which the Court must consider is the effect of the standard condition on the person to whom it applies. The

effect of the standard firearms condition on Mr S is currently nil. He cannot hold a firearms licence by virtue of s 22H of the Arms Act. That must be balanced against Ms M’s opposition, the nature, seriousness and recentness of any family violence and any other relevant matter which can include the psychological effect on the protected person of removing the condition; and the right of Mr S not to be subject to a condition that is not necessary, applying the purposes and principles of the FVA.

[56]              Judge Laurenson found himself in a similar position to that articulated earlier by Judge Southwick, Katz J and the Court of Appeal. Mr S did not provide any detailed evidence of the income he had previously derived from the manufacture of firearms. He did not provide any financial accounts, or detailed business plan. He did not provide evidence to satisfy the Court that it would be impractical for him to oversee the production of the weapons in conjunction with another person who does hold a firearms licence.

[57]              I agree with the findings made by Judge Laurenson in the Family Court. The nature, seriousness and recentness of the family violence had to be balanced against the fact that Mr S cannot even apply for reinstatement of his firearms licence until the end of 2030 and against the significant antipathy Mr S demonstrates towards Ms M.

[58]                I acknowledge that the family violence involved psychological abuse rather than physical abuse, but Mr S’s lack of insight into the fear his behaviour engenders and his lack of belief that Ms M is afraid are relevant factors. His behaviour is contributing to her reasonable subjective fears for her safety which includes her safety from intimidation. His insistence on control challenges her sense of safety. Mr S needs to demonstrate more insight and more willingness to accept perspectives other than his own. In real terms, the standard firearms condition is having no effect and will not have any effect until 2030. Hopefully by that time Mr S and Ms M can find  a way to co-parent in a less acrimonious way, and Mr S can reassure Ms M that she is not in any danger of further intimidation. I urge both parents to think about the effect their antipathy toward each other is having on their child. If they hate each other, how is he meant to feel about himself.

[59]The appeal is dismissed.

Costs

[60]If the parties are unable to agree on costs, I make the following directions:

(a)any application for costs is to be made by memorandum to be filed and served within 10 working days of the date of this judgment;

(b)any reply is to be filed and served by memorandum within a further

five working days; and

(c)memoranda as to costs are not to exceed two pages.

[61]Costs will be determined on the papers.

Wilkinson-Smith J