Sonsram Trustee Limited v Harrison Grierson Consultants Limited
[2016] NZHC 581
•6 April 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV2015-404-001226 [2016] NZHC 581
BETWEEN SONSRAM TRUSTEE LIMITED
Plaintiff
AND
ARJUN SAMI Second Plaintiff
AND
HARRISON GRIERSON CONSULTANTS LIMITED Defendant
Hearing: 4 April 2016 Appearances:
P Twist for the Plaintiffs
M Dennett for the DefendantJudgment:
6 April 2016
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
This judgment was delivered by me on
06.04.16 at 4:30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
SONSRAM TRUSTEE LIMITED v HARRISON FRIERSON CONSULTANTS LIMITED [2016] NZHC 581 [6
April 2016]
Application
[1] The defendant applies to strike out the plaintiffs’ claim or seeks an order for
summary judgment upon its defence.
[2] The application relies on a contractual limitation provision and/or is based upon s 4 of the Limitation Act 1950. The defendant says all aspects of the claim are statute barred, the proceeding having been brought more than six years after that date upon which the defendants’ consultancy services were carried out and/or the cause of action accrued.
Background
[3] Harrison Grierson Consultants Limited (the defendant) carries on business as engineering consultants.
[4] The defendant’s services were subject of a written agreement dated about
29 June 2005 with Redhill Development (NZ) Limited (now in liquidation) (Redhill).
[5] Redhill was a property developer. By its contract Redhill engaged the defendant as a consultant to provide professional services for the development and subdivision of an aspect of Redhill’s residential subdivision development at Kaipara Road, Papakura.
[6] Sonsram Development Holdings Limited (now in liquidation) (Sonsram Development) was Redhill’s sole shareholder. The second plaintiff (Mr Sami) was the sole director and shareholder of the first plaintiff and the sole director of both Redhill and Sonsram Development.
[7] Redhill went into liquidation in 2009. The plaintiffs claim they are entitled to pursue Redhill’s rights under the consultancy contract pursuant to an agreement assigning Redhill’s rights and remedies to them.
The parties’ contract
[8] In February 2005 Redhill and the defendant entered into a written agreement whereby the defendant was engaged as a consultant to provide professional services in respect of stages 1 and 2 of the development. On 29 June 2005 Redhill and the defendant entered into a new written agreement (the consultancy contract) whereby Redhill engaged the defendant to provide professional services onsite for (inter alia) the design review, detailed design, contract administration, and project management, and to complete development and subdivision of the balance block (i.e. that area remaining once stages 1 and 2 had been completed).
[9] The 29 June 2005 contract was formalised by the consultancy contract signed on 20 December 2005, which was signed by Mr Sami on behalf of Redhill and Mr Benning on behalf of the defendant.
[10] Some key provisions of the parties’ contract include:
(a) The defendant’s key personnel was Mr Benning and its representative
(engineer) was Mr Vinod Chand.
(b)Mr Chand had authority to give instructions on behalf of the defendant and to monitor, review, accept, reject or confirm any part, or all, of the defendant’s services.
(c) Neither party was liable for any loss or damage which occurred more than six years after that date on which he defendant’s services were completed.
(d)The scope and purpose of the services to be provided by the defendant were set out in appendix A of the special condition to the contract inter alia to provide contract administration, observation and quality monitoring for the civil engineering construction of stages 3, 4 and 5 from July 2006 to August 2007.
[11] Mr Benning’s evidence is that on 26 June 2007 a meeting took place between the defendants Redhill at which time it became apparent that the scope of the defendant’s role in the project needed to be revised. On 13 July 2007 the defendant sent a letter to Redhill seeking a variation to the consultancy contract based on additional work that the defendant says it had been requested to complete but which did not fall within the scope of the original consultancy contract. With its letter the defendant attached a short form agreement. Mr Benning deposes that on
14 February 2008 instead of signing the short form agreement Redhill sent the defendant a letter varying the consultancy contract and requesting the defendant to:
Provide Engineering and Survey Services to complete stage 3 and 4 in accordance with HGCL letter dated 13 July 2007. This is effective from
30 June 2007 to 31 March 2008…
[12] Mr Benning deposes the defendant continued to work through the various stages of the project and by 8 May 2008 it had completed its involvement and issued a certificate of practical completion which was signed by Mr Chand. That document confirmed that the contract works had been inspected and that the project had qualified for a certificate of practical completion on 28 March 2008.
[13] On 8 May 2008 the defendant received a s224(c) certificate from the Papakura District Council which certified that some of the conditions of the resource consent had been complied with to the satisfaction of the Council and that in respect of the conditions that had been complied with a completion certificate had been issued under s 222. Mr Benning deposes the s 224(c) certificate effectively represented a completion certificate for the subdivisions for it also enabled the deposit of a land transfer and the creation of certificates of title which were issued on
12 May 2008.
[14] Mr Benning deposes the on 23 May 2008 the construction company served its final progress payment claim in the sum of $2,191,816. In response thereto Mr Chand issued a provisional progress payment schedule in the amount of
$487,155.70. Then on 3 July 2008 Mr Chand issued a final progress payment schedule indicating a scheduled amount of $13,539.81, which took into account principal deductions requested by Redhill.
[15] It is the defendant’s position that by the time the final progress payment schedule had issued on 3 July 2008, it had completed all professional services pursuant to the consultancy contract; that the issuing of the schedule was the final task completed by the defendant in respect of the subdivision and represented the end of its involvement in the civil construction phase of the project.
[16] By an adjudication dated 8 June 2009 the contractor was awarded the sum of
$2,039,307.13 (including GST) plus legal costs of $45,000 (including GST) against Redhill, Sonsram Development and Mr Sami in respect of the outstanding payment schedule. Redhill went into liquidation in 2 December 2009.
[17] On or about 29 January 2010 Mr Sami agreed to pay the contractor the sum of $350,000 plus GST in full and final settlement of its claim against him.
The plaintiff ’s pleading
[18] The plaintiffs plead the material express or implied terms of the consultancy contract were contained in a letter dated 29 June 2005, including:
(a) The defendant would improve the original design of another consultant for the whole of the balance block;
(b)The defendant would undertake and complete detailed design to Council approval and provide construction documentation for the whole of the balance block;
(c) The defendant would produce designs that complied with Council requirements but were also economical and reduced the earthworks volume, the amount of civil works and depths for the whole of the balance property;
(d)The defendant would reduce the risk of ground condition uncertainty for the whole of the balance block through their design and by coordinating additional geotechnical investigation by Foundation Engineering Limited;
(e) The defendant would undertake the design review project for the whole of the balance block between 4 July and 16 September 2005 competently. Redhill agreed to pay the defendant $75,000 plus GST for its services.
[19] In December 2005 the defendant completed its services in respect to stages
1 and 2. Redhill paid for those services in December 2005. [20] The plaintiffs plead:
(a) That on or about 20 December 2005 Redhill and the defendant signed the consultancy contract entered into on or about 29 June 2005; and by that contract Redhill formally engaged the defendant to provide services including the preparation of engineering documents, engineering contract administration of the construction contract, project management associated with civil engineering construction, and certification of the civil engineering construction work from July
2006 to August 2007.
(b)That through the contract works the defendant made significant design variation resulting in project cost variation increases; and that the defendant made unauthorised and over certified payments for goods, services, materials and equipment.
(c) That in 2007 the defendant over certified lime usage with disregard to Redhill’s written instructions and Redhill was never given the opportunity to reassess the lime use or to provide approval to spend more than was agree; and that Redhill was claiming back the difference in costs between written approval to the defendant and the amount that was certified for payment i.e. $553,737 plus GST.
[21] By a deed dated 30 October 2009 Redhill sold and assigned to the first plaintiff all potential claims it had against the defendant and on January or February 2010 the first plaintiff gave notice of the assignment to the defendant.
[22] By a second cause of action the plaintiffs plead that from 2006 to 2008 the defendant over certified and overpaid preliminary and general lump sum items to the construction company and in this regard claims damages of $219,700 plus GST.
[23] By a third cause of action it is pleaded that from 2006 to 2008 the defendant over certified and overpaid to the contract construction company $3,290,322.71 plus GST and it claims payment of that sum is due.
[24] By a fourth cause of action it is pleaded the defendant breached terms and conditions of the consultancy contract by failing to improve the original design, failing to comply with Council requirements, failing to produce designs that were economical and reduce the earthworks volume, failed to reduce risk of ground condition uncertainty, failed to identify the need for additional shear keys as part of the redesign, failed to undertake the design review project between 4 July and
16 September 2005 competently, and failed to nominate a realistic completion date. In this regard damages were claimed for loss of profits in respect of the subdivision in the sum of $5,721,935.75 plus GST.
[25] A number of other causes of action relate to breaches of duty of care and defective design by the defendant.
[26] The statement of claim records that on 3 April 2009 the contract construction company served an adjudication claim in the outcome of which Redhill was held to be liable to pay the sum of $2,191,816 plus GST and as well that because the second plaintiff and Sonsram Development were associates of Redhill they an were jointly and severally liable with Redhill to pay the amount claimed. In 2009 Redhill and the plaintiffs and Sonsram Developments applied unsuccessfully for a judicial review of the adjudicator’s determination. Then they appealed, unsuccessfully, to the Court of Appeal.
[27] The plaintiffs say that due to the poor financial state of Redhill and Sonsram Development caused by the defendant’s negligence they were unable to pay their legal fees and other associated costs for the adjudication and in respect of the review and appeal proceedings. It is asserted the plaintiff knew or ought to have known the
second plaintiff was an associate of Redhill and might be affected by the defendant’s failure to serve the payment schedule within time as fixed by the construction contract; that with its knowledge of the poor financial state of Redhill and Sonsram Development the defendant would have known Mr Sami and his family interests would pay all the legal fees and associated costs and therefore the defendant assumed responsibility to Mr Sami to serve the payment schedule on time and to pay the legal fees and associated costs subsequently incurred.
[28] In this regard the second plaintiff claims special damages of $350,000 plus GST and general damages for stress and anxiety in the sum of $100,000. In another claim the first plaintiff sued for special damages for financial losses said to have been incurred.
[29] Essentially the plaintiffs allege that between 2005 and 2008 the defendant made significant design variations to the contract works which resulted in an escalation of costs including over certifications and overpayments by Redhill. They also say:
(a) There were failures in the design of the contract works; and
(b)That the defendant was negligent in issuing the final payment schedule on 3 July 2008.
Legal principles
Strike out
[30] A court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading,
or is otherwise an abuse of process of the Court.1
1 HCR 15.1.
[31] As counsels submissions identify, the relevant principles are well settled. They were summarised by the Court of Appeal and Attorney-General in Prince v Gardiner2 as follows:
(a) Pleaded facts, whether or not admitted, are assumed to be true;
(b)The cause of action must be clearly untenable. It is inappropriate to strike out a claim summarily if the Court cannot be certain that it cannot succeed;
(c) The jurisdiction is to be exercised sparingly and only in clear cases;
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and
(e) The Court should be particularly slow to strike out a claim in any developing area of law, especially where the law is confused or developing.
Summary judgment
[32] A Court may give judgment against a plaintiff if the defendant can satisfy the
Court that none of the causes of action in the statement of claim is able to succeed.3
[33] Counsel agree the relevant principles from the Court of Appeal decisions in
Krukziener v Hanover Finance Limited4 and Cockburn v CS Development No.2
Limited5, include:
(a) Whether the plaintiff’s pleading provides for a real question to be
tried;
(b) If not the Court must be left without any real doubt or uncertainty;
2 [1998] 1 NZLR 262 (CA) at 267.
3 HCR 12.2.
4 [2008] NZCA 187.
5 [2010] NZCA 373.
(c) Upon its application the defendant is able to provide sufficient evidence to show that the claim cannot succeed;
(d)The Court will not usually resolve material conflicts of evidence or assess the credibility of deponents, but it need not accept evidence inherently lacking in credibility;
(e) The Court is entitled to take a robust and realistic approach if the facts warrant that.
Generally
[34] Where a defendant can make a good limitation defence to a plaintiff’s claim it will usually be appropriate to enter summary judgment rather than to strike out the proceeding.6
[35] If the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, the plaintiff will usually be required to respond with credible evidence.7
Considerations
[36] All causes of action pleaded relate to work completed by the defendant between 2005 and 2008. The defendant says the final task it carried out was on 3
July 2008 when it issued the final payment schedule. Mr Dennett submits that this date is the date of the last allegation of breach of contract or negligence against the defendant; and that because the proceeding issued on 3 June 2015 all causes of action are out of time.
[37] It is the plaintiffs’ case that there was no completion by the defendants of their services. In support they refer to the affidavit of Mr Nagaiya filed in opposition
to the application.
6 Vincent v Mindel, HC Auckland, CIV 2010-404-6275, 19 August 2011.
7 Attorney-General v Jones (2001) 15 PRNZ 347.
[38] Mr Nagaiya deposes that he is a director of N-Compass Limited (N- Compass) a project management company that operates throughout New Zealand. He states that from December 2004 to about mid-2006 he was involved in the plaintiffs’ subdivision development when he assisted in the negotiation of the defendant’s consultancy services contract. Also he returned to work on the project as project manager for Redhill from October 2007 until mid-2009 which included the adjudication process involving the contractor.
[39] Mr Nagaiya provided details of his experience and qualifications and states he is qualified to provide an opinion regarding when the defendant completed all of its professional services pursuant to the consultancy contract.
[40] Mr Nagaiya said that although the defendant issued a certificate of practical completion (without Mr Chand’s actual signature), it had not completed its involvement in the civil construction project by 8 July 2008 and continued to discharge is obligations in administering the consultancy contract, for example by issuing subsequent payment schedules.
[41] Mr Nagaiya says that it appears the practical completion certificate had not been signed by Mr Chand as he was familiar with Mr Chand’s signature. He says it is a requirement of the NZS3910:2003 that the practical completion certificate be signed by the “engineer”, and therefore that the certificate of practical completion was not issued as was required. It follows that these omissions and defects required remedy within the defects liability period i.e. by 28 June 2008.
[42] Mr Nagaiya disagrees with Mr Benning’s statement that by the time the final progress payment schedule had issued the defendant had completed the professional services required.
[43] Mr Nagaiya says that under NZS3910:2003, Section 11 – Defects Liability, cl 11.3.1, the engineer must issue to the principal and to the contractor a Defects Liability Ccertificate for the contract works when the period of defects liability had expired and the contractor had remedied any minor omissions or minor defects in the
defects list, and any defects that had become evidenced since the issuing of the practical completion certificate.
[44] Mr Nagaiya says to the best of his knowledge the defendant did not undertake the required inspections to verify that all omissions and defects were remedied and did not issue the defects liability certificate.
[45] Mr Nagaiya therefore disagrees with Mr Benning's statement that the issue of the final progress payment schedule was the defendant’s final task and represented the end of its involvement. Mr Nagaiya says that the defendant did not issue a defects liability certificate for stage 4 of the development as was required. He states that in his experience until the defects liability certificate has been issued and the final retentions are certified to be released, the engineer’s role does not cease to exist.
[46] In his view the defendant’s contract was based on NZS3910:2003 Conditions of Contract for Building and Civil Engineering Construction. Further that the defendant appointed Mr Chand as the engineer to the contract as NZS3910:2003, required; that in administering the construction contract the defendant failed to issue a valid practical completion certificate as it was not signed by the engineer, Mr Chand. Further, that the defendant did not issue a defects liability certificate as the contract required and therefore the defendant failed to fully discharge its obligations under the consultancy contract and its services were not completed.
[47] In his submissions in support of the position adopted by Mr Nagaiya, Mr Twist submits the defendant’s submissions misunderstand the role of the engineer because in accordance with the definition of “engineer” in NZS3910:2003, s 1.2, the engineer has to be a natural person; in this case Mr Chand, but that it appears the practical completion certificate was not signed by Mr Chand and it should have been because not even the engineer’s representative can, he submits, sign the practical completion certificate. Therefore the practical completion certificate did not issue.
[48] Mr Twist relies upon the decision of the High Court in Brown & Doherty Limited v Whangarei County Council8 wherein Smellie J quoted a passage from the judgment of Turner J in Nelson Carlton Construction Co (In liq) v AC Hatrick (NZ) Limited where, after he had referred to the fact that the certificate that had to be given was “the opinion of the engineer”, the learned Judge said:
It is not the opinion of the respondent, but the opinion of its engineer, by which the parties contracted to be bound; and it is reasonable to assume that, in agreeing to entrust the granting of a certificate to an engineer as yet not appointed but whose nomination was left in the hands of the respondent, these parties place their reliance on the professional integrity which was to be expected in one of the requisite technical qualifications.
[49] Therefore, it is submitted that a certificate issued without authority will be invalid and therefore Mr Chand failed to perform his duties in considering whether or not a defects liability certificate should issue – because it was not he who signed that certificate. Mr Twist submits it follows that the defendant cannot say it was never required to carry out inspections of the work required to be done under the practical completion certificate because its representative failed to require it to do so.
[50] It is the plaintiffs’ case that the parties contracted out of the Limitation Act
1950 by clause 6.1 of the general conditions of the contract which provided that where the consultant breached the agreement, the consultant is liable to the client for reasonably foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach. Therefore Mr Twist submits a continuous liability remained on the defendant for those reasonably foreseeable claims, etc.
[51] Further, clause 6.4 of the general conditions provided that the duration of liability shall be six years from the date on which the services were completed; that since the practical completion certificate was invalid, no defects liability certificate ever issued. It follows therefore the defendant never completed its services so that its duration of liability has not expired under the agreement.
[52] In summary Mr Twist submits the effect of clauses 6.1 and 6.4 means the
parties’ consultancy contract contracted out of the Limitation Act 1950 and therefore the defendant is estopped from relying upon that Act.
8 [1998] 1 NZLR 33 at 39.
[53] Regarding the defendant’s position that any actual loss occurred when Mr Chand issued the final progress schedule on 3 July 2998, Mr Twist submits that in building cases a cause of action arises only when the damage or loss is reasonably discoverable; that on 3 July 2008 the plaintiffs would not have known the losses they would have incurred from the defendant’s negligence in respect of the development.
[54] Mr Twist submits that none of the plaintiff’s causes of action could have accrued until Redhill went into liquidation in December 2009 because the plaintiffs could not have reasonably discovered their loss or damage until then. It was only when the contractor was awarded the sum of $2,039,307.13 (GST inclusive) plus legal costs of $45,000 (GST inclusive), on 8 June 2009 could the extent of the damage caused by the defendant’s actions have been determined. Not until
8 June 2009 could Mr Sami have known the extent of the loss caused to him from, he says, the defendant’s negligence, which Mr Sami was ultimately able to mitigate by agreeing to pay the sum of $350,000 plus GST in full and final settlement.
[55] Mr Twist submits it would be inappropriate to strike out the claims because there is no certainty that would not succeed. Further and insofar as the summary judgment application is concerned he submits the plaintiff’s grounds of opposition and affidavit evidence are not credible and that it has not filed affidavits in reply to challenges to the plaintiffs’ affidavit evidence – that credible evidence shows the practical completion certificate was invalid and that a defect liability certificate never issued.
Conclusions
[56] The plaintiff’s statement of claim contains 10 pleaded causes of action. Five of those are for breach of contract and five allege negligence.
[57] It is the plaintiff’s case that the six year Limitation Act provisions are circumvented by the parties’ contract to the effect that rights of action were preserved for six years after the contract was completed – which never occurred because of deficiencies identified with the issue of the Practical Completion Certificate (i.e the lack of a signature from Mr Chand) and (says Mr Nagaiya) due to
the lack of the issue of a Defects Liability Certificate (or as it is now called a Final
Completion Certificate).
[58] The plaintiff ’s backup position is that if the provisions of the Limitation Act must apply, then in this case reasonable discoverability principles as per Invercargill City Council v Hamlin9 shall apply.
[59] The Court does not agree that the plaintiffs’ allegations of negligence invoke reasonable discoverability principles, rather than the present case invokes principles of the kind that applied in Davis Burton v Thom.10 That case concerned a claim against solicitors who prepared a matrimonially property agreement. The wife’s signature to that had not been properly witnessed. Therefore, the agreement was held to be invalid and the husband was unable to recover the matrimonially property
that the agreement provided for him. The husband then sued the lawyers who prepared the agreement. The Supreme Court held the claim was made out of time and ought to have been made within the six years of the date the agreement was signed even though the extent of the damage that occurred did not become clear until later. Loss occurred when the matrimonially property agreement was entered into and therefore the claim was brought more than six years later and was out of time.
[60] In our present case time ran from that date that contractual services had been
completed by the terms of the parties’ contract.
[61] In the Court’s view reasonable discoverability principles do not apply. Even
on the plaintiffs’ own account the defendants’ services were completed by
3 July 2008. The plaintiffs say those services were incomplete because of things that were not done after that date.
[62] The plaintiff’s claims are about a failure to carry out services correctly or to certify quantities correctly or providing for unauthorised variations.
9 [1996] 1 NZLR 513 (PC).
10 [2008] 1 NZLR 437 (SC).
[63] It is the role of an engineer to be involved in all those aspects. Failures in that regard can be capably identified from the time the provision of those services ended.
[64] Claims of discoverability advanced on behalf of the plaintiffs seem to focus on when the value of those services was identified, for example by the adjudication undertaken in June 2009.
[65] Of the 10 causes of action brought against the defendant seven are on behalf of the first plaintiff and four of those alleged breaches of contract i.e. a failure to do the job properly. Three alleged negligence and all of those concerned certification issues.
[66] The three causes of action pleaded on behalf of the second defendant all relate to claims of negligence.
[67] The first plaintiff brings its claims based on Redhill’s assignment of contractual rights to it. For present purposes the Court must proceed as if the assignment was effected properly. Of course, the first plaintiff cannot obtain any better right of claim than Redhill had. It follows that, the first plaintiff ’s causes of action arose at the same time as they accrued for Redhill.
[68] Likewise with the second plaintiff’s claims. Mr Sami pleads an entitlement to claim negligence because he was personally involved and was found by the adjudicator to be liable for the damage that occurred – in the outcome of which Mr Sami negotiated a payment of $350,000 plus costs. Therefore, if a duty of care was owed to Mr Sami then that too is subject to those same time constraints, if any, that affect the claims advanced on behalf of the first plaintiff.
[69] Indeed, there are limitations factors effecting Mr Sami’s claim in a way they do not affect the first plaintiff’s claim because Mr Sami’s claims are not based on breaches of contract in respect of which the first plaintiff asserts there was an extension of contract terms because of claims the defendant’s contractual obligations
were never completed, because Mr Chand did not sign the documents required at the time.
[70] It is this Court’s judgment of matters that all causes of action arose no later than 8 July 2008 – and it follows therefore, that all pleaded courses of action have been filed out of time.
[71] All work was effectively completed by that date. Small tasks such as dealing with outstanding payment schedules may have occurred later but that work was more in the nature of housekeeping rather than the provision of consultancy services. The parties’ contract provided for the defendants’ services to be provided by
31 March 2008. Clearly those contracted services were provided by or about then.
[72] The Court does not accept the Practical Completion Certificate was defective because it was not personally signed by Mr Chand. Clearly it was issued in his name and that he was the defendant’s authorised representative. There is no suggestion that it was not authorised by Mr Chand. It was that certificate which provided the authority to issue certificates of title. Likely also, it would have enabled Redhill to finalise funding commitments.
[73] Mr Nagaiya complained that the Defects Liabilities Certificate never issued. There is no suggestion that the lack of such a certificate resulted in the failure to complete consultancy services or otherwise affected the consultancy services provided on behalf of the defendant.
Summary
[74] The parties’ contract required for the defendant’s consultancy services to be concluded by 31 March 2008. In effect those services were completed by or about that date. A certificate in the name of the defendant’s engineer, Mr Chand, was provided and was effective for that purpose even though it may not have contained Mr Chand’s signature.
[75] The parties’ contract was not extended because of technical claims regarding
the validity of Mr Chand’s signature.
[76] Principles of reasonable discoverability do not apply because claims of negligence were capable of investigation from the time consultancy services were completed. That timeframe was not extended by claims that the extent of losses was not able to be calculated until much later.
[77] While the defendants’ application for strike out succeeds, it is clear the plaintiffs cannot succeed with any of the causes of action. Therefore, this is the appropriate case for the issue of summary judgment.
Judgment
[78] Summary judgment is granted to the defendant in respect of all of the
plaintiffs’ claims.
[79] Costs are awarded to the defendant on a 2B basis together with disbursements as approved by the Registrar. The plaintiffs shall be jointly and severally responsible
for payment of those.
Associate Judge Christiansen
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