Talbot v Talbot
[2017] NZHC 257
•23 February 2017
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
CIV-2015-476-000037 [2017] NZHC 257
UNDER the Family Protection Act 1955 BETWEEN
JILLIAN KATE TALBOT Plaintiff
AND
GRAHAM EDWIN LAWRENCE TALBOT (AS EXECUTOR FOR THE WILL OF EDWIN KELLAND TALBOT) First Defendant
AND
GRAHAM EDWIN LAWRENCE TALBOT (AS EXECUTOR FOR THE WILL OF PAMELA LISBETH TALBOT) Second Defendant
Hearing: Dealt with on the papers Counsel:
E J Horner and L D Tidey for Plaintiff
A J Shaw for First and Second DefendantsJ Ormsby and H T Shaw for GEL Talbot (in his personal capacity)
RLD Paul for R L Cashin
Judgment:
23 February 2017
JUDGMENT OF GENDALL J As to Costs
Introduction
[1] In a judgment I issued in this proceeding on 6 October 2016 (the substantive judgment) I dismissed an application by the plaintiff Jillian Kate Talbot (Jillian) for further provision under the Family Protection Act 1955 (the Act) from the estates of her late parents. This was on the basis that I was not persuaded by Jillian that there
had been any breach of moral duty on the part of her parents towards her.
TALBOT v TALBOT [2017] NZHC 257 [23 February 2017]
[2] In giving this decision I reserved costs as counsel indicated they wished to make further submissions on that issue.
[3] And at para [87] of the substantive judgment I noted:
[87] In the event that counsel are unable to agree between themselves on the issue of costs, then they may file memoranda (sequentially) and in the absence of any party indicating they wish to be heard further on the question of costs, I will decide that issue based upon the material then before the Court.
[4] The parties in this proceeding who were successful in opposing Jillian’s applications all seek costs against her personally with respect to the proceeding. Memoranda have now been filed as follows:
(a) Memorandum dated 16 December 2016 from Mr Shaw, counsel for the first and second defendant, Graham Edwin Lawrence Talbot (Graham) the brother of Jillian, in his capacity as executor for the wills of his late parents.
(b) Memorandum dated 9 December 2016 from Mr Ormsby, counsel for
Graham in his capacity as a beneficiary in his parents’ estate.
(c) Memorandum dated 19 December 2016 from Ms Paul, counsel for Rachel Louise Cashin (Mrs Cashin) the sister of Jillian and Graham who was joined to this proceeding as an affected party.
(d) Memorandum dated 23 December 2016 from Ms Horner, counsel for
Jillian.
(e) Memorandum dated 25 January 2017 from Mr Ormsby for Graham, in his capacity as beneficiary, in reply.
[5] Counsel and the parties have been unable to agree between themselves on the question of costs. I am now to decide that issue based upon the memoranda and all other material before the Court. No counsel have indicated that they wish to be heard further on the issue.
[6] I now give my decision on this costs question.
Parties’ position
[7] The positions taken by each of the parties on the questions of costs are essentially as follows:
(a) Graham in his capacity as executor and trustee of the estates of his late parents, it seems, seeks an order for actual legal costs and disbursements incurred by him as executor relating to this proceeding, including discovery issues which arose earlier, totalling $52,863.50, effectively on the basis that these costs are paid by Jillian as the unsuccessful applicant.
(b)Graham in his capacity as a beneficiary in his late parents’ estates also seeks an order for what he claims is an amount representing just over half of his actual personal costs liability to date. He calculates this on the basis of category 2B scale costs with various uplifts amounting to a total of $61,715.25 plus a Ministry of Justice filing fee disbursement of $110. These amounts are being sought from Jillian personally again as the unsuccessful applicant.
(c) Rachel seeks an order for her costs calculated on an indemnity basis totalling $70,267 to be paid personally by Jillian, and not from her parents’ residuary estates, which would have meant that she would be sharing in the payment of her own costs. This is because Rachel and Jillian share equally the residue of their late parents’ estates. Rachel says that Jillian should alone be personally liable to pay the estates’ costs on these proceedings (represented by Graham’s costs claim as executor and trustee of his late parents’ wills) together with Graham’s claimed personal costs as a beneficiary in the estates.
(d)In response, Jillian’s position is one opposing any orders for costs against her personally. This is on the basis, she says, that this is not a case in which the previous general trend that all costs are payable
from the estates in Family Protection proceedings ought to be departed from. Jillian says this is subject to one small exception relating to the potential impact of this on Rachel, which Ms Horner rather curiously suggests can be alleviated by “having the costs of the beneficiaries of the estates lie where they fall”.
Legal principles
[8] It is clear from r 14.1 of the High Court Rules that costs in cases such as the present are in the discretion of the Court. Rules 14.2 to r 14.5 of the High Court Rules then give some guidance as to the way in which this discretion is to be exercised. But it is apparent, too, that the High Court Rules are intended to create a framework for determining costs in individual cases that is both “predictable and expeditious”, this being confirmed in r 14.2(g). So far as the general principles relating to costs on proceedings under the Act such as the present case are concerned,
Brookers Family Law – Family Property1 addresses this:
FP5.02 Costs
1 General principles
It used to be common practice for the Court to order that costs be borne by the residue of the estate, but with the escalation of costs “gobbling up” much or all of the estate that practice can no longer be relied upon: Fry v Fry [2015] NZHC 2716 at 13. The Court’s decision as to costs is entirely discretionary: r 207(1) of the Family Courts Rules 2002 and r 14.1(1) of the High Court Rules. It is now common for costs to follow the event. A successful plaintiff may expect an order of costs and the unsuccessful plaintiff may expect to contribute to the costs of the other party: Re Common (deceased); Common v Common [2001] NZFLR 648 (FC); Fry v Fry [2015] NZHC 2716. In some cases parties may be left to carry their own costs. For example where there are merits on both sides and a costs award against the estate would be too great a burden on the estate: Neary v Neary (HC) Auckland 2010-404-274, 20 December 2010.
The merits of the claim and the conduct of the proceedings may affect a costs order…A Calderbank or offer can reduce a costs award if the offer was higher or close to the amount awarded…In Morgan v Greer (FC) FAM-2001-009-886, 6 August 2004, the unsuccessful claimants were ordered to pay costs because their claim was clearly unmeritorious. That was also the case in C v O (FC) Westport FAM-
2006-086-23, 23 May 2007, although the claimant’s withdrawal of her claim was a mitigating circumstance. In Lawson v Schroder
1 Brookers Family Law – Family Property Thompson Brookers at para FP5.02.
(HC) Auckland CIV-2003-404-3155, 22 August 2003, the unsuccessful appellant was ordered to pay solicitor/client costs because the appeal was unmeritorious…
[9] The commentary in McGechan on Procedure2 relating to the High Court
Rules also reflects this position where at para HR Pt 14.16 it is noted:
HR Pt 14.16 Family Protection Proceedings
The traditional, but never invariable, practice was to order the costs of all parties to be paid out of the residue of the estate. However, such an order can impact unfairly on the residuary beneficiary, particularly if the estate is not large. Perhaps for that reason, the Court, in a defended Family Protection proceeding, often left costs to lie where they fell, with the result that the parties had to meet their own costs out of their respective shares of the estate.
More recent cases suggest costs in Family Protection cases should not be excluded from r 14.2 costs principles, in particular the principle that costs should follow the event…
[10] In the Court of Appeal decision in Packing In Ltd (In Liquidation) v Chilcott3
the Court in addressing issues of costs said:
Success or failure in this context is better assessed by a realistic appraisal of the end result rather than by focussing on who initiated what step, and the extent to which that step succeeded or failed.
[11] This reflects the modern approach to the allocation of costs.
The present case
[12] As signalled in the comments above, the overriding costs principle in my judgment to be applied in the present case is the r 14.2(a) statement that the party who fails with respect to the proceeding should pay costs to the party who succeeds. The present proceeding, as I have noted, was an application by Jillian under the Act for further provision from the estates of her late parents. It included, however, an earlier discovery application brought by Jillian which failed. It is clear that Jillian’s
proceeding in all respects was unsuccessful. Graham in his capacity as a beneficiary,
2 A C Beck and Others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at HR Pt
14.16.
3 Packing In Ltd (In Liquidation) v Chilcott [2003] 16 PRNZ 869 (CA) at [6].
and Rachel as a beneficiary, were both successful in opposing Jillian’s claim. It is
against that background that I consider issues of costs in this case.
[13] There are in fact three claims to costs here. I note these at [7](a), (b) and (c)
above and I will now consider each claim in turn.
A. Costs of (Graham as executor) of the estates
[14] The costs of the estates (and thus Graham’s costs as executor) under normal circumstances would come out of the respective estates. The residuary beneficiaries in the estates, as I have noted, are Jillian and Rachel in equal shares. Thus, if the executor’s costs are to come out of the estates, they would necessarily be shared by Rachel and Jillian equally as the residuary beneficiaries.
[15] All parties to this proceeding, indeed including Jillian, appear to accept that such a conclusion would be unfair on Rachel as an innocent party here. I agree.
[16] Rachel’s position from the outset was clear. This was to the effect that she was making no claim herself under the Act and, if the Court did award Jillian further provision from their parents’ estates, Rachel was not seeking an equal uplift in her entitlements or indeed any increase at all. Rachel sought simply to preserve her entitlements expressed in the wills of her parents without any redistribution (if any) or legal costs diminishing her share.
[17] I accept, too, that Rachel was entitled to be independently represented by counsel in this proceeding and that she herself has incurred significant costs in her endeavour simply to uphold the testamentary wishes of her parents.
[18] In my view, therefore, the interests of justice require that the actual costs properly incurred in this proceeding by Graham as executor of their parents’ estates should not be shared by Rachel as one of the residuary beneficiaries (which would thus reduce her actual residue payout) but, rather, should be met entirely by Jillian.
[19] That said, an order is to follow that, as the unsuccessful party in this proceeding, Jillian is to be solely responsible to meet the reasonable indemnity costs
and disbursements of the estates appropriately incurred in this proceeding (and thus
Graham’s costs in his capacity as executor of the estates).
[20] As to these costs, Mr Shaw, counsel for the estates, has confirmed that the estates have adopted a neutral view throughout this proceeding and they have consistently confirmed a willingness simply to abide the decision of the Court. Given that, the involvement of the estates in this proceeding, it is presumed, should only have been minor with their costs reflecting this.
[21] As to the question of those indemnity costs and disbursements, these have been detailed by Mr Shaw in his 16 December 2016 memorandum. The actual legal fees claimed, which he says are “based on time recorded”, totalled $38,771. At first glance, this seems a surprisingly large figure, given the comments I note at [20] above. Disbursements, which include Carter valuation fees for two properties totalling about $3800 and “Brian Maxwell’s fees” totalling about $3,600, together with GST, give a total costs and disbursements figure claimed of $52,863.50.
[22] No comment is made in her submissions by Ms Horner on the quantum of these costs and disbursements claimed for the estates. If there may be some query or challenge as to this quantum, also bearing in mind what might have been the proper role of the estates here, then that is a matter which needs to be advanced and addressed.
[23] To deal appropriately here with these matters, orders are now made therefore as follows:
(a) As noted at [19] above, Jillian is to pay the reasonable indemnity costs and disbursements of the estates appropriately incurred with respect to this proceeding (and thus Graham’s costs and disbursements in his capacity as executor of the estates).
(b)In determining the quantum of those costs and disbursements to be paid, the following directions are now made:
(i)Within 10 working days of the date of this judgment Mr Shaw, counsel for the estates, is to file and serve any memorandum he may wish directed to outstanding issues as to quantum, which are to relate to the proper role of the estates in this proceeding, and a break-down of the calculation of the fees and disbursements which are properly payable relating to this.
(ii)Ms Horner, counsel for Jillian, shall then have a period of a further 10 working days from that date to file and serve any memorandum in reply on the quantum issue.
(iii)Mr Shaw shall then have a period of five working days from that date to file and serve any brief memorandum he may wish, simply in reply.
(iv)Those memoranda are then to be referred to me and I will decide the question as to the appropriate and reasonable costs and disbursements quantum figure to be paid by Jillian to the estates based upon all the material then before the Court.
B. Costs of Graham as a beneficiary in the estates
[24] I turn now to the issue of Graham’s personal claim for costs as a beneficiary in the estates. But before considering this, I need to interpolate one further factor suggested to be of some relevance that arose in this case. This relates to what are described as “Calderbank Offers”.
Calderbank Offers
[25] On 15 April 2016, Mr Ormsby provided to Ms Horner, a letter outlining in detail the basis upon which Mr Ormsby contended that Jillian’s claim under the Act had no chance of success. In providing this letter, at para [21] Mr Ormsby outlined what has been suggested as a “Calderbank Offer” in the following terms:
[21] In the interests of protecting all parties from further costs and in order to protect family relations, our client will allow proceedings to be
discontinued on the basis that costs lie where they fall. This proposal will obviously require the agreement of Mrs Cashin.
[26] Shortly thereafter, on 21 April 2016, Ms Paul for Rachel, wrote to Ms Horner noting that she agreed entirely with the analysis of the position contained in Mr Ormsby’s letter dated 15 April 2016 and she went on to confirm that:
It is clear that on current legal authority, Ms Talbot’s claim has no prospect
of success.
[27] Ms Paul then went on to state that, if this matter proceeded to hearing, Rachel would also seek costs against Jillian. A form of “Calderbank Offer” then followed where Ms Paul in the last paragraph of that letter stated:
Ms Cashin instructs me that in an effort to resolve matters and salvage family relations she agrees that if Jillian discontinues her claim, costs will lie where they fall.
[28] As became apparent, no discontinuance of the claim followed. It went to hearing on 30 and 31 May 2016 and 19 August 2016.
[29] Rule 14.10 of the High Court Rules addresses “Calderbank Offers”. In doing so, it provides:
14.10 Written offers without prejudice except as to costs
(1) A party to a proceeding may make a written offer to another party at any time that –
(a) is expressly stated to be without prejudice except as to costs; and
(b) relates to an issue in the proceeding.
(2) The fact that the offer has been made must not be communicated to the Court until the question of costs is to be decided.
[30] And r 14.11 of the High Court Rules notes that the effect a “Calderbank Offer” under r 14.2 has on the question of costs is at the discretion of the Court but subject to this, it secures to the maker of a “Calderbank Offer”, if it has a value more beneficial for the recipient than any judgment subsequently obtained, a right to costs from the time the offer is made.
[31] And it is apparent too, as McGechan on Procedure at para HR14.10.01(3) notes, that the precise words “without prejudice except as to costs” although well understood, strictly speaking, are not necessary providing that the basis of the offer is made clear.
[32] What is clear to me in this case is that the offers in question which were made by Mr Ormsby and Ms Paul were in the form of “walk away” offers. The authorities suggest that Courts should be “conventionally cautious” of uplifting costs on the basis of such an offer which effectively requires the offeree to have zero chance of success in a claim. This is clear from the decision in Easton Agriculture Ltd v
Manawatu/Whanganui Regional Council.4 In situations such as this, strike-out
proceedings are said to be the more appropriate way to proceed.
[33] It is apparent too, as the Court of Appeal has noted, first, that defendants routinely make “walk away” type offers and, secondly, that reliance on such an offer to justify an increased costs claim would effectively lead to increased costs being sought in almost every unsuccessful application – see Hira Bhana & Co Ltd v PGG
Wrightson Ltd.5
[34] With this in mind, I am satisfied here that the offers in question from Mr Ormsby and Ms Paul should not have the full impact of “Calderbank Offers” in the circumstances of this particular case, but they may be taken into account as broadly relevant to the costs questions given the approach taken by the parties as this proceeding has advanced.
[35] Notwithstanding these comments, in this case I am satisfied that the two letters in question, that from Mr Ormsby dated 15 April 2016 and from Ms Paul dated 21 April 2016, and the offers to allow the proceedings to be discontinued on the basis that costs would lie where they fall, were entirely clear. That Jillian chose to proceed in the face of these offers and ultimately to fail entirely in her claim
represented a clear risk she decided to take.
4 Easton Agriculture Ltd v Manawatu-Whanganui Regional Council (HC) Palmerston North, CIV-
2008-454-31, 21 December 2011.
5 Hira Bhana & Co Ltd v PGG Wrightson Ltd [2007] NZCA 342 at [26].
[36] The settlement offers made by Mr Ormsby and Ms Paul in their “Calderbank Offer” letters were realistic. As it turned out, those settlement offers predicted precisely the ultimate outcome here. Had the offers been accepted, then substantial additional legal costs and disbursements would have been avoided.
[37] Returning now to Graham’s claim for his costs as a beneficiary in this proceeding, as I have noted above, his claim is for costs calculated on a category 2B basis with an uplift relating to some of those costs totalling $61,715.25 together with a Ministry of Justice filing fee disbursement of $110.
[38] In making this claim, Mr Ormsby states in his memorandum that this costs claim represents only a little over half of Graham’s actual liability for legal costs in this proceeding to date. He notes that the claim would not come close to achieving the two thirds recovery which the High Court costs regime is aimed at.
[39] On all of this, r 14.6(3) of the High Court Rules describes the instances in which an award of increased costs (such as that sought here by Graham) may be made as follows:
(3) The Court may order a party to pay increased costs if -
(a) The nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b) The party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by –
(i) failing to comply with these rules or with a direction of the Court; or
(ii) taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii) failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
(iv) failing, without reasonable justification, to comply with an order for discovery, a notice of further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v) failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under r 14.10 or some other offer to settle or dispose of the proceeding; or
(c) the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or
(d) some other reason exists which justifies the Court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
[40] At the outset here I need to say that Jillian’s claim in this proceeding was unmeritorious. At best, it might be said that her claim stood only a very modest chance of success. That said, and given the circumstances surrounding the offers made to Jillian as outlined at paras [25] and [27], I have little doubt here that an award of increased costs in favour of Graham in his capacity as a beneficiary is appropriate in this case.
[41] As to the quantum of those costs to be awarded, Graham has chosen to seek costs on a simple category 2B scale basis together with uplifts generally being
50 per cent but only on some categories of his claim, particularly relating to the preparation for and attendance at the trial of this matter. In addition, one uplift of
100 per cent is sought for inspection of documents relating to an alleged non- compliance with discovery orders.
[42] Again, Ms Horner for Jillian in her submissions has made no comment on these quantum questions. If there may be some query or challenge as to the total costs quantum claimed by Graham, that is a matter which I need to address.
[43] Once more, to deal appropriately here with these matters affecting Graham’s
claim to costs, orders are now made therefore as follows:
(a) Jillian is to pay the reasonable costs of Graham as a beneficiary in the estates on the basis of his claimed category 2B scale costs together with an appropriate uplift, and his reasonable disbursements on this proceeding.
(b)In determining the question of those costs and disbursements to be paid, the following directions are now made:
(i)Within 10 working days of the date of this judgment, Mr Ormsby is to file and serve any memorandum he may wish directed to outstanding issues as to quantum of Graham’s claim for costs and disbursements in this proceeding.
(ii)Within a further 10 working days of that date Ms Horner is to file and serve any memorandum in reply she may wish on the quantum issue.
(iii)Mr Ormsby is then to have a further period of five working days from that date to file and serve any brief memorandum he may wish, strictly in reply.
(iv)Those memoranda are then to be referred to me and I will determine the question of the appropriate and reasonable costs and disbursements quantum figure to be paid by Jillian to Graham in his capacity as a beneficiary in this proceeding, based upon all the material then before the Court.
C. Costs of Rachel
[44] I turn now to the issue of Rachel’s claim for her actual costs and
disbursements incurred in this proceeding.
[45] From Ms Paul’s costs memorandum filed in this matter, Rachel seeks from Jillian reimbursement on an indemnity basis of her costs here, which she calculates at $70,267 plus an amount she describes as “office disbursements”. To place this claim into perspective, Ms Paul contends that, calculated on a category 2B scale basis, Rachel’s costs here would be $38,356 and with a 50 per cent uplift on this category 2B basis, $48,948.50. I repeat, however, that Rachel’s claim against Jillian here is for reimbursement of her actual costs totalling $70,267.
[46] Indemnity costs of the type sought here by Rachel are provided for in situations outlined at r 14.6(4) of the High Court Rules as follows:
(4) The Court may order a party to pay indemnity costs if –
(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding, or a step in a proceeding; or
(b) the party has ignored or disobeyed an order or direction of the Court or breached an undertaking given to the Court or another party; or
(c) costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or
(d) the person in whose favour the order of costs was made was not a party to the proceeding and has acted reasonably in relation to it; or
(e) the party claiming costs is entitled to indemnity costs under a contract or deed; or
(f) some other reason exists which justifies the Court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[47] Although in this case, as I note at para [40] above, I am of the view that Jillian’s claim here was generally unmeritorious, I accept the suggestion from Ms Horner that these proceedings could not be considered to be vexatious.
[48] Notwithstanding this, throughout this proceeding and indeed in her costs memorandum to this Court, Ms Horner has acknowledged the real need to avoid any unfair impact on Rachel, as a generally innocent party here and one of the residuary beneficiaries, if costs of all parties were to come from the estates. Ms Horner does claim, however, that Jillian repeatedly sought to mediate the dispute in this proceeding with her brother and sister up to the date of trial but this was refused. I accept, however, that this refusal on the part of Graham and Rachel was not unreasonable given that Jillian’s claim, as I ultimately found, lacked merit.
[49] At this point I also leave on one side the general grounds for the Court to order payment of indemnity costs as outlined at r 14.6(4) of the High Court Rules
other than sub para (f) of para (4). It is my view that “some other reason exists to justify the Court in making an order for indemnity costs” in the circumstances of Rachel’s costs claim here. This reason is broadly two-fold. First, it relates generally to the position Rachel found herself in (acknowledged by Ms Horner) that Rachel was herself making no claim under the Act, and simply did not wish to be prejudiced by the main dispute which was between Jillian and Graham.
[50] Secondly, it relates to Rachel’s need, in being involved in this proceeding, to ensure that her position as a residuary beneficiary was not prejudiced, such that her reasonable costs of her legal representation in the interests of justice should be met by Jillian. This is in part supported by the fact of the settlement offer made on Rachel’s behalf as noted at para [27] above.
[51] In all the circumstances I find therefore that Rachel is entitled to an award of proper indemnity costs on this proceeding to be paid by Jillian.
[52] As to the quantum of those costs and disbursements claimed by Rachel, again no comment was made in her submissions by Ms Horner on this aspect. Any query or challenge to this quantum, of course, is a matter which needs to be advanced in order that I can properly address it.
[53] To deal appropriately here with all these matters, orders are now made therefore as follows:
(a) As noted at [51] above, Jillian is to pay on an indemnity basis the reasonable costs and disbursements of Rachel with respect to this proceeding.
(b)As to the quantum of those costs and disbursements, the following directions are now made:
(i)Within 10 working days of the date of this judgment, Ms Paul is to file and serve any memorandum she may wish directed to
the quantum of indemnity costs sought by Rachel in this matter together with any disbursements.
(ii)Within a further 10 working days of that date, Ms Horner is to file and serve any reply memorandum she may wish directed at this quantum question.
(iii)Within a further five working days of that date, Ms Paul is to file and serve any brief reply memorandum on the costs quantum issue.
(iv)Those memoranda are then to be referred to me and I will decide the issue of the quantum of these indemnity costs to be paid to Rachel here on the basis of all the material then before
the Court.
Result
[54] As the unsuccessful party in bringing her application for further provision under the Act from her late parents’ estates, as I have noted in the orders outlined above, Jillian is to meet the costs of Graham as executor and trustee of the estates, Graham in his capacity as a beneficiary in the estates, and Rachel relating to these proceedings in accordance with r 14.2(a) of the High Court Rules.
[55] Orders as to this entitlement and to liability for costs have been made at paras [23], [43] and [53] above, and directions for determination of the quantum involved at paras [23], [43] and [53] above. These are confirmed.
...................................................
Gendall J
Solicitors:
Mahony Burrowes Horner, Wellington
Timpany Walton Lawyer
Wynn Williams, Christchurch
Lana Paul, Christchurch
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