Venkataswamy v Kodoor
[2017] NZHC 554
•28 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2374 [2017] NZHC 554
BETWEEN SHYLA VENKATASWAMY
Plaintiff
AND
MURALI GANESH KODOOR AND GEETA MURALI GANESH Defendants
Hearing: 6 March 2017 Appearances:
Mr J B Murray for Plaintiff
Mr M Phillipps for DefendantsJudgment:
28 March 2017
JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
This judgment was delivered by me on
28.03.17 at 3.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
VENKATASWAMY v KODOOR And Anor [2017] NZHC 554 [28 March 2017]
[1] The plaintiff resides in the United States of America and the defendants in New Zealand, although their immigration status in India is virtually the same as that of citizenship. They spend quite a lot of time in India.
[2] The plaintiff and the defendants had for some time been acquaintances when an opportunity presented itself to invest in a commercial building in Orewa, New Zealand.
[3] The proposal to purchase the building in Orewa called for a deposit from the plaintiff of US $750,000 and on 12 September 2010 the plaintiff agreed to pay such amount.
[4] A company was to be established in New Zealand and a bank account was opened in the name of a trading trust into which the plaintiff was to deposit her investment. She in fact contributed US $740,000.
[5] The terms on which the money was initially paid for the commercial building venture are alleged to have involved the defendants agreeing to pay interest and also a profit figure over and above the interest payments to the plaintiff.
[6] As it turned out, the commercial building investment did not proceed and, in circumstances which are contentious, the first named defendant applied some or all of the money towards a liquor importing venture the objective of which was to import liquor sourced in Dubai for sale in New Zealand. It would appear that the plaintiff agreed to part or all of the funding being diverted to the liquor importation scheme but the details of the terms upon which that was to be done are not clear and are not pleaded.
[7] The plaintiff asserts that in addition to the US $740,000 that she arranged for payments from third parties totalling US $258,561 to be paid on her behalf to the defendants for investment purposes. I will refer to these payments as “the third party payments”.
[8] The assertion which the plaintiff makes is that by February 2011 the total amount that had been invested or advanced was, after including the third party payments, US $998,551.
[9] The defendants do not accept that the payments from third parties were anything to do with the plaintiff. As I understand their position, they accept that while they did receive such payments they did so quite independently of the plaintiff. I understand that their argument is that the money was theirs and not the plaintiffs.
[10] The plaintiff’s counsel accepted that this was so. That the third party payments were from people who were resident in or based their businesses in the Republic of India.
[11] The plaintiff says that the source of the subsequent payments was money she had sent to the third parties in India to invest in Indian real estate which did not eventuate and therefore the monies were sent to the defendants at the direction of the plaintiff.
[12] There is therefore a dispute about how much money the plaintiff provided to the defendants for investment.
[13] There is also a dispute about the extent of the repayments the defendants made
[14] The parties agree that there were repayments made. One payment in this category was for the amount of US $163,910.95 apparently paid to the plaintiff on
16 November 2011 by one Amit Talwar.
[15] The defendants also claim that between 26 April 2012 and 30 July 2012 an additional US $572,253 were repaid but the plaintiff denies this. Alternatively, the plaintiff apparently argues such funds as were repaid to her in the sum of re- advanced US $572,253 were returned to the first named defendant.
[16] To the extent that I am able to understand these alleged re-payments, it appears that they were made through a person resident in India, Mr Muralidhar, who the defendants assert was the agent of the plaintiff. It is impossible to be categorical about whether in fact he was the agent but it would seem that money was paid into his bank account on behalf of the plaintiff with the ultimate intention being that he would pay it on to the plaintiff.
[17] Further the defendants assert that part of the funds which the defendants attempted to send to the agent, Mr Muralidhar, were paid in US $. But because of requirements of Mr Muralidhar’s bank, they had to be converted to rupees and in the meantime the payments were reversed. However, eventually the payments did go through. So while it might technically be correct that the money was returned at one point the overall result of the transaction was that there was repayment of debt made by the defendants as they allege.
[18] A factual issue in the proceedings therefore concerns the movements of funds
in and out of Mr Muralidhar’s bank account.
[19] In summary, this case is concerned with a claim by a business partner against two defendants who reside in this country where there seems to be little doubt that the law which will need to be applied is the law of New Zealand.
Principles
[20] The defendants have filed a protest to the jurisdiction of the Court to hear and determine the proceeding and they have now applied under the inherent jurisdiction of the Court or under r 6.29(3) to stay or dismiss these proceedings on the grounds that the New Zealand Court is forum non conveniens. Mr Phillipps for the defendants accepted that there is jurisdiction for the New Zealand Court to hear the matter but submitted that the Court should exercise its discretion to stay or dismiss the proceedings so that they can be dealt with in the Republic of India.
23.In Americhip Inc v Dean1 the High Court conveniently summarised the applicable principles:
“(a) The applicant has the onus of persuading the court to exercise its discretion. This requires the applicant to show not just that New Zealand is not the natural or appropriate forum, but also that there is another available forum which is clearly and distinctly more appropriate.
(b) The natural or appropriate forum is that with which the action has the most real and substantial connection. In assessing this, the court will have regard to connecting factors such as relative convenience and expense (particularly in relation to witnesses), the governing law, and the places where the parties reside and carry on business.
(c) The court will ordinarily refuse a stay if it concludes that there is no other available forum that is clearly more appropriate for the trial.
(d) The court will ordinarily grant a stay if it concludes that there is another forum which prima facie is clearly more appropriate for the trial, although it still has a discretion not to grant the stay in the interests of justice. The court can take into account all the circumstances of the case.
[15] The courts have also identified the following factors as relevant to determining the appropriate forum:7
(a) the foreign court must be able to grant the relief sought;
(b) the relative cost and convenience of proceeding in each jurisdiction;
(c) the location and availability of documents and witnesses;
(d) the governing law and in particular whether the law governing the dispute to be resolved is New Zealand law (although this carries less weight where the relevant laws are similar in each juris-diction);
(e) the strength of the plaintiff's case;
(f) where any judgment will be enforced;
(g) whether the application or stay is brought to gain a tactical advantage and not because trial in the other forum is genuinely desired;
(h) whether there are any procedural advantages in one of the jurisdictions.”
24. In Longbeach Holdings Limited v Bhanabai & Co Limited2 the
Court of Appeal put it this way:
The Court must be satisfied that there is another available forum for the trial of the case that is the more appropriate forum, in that the case may be tried there more suitably for the interests of the parties and the ends of justice. The burden of proof of that rests on the defendant. Relevant considerations will be convenience and expense, the places where the parties respectively reside or carry on business, the law governing the trans-action, what is the "natural forum", ie, that with which the action has the most real and established connection, and whether a New Zealand forum offers the plaintiff a "legitimate personal or juridical advantage". Put shortly, the Court's task, Lord Goff of Chieveley said, is "to identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice" (P 858).
[21] The relevant principles which are engaged in the present case are that, first, a litigant has the right to commence litigation where he or she chooses. It is up to the party seeking a trial elsewhere to satisfy the court that there is another available forum which prima facie is more appropriate for the trial of the action.
[22] If the court is persuaded that there is such a forum, the court will normally grant a stay unless there are circumstances by reason of which justice requires that the stay should nonetheless be granted.
[23] The above approach imposes on the applicant for a stay the requirement to demonstrate that justice can be done between the parties at substantially less convenience or expense in the alternative forum: MacShannon v Rockwear Glass Limited.3 Another way of putting it is that the court needs to be satisfied that there is a court in another country which is the appropriate forum for the trial of the action in that case may be tried more suitably for the interests of all the parties and the ends of justice.4
[24] In the House of Lords judgment in The Davidin Daver5 their Lordships stated that it is not appropriate for the court, when undertaking the process of selecting a forum conveniens from “embarking on a comparison of the quality of justice
obtainable…” in another country’s court system.6
3 MacShannon v Rockwear Glass Limited [1978] A. C. 795 at p. 812
4 Spiliada Maritime Corporation v Cansulex Ltd (H.L.(E.) [1986] 3 W.L.R. 972 at p.985.
5 The Davidin Daver [1984] 1 All ER 470.
6 At 475.
[25] However, that authority7 further establishes that where the court determines that the alternative forum is the natural and appropriate court for the resolution of the dispute between the parties the court ought to exercise its discretion to stay the proceedings unless the plaintiff establishes objectively by cogent evidence that, inter-alia, there was some personal or juridicial advantage only available to him or her in the local action which is of such importance that it would be unjust to deprive him or her of that advantage.
[26] Subsequently the House of Lords in Spiliada8 stated that a personal or juridical advantage would not as a general rule deter the court from granting a stay if it was satisfied that substantial justice would be done to all the parties in the alternative forum.
Discussion
Defendants required to establish that India is an available forum which is prima facie clearly more appropriate for the trial of the action
[27] The defendants must, therefore, first show that the Republic of India is another available forum which is clearly or distinctly more appropriate than New Zealand.9 The overall burden rests with the party putting forward the alternative forum.
[28] One difficult question concerns whether in fact there is an available forum in the sense that the procedures which are used in India do not appear to conform to what is generally regarded as those of a “court”. What will take place in India is a police investigation. Neither party referred me to any authority on the question of whether such a method of dispute resolution is to be regarded as a forum for trial
which must be considered as an alternative to a trial in New Zealand.
7 Above
8 At page 846.
9 Above at page 986.
[29] Assuming for the moment, without deciding, that there is a forum the next question is whether that forum is prima facie clearly more appropriate for the trial of the action.10
[30] The plaintiff resides in the United States of America while the defendants reside in New Zealand although they have, as I have pointed out, certain rights of residency in India as well. The parties did not dispute that the contract was governed by the law of New Zealand. There are four witnesses resident in India.
Factual disputes about events in India
[31] A key factual issue which will have to be resolved in the course of this case is that of whether payments by third parties to the defendants totalling US $258,551 were actually paid on behalf of the plaintiff or whether, as the defendants submit, those payments which they received had nothing to do with the plaintiff. The persons who made the payments are Indian residents, or are domiciled in India or carry on business in that country.
[32] If the payments that the defendants received had nothing to do with the plaintiff, then it follows that any debt owed to the plaintiff is smaller than she alleges.
Obtaining documents relating to the transactions in India
[33] Discovery is likely to be an important aspect of resolving this factual dispute. Bank records and the like would have to be produced.
[34] It would seem likely that the alleged involvement of the Indian-based parties in making these payments would have been the subject of documents exchanged between the parties. There is likely to have been a background of correspondence, emails or contractual documents which establish what the setting was in which the third party remittances were made. As well there is likely to be some narrative associated with the banking documentation which accompanied the transactions
which will throw light on those transactions as well.
10 Spiliada Maritime Corporation v Cansulex Ltd [1987] A.C. 460 at 478, HL.
[35] The New Zealand court would not be able to make a non-party order for discovery against the Indian parties in India. However, the documents may be required to be disclosed by more indirect means. That is because, discovery could be ordered from the parties to the proceeding compelling them to disclose documents that they have or had under their control the source of which was exchanges between them and the third parties. The place where the documents originated is therefore not decisive as to whether or not they will be disclosed on discovery.
[36] It seems very likely, in fact, that there will be documents which will assist the court in deciding whether the third party payments were, as the plaintiff says, made in her direction from money that she was the beneficial owner of, or, on the other hand, funds which the defendants were the owners of.
[37] All of these documents would seem to be discoverable, if necessary by making of tailored discovery orders.
Evidence - availability of witnesses
[38] A further factor which needs to be taken into account that affects the requirements of justice is the ability of either the plaintiff or the defendants to obtain the testimony of witnesses at any hearing.
[39] It would seem likely that the police in India will interview the witnesses who reside in that country. Obviously, if that were to occur, the location of those parties in the country where the investigation is proceeding should mean that there are a few practical difficulties in obtaining their evidence.
[40] On the other hand, it is not known what the attitude of the four Indian-based witnesses would be to providing evidence for one side or the other on a voluntary basis in a New Zealand Court. If they are not amenable to giving evidence voluntarily it would appear that it would be open to the New Zealand Courts to issue a letter of request to the Courts in the Republic of India seeking assistance in regard to the taking of evidence and/or the production of documents by discovery.
[41] High Court Rule 9.17(1), provides:
When, in a proceeding or on an interlocutory application, a party desires to have the evidence of a person or persons taken otherwise than at the trial or the hearing of that interlocutory application, the court may, on application by that party, make orders on any terms the court thinks just—
(a) for the examination of a person on oath before a Judge, Registrar, or Deputy Registrar or before a person that the court appoints (in rules 9.18 to 9.23 referred to as the examiner) at any place whether in or out of New Zealand; or
(b) for the sending of a letter of request to the judicial authorities of another country, to take, or cause to be taken, the evidence of a person.
[42] This rule applies to witnesses overseas. Ultimately, whether an order is in fact made is all a matter of discretion. The prime criterion is whether justice requires such an order.11
[43] The High Court has explained the purpose of the rule:12
[17] The purpose of the rule is to enable a party to have the evidence of a witness taken otherwise than at the time of the trial of the proceeding if the witness would otherwise be unavailable to give evidence at the place and time of trial.
[44] There a range of considerations that can thus be taken into account, including:13
a) The practicability or otherwise of the witness(es) coming to New
Zealand;
b) The relative cost involved;
c) The significance of the evidence;
d) The nature of the evidence (whether it is simple/uncomplicated);
11 Ra Ora Stud Ltd v Oliver (No 2) (1991) 5 PRNZ 132 (HC).
12 Midland Metals Overseas Pte Ltd v The Christchurch Press Company Ltd (2001) 15 PRNZ 522 (HC).
13 Hill v Innes Ltd [1957] NZLR 1016 (SC) at 1019.
e) The need for cross-examination and the extent to which credibility will be in issue.
[45] I assume in the absence of evidence to the contrary that the courts in the Republic of India would lend their assistance. If that assumption is correct, the Indian resident witnesses would be examined by a Court in India and the record of the evidence remitted to New Zealand for consideration by the trial Court in this country. Alternatively, if the witnesses were agreeable to doing so, their evidence could be taken by video link into a New Zealand Court obviating the need for the witnesses to travel to this country. That would be a relatively convenient and inexpensive way of obtaining such evidence.
[46] If the letter of request procedure were adopted, then notwithstanding undesirable features of taking evidence in that way it would be better than nothing. The New Zealand Court in coming to factual conclusions in the proceeding would not, though, be in the preferred position that an Indian Court would have been in had proceedings been filed in such a forum. That is the New Zealand court will not have the advantage in hearing from the witnesses in person if evidence is taken pursuant to a request.. The same difficulty would not be present if the evidence were to be given consensually via video link. All of this assumes that those witnesses would not be wanting to come to New Zealand or that it is not financially justifiable to bring them here having regard to the importance of their evidence.
[47] The foregoing comments apply to the third party payers who are based in
India
The evidence of Mr Muralidhar
[48] There is an additional witness resident in India whose case requires separate consideration. That is Mr Muralidhar. His evidence is likely to be relevant to the assertion by the plaintiff that while it is in fact correct that repayments were made to her by the defendants through the instrumentality of Mr Muralidhar, having received the money, Mr Muralidhar returned it to the defendants.
[49] It may be that Mr Muralidhar was an agent of the plaintiff – he certainly seems to have had authority from her to receive funds on her behalf. There is reason to believe that if he had been the agent of the plaintiff then he would be prepared to cooperate and give evidence in the case. While that cooperation might extend to the plaintiff there cannot be the same confidence about assisting the defendants.
[50] The evidence of Mr Muralidhar could be taken pursuant to a letter of request in India. On the other hand, if he is the agent of the plaintiff, it may be that he would be amenable to providing evidence by a video link. On the balance of probabilities I conclude that the second assumption is correct. He would therefore be available for cross-examination by the New Zealand participants in the hearing during the course of the video link.
[51] As well, the plaintiff would, presumably, be required to provide discovery of any records relating to Mr Muralidhar’s bank account over which they have control.
Evidence of the first named defendant
[52] The next subject on which contested evidence may be required is the issue of whether the defendants in fact made the repayments which they claim to have made totalling $572,253. It is to be noted that the payer in each case who made the payments, the defendants say, is the first named defendant. This aspect of the dispute does not therefore raise questions about the testimony of a foreign national. I conclude from the evidence that the first named defendant spends part of his time in the New Zealand jurisdiction and it would not be inconvenient for him to give evidence in this Court.
Considerations of efficiency
[53] There is no information before the court about the relative cost and convenience of proceeding in each jurisdiction. It can be inferred that the police investigation process would be relatively economical.
Enforcement of judgment
[54] No explicit evidence was provided on the issue of the relative ease of enforcing the judgment in India, on the one hand or New Zealand on the other. However given that the defendants have lived in New Zealand for some time and that the second named defendant is a medical practitioner I infer that they are likely to own property here which would be available for satisfaction of the judgment. That property may include a business based on the medical practice of the second named defendant.
Applicable law
[55] I understand that the plaintiff contends that the applicable law which should govern the contract between the parties is that of New Zealand and that the defendants either agree that that is the case or do not dispute that it is the case.
[56] The question therefore is whether these factors in summary mean that India is clearly more appropriate as a forum.
Conclusion
[57] It must be accepted that there are some advantages to proceeding in India, particularly when it comes to taking the evidence of the three third parties who are alleged to have made the additional advances from the plaintiff to the defendants.
[58] However, the arguments are not all one way. There are ways in which the parties can overcome disadvantages with production of documents as I have indicated by disclosure of those documents as part of the discoverable documents of the plaintiff and defendants. So that even though the court cannot order discovery in India the documents would be obtainable anyway.
[59] There are also alternative means of taking the evidence of the witnesses in India. The best option would be for their evidence to be taken by video link. The second best procedure would be taking the evidence pursuant to a letter of request. While there is some doubt about whether the three third parties who made payments
would be available to give that evidence, the likelihood is that Mr Muralidhar would be more disposed to giving of evidence by that means.
[60] So far as the parties themselves to the litigation are concerned, it is clear that the overall history of the dispute and the specific transactions which need to be examined as part of the enquiry into whether the defendants owe money to the plaintiff can all be conveniently carried out in New Zealand. It is not to be lost sight of that only part of the dispute between the parties involves what occurred in India.
[61] As I have already concluded, it is likely that the law of New Zealand is the law that will be applied in this dispute. That issue can be managed more conveniently by hearing in New Zealand.
[62] Part of the difficulty in coming to a view on whether there are distinct advantages to a trial in India arise from the doubt about the factual position concerning the various witnesses and the availability of documents. The other uncertainties lie in the area of trying to ascertain to what extent the events in India will be influential in determining the ultimate outcome of the case when compared with events that occurred in this country.
[63] My conclusion is that despite the defendants being able to establish that there would be some advantages from the proceeding taking place in India, they are not able to clearly demonstrate that that is the preferable venue.
[64] In my view the overall factors are reasonably balanced and I do not conclude that the defendant is able to show that India is clearly more appropriate for the trial of the action.
Requirements of justice
The procedures in India
[65] I have assumed that the procedure which is applicable to the claim which the defendants bring in India amounts to the deliberations of a “forum” which is available for consideration of the dispute in the Republic of India. That requirement
is the first step of establishing that there is a more suitable and convenient forum for the hearing of the dispute.
[66] No doubt the Republic of India procedure which the defendants in this case have adopted represents an appropriate way of resolving civil claims of this kind at least in the state of Bangalore, India, given the local conditions that apply in that country. The comments that I have made in this part of the judgment are not, of course, intended to suggest otherwise. However, when looking at the matter from the perspective of the procedural rights that litigants have in this country, serious questions arise as to whether the plaintiff will be procedurally disadvantaged if she is not able to commence a proceeding in this country but instead the dispute is resolved
in the Republic of India.14
[67] As I have earlier indicated, there is little information before the court about the Indian processes other than an outline of the fact that they involve a police investigation.
[68] There would seem to be three potential disadvantages inherent in the procedure, those being in the area of discovery, ascertainment of facts and the ability of the parties to make representations about the outcome.
Discovery
[69] In the absence of any comprehensive information on the topic, I assume that the police investigation procedure that has been initiated in India does not involve the parties in providing discovery on oath. I accept that it is likely that the police would have powers to locate and obtain documents that are relevant. That would not seem to be the equivalent though of the right of the parties to obtain discovery.
Process for ascertaining facts in Indian investigation
[70] Apart from the matters of discovery, however, the procedure is obviously different in other respects from the curial process that is made available by the New
Zealand courts which involves the parties being accorded the entitlements of natural
14 See the authorities referred to at [24] and following.
justice such as the right to be heard in the course of the decision-making process and the right to examine witnesses. I accept that that type of issue presents itself whenever the alternative forum involves an inquisitorial process. However, these elements of the Indian process when combined with the fact that it would appear that the ultimate decision is not made by a judicially trained arbiter are relevant factors.
Conclusion concerning the claim process that the defendants have invoked in India
[71] I do not consider that the court can be satisfied that substantial injustice would be done to all the parties in the Indian forum having regard to the procedural features of that system which I have discussed in this part of the judgment.
Summary
[72] To summarise, I have come to the following conclusions.
[73] It was not seriously contested that the law of New Zealand did not apply to the contract. The defendants themselves reside here at least part of the time
[74] It is correct that part of the factual issues in dispute between the parties are concerned with matters which would more advantageously be dealt with in India. I refer to the evidence of the three persons who made payments to the defendants. But there are alternative ways of taking their evidence which ought to be satisfactory.
[75] The evidence of Mr Muralidhar may be in a separate category, given that he is the agent of the plaintiff and not the defendants. However even if he is not willing to cooperate, for example by making himself available for a video link hearing, there are alternative means of taking his evidence.
[76] When considering which country the proceeding has a natural and substantial connection with, I do not overlook that the transactions between the parties in this case appear to have evolved. The relationship started out as one which had the objective of acquiring a commercial property in New Zealand where the defendants lived. It then converted into involvement on the part of the parties in an enterprise for importing liquor from Dubai to New Zealand. The exact basis upon which these
arrangements were entered into is in dispute. However, the evidence on that aspect of the matter would be primarily that of the plaintiff and the first-named defendant.
[77] I accept that the status of the money which third parties paid and which was apparently used in the Dubai scheme as an area of relevant fact and to which the court is likely to enquire. I have already explored in this judgment the various methods that could be adopted to place the evidence of the Indian based witnesses before the court. I have also commented already on the part that discovery would play in resolving the factual dispute about the payments made by the third parties in India with my conclusion being that the primary parties to this proceeding may well have discoverable documents which they will need to disclose which deals with this aspect of the matter.
[78] In relation to whether or not India is the correct forum, one factor is that there are witnesses resident in India who may be required to give evidence. As I have attempted to show, there are means by which that evidence could be acquired by a New Zealand court. It is likely that that may occasion some expense but I am not persuaded that that is a factor which means that the defendants are able to show that it is clearly preferable for the proceedings to be located in India.
[79] A police enquiry would probably be less expensive than adversarial litigation in a New Zealand court.
[80] The defendants apparently have assets in New Zealand against which the enforcement of a judgment obtained in New Zealand would be relatively straight forward. I do not have any information before me about whether the defendants have property available in Bangalore State, India, and whether enforcement is permitted and, if so, whether that is a straightforward process.
[81] The overall balance of all of these considerations is equivocal as to which Court has the most real and substantial connection with the dispute that underlies the action.
[82] Further, even if the applicant was able to establish that India was clearly a more appropriate forum when taking into account considerations such as convenience and experience, I have real concerns that the requirements of justice would be satisfied by the claim being dealt with in India. While I have noted that the courts are reluctant to make comparisons between the procedure that are available in the two potential jurisdictions, I also note that the court will do so and will take into account the real disadvantages that come with the jurisdiction put forward by the applicant unless the court is satisfied that notwithstanding those disadvantages substantial justice can be done.
[83] There are legitimate concerns arising from the fact that the parties would not seem to have control over and input into the process by which their rights would be resolved through the police investigation. It is unclear that traditional natural justice considerations would be observed. It is unlikely that discovery could be deployed by either party in support of their cases. While no doubt, a police investigation type of procedure may be wholly appropriate in the light of social and economic conditions in India, different considerations may apply where business people from the USA and New Zealand respectively are litigating a commercial dispute. That is particularly so where the dispute involves a substantial amount of money so that economising on the procedures to be adopted is not of preponderant importance.
[84] I consider therefore that, assessed by commonly held standards of justice applicable in this country, substantial justice may not be achieved if there were to be a change of forum and the dispute was submitted to a police investigation in India.
[85] For the foregoing reasons I consider that a stay of the New Zealand proceeding ought not to be granted.
Result
[86] The application for a stay order is dismissed.
[87] The parties should consult on the question of costs and if they are unable to agree should file memoranda not exceeding four pages on each side within ten working days of the date of this judgment.
J.P. Doogue
Associate Judge
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