Zhang v Zhao

[2013] NZHC 1205

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4 [2013] NZHC 1205

IN THE MATTER OF       the Land Transfer Act 1952 Section 145A

BETWEEN  BIN ZHANG Applicant

ANDZHIHUA ZHAO Respondent

Hearing:                   24 May 2013

Appearances:           D C J Huang for Applicant

J P Nolen for Respondent

Judgment:                24 May 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:

Prestige Lawyers, Auckland, for Applicant

Lowndes Associates, Auckland, for Respondent

BIN ZHANG v ZHIHUA ZHAO [2013] NZHC 1205 [24 May 2013]

[1]      The applicant applies under s 145A of the Land Transfer Act 1952 for an order that caveat 9167567.1 not lapse.  The caveat was registered on 28 August 2012 against the title to the property at 134 East Coast Road, Milford, Auckland, described in computer register NA1029/157.   Zhihua Zhao, the respondent, is the registered proprietor.

[2]      The interest claimed under the caveat is:

Pursuant to the Agreement for Joint Investment in Property dated 11 April

2012 entered into by Zhihua Zhao and the Caveator which confirms the

Caveator’s equitable interests in the property affecting the said land.   The Caveator is one of the equitable owners of the property, as she has provided for  half  of  the  finance  to  facilitate  the  purchase.    It  was  outside  her knowledge that the property has been vested in the name of the registered proprietor Zhihua Zhao only, when the agreement has stipulated that Zhihua Zhao and the Caveator will have both their interests registered on the title as tenants in common, each with a 50% share in the property.

[3]      The matters to be decided are these:

(a)       Does the agreement of 11 April 2012 give Bin Zhang a caveatable interest in the property?

(b)Was  Zhihua  Zhao  entitled  to  cancel  the  agreement  for  breach  of clause 1 of the agreement?

(c)      Should the court exercise its discretion against Bin Zhang?

The case in outline

[4]      The applicant lives in Auckland.  The respondent lives in Suzhou City, the People’s Republic of China.  He has granted a power of attorney to his niece, Yue Wen, of Auckland.  She has acted for him throughout all the events in issue in this proceeding.  She has given evidence on his behalf.  The applicant dealt entirely with her.

[5]      The parties are Chinese.   The evidence contains records of text messages between Bin Zhang and Yue Wen.   Those text messages are in Chinese, but the copies of the texts have notes giving English translations of the Chinese script.  On

the whole, there is no issue as to the accuracy of the English translations, apart from one matter that needs recording.  The respondent filed a late affidavit by Yue Wen adding a translation of some texts.   The applicant responded with an affidavit containing a letter by an apparently expert interpreter between English and Chinese, giving an alternative translation of those texts.  That is the only area where there is any contest as to the accuracy of translations.   For the purposes of a caveat application,  I  accept  that  the  version  given  by  the  applicant’s  interpreter  is  an arguably correct translation of the relevant text.  Aside from those matters, all the evidence and all the documents which have been relied on are in English.

[6]      Acting under the power of attorney, in February 2012 Yue Wen entered into an agreement to buy the property at 134 East Coast Road, Milford, for $752,000 in the name of Zhihua Zhao.  Settlement was to be four months after the unconditional date – on 29 June 2012.

[7]      On 11 April 2012, again acting under the power of attorney, Yue Wen entered into a written agreement, in the name of Zhihua Zhao, with Bin Zhang called “Agreement for joint investment in property”.  Through Yue Wen, Zhihua Zhao had invested  in  properties  in  Auckland.    Yue  Wen  managed  them.    Yue  Wen  and Bin Zhang had got to know each other at work and a friendship had developed. Bin Zhang was interested in taking part in one of these investments, and that led to the agreement in this case.  The agreement of 11 April 2012 provided for them to own the property as tenants in common in equal shares, with Bin Zhang to contribute half the purchase price.

[8]      On 25 June 2012 Yue Wen sent a message to Bin Zhang cancelling the April agreement on behalf of Zhihua Zhao.

[9]      After that cancellation of 25 June 2012, Bin Zhang contested the validity of the cancellation.   Interim arrangements were made and, as part of those interim arrangements, Bin Zhang paid the sum of $328,600 into a joint bank account of the parties.

[10]     Zhihua Zhao, however, completed the purchase of the property in his sole name without recourse to funds paid in by Bin Zhang.   The parties later tried to negotiate a new agreement under which Bin Zhang would have some role in the property, even if it was not as a co-owner.  But those negotiations were inconclusive.

[11]     Bin Zhang has now lodged a caveat maintaining that she has an interest in the property as a result the April 2012 agreement.  She contests the validity of the cancellation  of  the  agreement.    Zhihua  Zhao  denies  that  Bin  Zhang  has  any beneficial interest in the property.  He says that he cancelled the agreement because Bin Zhang did not comply with its terms.

[12]     The principles on which the courts remove or extend a caveat are these:

(i)The burden of establishing that the caveator has a reasonably arguable case for the interest claimed is on the caveator;

(ii)The caveator must show that he or she is entitled to or has a beneficial interest in the estate referred to in the caveat, by virtue of  an  unregistered  agreement  or other  instrument  or transmission or any other trust, expressed or implied or otherwise;1

(iii)The summary procedure involved in an application to sustain a caveat   is   unsuitable   for   the   determination   of   disputed questions of fact.

(iv)An order for removal of the caveat will not be made unless it is patently clear that the caveat cannot be maintained, either because there was no valid ground for lodging it, or that any valid ground which then existed no longer does so;

(v)Even  though  an  applicant  has  discharged  the  burden  on  a caveator, there is still a discretion to remove the caveat.  That

1      Land Transfer Act 1952 s 137(1).

discretion is exercised cautiously and in line with the decision of the Court of Appeal in Pacific Homes Ltd v Consolidated Joineries Ltd;2 and

(vi)The  Court  has  power  to  impose  conditions  when  making orders.

The agreement of 11 April 2012

[13]     This is a one-off agreement.  It does not use any standard form of agreement relating to real property.    The parties apparently drew it up themselves, predominantly Yue Wen.  Clause 1 provides:

Purchase Price

The parties are to pay the purchase price of the property by:

(a)       Zhihua having paid purchase deposit of $75,200 on the 29th  Feb

2012, Bin shall refund half of the amount, i.e. $37,600 to Zhihua immediately upon signing this agreement;

(b)       Opening a joint bank account at least 2 weeks before the settlement date;

(c)       Jointly borrowing 70%-80% of the purchase price from a registered bank in New Zealand to be secured by a registered first mortgage over the property by settlement date;

(d)      ZHIHUA agrees to deposit $375,000 cash into the joint bank account

2 weeks before the settlement date;  and

(e)       Bin agrees to deposit $375,000 cash into the joint bank account

2 weeks before the settlement date;

(f)       If any of the Clause 1(a), 1(b), 1(c), 1 (d), 1(e) is not satisfied by the due date, this agreement will be deemed void.

[14]     Other provisions of general relevance are these:

(a)       Clause 2 provides that the parties will complete the purchase of the property and register their interests on the title as tenants in common

in equal shares.

2      Pacific Homes Ltd v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA).

(b)Clause  3.1  provides  that  they  will  contribute  equally  to  listed payments on the property.

(c)      Clause 3.2  provides  that  Zhihua Zhao  or his  attorney will  be the manager for the development of the property, including any subdivision, construction and other developments.

(d)Clause 3.3 provides that any increase in value of the property and any net gain from the property will be shared between the parties, 70 per cent to Zhihua Zhao and 30 per cent to Bin Zhang.

(e)       Clause 3.4 provides that any losses are to be shared equally.

(f)      Clause 7 is a provision for unilateral termination.  Either party may give  a  written  notice  of  termination  to  the  other,  terminating  the sharing of the property.  In that event, the non-terminating party has first option to buy the interest of the other in the property.   If that option is not exercised then the terminating party has an option to purchase.  Failing that, if neither party exercises the options, then the property is to be sold.

(g)Clause 8 provides for mutual termination, with similar provisions to clause 7, but if the parties are unable to agree then the property is to be sold.

[15]     Although clause 1(a) provided that Bin Zhang was to pay half the deposit paid by Zhihua Zhao ($37,600) immediately on signing the agreement, she made payments totalling $48,600 – that is, there was an extra $11,000 - but by piecemeal payments, with the final payment being made about mid-May 2012.

[16]     The parties made a joint approach to the Bank of New Zealand for finance for the purchase.  Bin Zhang has put in evidence a letter from that bank recording the bank’s approval of the loan application.   The amount the bank was prepared to

advance was $601,600.  That would leave the parties with approximately $151,000 to meet themselves to contribute towards the purchase of the property.

[17]     Bin Zhang says that she also had to obtain funds which were held in her ex- boyfriend’s bank account in China and she also says that Yue Wen had difficulty getting funds arranged.   Yue Wen was to obtain funds from the sale of another property.   Bin Zhang has put in evidence a text exchange on 19 June 2012.   Bin Zhang says in part of the text exchange:

I am arranging fund a.s.a.p.

Yue Wen is recorded as replying:

Never mind. We have 10 days more.

[18]     On 21 June 2012 there was another text exchange where Bin Zhang enquired as to the amount of funds required and Yue Wen replied:

Let me calculate.   277,000 then prepare 280,000.   After your money are ready we arrange to go to bank together.

That was apparently with a view to establishing a joint account.  Bin Zhang says that Yue Wen arranged for a lawyer to compete the purchase of the property and arrangements were made to sign legal documents before the date of settlement.

[19]     While it looked as though everything was in train to complete the purchase, there was an intervening event.  At the same time, Bin Zhang separated from her former boyfriend.   She says that it significantly affected her health and emotional well-being. Yue Wen goes further and says that Bin Zhang attempted suicide.

[20]     Apparently in response to that, on 25 June 2012 Yue Wen sent an email message to Bin Zhang cancelling the agreement.   The ground stated was non- compliance with clause 1(e).  The text also referred to clause 1(f) and stated that the agreement was now invalid.  The letter also records arrangements that Yue Wen was to make to refund the deposit, the sum of $48,600 which Bin Zhang had paid, together with interest.

[21]     On 26 June 2012, lawyers instructed by Bin Zhang wrote to Yue Wen taking issue with the cancellation of the agreement and indicating that Bin Zhang regarded the agreement as still alive.

[22]     Yue Wen and Bin Zhang met on the evening of 27 June 2012 to discuss matters.  According to Yue Wen, Bin Zhang agreed that the agreement was at an end as the conditions in the agreement had not been met.  Yue Wen says that Bin Zhang still wanted to be involved in the property in some way.  For her part, Yue Wen was reluctant to have Bin Zhang involved because of her recent erratic behaviour. However, apparently Bin Zhang convinced Yue Wen that her involvement in the property could still benefit Zhihua Zhao if her interest in the property were limited to a share in the net gain or losses and not an interest in the property itself.  Yue Wen says that they agreed that they would explore the possibility of a new agreement.  In the meantime, Zhihua Zhao would complete the purchase of the property under his name alone, using his own funds and funds he borrowed.  He would in the meantime have full control over the property and any project development.  Bin Zhang would not have any beneficial interest but she would share 30 per cent of any gain and 50 per cent of any loss but she would not have any right to lodge a caveat.  The lawyer the parties had instructed would draw up a new agreement.

[23]     Bin Zhang does not agree with that account.  She confirms that there was a meeting on 27 June 2012 and there was discussion about varying the agreement.  She maintains that she advised Yue Wen that she was considering lodging a caveat to protect her interest while the second agreement was negotiated.  It does appear that it was agreed, at least on an interim basis, that the settlement would go ahead and that Bin Zhang would pay an amount as a sign of her good faith in wishing to invest in the property.

[24]     In a text exchange on 28 June 2012, Yue Wen specified that Bin Zhang should deposit $328,600 to the parties’ joint account.  Bin Zhang paid that amount. She paid it on the afternoon of 29 June 2012.   However, earlier that morning the purchase was completed with the title being taken in the name of Zhihua Zhao alone.

[25]     Bin Zhang denies that in the meeting of 27 June 2012 she agreed that the agreement of 11 April 2012 was void.

[26]     The  parties  have  put  in  evidence  copies  of  correspondence  that  passed between the parties and their lawyers after 29 June 2012.  What that correspondence shows generally is that the parties did not reach agreement.  Once it became apparent that agreement had not been reached, Bin Zhang lodged her caveat.

Does the agreement of 11 April 2012 give Bin Zhang a caveatable interest in the property?

[27]     The  agreement  provided  that  Bin  Zhang  would  become  a  registered proprietor of the property at 134 East Coast Road as a tenant in common in equal shares with Zhihua Zhao.   The agreement was one under which, in return for consideration, she would be granted an interest in the property.  It was one therefore capable  of  giving  her  a  beneficial  interest  in  the  property  at  the  date  of  the agreement.  Zhihua Zhao had an equitable interest in the property as purchaser.  He had agreed that Bin Zhang would have a half share of the interest that he had contracted to buy.

[28]     The agreement of 11 April 2012 is one that is capable of being enforced by proceedings for specific performance.  It is potentially capable of being enforced so that Bin Zhang could have an interest as a registered proprietor.  Equity regards that as done which ought to be done so the agreement gave her a beneficial interest in the property.  Under s 137 of the Land Transfer Act Bin Zhang has a qualifying interest under an unregistered agreement as at 11 April 2012.

[29]     It is important to note that her right to claim a beneficial interest is linked to her ability to obtain specific performance.   If she could not obtain an order for specific performance of the agreement, she would not have a beneficial interest in the property.  Specific performance is not available to enforce all agreements.  For example, most agreements for the sale of goods are not enforced by specific performance  unless  the  goods  have  special  characteristics.   Agreements  to  lend money or contracts for personal services are likewise not enforced by specific performance.    On  the  other  hand,  it  has  been  long-established  that  agreements

relating to interests in land are generally enforceable by specific performance.  There is a traditional view going back to Adderley v Dixon3  that money may not be a complete remedy to a purchaser who may see peculiar and special value in the land.

[30]     While specific performance is generally available to enforce agreements for the  sale  and  purchase  of  interest  in  land,  it  remains  a  discretionary  remedy. Equitable considerations may persuade the court not to grant specific performance. Considerations  that  might  persuade the court  not  to  make an  order for specific performance are: the need for court supervision, mistake, misrepresentation, unfair conduct by a plaintiff, hardship to the defendant, lack of mutuality and impossibility.

[31]     In  this  case,  Zhihua  Zhao  is  contending  that  Bin  Zhang  breached  the agreement.   Any question of cancellation of the agreement by reason of breach brings the Contractual Remedies Act into play.  Section 15(a) of that Act saves the law relating to specific performance.  However, the rules for cancellation remain the same, whether there is a claim for damages or a claim for specific performance. What is preserved under s 15(a) is the court’s discretion to refuse specific performance, even if a party can show that the agreement is valid and enforceable at law.

[32]     Part of Bin Zhang’s written submissions are that she has an interest along the lines of a resulting or a constructive trust, relying on authorities such as Lankow v Rose.4    Her counsel did not rely on those in the hearing.  Those grounds were not pleaded as such in the caveat.  On the facts of this case, I do not regard that as a matter that is capable of serious argument.  Cases such as Lankow v Rose rely on a party having made contributions to a property which endure over time.  In this case

there has not been any actual contribution to the acquisition of the property.  All that has happened is that there has been a tender of funds, and the funds were returned. But those facts by themselves are not enough to give rise to the kind of equitable interest recognised in authorities such as Lankow v Rose.

Was Zhihua Zhao entitled to cancel the contract?

3      Adderley v Dixon (1824) 1 Sim & St 607, 57 ER 239.

4      Lankow v Rose [1995] 1 NZLR 277 (CA).

[33]     In  written  submissions  for  the  hearing  Zhihua  Zhao  alleged  breaches  of clauses 1(a) 1(c) and 1(e).   However, in oral submissions Mr Nolen focused on clause 1(e).  As far as clause 1(a) is concerned, there was a breach by Bin Zhang because she did not pay the deposit immediately but made drip-feed  payments. Arguably they could not be considered to be immediate payments as required under clause 1(a).

[34]     However, Yue Wen was well aware that the payments had been made over time.   While she knew of those late payments, she still intended to proceed to complete the agreement.  In effect, she affirmed the agreement notwithstanding the delay in paying the deposit. As she affirmed, it is not open to her to cancel for delay in making those payments.

[35]     Clause 1(c) refers to joint borrowing.  Bin Zhang co-operated with Yue Wen in approaching the bank to arrange finance, and an offer of finance was given.  But ultimately it was Zhihua Zhao who used funds advanced by the bank to complete the purchase in his name alone.   There he acted unilaterally, dispensing with any requirement for her to co-operate in the borrowing.   Those circumstances do not point to any breach by Bin Zhang under clause 1(c).

[36]     As for clause 1(e), Zhihua Zhao makes two points.   First, payment was required 10 working days before settlement.  In fact, the funds were not paid until the actual date of settlement.  Second, the amount paid in was short.  The amount required was $375,000 whereas only $328,600 was paid.  In my judgment Bin Zhang has arguable reasons for disputing that ground for cancellation.

[37]     The email exchange of 19 June 2012 is consistent with Yuen Wen waiving the timing aspect.  Yue Wen’s statement “Never mind. We have 10 days more” is, in law, arguably effective as a waiver showing that she was not intent on having the funds in place according to the time set in clause 1(e).  Having waived the point, she cannot later take the point that the payment should have been made earlier.

[38]     Next is the amount to be paid.  Yue Wen had refunded the $48,600 to Bin

Zhang.  According to the letter and the agreement Bin Zhang would have had to pay

in $376,000 for settlement.   In fact she only paid $328,600.   However, the circumstances show that Zhihua Zhao cannot rely on the short payment as grounds for cancellation because Yue Wen had herself stipulated that all that was required for payment on the date of settlement was $328,600.   Again, that is another case of waiver.

[39]     Clause 1(f) uses the word “void”.  The clause provides that if any of 1(a)–(e) are not satisfied by due date then the agreement will be deemed void.   The word “void” is not normally used in this context in contracts today.   I regard the use of “void” as indicating that compliance with these clauses is essential in the sense that if there is a breach of those clauses then, whether the breach is serious or not, there will be grounds for cancellation.  That is, breach of those clauses is a breach of an essential term under s 7(4)(a) of the Contractual Remedies Act.   However, just because there is a breach of one of those clauses, does not mean that the agreement automatically comes to an end.   Cancellation has to be done by giving notice in accordance with s 8 of the Contractual Remedies Act.  I do not regard the use of the word “void” as sufficient by itself to oust the requirements of giving notice under s 8 of the Contractual Remedies Act.  In this context, “void” really means “voidable”.  It means that on non-compliance with one of those clauses, the other party has the option of calling the agreement off.   I note that this meaning of “void” has been

applied in other cases.  I have in mind the case of Barton v Russell,5 a decision of the

Court of Appeal.  Accordingly, if there has been a breach of any of the provisions of clause 1, the other party has the option to cancel, but also has the option to continue with the contract.

[40]     On 25 June 2012, the date of cancellation, Zhihua Zhao was not entitled to cancel on the ground of piecemeal payment of the deposit because at that stage Yue Wen had affirmed the agreement.   Zhihua Zhao was not entitled to cancel on the grounds of breach of clause 1(c) because at that stage Bin Zhang had co-operated in arranging joint borrowing in terms of clause 1(c).  As to clause 1(e), the time for payment had been waived and the question of amount had still to be fixed.   It is accordingly arguable for Bin Zhang that the letter of cancellation of 25 June 2012

was not effective as a cancellation.  By paying the sum of $328,600 as requested by

5      Barton v Russell (1975) 1 NZCPR 616 (CA).

Yue Wen, Bin Zhang was showing that she was still ready, willing and able to proceed.

[41]     There is no evidence of any later cancellation by Zhihua Zhao after the letter of 25 June 2012.   There is evidence of correspondence between the parties, but I regard that correspondence as simply correspondence conducted on a “without prejudice” basis to see if the parties could reach agreement for a way forward. Mr Nolen   tried   to   rely   on   statements   made   by   Bin   Zhang’s   lawyer   in correspondence.  I regard that as taking out of relevant context a bona fide effort by both sides to see if they could reach agreement for going forward.  Admittedly, the correspondence does not use the words “without prejudice” but the context of the communications is enough to show that the parties were dealing with each other on that basis.

[42]     Accordingly, Bin Zhang has a caveatable interest in the property.   She has shown that she was ready, willing and able to perform the agreement.  She has an arguable case that Yue Wen was not entitled to cancel the agreement on behalf of Zhihua Zhao.

Should the court exercise its discretion against Bin Zhang?

[43]   Mr Nolen’s written submissions refer to the exercise of the discretion, suggesting that even if I am satisfied that Bin Zhang had a caveatable interest, the court  should  still  not  uphold  the caveat  because of discretionary grounds.    His written submissions point to the inconvenience of the caveat remaining on the title, the fact that Bin Zhang has not issued proceedings for specific performance yet – he accused her of delay.  He pointed out that she had not actually put money into the property because all the funds she had contributed had been refunded to her.   His submissions also referred to the provision for unilateral termination.

[44]     The  decision  of  the  Court  of Appeal  in  Pacific  Homes  v  Consolidated

Joinery6  shows that the discretion is exercised cautiously.  Removal of a caveat is ordered only if the court is completely satisfied that the legitimate interests of the

6      Pacific Homes Ltd v Consolidated Joineries Ltd [1996] 2 NZLR 652.

caveator will not be prejudiced, and there will not be any practical advantage in maintaining the caveat.   That discretion might be exercised if there is some other way of protecting the caveator, but none has been proposed here.

[45]     I do not regard Bin Zhang as having been dilatory in the matter.  She lodged her caveat in August 2012, once it became apparent that the parties were not able to reach agreement on going forward.  Her lawyers did not receive the notice issued by LINZ requiring them to make an application under s 145A of the Land Transfer Act until late in December 2012.  Matters have taken their course since.  Mr Nolen made the  point  that  Bin  Zhang  has  not  actually  issued  proceedings  for  specific performance yet.   While she could have made things better for herself by issuing proceedings, experience tells me that caveators often lodge caveats and then wait to see whether they will need to take specific performance proceedings when the caveat is challenged.

[46]     The reference to the provision in the agreement for unilateral termination is not relevant.  The unilateral termination provision contemplates that the parties will become owners of the property.   If Zhihua Zhao were to give notice under the unilateral termination provision, Bin Zhang would then have the option to become the entire owner of the property.  If I were to remove the caveat I would, instead, be upholding what Zhihua Zhao has done – which is to unilaterally remove Bin Zhang from having interest in the property.   For these grounds, I am not persuaded that there is any reason to exercise the caveat discretion against Bin Zhang.

[47]     There is, however, another aspect to the matter.  That is the question of the exercise of the discretion in proceedings for specific performance.  I have noted that ordinarily agreements for sale and purchase of land are enforceable by specific performance.  While that is the general principle, in this case Zhihua Zhao may have grounds for arguing that that principle ought not to apply in this case.  His argument might run along these lines:  this was an agreement under which the parties would co-own property.   While he would have management of the property through Yue Wen and Bin Zhang would be a passive investor, the arrangement was something like a partnership, and there would be a need for ongoing trust and confidence between the parties.   That ongoing need for trust and confidence could end up

requiring the court’s ongoing supervision.  In other words, the personal relationship which goes with co-ownership may mean that the court would regard specific performance as an inappropriate remedy in this particular case.

[48]     That question, however, is one that is appropriate for decision in the context of a defended proceeding for specific performance.  I cannot, in a caveat application, decide that that is a consideration which would prevent Bin Zhang maintaining her caveat in the interim until the court can determine the merits at a defended hearing for specific performance.

Outcome

[49]     I make these orders:

(a)       Caveat 9167567.1 shall not lapse pending further orders of the court; (b)      That order is subject to terms that Bin Zhang must promptly start

proceedings for specific performance.   Bin Zhang is required to file and serve her proceedings within 10 working days.   I record that Mr Nolen advises that his firm has instructions to accept service.  Bin Zhang is also required to prosecute the claim expeditiously to a hearing.

(c)      Zhihua Zhao will pay Bin Zhang costs on a category 2 basis.  There is no reason for either increase or decrease.   I reject Mr Nolen’s submission that costs should be reduced because Bin Zhang has succeeded on the question of waiver, whereas she had pleaded her case as one of variation of the agreement. That point alone is not enough to require an adjustment of costs under r 14.7.   I invite the parties to confer as to costs.  If they cannot agree, memoranda may be filed.

[50]     I reserve leave to the parties to apply for further directions.   In particular, leave is reserved to Zhihua Zhao to come back to court if it is found that Bin Zhang does not prosecute her substantive claim expeditiously.

...........................................

Associate Judge R M Bell