Zhong v Wang HC Auckland CIV 2004-404-6662
[2005] NZHC 1239
•15 April 2005
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV2004-404-6662
BETWEEN CHENG RONG ZHONG
Plaintiff
AND
JIA YI WANG
Defendant
Hearing: 1 March 2005
Appearances: B Morley and B Lomas for Plaintiff M I S Phillipps for Defendant
Judgment: 15 April 2005 at 4.30 pm
JUDGMENT OF ASSOCIATE JUDGE SARGISSON
E-mail:
B Morley – [email protected] M I S Phillipps – [email protected]
Solicitors:
Hesketh Henry, Private Bag 9203 Carson & Co, PO Box 37403, Auckland
CHENG RONG ZHONG V JIA YI WANG HC AK CIV2004-404-6662 [15 April 2005]
[1]The plaintiff has made application for:
a)An order for summary judgment under r 136 of the High Court Rules against the defendant for part of the claim set out in his amended statement of claim dated 20 February 2004; and
b)In the alternative, judgment on the defendant's “admission of facts as to the undisputed part of the plaintiff’s claim”.
[2] The plaintiff seeks leave under r 138(2) to make the summary judgment application on the grounds that he has a meritorious claim.
[3] At the hearing Mr Morley accepted that if the plaintiff is unsuccessful in his summary judgment application, then he ought not to pursue judgment on the alternative basis. I therefore propose to deal only with the plaintiff’s application for summary judgment and the application for leave.
[4] The application for leave does not require separate consideration because counsel for both parties agree it should be determined in accordance with the merits of the summary judgment application.
Background
[5] Mr Zhong and his family wished to immigrate to New Zealand. In order to meet immigration requirements, he understood that he needed to have NZ$1 million invested in a New Zealand company for two years. He met an immigration consultant named Mr Mottram in Auckland in August 2001, together with the defendant who acted as a translator. Subsequently while in New Zealand, the plaintiff entered into an oral agreement with the defendant to assist him with the necessary investment requirements for New Zealand immigration purposes.
[6] While there are some differences in the pleadings and evidence as to its precise or complete terms, both parties accept that this oral agreement included terms to the following effect:
a)The plaintiff would advance not less than NZ$1 million dollars to the defendant who would invest the money for him for a two year period;
b)The money would be invested in the defendant’s New Zealand company, Yini International Limited. The investment would take the form of 100 shares for which the plaintiff would pay the NZ$1 million;
c)At the conclusion of two years the defendant would repay the advance in full at the original purchase price; and
d)The method of the plaintiff’s payment for the shares would be in accordance with the defendant’s instructions.
[7] There is no dispute that the defendant agreed to arrange the investment of the money in the defendant’s company or that he presented the plaintiff with a share transfer which records the transfer of 100 shares to the plaintiff and the consideration for the transfer as NZ$1 million.
[8] Disputes have, however, developed between the parties concerning the number and amount of the instalments paid to the defendant by the plaintiff, and about the defendant's entitlement to allocate the instalments equally to satisfy the plaintiff's contractual obligations and those of a Mr Jin. I will discuss these matters in more detail shortly.
[9] The parties are now at the point where over three years have passed since the defendant transferred the shares to the plaintiff. The plaintiff says he performed his side of the bargain and seeks repayment of the sums advanced. The defendant, for his part, denies that the plaintiff is entitled to repayment. As a result the plaintiff filed this proceeding in February 2004.
The claim, application and the defendant’s opposition
[10] Each side has filed amended pleadings. It is not necessary to cover the timing or contents of those pleadings in detail. Suffice it to note for present purposes
that the plaintiff pleads one cause of action in his statement of claim. He alleges that under the terms of the oral contract, the defendant is obliged to repay him a sum of money in Chinese currency. The sum is RMB3,574,603, which the plaintiff says exceeds the equivalent of NZ$1 million. He alleges that he advanced the money to the defendant, by seven instalments, in August, September and October 2001, in order to fulfil the immigration requirement referred to above at [5], on the basis that the defendant would repay all of the money after the two years.
The plaintiff’s application
[11] The plaintiff made his summary judgment application on the basis of the defendant’s pleadings and answers to interrogatories. Specifically, the plaintiff relies on the defendant's admission that he received four instalments of money from the plaintiff in Chinese currency totalling RMB2,220,000. These were:
a)RMB1,000,000 on 31 August 2001; and
b)Three payments on 30 or 31 October 2001 totalling RMB1,180,000. (These payments do not include the payment of RMB40,000 which the defendant acknowledges the plaintiff paid at the end of October 2001).
[12] The plaintiff accepts that two of the payments which are the subject of the statement of claim, being cash payments allegedly made in September 2001, are in dispute (given the absence of incontrovertible documentary evidence to establish they were made), but he says that the balance of his claim for RMB2,180,000 (equivalent to NZ$620,186.63) is not. The plaintiff seeks judgment for this part of his claim.
Defendant’s opposition
[13] The defendant opposes the application. He filed a notice of opposition claiming that he has a defence to the claimed amount of $620,186.63 and relied on
his sworn answers to interrogatories. Key matters in his sworn answers which he relies on can be summarised as follows:
a)He did not receive two of the seven payments which allegedly make up the NZ$1 million. These are the cash payments allegedly made in September 2001 of RMB600,000 and RMB620,000;
b)He agreed to buy back the shares after two years for the purchase price paid but he is not obliged to make repayment because the plaintiff failed to pay the full purchase price of NZ$1 million for the shares and thus did not fulfil his part of the agreement;
c)He also deposes that he does not admit the terms of the contract as alleged by the plaintiff and that there are "numerous documents" which the plaintiff has not produced which relate to the claim for summary judgment;
d)The plaintiff acknowledges that given the alleged cash payments are in dispute it would be unjust to grant relief before trial. Only at trial can all factors relevant to each parties’ possible claims and losses be considered; and
e)In any event, under the contract, half of any payments made by the plaintiff were to be credited to the share purchase and immigration costs of a Mr Jin. As a result, any possible claim would have to be reduced by half to $300,000.00 less additional immigration costs of NZD$6,068.98.
Amended application
[14] The plaintiff filed an amended summary judgment application, to which the defendant filed documents in opposition (an amended notice in opposition, his own affidavit, and an affidavit of a Mr Qiu as to translation issues) seeking judgment for
an additional sum of RMB40,000.00 (being NZ$11,723.33) based on the defendant’s acknowledgement that he received a total of RMB2,220,000.
[15]However, at the hearing, counsel for the plaintiff:
a)Indicated that the plaintiff is not pursuing recovery of the RMB40,000, being the difference between the plaintiff’s figure of RMB2,180,000 and the defendant’s figure of RMB2,220,000;
b)Accepted that there is room for argument about the extent of the non- refundable immigration costs; and
c)Argued that the plaintiff should nonetheless have summary judgment for a minimum of NZ$593,931.02.
[16] In view of counsel’s indications, I proceed on the basis that the amount claimed in the application for summary judgment is reduced to NZ$593,931.02.
[17] For the sake of completeness, I note in relation to the pleadings and preliminary matters that when the case was first called for a defended hearing, I made directions by consent requiring the amended summary judgment application to be filed in order to clarify the claim and allowing leave to the defendant to file an amended notice of opposition. I also gave directions relating to the filing of further affidavit evidence as a result of which the defendant filed two affidavits largely confirming the matters in his answers to interrogatories and raising issues about the translation of a receipt. The plaintiff filed further affidavits in reply.
Submissions
[18] The plaintiff concedes that there is a genuine dispute about approximately one-third of the total sum claimed, but says that summary judgment should nevertheless be entered in respect of the balance, representing a sum which was indisputably paid, and which, in terms of the agreement, the defendant is bound to repay.
[19] The defendant submits that the plaintiff’s concession as to the existence of the dispute gives rise to a real possibility that the plaintiff is himself in breach of the contract. Although not expressly stated in the Notice of Opposition, defendant’s counsel clarified at the hearing that such a potential breach in turn gives rise to difficulties as to the ability of the Court to grant relief under the Contractual Remedies Act on a summary judgment application.
[20] In exercising the discretion as to whether to grant relief under that Act, Mr Phillips submitted that it will be necessary for the Court to decide a number of matters, including:
a)Whether there has been a breach of the terms of the contract by the plaintiff and/or the defendant;
b)If there has been a breach by the plaintiff in failing to pay the full amount for the shares, what the effect of that breach is;
c)Whether there has been cancellation of the contract, and particular whether there should be cancellation based on issue of the proceedings;
d)Whether the defendant is obliged to buy the shares back;
e)What the market value of the shares is and the amount of the parties’ losses are (if any); and
f)What the appropriate remedy or remedies should be under s 9 of the Act.
[21] Mr Phillips submitted that the Court cannot resolve such questions without having heard all the relevant evidence, and that summary judgment should accordingly be declined.
[22] Mr Phillipps also sought to raise the basis for a potential set-off, the amount of which could only be determined after trial. He submitted that if it should
eventuate that the alleged cash payments were not actually made, then the defendant has not had use of the full amount of the purchase price. It is helpful to note at this point that at the hearing Mr Morley conceded that the consideration for the contract included the plaintiff’s right to have the use of all the money over the two year period, as well as the costs of and incidental to the immigration application, and travel expenses.
[23]The defendant also raises other grounds of defence based on factual disputes:
a)That the monies received were to be applied equally to the share purchases of Mr Zhong and a Mr Jin, and thus that the plaintiff is only entitled to half of any amount which it claims is due. In support of this allegation, Mr Phillipps pointed to an agreement between Mr Zhong and Mr Mottram requiring Mr Mottram to repay $300,000.00 to Mr Zhong if the residency application should be declined, and the defendant says this was the sum which Mr Zhong actually paid for his shares;
b)The plaintiff says the defendant admitted that the agreement means the defendant was obliged to repay whatever sums the defendant has acknowledged receiving as part payment. However, the defendant disagrees and says his statement evidences a promise to buy back the shares for the agreed purchase price of NZ$1 million, but before this obligation arises the plaintiff must have paid this price in full;
[24] For reasons I will come to shortly, it is not necessary to deal with these additional factual disputes.
Legal principles
Summary judgment
[25]R 136(1) states:
The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a claim in the statement of claim or to a particular part of any such claim.
[Emphasis added]
[26] The principles relating to summary judgment are not in doubt. It is sufficient to cite the recent summary provided by the Court of Appeal in Jowada Holdings Ltd v Cullen Investments Ltd (CA 248/02, 5 June 2003) at [28]:
In order to obtain summary judgment under Rule 136 of the High Court Rules a plaintiff must satisfy the Court that the defendant has no defence to its claim. In essence, the Court must be persuaded that on the material before the Court the plaintiff has established the necessary facts and legal basis for its claim and that there is no reasonably arguable defence available to the defendant. Once the plaintiff has established a prima facie case, if the defence raises questions of fact, on which the Court’s decision may turn, summary judgment will usually be inappropriate. That is particularly so if resolution of such matters depends on the assessment by the Court of credibility or reliability of witnesses. On the other hand, where despite the differences on certain factual matters the lack of a tenable defence is plain on the material before the Court, to the extent that the Court is sure on the point, summary judgment will in general be entered. That will be the case even if legal arguments must be ruled on to reach the decision. Once the Court has been satisfied there is no defence Rule 136 confers a discretion to refuse summary judgment. The general purpose of the Rules however is the just, speedy, and unexpensive determination of proceedings, and if there are no circumstances suggesting summary judgment might cause injustice, the application will invariably be granted. All these principles emerge from well known decisions of the Court including Pemberton v Chappell [1987] NZLR 1, 304, 5; National Bank of New Zealand Ltd v Loomes (1989) 2 PRNZ 211,
214; and Sudfeldt v UDC Finance Ltd (1987) 1 PRNZ 205, 209.
[27] In Pemberton v Chappell [1987] 1 NZLR 1 at 3, Somers J explained the concept of “no defence” as meaning the “absence of any real question to be tried”. His Honour also noted at 3 that to defeat the application the defendant must provide sufficient particulars to show that there is a factual or legal issue worthy of trial.
[28] It is worth emphasising the approach which the Court will adopt to disputes of fact on summary judgment applications. As Somers J stated in Pemberton at 4:
Where the defence raises questions of fact upon which the outcome of the case may turn it will not often be right to enter summary judgment.
[29] At the same time, the Court will take a robust approach to summary judgment applications: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 at 85-86 (CA). The
object of the procedure would be thwarted if spurious defences or plainly contrived factual conflicts were permitted to prevent judgment being obtained, especially in the context of the structure of r 136 where the onus is on the applicant. A helpful indicator as to where the line should be drawn is found in the judgment of Greig J in Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 at 14:
In a matter such as this it would not be normal for a judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them. On the other hand, in the words of Lord Diplock in Eng Mee Yong v Letchumanan [1980] AC 331, at 341 E, the Judge is not bound:
“to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be."
[30] In Jowada, the Court explained at [30] the nature of the residual discretion to refuse summary judgment:
Once the Court has been satisfied that there is no defence Rule 136 confers on it a discretion to refuse summary judgment which is of a residual kind. While the types of cases in which the discretion will be exercises to refuse summary judgment cannot be exhaustively defined, the most common instance is where there would be an unfairness in proceeding immediately to judgment, for example if the defendant were unable to get in touch in the time available with a material witness who it was reasonable thought might be able to provide it with material for a defence: Bank Für Gemeinwirtschaft v City of London Garages Ltd [1971] 1 All ER 541. 548 (CA). In that case Cairns LJ also said that harsh or unconscionable behaviour of the plaintiff might require a matter to proceed to trial so that any judgment obtained was in the full light of publicity.
Summary judgment on part claims
[31] It is clearly open to a plaintiff to seek summary judgment in relation to part of his or her claim and not the whole of the relief sought under the particular cause of action: Australian Guarantee Corporation (NZ) Ltd v McBeth [1992] 3 NZLR 54 at 59-61 (CA). By way of example, see Lazarus v Smith [1908] 2 KB 266 (CA), Glaskie v Watkins [1927] 2 KB 181 (CA) and Ellis Mechanical Services Limited v Wates Construction Limited [1978] 1 Lloyd’s Rep 33 (CA).
[32] It is apt here to contrast The “Fuohsan Maru” [1978] 1 Lloyd’s Rep 24 (CA), where, although it was plain that the plaintiffs were entitled to damages for breach of contract, the whole claim for damages was in issue and it was impossible to identify or quantify any particular part of the claim in respect of which there was no defence or which was indisputably due.
[33] In Australian Guarantee Corporation (NZ) Ltd (supra) at 61, the Court of Appeal cautioned that it may be unjust to give summary judgment, even in part, on account of the existence of a cross-claim, set-off or counterclaim which ought to be brought into account, or where the dispute as to quantum may leave in doubt the whole of the plaintiff’s claim. The Court should not necessarily strive to find some indisputable amount and then give summary judgment for it.
[34] Above all, it is important to bear in mind that the decision whether to enter judgment for part of a claim is discretionary. There can be no fixed rules and the circumstances of the particular case must be carefully considered. Ultimately, the interests of justice will be determinative: Raptorial Holdings Ltd v Elders Pastoral Holdings Ltd (2000) 14 PRNZ 663 at [5].
Summary judgment and the Contractual Remedies Act
[35] In the circumstances of this case it is necessary to consider the suitability of the summary judgment procedure for the determination of questions arising under the Contractual Remedies Act 1979.
[36] In Australian Guarantee Corporation (NZ) Ltd v Wyness [1987] 2 NZLR 326 at 330 the Court of Appeal acknowledged the general ability of the Court to grant discretionary relief in a summary judgment context:
We do not consider this case [Commercial Banking Co of Sydney Ltd v Pollard [1983] 1 NSWLR 74] lays down any general rule that where a defence is raised which invokes the discretion of the Court under some statutory provision the power to enter summary judgment should not be exercised. So to hold would we think add a gloss to the rules about summary judgment. Where … the evidence before the Court shows that an inquiry is necessary, or there is insufficient to enable the Court to be satisfied the defence must fail or that discretionary relief will not be given, the proper course will be to refuse to enter summary judgment. If, however,
it is apparent that there is no further evidence available, and that the defence cannot succeed, then judgment should be entered.
[Emphasis added]
[37] Of significance for present purposes is that the Court of Appeal appears to have accepted that questions arising under the Contractual Remedies Act are capable of determination on summary judgment applications: see, for example, Harewood Orchard Partnership v Mabey (CA72/96, 27 August 1997) and Miller v Downey (CA121/93, 23 March 1994).
[38] High Court authority also supports the view that questions arising under the Act may be determined on summary judgment applications, but it will only be in rare cases that these can readily be determined.
[39] In Macfarlane v Morgan (HC NAP, CP 36/90, 28 May 1990), Master Williams QC (as he then was) said at 20:
In the context of a summary judgment application … it is virtually impossible to carry out a proper assessment of the appropriate order to make under s 9 on affidavit evidence alone. On such evidence, what is 'just and practicable' including all the permutations and combinations factually open in any particular case, are extremely difficult to assess.
[40] In that case Master Williams refused summary judgment because of the difficulty of resolving questions arising under ss 7 and 9 of the Act in a summary judgment context. Nevertheless, he went on to remark at 23:
It is not to be thought that proceedings under the Contractual Remedies Act 1979 can never be brought under the summary judgment rubric but it must be said that the summary judgment procedure is much more appropriately directed to cases where both law and fact are sufficiently clear to justify such judgment and that, in the ordinary run of cases, a cause of action based on facts which notoriously admit of two if not more interpretations and where relief is entirely discretionary often fits into the summary judgment only at the end of a Procrustean exercise.
[41] The first passage from Macfarlane quoted above was approved by Master Venning (as he then was) in Investment Enterprises Ltd v Mypac Group Holdings Ltd (HC CHCH, CP 83/97, 2 September 1997) at 12. In that case, Master Venning held that there was a clear issue between the parties as to whether cancellation had
occurred, and it was "simply impossible to resolve the issues that arise … on an application of s 9 on a summary judgment application" (at 13).
[42] Consistent with the above approaches is Kan v Chen (HC AK, HC 129/98, 4 November 1998), where Morris J considered Waiheke (supra) and Macfarlane (supra) and concluded at 8 that "s 9 relief may be available in summary judgment cases" but added that it will be a question in each case whether relief is appropriate.
Contractual Remedies Act
[43] It is necessary to refer briefly to the Court's approach to issues of cancellation and relief under the Contractual Remedies Act.
[44] First, the determination of whether there has been cancellation of a contract involves, among other things, issues of notification, repudiation and substantial breach. Consideration of such matters inevitably requires close factual analysis.
[45]Secondly, in respect of the grant of relief upon cancellation under s 9, in
Newmans Tours Ltd v Ranier Investments Ltd [1992] 2 NZLR 68, Fisher J said at 92:
On my reading of s 9 relief upon cancellation of any given contract must ultimately be determined in a global exercise which takes into account all the performances, breaches, gains and losses of all the parties to that contract. In considering whether to make "an order" the Court is required by s 9(4) to have regard to a stated series of factors including "any expenditure", "any work or services" and "any benefit or advantage" affecting the parties. That would seem to preclude a piecemeal approach which compensated for loss on one aspect of the contract without regard to benefits gained, and other losses incurred, with respect to other aspects of the same contract.
[Emphasis added]
[46] This approach was upheld on appeal: Coxhead v Newmans Tours Ltd (1993) 6 TCLR 1. Fisher J's analysis was also adopted by the Court of Appeal in Thomson v Rankin [1993] 1 NZLR 408 at 410.
[47] In determining the cancelling party's net entitlement (if any), the benefits it received pursuant to the contract must be set off against the restitution, reliance or expectation claims advanced on its behalf: Newmans at 95.
[48] Qualifications on the award of damages drawn from the common law (such as foreseeability, remoteness and mitigation) still continue to have relevance because they are likely to produce just and logical results: Newmans at 94.
[49] Under ss 9(2) and (3) the Court has wide powers as to the form which the remedy is to take. The Court may order (on such terms as it thinks fit) a party to transfer property, to pay money, or to do or refrain from doing any act as the Court thinks just. This discretion is broad, and is to be exercised in accordance with a host of relevant considerations, which need not be set out in full here: see Newmans at 96.
Assessment
[50] In my judgment, this is not a case in which summary judgment for part of the claim is appropriate.
[51] I accept that the Court’s approach in a summary judgment context towards the Contractual Remedies Act and to the entering of summary judgment on part claims, mean that summary judgment should be declined in this case.
[52] The plaintiff effectively seeks summary judgment on a part claim notwithstanding its concession that there is a dispute about the alleged cash payments, meaning it may itself have been in breach of its contractual obligations. This possible breach, if proven, may have consequences which impact on the issue of the appropriate remedy.
[53] It is clear that the Contractual Remedies Act requires a global approach to the dispensation of relief for contractual breach: see Newmans (supra) at 92. This means that all performances, breaches, gains and losses must be taken into account together so as to avoid a piecemeal approach which might neglect to take into account all relevant benefits and losses.
[54] A preliminary question will be whether the contract has been cancelled (whether as a result of repudiation or substantial breach). Cancellation, of course, is a
precondition to the grant of relief under s 9. As noted above at [44], the various issues associated with determining cancellation require detailed analysis of the facts, which I am unable to adequately undertake here.
[55] Assuming there has been cancellation, in properly exercising the discretion to grant relief under s 9, it will be necessary for the Court to take into account such matters as:
a)The respective benefits accruing to the parties to the extent that there has been performance of the contract;
b)The defendant’s alleged breach and any losses flowing from it;
c)The plaintiff’s alleged breach and any losses flowing from it; and
d)What the appropriate remedy or remedies should be.
[56] The issue of loss arising from the breach (or breaches) obviously involves consideration of the consequence of any proven breaches, on which complete evidence is not presently available.
[57] Further, the form which any remedy or remedies awarded might take must also be determined in accordance with a variety of considerations.
[58] What is clear is that, in order to determine all the above matters adequately in this case, the Court must be apprised of all the relevant facts, which can only occur after a full trial.
[59] It is also important to note that the plaintiff’s own alleged breach, if proved, may itself give rise to a set-off (or some other form of relief under s 9) in favour of the defendant, and this is not a possibility I can presently ignore: see Australian Guarantee Corporation (supra) at 61. Indeed, Mr Morley’s concession that the contract implicitly included the defendant’s right to have the use of all the money over the two year period is sufficient in my view to indicate that the scope of the
enquiry that the Court must make about the effects of the plaintiff’s alleged breach of contract are rather wider than Mr Morley contends.
[60] At the same time, it may also be necessary to take into account under s 9 any value resulting to the defendant from the use of the $600,000.00 which it has been established was in fact paid to him, for a period of over three years.
[61] A further but related reason which also compels the refusal of summary judgment in this case lies in the fact that a part claim is made. For the reasons already given above, it is simply not possible to consider the part sum claimed in isolation from the plaintiff's own alleged breach and any consequences which might flow from it. The part sum claimed cannot itself therefore be considered as severable and indisputably due. For these reasons, entry of summary judgment for the part claim is not in the interests of justice: see Raptorial Holdings (supra) at [5].
[62] For all of the above reasons, the entry of summary judgment on the part claim is not appropriate on the evidence presently before me. In terms of the dictum in Australian Guarantee Corporation quoted at [36] above, a proper inquiry is necessary for the purposes of the Contractual Remedies Act, and there is insufficient evidence to enable the Court to be satisfied that the defences raised must fail.
[63] In light of this conclusion, it is not strictly necessary for me to deal with the other factual arguments which were canvassed, particularly that concerning whether the monies received were to be applied equally to the share purchases of Mr Zhong and Mr Jin (an allegation which Mr Jin flatly denies). For his part Mr Morley denounced this allegation as being spurious. My initial impression is that Mr Wang will have difficulty in proving this allegation if it depends on establishing something in the nature of an agency relationship between Mr Zhong and Mr Jin. However, it is not necessary to deal conclusively with this matter and I am not to be taken as making any ruling on it.
[64] In reaching this decision, I do not overlook the considerable effort that has been made by counsel on behalf of the plaintiff to persuade me that this is a case that is suitable for summary judgment. He has carried out a careful and detailed analysis.
In the end, it has not been sufficient to persuade me that it would be appropriate to make an order.
Orders
[65]The application for summary judgment is declined.
[66] Costs are reserved in accordance with NZI Bank Ltd v Philpott [1991] 2 NZLR 403 (CA).
[67]I allocate a case management conference on 10 May 2005 at 11.45 am.
[68] The parties are to file and serve memoranda for the purpose of the conference three days in advance. Matters for discussion will include any outstanding interlocutory matters, trial duration, proposed trial directions, and whether or not there should be a judicial settlement conference.
[69] The parties can expect that at the conference I will be allocating a trial date unless there are compelling reasons why I should not do so.
Dated at Auckland onatam/pm.
Associate Judge Sargisson
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