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Court of Appeal of New Zealand |
Last Updated: 17 November 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellants |
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AND
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Respondent |
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BETWEEN
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Appellants |
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AND
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Respondent |
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Hearing: |
2 October 2014 |
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Court: |
French, Venning and Dobson JJ |
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Counsel: |
A C Beck for Appellants
D P Robinson for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1] In CA604/2013 the appellants (the Goodwins) appeal from a decision of Associate Judge Abbott dismissing their application for an order that a caveat not lapse and ordering them to pay costs on the application.[1] In CA749/2013 the Goodwins appeal a subsequent decision of Associate Judge Osborne requiring them to deliver up vacant possession of the property in issue and pay costs.[2]
[2] In both cases Rocket Surgery Ltd (RSL) is the respondent. The arguments in this Court were heard together. Given the factual overlap between the two appeals, it is convenient to address both in the context of this one judgment.
General background
[3] We take the background summary to the proceedings from an earlier decision of this Court as follows:[3]
[3] The Goodwins owned a residential property at Mosgiel, near Dunedin, known as “Chelmsford”. They fell into financial difficulties and faced a sale by the mortgagee, Westpac Banking Corporation.
[4] The Goodwins’ son-in-law, Campbell Harvey, agreed to assist in saving Chelmsford from sale. Mr Harvey and some colleagues were shareholders in RSL, a small private company. RSL agreed to borrow a sufficient sum to buy the property at the mortgagee’s sale and to cover financing costs for a year after purchase while the Goodwins recovered financially. The ultimate purpose was to enable the Goodwins to buy Chelmsford back in their own names or through a nominee.
[5] It was agreed in principle that RSL would derive some reward for providing the finance. Apart from an understanding that when repurchasing the Goodwins would repay RSL all outgoings spent on the property, they were also to pay a fee for providing the finance. That fee was never settled but the parties discussed figures ranging between $20,000 and $40,000. If the Goodwins were unable to repurchase, Chelmsford would be sold and RSL would recover its expenditure. Unfortunately the parties never settled the terms and conditions of an agreement.
[6] In accordance with this informal arrangement RSL purchased the property at sale by Westpac in April 2010. But thereafter relations between the parties gradually deteriorated. Attempts to settle written terms of an agreement were unsuccessful. Proposals and counter proposals were exchanged in an environment of increasing acrimony. The Goodwins did not repurchase the property within a year. In the event, in May 2012, more than two years after the acquisition, RSL filed a proceeding against the Goodwins in the High Court. The company sought summary judgment for a range of remedies on the grounds that the Goodwins had no right of occupation or interest in the property and no defence to RSL’s claim.
[4] RSL obtained summary judgment in the High Court.[4] The High Court made orders, among other things, for sale of the property. The Goodwins successfully appealed that decision.[5] In allowing the appeal, this Court accepted that there was a factual dispute regarding the terms of the arrangement between the parties.[6] Importantly, this Court also concluded that the cause of action pleaded to support the summary judgment, breach of trust, was not available on the facts as there was no evidence of an intention to create an express trust.[7] The alternatives of a constructive or resulting trust were plainly unavailable.[8] However, in allowing the appeal, this Court went on to say:
[26] We add that this litigation was unnecessary from the outset. RSL is the registered proprietor of Chelmsford. It had an absolute right to exercise its powers of sale whenever it asserted that it was no longer obliged to retain the property. The Goodwins could have lodged a caveat against the title if they wished to oppose sale, alleging the existence of an equitable interest in the property. The Goodwins, not RSL, would have carried the burden of proving the nature and extent of their interest.
[27] Assuming the Goodwins did lodge a caveat, a Court would likely have discharged it on terms requiring RSL to pay any net proceeds of sale after settlement of all indebtedness into a solicitor’s trust account pending determination of the Goodwins’ claim. The evidence of Chelmsford’s value and the compounding amounts charged against it would have dictated a direction for sale. If a surplus was available, which seems unlikely, its amount would have fallen within the jurisdiction of the District Court. Even now, despite the wasted efforts of the past year, there is nothing to prevent RSL from taking steps to sell the property.
Subsequent procedural background
[5] This Court’s decision allowing the appeal was delivered on 22 May 2013. On 6 June 2013 the Goodwins lodged a caveat over the property. Upon receiving notice of the caveat, RSL applied to the Registrar to lapse it. The Goodwins then applied for an order that the caveat not lapse.
[6] In a judgment delivered on 13 August 2013, Associate Judge Abbott concluded that the Goodwins could not establish an arguable case for maintaining the caveat.[9] The interest claimed was only as to the surplus proceeds of sale, which was not a caveatable interest. Further, the Goodwins could not establish a sufficient evidential basis for a beneficial interest in the land, as distinct from a claim against the proceeds of sale. Associate Judge Abbott dismissed the Goodwins’ application to sustain the caveat but directed that, in the event of the sale of the property, the balance of any surplus proceeds of sale was to be held and paid to the parties either in accordance with their agreement or as directed by the Court.[10] The Associate Judge awarded costs against the Goodwins.
[7] RSL also applied for an order for possession of the property by way of summary judgment. The Goodwins cross-applied for orders striking out or staying RSL’s proceeding. In a judgment delivered on 10 October 2013, Associate Judge Osborne rejected the Goodwins’ preliminary argument that the proceedings were an abuse of process, concluded that the defences to the application for possession were not reasonably arguable, and made an order for possession as sought by RSL.[11] Associate Judge Osborne also awarded costs on both applications.
The practical position
[8] Before Associate Judge Osborne Mr Beck accepted that the Court must take it that the Goodwins were not in a financial position to repurchase the property.
[9] During the course of submissions before us, Mr Beck confirmed that remained the position. There is no prospect the Goodwins could repurchase the property (Mr Goodwin is bankrupt). It is now acknowledged the property will have to be sold. Further Mr Beck advised that, following Associate Judge Osborne’s decision, the Goodwins vacated the property.
The caveat appeal
[10] Despite the acknowledgement of the practical position, Mr Beck submitted that:
- (a) there were factual disputes that were unsuitable for resolution in an application to set aside a caveat;
- (b) the Associate Judge failed to apply the correct test that a caveat will only be set aside where it is patently unsustainable and was wrong to hold there was no reasonably arguable basis for a caveatable interest; and
- (c) the Associate Judge was wrong to award costs against the Goodwins.
Substantive issues
[11] Apart from the issue of costs, only two issues arise on the caveat appeal. At the relevant time did the Goodwins have a caveatable interest in the property? If so, as a matter of discretion, could the Court still direct the removal of the caveat or allow it to lapse on conditions?
[12] As noted, Mr Beck’s submissions emphasised the dispute between the Goodwins and RSL. He submitted the details of the dispute were set out in the affidavit of Mr Goodwin filed in support of the application. He noted there was no contradictory evidence from RSL. This Court had recognised the factual dispute in allowing the earlier appeal and setting aside the entry of summary judgment. The Associate Judge had erred by considering the obiter comments of this Court were determinative of the matter before him. Mr Beck also submitted that the Associate Judge was incorrect to hold the interest sought to be protected could not be interpreted as an interest in the property.
[13] Despite Mr Beck’s submissions, the Goodwins’ claim to a caveatable interest falls at the first hurdle. The High Court did not have to resolve any factual disputes to determine the application. A caveat must describe the nature of the land or estate or interest claimed with sufficient certainty.[12] The interest claimed in the caveat was expressed to be:[13]
By virtue of a cestui que trust created between the Registered Proprietor of the property described herein as trustee and the Caveator as beneficiary under the trust, the Caveator has an entitlement to the surplus equity in the property should the Registered Proprietor conduct a sale of the property.
[14] The interest claimed recognises that RSL as registered proprietor is entitled to conduct a sale of the property and, importantly, the interest is restricted to a claim to the “surplus equity” in the property, namely the proceeds of sale as opposed to a claim to an interest in the property itself.
[15] That point was well made by the Associate Judge in his decision.[14] The claim to an interest in the proceeds of sale rather than in the land was specific in its terms and was made after this Court’s decision on the summary judgment application and the Court’s comments about the nature of the Goodwins’ interest.[15]
[16] The present facts are quite different to the case of Zhong v Wang, which Mr Beck relied upon.[16] In Zhong the caveator Mr Zhong claimed “... a beneficial interest in the land ... as cestui que trust of which the registered proprietor, Jia Yi Wang, is trustee”.[17] It was argued the caveat failed to adequately identify the interest claimed or the declaration of the interest.
[17] This Court rejected those arguments. There was no need to refer expressly to a resulting or constructive trust. There was a clear link between the named trustee and the registered proprietor. This Court concluded:
[58] The purpose of the caveat procedure is to enable those with proper claims to proprietary interests to protect themselves against loss by forbidding dealing with the land pending resolution of substantive claims. The underlying purpose of the caveat regime could be undermined if too strict an approach were taken to the detail required to describe the interest claimed and its derivation from the registered proprietor.
[18] The point is that in the present case the interest claimed by the caveator is not expressed as an interest in the land. The issue is not with the descriptive detail of the caveator’s interest but its substance. The interest claimed in the proceeds of sale accords with the practical situation confirmed to this Court by Mr Beck as recorded above.
[19] Further, even if, despite the wording of the caveat, the Goodwins’ interest could be converted into an interest in the land, it would still be appropriate in this case to discharge the caveat to enable the registered proprietor, RSL, to sell the property on terms.
[20] In Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd this Court confirmed that, even where a party has a caveatable interest, the Court retains a discretion to direct its removal if there is no practical advantage in maintaining it:[18]
We are of the view that in the dictum in Sims v Lowe Somers and Gallen JJ were concerned with the situation which was then before the Court and were not putting their minds to a situation in which there is no practical advantage in maintaining a caveat lodged by someone who could properly claim a caveatable interest. In such circumstances the Court retains a discretion to make an order removing the caveat, though it will be exercised cautiously. An order will be made for removal only where the Court is completely satisfied that the legitimate interests of the caveator will not thereby be prejudiced. If, on the facts of a case, it can be seen that the caveator can have no reasonable expectation of obtaining benefit from continuance of the caveat in the form of the recovery of money secured over the land or specific performance of an agreement or if the caveator's interests can be reasonably accommodated in some other way, such as by substituting a fund of money under the control of the Court, then it may be appropriate for the caveat to be removed notwithstanding that the right to the claimed interest is undoubted.
[21] Pacific Homes was applied in Stewart v Kaipara Consultants Ltd.[19] In that case this Court observed:
[28] The appellant asks the Court to sustain her caveat until a hearing of her claim against the respondent. If she were now both willing and able to settle her purchase, as evidenced, for example, by an indication of an available source of funding, the position might well be quite different, but she is not. She is asking the Court to postpone any resolution of the impasse on the title despite her long-standing default for which the vendor is not to blame. If the matter were to go to an immediate hearing she could not expect to obtain specific performance unless she demonstrated an ability to pay the price. In such a circumstance it is not an error of principle for the Master to decline to preserve the caveat and to substitute a fund of money as security for any damages.
[22] The caveator’s position in Stewart is not dissimilar to the Goodwins’ position in the present case. There is no purpose in sustaining the Goodwins’ caveat given the acknowledged practical position. Any proper interest the Goodwins have can only be to a share in any surplus proceeds after sale.
[23] For those reasons, we confirm Associate Judge Abbott’s decision to dismiss the application for the caveat not to lapse.
Costs
[24] At the conclusion of his judgment Associate Judge Abbott noted RSL had sought costs on a solicitor/client basis but that he had been advised the Goodwins had filed an application for legal aid, which had not yet been determined.[20] The Associate Judge nevertheless made an order that the Goodwins pay costs on a scale 2B basis together with disbursements as fixed.
[25] Mr Beck then filed a memorandum and drew to the Associate Judge’s attention that the Legal Services Act 2011 precludes an award of costs against a legally aided person other than in exceptional circumstances.[21] He requested the matter be held over pending the outcome of the legal aid application. That was met by a memorandum in response from Mr Robinson. Mr Beck replied with a further memorandum. Ultimately the Associate Judge treated the memoranda as an application to recall his judgment. He recalled it on the issue of costs and reissued it.
[26] In the reissued judgment the Associate Judge confirmed that he considered there were exceptional circumstances warranting an order for costs. In the event the Goodwins were ultimately granted legal aid, exceptional circumstances warranted an order that they pay costs on a scale 2B basis together with disbursements as fixed by the Registrar. He confirmed that was the costs order irrespective of the determination of the application for legal aid.
[27] Mr Beck submitted the Associate Judge should not have fixed costs before the application for legal aid had been determined. We agree that as a general rule the best course will be to either adjourn the costs application or reserve costs pending the outcome of the legal aid application. However there is no absolute requirement to this effect. In exceptional circumstances, a judge may well be justified in fixing costs regardless. As we note later in our consideration of M v C, each case must turn on its own facts.[22]
[28] Where the issue of costs is adjourned pending determination of the application for legal aid, the court will usually direct the applicant to file and serve a memorandum confirming the outcome of the application for legal aid, and reserve the position of the other party to then seek costs or to make whatever further submissions as to costs may be appropriate under the provisions of the Legal Services Act.
[29] It is not necessary for us to consider whether the Associate Judge should have adjourned the issue of costs in this case because we consider the costs award should be quashed on the basis of an alternative submission made by Mr Beck. He argued that in terms of s 45(1) of the Legal Services Act the Judge was required to take into account the means of the Goodwins to pay costs as well as their conduct in the dispute and to give the parties an opportunity to be heard (even if only by memorandum and on the papers) on the issue. Although not conceding the point, Mr Robinson acknowledged the statutory wording required the Court to consider the Goodwins’ means.
[30] As the Goodwins were not given the opportunity to be heard on the issue of their means, we allow the appeal in relation to the award of costs in the High Court. However, given the approach of the Goodwins to this litigation, particularly in light of the clear comments of this Court on the previous appeal, we consider RSL should have the opportunity to seek costs, despite the fact the Goodwins are in receipt of legal aid. Costs can be dealt with on the papers, by either a duty judge or the Civil List Judge after an exchange of memoranda. The memoranda should address the issues in s 45 of the Legal Services Act.
Summary judgment appeal
[31] On the summary judgment appeal, Mr Beck submitted:
- (a) the matter was not suitable for resolution by summary judgment because there were factual issues that could not be resolved on affidavit evidence;
- (b) there remained substantial conflicts in the evidence relating to the agreements between the parties;
- (c) the Judge did not apply the correct principles to a claim for recovery of land; and
- (d) the Judge was wrong to award costs despite the fact an application for legal aid was in process.
Substantive issues
[32] Underlying Mr Beck’s submissions was the proposition that there was an agreement the Goodwins had an interest in the property that entitled them to possession but a full hearing was required to determine the exact terms of that agreement. However, when pressed Mr Beck was not able to identify the precise terms of the agreement the Goodwins relied on, particularly as to their right to possession.
[33] Further, given the practical position, there is little point in requiring this case to go to a full hearing on whether the Goodwins are entitled to remain in possession. They acknowledge the property must be sold and have vacated it.
[34] During the course of submissions it became apparent a principal reason the Goodwins pursued the appeal was to challenge the Associate Judge’s finding, during the course of his decision, that RSL was entitled to possession no later than November 2011.[23] The Goodwins are concerned at the prospect of facing a claim for mesne profits from that date.
[35] In the course of his decision the Associate Judge said it was beyond argument that RSL was entitled to possession no later than November 2011. There may be an interesting argument as to whether such a finding could create an issue estoppel in any further claim for mesne damages, having regard to Oranga Holdings Ltd v Duke, Lyons v Stewart and Maketu Contractors (1964) Ltd v Maketu Transport Ltd,[24] but for the reasons that follow, it is unnecessary for us to determine that point.
[36] During the course of the hearing Mr Robinson confirmed the Court could record a concession on behalf of RSL that it accepted the Judge’s reasoning did not create an issue estoppel to the effect the Goodwins were unlawfully in possession of the property from November 2011. From RSL’s position the important point is that they were seeking (and obtained) an order that they were entitled to possession as at the date of the hearing before the Associate Judge. It was strictly unnecessary for the Associate Judge to identify any earlier date on which the Goodwins’ possession of the property became unlawful.
[37] Issue estoppel is best understood as an affirmative defence.[25] If, as here, RSL confirms it will not raise it, then that leaves the issue open in any later proceedings.
[38] We can address the other issues raised by Mr Beck briefly. The starting point is that RSL, as registered proprietor, is entitled to possession of the property in the absence of the Goodwins establishing a right to possession.
[39] The Goodwins rely on a binding agreement or some form of trust to support their claim to possession. The evidence to support such claims is set out in Mr Goodwin’s affidavit. He says variously:
- The arrangement between RSL and us was fully documented by me in the memoranda of understanding and declaration of trust documents which I drafted and forwarded to Campbell, most of which he has produced in his affidavit.
...
22.10 RSL was to hold the property for approximately 12 months, that is to March 2011, not October 2010. It was never the intention to resell the property in October 2010. RSL would potentially hold the property longer, if we were not in a position to pay RSL out.
...
29.33 ... The duration of RSL’s tenure as “custodial trustee” was to approximately March 2011 and continuation of that role was expressly contemplated beyond that date until Chelmsford was taken over by us or we onsold it. ...
...
29.45 ... Under the arrangement with RSL we are entitled to remain in Chelmsford. RSL is obliged to hold the property on trust for us or our nominee. Our personal use and possession of the property was always part of the arrangement.
[40] There is force in Mr Robinson’s submission that the above statements are general and self-serving. We agree with him that the evidence is effectively no more than a series of assertions. It is not precise. No express agreement is identified. The final terms of the memorandum of understanding (MU) and trust document were never agreed.
[41] As noted, the Goodwins rely in particular on the MU. Importantly, that provided:
- THIS Memorandum of Understanding (hereinafter MOU) records the intentions of the parties represented herein. It should be read and interpreted in conjunction with the ‘Declaration of Trust’ “herein incorporated and each part is an integral part of the other”.
...
[42] We note that RSL declined to sign the documentation. The parties exchanged several versions of the MU and trust document. There was no final agreement as to the terms. But even the MU Mr Goodwin relies on noted the arrangements were only for approximately a year.
[43] It is also relevant that Mr Goodwin acknowledged in his affidavit that if they were unable to purchase the property, it would have to be sold on the open market. At [29.2] Mr Goodwin says:
... In simple terms, our arrangement was that RSL would hold the property on trust until Mary and I could take it over or if we proved unable to do so, then it be sold on the open market to obtain the best possible price. ...
[44] And later at [29.4]:
... If we were in time unable to buy out RSL then Chelmsford would have to be sold, but only if there was no other alternative. It was originally anticipated it would take approximately a year for Mary and I to recover our situation and take out RSL. It was also well understood by Campbell and us that the process could very well take longer.
[45] We are satisfied that there is no binding contractual right that entitled the Goodwins to remain in possession at their will. Nor is there an express trust. Such evidence as exists is contrary to any such trust. There is insufficient evidence to support a finding of a constructive or resulting trust sufficient to support a claim to possession.
[46] The short point is that any right the Goodwins had to possession of the property was on the basis they would ultimately repurchase it. By September 2013 that was no longer a realistic prospect. By the time of the hearing before Associate Judge Osborne the position had been reached where the property had to be sold. That was recognised by this Court in its previous decision.
[47] Given the practical position confirmed by counsel, that the Goodwins are in no position to purchase, the concession recorded in Mr Goodwin’s own affidavit that the property will have to be sold must follow. It is to be sold by RSL as registered owner. To enable RSL to sell it vacant possession is required. RSL was entitled to the order made by the Judge.
[48] It follows that Mr Beck’s submission that this matter was not suitable for resolution by summary judgment cannot succeed. There is no credible basis on which the Goodwins’ argument for possession can be founded. Associate Judge Osborne correctly identified the principles to apply on a summary judgment application, and his conclusions at [72] to [76] are correct given the improbable nature of the Goodwins’ claim. The Associate Judge also correctly applied the principles relating to the recovery of land.
[49] The order for possession and related orders are upheld.
Costs
[50] At the conclusion of his judgment Associate Judge Osborne fixed costs in favour of RSL. He omitted to deal with costs in relation to the Goodwins’ application to strike out the proceeding. Mr Beck raised the issue by way of memorandum. The Associate Judge recalled his judgment and reissued it, directing RSL was to pay the Goodwins the costs of filing their interlocutory application to strike out, which he fixed at $1,194, together with any disbursement for the filing fee, and that the Goodwins were to pay RSL the costs of the steps in the proceedings to date (other than in relation to the strike-out application) on a 2B basis together with disbursements to be fixed.
[51] In fixing costs in that way Associate Judge Osborne declined Mr Beck’s request that costs be adjourned pending the outcome of the application for legal aid.
[52] Associate Judge Osborne seems to have taken the view, by reference to M v C, that the Court was obliged to deal with the issue of costs at the time.[26] However M v C was a different case. In that case two propositions were put to the Court. First, that because an application for legal aid had been made the Court should not award costs at all. That was rejected. If the Court was going to deal with the issue of costs then it had to deal with it on the basis that the unsuccessful party was not in receipt of legal aid as that was the practical position that prevailed.
[53] As a second and separate issue, the Court considered whether the issue of costs should be adjourned to await the outcome of the application for legal aid. In the circumstances of that case, given the delays by the applicants in advancing the proceeding and in seeking legal aid (from February 1996 to February 1998) the Court declined to adjourn the matter in order to allow them to resolve the outstanding application for legal aid.
[54] In this case there were cross-applications before the Court for costs. The Associate Judge fixed costs on the basis legal aid was not an issue. He made an order in the Goodwins’ favour on one application and in favour of RSL on the other.
[55] As this was an application for summary judgment brought on promptly, the Judge should have considered the request to adjourn the issue of costs given the outstanding application for legal aid. His failure to do so supports setting aside the costs award made in RSL’s favour. However, for the reasons given in relation to the costs decision on the caveat matter, and also because it would be unreasonable for RSL to be subject to the costs award (which has not been appealed) without the ability to argue for costs itself, we refer the issue of the costs sought by RSL back to the High Court to be dealt with on the papers following an exchange of memoranda. The memoranda should address the issues in s 45 of the Legal Services Act.
Costs in this Court
[56] The Goodwins have failed on the substantive issues raised in both appeals. We note they have pursued these appeals in the face of this Court’s comments in its previous decision that the sale of the property was inevitable and their failure to recognise that had unnecessarily compounded the costs for both parties. Given that they are in receipt of legal aid and that Mr Goodwin is bankrupt it would, however, appear to be pointless to make an award of costs. They also succeeded on the lesser issues of costs in the High Court. For those reasons we make no order for costs in this Court in either appeal.
Result
[57] The appeal against the decision of the High Court dismissing the appellants’ application to sustain the caveat (CA604/2013) is allowed to the extent that the award of costs is quashed. The respondent’s application for costs in the caveat proceeding is referred back to the High Court for determination.
[58] The appeal in CA604/2013 is dismissed in all other respects.
[59] The appeal against the decision of the High Court in the summary judgment proceeding (CA749/2013) is allowed to the extent that the award of costs against the appellants is quashed. The respondent’s application for costs in the summary judgment proceeding is referred back to the High Court for determination.
[60] The appeal in CA749/2013 is dismissed in all other respects.
[61] There is no order for costs in this Court.
Solicitors:
Jenny Beck Law, Dunedin for
Appellants
Gallaway Cook Allan, Dunedin for Respondent
[1] Goodwin v Rocket Surgery Ltd [2013] NZHC 2046.
[2] Rocket Surgery Ltd v Goodwin [2013] NZHC 2648.
[3] Goodwin v Rocket Surgery Ltd [2013] NZCA 172, (2013) 14 NZCPR 110 (footnotes omitted).
[4] Rocket Surgery Ltd v Goodwin [2012] NZHC 2752, (2012) 13 NZCPR 867.
[5] Goodwin v Rocket Surgery Ltd, above n 3.
[6] At [19].
[7] At [21].
[8] At [22]–[23].
[9] Goodwin v Rocket Surgery Ltd, above n 1.
[10] At [35]–[36].
[11] Rocket Surgery Ltd v Goodwin, above n 2.
[12] Land Transfer Act 1952, s 137(2).
[13] Emphasis added.
[14] At [22].
[15] Goodwin v Rocket Surgery Ltd, above n 3, at [27].
[16] Zhong v Wang [2006] NZCA 242; (2006) 7 NZCPR 488 (CA).
[17] At [21].
[18] Pacific Homes Ltd (in rec) v Consolidated Joineries Ltd [1996] 2 NZLR 652 (CA) at 656.
[19] Stewart v Kaipara Consultants Ltd [2000] NZCA 92; [2000] 3 NZLR 55 (CA) at [21]–[28].
[20] Goodwin v Rocket Surgery Ltd, above n 1, at [38].
[21] Legal Services Act 2011, s 45(2).
[22] M v C (1998) 11 PRNZ 541 (HC).
[23] Rocket Surgery Ltd v Goodwin, above n 2, at [76].
[24] Oranga Holdings Ltd v Duke (1995) 8 PRNZ 500 (HC); Lyons v Stewart (1998) 12 PRNZ 257 (HC); and Maketu Contractors (1964) Ltd v Maketu Transport Ltd (1994) 7 PRNZ 553 (CA).
[25] Rotec Industries Inc v Mitsubishi Corp [2003] USCA9 747; 348 F 3d 1116 (9th Cir 2003) at [2]–[3].
[26] M v C, above n 22.
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