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Court of Appeal of New Zealand |
Last Updated: 10 September 2019
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BETWEEN |
MANCHESTER SECURITIES LIMITED Appellant |
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AND |
BODY CORPORATE 172108 Respondent |
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Hearing: |
30 July 2019 |
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Court: |
Miller, Woolford and Whata JJ |
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Counsel: |
C T Walker QC and H E McQueen for Appellant J B Orpin-Dowell and TJG Allan for Respondent |
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Judgment: |
3 September 2019 at 3.30 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
[1] Manchester Securities Limited (“Manchester”) owns unit 12A of the Hobson Apartments (“the Apartments”). The Apartments leaked. Repairs were done pursuant to an approved scheme, which was subsequently varied to enable a greater share of the costs to be levied against Manchester. The Court also ordered Manchester to pay the sum of $321,264.79 (plus GST) (“the judgment sum”).[1] Manchester did not pay. Statutory demand proceedings for the judgment sum and for operating levies of $226,679 plus interest were then commenced. The High Court and the Court of Appeal refused an application by Manchester to set aside the statutory demands.[2]
[2] The respondent, Body Corporate 172108 (“BC”), now seeks to liquidate Manchester because of its ongoing inability or refusal to pay. Manchester responds by seeking to stay the liquidation proceedings because it has two set-off claims which it says must go first to arbitration. Associate Judge Johnston refused to stay the proceedings.[3]
[3] Leave was granted to appeal on two issues:
- (a) Is the appellant entitled to a mandatory stay of proceedings pursuant to art 8, sch (1) of the Arbitration Act 1996?
- (b) Are ordinary levies payable on a “pay now argue later” basis?
[4] The apparent innocuity of these issues belies multiple decisions of the High Court[4] and the Court of Appeal[5] that arbitration about a set-off claim does not affect Manchester’s obligation to pay immediately. More specifically, as the Court of Appeal said in proceedings about the statutory demand: “[t]he arbitration does not go to the amount claimed in the statutory demand”.[6]
[5] The present application for stay is simply a collateral challenge to this basic finding (among others) and an abuse of process because it is yet another attempt to delay payment of an amount immediately owing. The appeal is therefore dismissed. Our full reasons may be stated briefly.
Background
[6] The litigation history to this appeal was described at some length by the Court of Appeal proceedings about the statutory demand.[7] It is unnecessary to repeat it. We simply identify some key points for context.
[7] Heath J approved a scheme of repair on 19 August 2010 (“approved scheme”). It empowered the BC to “levy” for the remediation costs as follows:
6.1 The Body Corporate is hereby authorised to levy (“Levy”) and collect from each Owner from time to time such money as the Body Corporate deems necessary for undertaking, progressing or completing the Repairs. For clarity the right to levy includes levies based on reasonable interim or estimated costings, the issue of several progressive levies, or to reassess and vary levies in light of challenging circumstances, and may include reasonable estimates and allowances or provisions for then unknown factors or anticipated Costs.
[8] The Levy to be imposed on Manchester for remedial costs was capped at 11.88 per cent of the total cost of repairs under the approved scheme. However, any costs incurred by Manchester in respect of project management consultants or other construction-related advisors that did not provide a benefit to all other individual proprietors or the BC were to be borne solely by Manchester. Furthermore, any dispute about whether the benefit was provided to all individual proprietors (other than Manchester) or the BC was to be determined under the dispute resolution provisions of the approved scheme.[8]
[9] The dispute resolution procedure is dealt with at cl 13, which states:
13 Dispute resolution
13.1 The Body Corporate’s decision shall be final in...respect [of] all matters arising under this scheme, except where 5 or more Owners whose objection in monetary value cumulatively exceeds $30,000, or where one Unit Owner has an objection which in monetary terms exceeds $10,000. Upon receiving notice of such an objection, the Body Corporate shall refer the matter to arbitration.
13.2 The objecting Owners must give notice to the Body Corporate of their objection within 15 working days of receiving an assessment as to Costs or other notice from the Body Corporate which is the subject of the objection outlining the grounds on which such objection is made. On receipt of the notice the Body Corporate will refer the matter to an arbitrator (to be appointed by the President of the Quantity Surveyors Association) and the arbitrator shall determine the issue under the provisions of the Arbitration Act 1996. The arbitrator’s decision shall be final and the costs of the arbitration shall be borne as between the objecting Owners and the other members of the Body Corporate generally as the arbitrator shall decide.
13.3 No Owner shall be entitled to withhold payment of a Levy on the basis that the matter is in the process of dispute resolution.
An application to set aside a statutory demand — the first decision
[10] In July 2012, the BC sought to impose an interim levy. Manchester refused to pay it, because it anticipated the costs of the repairs to Level 12 would exceed the 11.88 per cent cap for remedial repairs. A statutory demand was issued. Manchester sought to set aside this demand. The High Court declined to set aside the demand because levies must be paid on a “pay now argue later” basis.[9] The Court noted, among other things:
[39] I accept the submission as to “pay now argue later”. There is an obvious practical purpose. It enables the body corporate to fund remedial works effectively. Cash flow is assured. Dissident owners who want to contest levies are still required to pay, although they may take their complaints as to the levies to arbitration.
[40] If the body corporate brought an ordinary proceeding to recover a remedial levy from a unit owner and the owner had given a notice of objection under cl 13.2 and contested the validity of the levy, the court would apply cl 13.3. The owner’s arguments as to the validity or merits of the levy would not stand in the way of the body corporate obtaining judgment. Because the merits of the dispute are to be decided by arbitration under cl 13, the unit owner’s arguments contesting the levy would not give grounds to withhold payment in the meantime.
[11] This decision was not appealed.
An application to vary the approved scheme — the second decision
[12] There was then an application in 2016 by the BC to vary the approved scheme so that it could increase Manchester’s contribution to the repair costs. Manchester opposed the application. It said, among other things, that any dispute about the approved scheme should go to arbitration.[10] Fogarty J disagreed. He said that art 8 of sch 1 to the Arbitration Act was not engaged, because the parties had not sought a stay and had submitted to the jurisdiction of the Court.[11] He also said that, in any event, the scheme envisages variation by the Court, not an arbitrator.[12] Fogarty J varied the scheme (“the varied scheme”) so that the 11.88 per cent cap was removed and ordered Manchester to pay the judgment sum as a provisional sum toward the costs of repairs. This sum included credit for Manchester’s costs “if only to encourage immediate compliance”.[13]
The variation appeal — the third decision
[13] Manchester appealed. It repeated that disputes about the amounts payable under the approved scheme should go to arbitration and that a variation was not necessary. The Court did not accept this. While it found that Fogarty J was wrong to find no stay had been sought, it said the application that was made was unsuccessful and Manchester did not appeal. It added “the unforeseen scale of the costs blow out and its effect on the logic of the scheme rendered arbitration inappropriate”.[14] The requirement to pay the judgment sum was upheld.[15] The Court also found that when Manchester refused to pay an interim levy, it breached its obligation to pay under the approved scheme, because cl 13.3 expressly provided “[n]o Owner shall be entitled to withhold payment of a Levy on the basis that the matter is in the process of dispute resolution”.[16]
The second application to set aside a statutory demand — the fourth decision
[14] Manchester still did not pay. A statutory demand was issued for the judgment sum and for ordinary levies. Manchester sought to set aside the demand. It claimed that “any dispute as to the amount of the applicant’s set-off or cross-claim must be dealt with in accordance with the arbitration agreement which the parties signed”.[17] The High Court refused to set it aside but reduced the demand sum. In reaching this conclusion, the Court found that the position the BC had taken was correct “to the extent that orders which have been made by the courts cannot be challenged by means of invoking the arbitration clause in cl 13 of the scheme under s 48 of the Unit Titles Act 2010”.[18]
The statutory demand appeal — the fifth decision
[15] Manchester appealed. For present purposes, the central issue taken on appeal was whether Manchester’s set-off claims had to go to arbitration.[19] As the Court of Appeal recorded:
[17] In his written submissions, Mr Harris on behalf of Manchester submitted that the High Court made two errors:
(a) First, after setting out much of the background correctly, the Judge’s analysis overlooked that the claimed set-off is subject to compulsory arbitration. This required the Associate Judge to set aside the demand unless he was satisfied that Manchester was not acting bona fide in asserting there was a dispute, or it was immediately demonstrable there was nothing disputable at issue. Extensive submissions were directed to this point in the High Court, but the Associate Judge did not consider it: the Associate Judge said that he would return to the point “further on”, but never did. This was a clear and indisputable error. Had the point been considered, it would have been apparent that the proper forum to resolve the dispute is arbitration.
(b) Second, the Associate Judge found that it was not seriously arguable that the costs claimed by Manchester in relation to level 12 conferred a benefit on the other unit owners, even though Manchester’s evidence to the contrary was uncontested. This was another clear and material error.
[18] We reformulate those arguments given the oral submissions. Underlying Manchester’s position is its claim that under the remediation scheme the Body Corporate must pay for the costs of Manchester’s management consultants and other construction-related advisors that provide a benefit to all individual proprietors, other than Manchester, or the Body Corporate. The claim for these costs is presently $604,942. The first issue is whether, because of provisions requiring the parties to go to arbitration if there is a dispute on such costs, Associate Judge Doogue should have set aside the claim for $369,454.51 arising from the judgment of Fogarty J. The second issue is, regardless of whether the arbitration point is successful, whether the existence of a substantial claim of set-off by Manchester should lead to both claims in the statutory demand being set aside.
(Citations omitted)
[16] Manchester contended that where the dispute is subject to arbitration a lower threshold for setting aside a statutory demand should be adopted, citing Zurich Australian Insurance Ltd v Cognition Education Ltd,[20] in which the Supreme Court concluded that summary judgment should not be entered unless it is clear that the applicant is not acting bona fide in asserting that there is a dispute, or it is immediately demonstrable that there is nothing in dispute.[21]
[17] In short, the Court of Appeal found that the arbitration clause in the scheme does not relate to the claim in the statutory demand and priority need not be given to the arbitration process.[22] It said the arbitration requirement is a stage removed and arises as a means of determining the set-off.[23] It also said that:[24]
In this case the debt claimed in the statutory demand is undisputed and not subject to arbitration. Once it is accepted that statutory demands are a legitimate tool for the recovery of undisputed debts, the fact that there are other outstanding amounts between the parties that are subject to arbitration should not result in the application of a lower test. The arbitration does not go to the amount claimed in the statutory demand.
[18] The Court found that the usual “clear and persuasive” test for showing a set‑off had been satisfied, but nevertheless refused to exercise its discretion to set aside the statutory demand. It said:
[52] Even though the possibility of a later judgment was contemplated, the Judge’s intention that payment should be immediate was clear. The Body Corporate expended considerable sums for the benefit of all owners including Manchester; Manchester should make payment at once. Manchester refused to do this and maintains refusal in this proceeding as it seeks to set aside the statutory demand. While a set-off can be raised to set aside a statutory demand based on a judgment sum, in this case we are firmly of the view that Manchester should not be allowed to refuse to pay immediately as directed by the High Court.
[19] And further:
[54] ... We consider that Manchester’s application to set aside the statutory demand for the interim payment on the basis of a set-off for repairs to level 12 is effectively an attempt to relitigate matters already decided.
[20] And still further:
[56] Under art 21.2, any dispute about the set-off for consultants’ fees is to be determined under the dispute resolution provisions of the scheme. Those provisions are at art 13, as we have set out. Article 13.3 provides that that no owners shall be entitled to withhold payment of a levy charged under the remediation scheme on the basis that the matter is in the process of dispute resolution. This is a very broad statement. It is not necessarily confined to dispute resolution by way of arbitration. It could also include court proceedings. What is clear is that the obligation to pay levies is special. They should be paid at once, whether or not there is a dispute. Pay now, argue later.
(Emphasis added).
High Court judgment on stay of liquidation proceedings
[21] Associate Judge Johnston, aptly in our view, noted that Manchester’s application for stay was a “bold” application. He said:[25]
[13] Despite the indications from the Court of Appeal, Manchester makes this interlocutory application for a stay, which effectively challenges the legitimacy of the Body Corporate utilising the statutory demand procedure and, in doing so, develops essentially the same argument as it did in the earlier litigation.
[22] In rejecting the application, the Judge concluded:[26]
The law is clear that the considerations on an application for a stay of winding up proceedings are different from those on the hearing of the application itself. The Court will only issue a stay where the continuation of a winding up proceeding can be demonstrated to be an abuse of process. The existence of an arguable set-off where the debt that is the subject of the statutory demand is indisputably owing has generally not been regarded as sufficient for that purpose. A fortiori, I would add, where the proceeding is founded on a statutory demand itself based on an unchallenged debt of a pay now, argue later nature. This is consistent with Court of Appeal authorities that have emphasised the practical nature of the statutory demand process as a method of enforcing debts that are owed on a pay now, argue later basis. I see no reason to distinguish between the principles applicable to setting aside a statutory demand and those applicable to staying an application for a winding up order.
[23] The Judge granted leave to appeal on the first of the two issues noted above at [3], because the question of the mandatory effect of art 8 on liquidation proceedings had not been addressed by the courts and would be determinative if resolved in Manchester’s favour.[27] The Judge was doubtful about the second issue dealing with ordinary levies. He said that even if ordinary levies were not payable now, it would not have altered his decision, because the failure to meet the statutory demand in respect of the judgment debt would have been sufficient to legitimately wind up Manchester. But as the first issue was to be argued, he thought it was sensible to grant leave on the second issue.[28]
Collateral challenge and abuse of process
[24] As this Court stated in McGougan v DePuy International Ltd:[29]
...a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and use of curial procedures.
[25] Five clear points emerge from the five decisions of the Courts on Manchester’s liability to pay. First, the requirement to pay the Levy for costs of repair is a “pay now argue later” obligation. That finding was made by Judge Bell and not appealed. Second, Manchester was ordered to pay a judgment sum (including a credit for Manchester’s costs “to encourage compliance”),[30] and the Court of Appeal affirmed the liability to pay that judgment sum in the variation appeal.[31] Third, the arbitration about set-off does not go to the amount claimed in the statutory demand for the judgment sum. Fourth, the enforceability of the judgment sum and the statutory demand is not subject to compulsory arbitration about the claimed set-off. And, fifth, Manchester should not be allowed to refuse to pay immediately. Those findings were made by the Court of Appeal in the statutory demand appeal.[32]
[26] What inexorably follows is that enforcement of the statutory demand, which provides the jurisdictional and substantive basis for the application to liquidate, is not and should not be subject to arbitration about Manchester’s set-off claims.
[27] However, Manchester now seeks a stay of the liquidation because, it says, the arbitration does, in fact, go to the amount claimed in the statutory demand. It submits that the liquidation proceedings will require an inquiry into its two set-off claims,[33] which, if resolved favourably to Manchester, will show that the BC is not a net “creditor” and is able to pay its debts. Manchester submits that the BC must show it is a net creditor within the meaning of s 241(2)(c)(iv) of the Companies Act 1993, which it says cannot be proved without first resolving the set-off claims. It also contends that the mutual credit provisions at s 310 of the Act apply, so that any set-off must be taken into account prior to liquidation.[34] It then says the set-off claims are “matter(s)” agreed to be referred and therefore must, by operation of art 8 of sch 1 to the Arbitration Act, go to arbitration. Article 8(1) states:
A court before which proceedings are brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting that party’s first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred.
[28] Manchester also says the liquidation proceedings are markedly different from the statutory demand proceedings in terms of the statutory thresholds and insofar as they are proceedings expressly caught by art 8. The effect of liquidation is also said to be markedly more serious for Manchester than a statutory demand per se.
[29] We see no merit in Manchester’s claimed points of difference. The statutory demand proceedings were a necessary precursor to enforcement and insolvency proceedings, including liquidation. The use of statutory demands as proof of insolvency in anticipation of liquidation was specifically identified by the Court of Appeal in the statutory demand proceedings.[35] Manchester argued the demand was subject to compulsory arbitration about its set-off claims. This argument failed unequivocally. Manchester’s reformulated argument, by reference to the meaning of “creditor,” mutual credit, and art 8, is simply an attempt to relitigate the decision made by the Court of Appeal in the statutory demand proceedings — namely that the set-off arbitration does not go to the amount claimed in the statutory demand. It is also seeking to defer compliance with a longstanding order of the High Court, affirmed by this Court, to pay a judgment sum immediately. In short, Manchester is seeking to achieve by side route what it failed to achieve directly — that is to have its liability to pay referred to arbitration. It is an exemplar of a collateral challenge to final decisions of this Court and an abuse of process.
[30] Therefore, whatever the theoretical merits of the argument about the effect of art 8 in liquidation proceedings, it is not an argument that is available to Manchester to make in this Court about the judgment sum. To do so is to entertain argument on issues that have been resolved with finality and to circumvent the order of the High Court, affirmed by this Court, that the judgment sum must be paid immediately and that the corresponding statutory demand is not subject to compulsory arbitration about Manchester’s set-off claims.
Ordinary levies
[31] The position in relation to the “ordinary levies” is not as straight forward. The Court of Appeal in the statutory demand proceedings left open whether they are “pay now, argue later” levies. It said:
[65] The issue is again best dealt with under the court’s discretion under s 290(4). Manchester and the Body Corporate have been engaged in a complex and long-running dispute about various costs expended by both parties in the course of this leaky building remediation, the cost of which has far exceeded anyone’s expectations. In these circumstances we do not consider that a possible counterclaim or set-off by Manchester, which may go to arbitration, should provide a basis for withholding payment of ordinary levies.
[66] We also note that there are indications in the Unit Titles Act 2010 that ordinary levies are charged on a pay now, argue later basis. For example, under s 96(3), an eligible voter is disqualified from voting unless all the levies for his or her unit have been paid. This is clearly designed to encourage prompt payment of levies. However, this point was not the subject of any detailed submissions before us.
(Citations omitted)
[32] Even so, we see no need or merit in resolving this issue. Leave was granted on it because the Judge gave leave on the first issue. He said, however, whatever the answer to the second issue, it would not have changed his conclusion about stay. We agree. The resolution of this issue would not affect the result and there is no point addressing it.
Effect on liquidation proceedings
[33] This judgment does not preclude Manchester from arguing that it has an unliquidated set-off at the hearing of the liquidation proceeding. That is a consideration that the High Court will take into account. However, we heard argument about the relevance of the set-off to that proceeding and it is proper to make several points about it.
[34] First, this Court has already held that the BC may enforce its debt by issuing a statutory demand.[36] It is necessarily implicit in that conclusion that such demand may culminate in liquidation if the debt is not paid.
[35] Second, the High Court need not determine the state of accounts between the parties to establish that Manchester is unable to pay its debts as they fall due and put the company into liquidation on that ground. As Associate Judge Bell explained in Forward Plastics Ltd v NZ Distilled Water Ltd:[37]
[41] Insolvency may be one cause of an inability to pay debts, but it need not be the only cause. If a company is unable to pay its debts for reasons other than insolvency, it may still be appropriate to appoint a liquidator in the interests of creditors. A company’s inability to pay its debts may arise from the actions and policies of those with control and management of the company. If those with effective control and management of the company use their power to ensure that the company does not pay debts that are lawfully due, then the company will not have the ability to pay its debts. A company whose management decides that debts should not be paid is just as much unable to pay its debts as a company without sufficient liquidity. Both cases provide grounds for an application to be made for liquidation so that the court can consider whether the company should be put into liquidation.
There are indications in the record, and in the argument before us, that Manchester may indeed be incapable of paying. As we put to counsel, the only alternative explanation for its behaviour seems to be that the company’s management refuses to allow it to pay notwithstanding the series of judgments insisting it must do so and argue later.
[36] Third, any set-off between Manchester and the BC will be taken into account in the liquidation, but it is stating the obvious to say that will happen under s 310 of the Companies Act, after the company is put into liquidation. The existence of an unverified and unliquidated set-off need not preclude liquidation even if it is possible that when accounts are taken the liquidator will establish that the BC is not a net creditor. Accounts need not be taken to establish that the BC is a creditor with standing to pursue winding up.[38]
[37] Fourth, to the extent that equities of the case enter the analysis, the High Court will be able to take into account the scheme of the unit titles legislation and the BC’s allegation, if proved to the Court’s satisfaction, that accounts have not been settled because Manchester’s Level 12 works remain incomplete, eight years after it told Heath J that it would begin work at once.
Outcome
[38] The application for stay based on an impending arbitration about set-off is a collateral challenge to final decisions of this Court that the arbitration does not go to the amount stated in the statutory demand. It is an abuse of process. The appeal is therefore dismissed.
Costs
[39] The BC seeks indemnity costs. Manchester opposes, noting that it was granted leave to appeal, so it could not be said that the appeal was improper, vexatious or an abuse of process per se. We disagree. Manchester’s actions continue to be “dilatory and prevaricating”.[39] It continues to ignore the Courts’ previous decisions that it must pay now, argue later. While leave to appeal was granted, the appeal was, as we have said, the exemplar of a collateral challenge to final decisions of this Court and an abuse of process.[40]
[40] Accordingly, we order that Manchester pay BC’s actual and reasonable costs and disbursements of the appeal. Counsel must attempt to agree costs. There will be leave to apply in the event that they cannot. Costs in the High Court are to be fixed there.
Solicitors:
Gilbert Walker,
Auckland for Appellant
Grove Darlow & Partners, Auckland for
Respondent
[1] Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 329 [Variation judgment] at [154].
[2] Manchester Securities Ltd v Body Corporate 172108 [2018] NZHC 169 [Statutory demand judgment]; and Manchester Securities Ltd v Body Corporate 172108 [2018] NZCA 190, [2018] 3 NZLR 455 [Statutory demand appeal].
[3] Body Corporate 172108 v Manchester Securities Ltd [2018] NZHC 3307 [Judgment under appeal].
[4] Body Corporate 172108 v Manchester Securities Ltd [2013] NZHC 177 [Levy judgment]; Variation judgment, above n 1; and Statutory demand judgment, above n 2.
[5] Manchester Securities Ltd v Body Corporate 172108 [2017] NZCA 527, (2017) 19 NZCPR 65 [Variation appeal]; and Statutory demand appeal, above n 2.
[6] Statutory demand appeal, above n 2, at [35].
[7] Statutory demand appeal, above n 2, at [2]–[16].
[8] Clause 21.2.
[9] Levy judgment, above n 4 at [39] (citations omitted). See also [73].
[10] Variation judgment, above n 1, at [40] and [70].
[11] At [72].
[12] At [74]–[75].
[13] At [154].
[14] Variation appeal, above n 5, at [67].
[15] At [69].
[16] At [49].
[17] Statutory demand judgment, above n 2, at [14].
[18] At [25].
[19] Statutory demand appeal, above n 2, at [17]–[18].
[20] Zurich Australian Insurance Ltd v Cognition Education Ltd [2014] NZSC 188, [2015] 1 NZLR 383.
[21] Statutory demand appeal, above n 2, at [29].
[22] At [31]–[32].
[23] At [32].
[24] At [35] (emphasis added).
[25] Judgment under appeal, above n 3.
[26] At [17] (citations omitted).
[27] Body Corporate 172108 v Manchester Securities Ltd [2019] NZHC 569 [Judgment granting leave to appeal] at [24].
[28] At [26].
[29] McGougan v DePuy International Ltd [2018] NZCA 91, [2018] 2 NZLR 916 at [68], citing New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA) at 95.
[30] While the BC had not issued a notice of levy in respect of this sum, it relates to the remedial costs
which could have been levied against Manchester.
[31] Variation appeal, above n 5.
[32] Statutory demand appeal, above n 2.
[33] The first claim is a claim to costs of repair incurred by Manchester necessarily involving both unit
and common property. The second set-off claim relates to the BC’s share of consultants’ costs incurred for the benefit of all unit owners.
[34] See Commissioner of Inland Revenue v Fishing Co Ltd HC Auckland CIV-2010-404-4955, 14 December 2010.
[35] Statutory demand appeal, above n 2, at [33].
[36] Statutory demand appeal, above n 2.
[37] Forward Plastics Ltd v NZ Distilled Water Ltd [2012] NZHC 1383.
[38] Anglian Sales Ltd v South Pacific Manufacturing Co Ltd [1984] 2 NZLR 249 (CA); and GCA Legal Trustee (2004) Ltd v Consultant Management Services Ltd HC Dunedin CIV 2007-412-56, 26 May 2009.
[39] As this Court noted in the Variation appeal, above n 5, at [44].
[40] Court of Appeal (Civil) Rules 2005, r 53E(a) and (b). See also Bradbury v Westpac [2009] NZCA 234, [2009] 3 NZLR 400 at [27].
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