Ridley Motors (Turangi) Limited v Waipawa Finance Company Limited (in liquidation) [2012] NZHC 1915 (3 August 2012)

Last Updated: 17 August 2012

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2011-441-349 [2012] NZHC 1915

BETWEEN RIDLEY MOTORS (TURANGI) LIMITED

First Plaintiff/First Counterclaim Defendant

AND ROBERT JAMES RIDLEY

Second Plaintiff/First Counterclaim

Defendant

AND WAIPAWA FINANCE COMPANY LIMITED (IN LIQUIDATION) Defendant/Counterclaim Plaintiff

Hearing: 27 July 2012 (Heard at Napier)

Counsel: M Macfarlane - Counsel for Plaintiffs

JT Law - Counsel for Defendant

Judgment: 3 August 2012

_{JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL}

This judgment of Associate Judge Gendall was delivered by the Registrar on 3

August 2012 at 3.00 pm under r 11.5 of the High Court Rules.

Solicitors: Sainsbury Logan & Williams, Solicitors, PO Box 41, Napier

JT Law, Solicitors, PO Box 25443, Wellington 6146

RIDLEY MOTORS (TURANGI) LIMITED V WAIPAWA FINANCE COMPANY LIMITED (IN LIQUIDATION) HC NAP CIV-2011-441-349 [3 August 2012]

Introduction

[1] In this action, the liquidators of Waipawa Finance Company Limited (Waipawa Finance) have applied for summary judgment against Ridley Motors Turangi Limited (Ridley Turangi) and Robert James Ridley (Mr Ridley) on a counterclaim they have brought in this proceeding. That application seeks summary judgment against Ridley Turangi and Mr Ridley for $250,000.00 each under Waipawa Finance’s Second and Third Causes of Action in its counterclaim. These amounts represent the limit in each case of guarantees given for loans advanced by Waipawa Finance to a related company Ridley Motors Limited (Ridley Taupo). Ridley Turangi and Mr Ridley as counterclaim defendants oppose the application.

Background

[2] The substantive action here is just one of a number of legal proceedings dealing with the fallout of Waipawa Finance and the actions of its sole shareholder Warren Pickett (Mr Pickett) who is a convicted fraudster. Mr Pickett ran an accountancy practice in Waipawa and over a period of time collected approximately

$19 million in investment funds from members of the public. Mr Pickett misappropriated large portions of that for his personal benefit running what has been described as a “ponzi” scheme spanning over 20 years. Waipawa Finance has since been put into liquidation. In a judgment in this Court dated 7 February 2011, Ronald Young J directed how the meagre $1 million of these investment funds that were recovered should be distributed to the investors. In that judgment he noted that most of the investment funds, once received by Mr Pickett, were put into an overall fund,

and “it is now impossible to effectively identify what money is what”,1 and that of

the nearly $19 million invested “... Mr Pickett misappropriated much of this money

during the 20 years. Now less than $1 million has been able to be recovered.”2

[3] Mr Pickett’s accountancy clients included the Ridley group of companies, operated by Mr Ridley including Ridley Turangi and Ridley Taupo. At the time they

1 _{At [27].}

2 At [1].

began instructing Mr Pickett as their accountant in 1998, Mr Ridley through his company Ridley Taupo ran a Holden dealership car sales business in Taupo which has since been sold, and through his company Ridley Turangi ran a service station business in Turangi. In May 2008, it seems to be accepted that Ridley Taupo borrowed from Waipawa Finance $176,334.57 for its Taupo car sales business by way of a floor plan loan to repay a similar floor plan loan debt it owed to Oxford Finance. This is recorded in a written agreement, the obligations of which are guaranteed by Mr Ridley, Ridley Turangi and Ridley Taupo. The agreement

specifies an interest rate on the advances of 14% per annum.3 The $176,334.57 as I

understand it constituted the opening balance for an ongoing floor plan loan account funded by Waipawa Finance over the following years. Additionally, it seems Waipawa Finance made a number of further advances to the two Ridley companies over the years, although the total amounts both of those advances and any repayments are firmly disputed.

[4] The liquidators of Waipawa Finance now seek to recover the alleged advances made to Ridley Taupo for the Taupo business, by bringing the present counterclaim against Mr Ridley and Ridley Turangi as guarantors of those loans. The outstanding debt claimed in this action comprises two separate loans: the floor plan advance (loan number 79037) and a general loan advance account (loan number

79035). In the counterclaim, Waipawa Finance pleads that, as at the date of its liquidation, $741,988.77 was the outstanding balance owing to it under the 79035 general loan account and $398,104.90 was the outstanding balance owing to it under the 79037 floor plan loan account. For the purposes of the present summary judgment application however, Waipawa Finance has accepted first, that the outstanding floor plan loan amounts only to $71,107.60 plus interest from 14 July

2007 and secondly, as I understand its position, it estimates a total debt owing here, including this amount and an $521,537.26 outstanding balance on the general loan advance account of $592,644.86. This total debt exceeds the $500,000.00 for which Waipawa Finance is seeking summary judgment here against Mr Ridley and Ridley Turangi on the basis of a maximum limit of $250,000.00 each under their respective

_guarantees.

3 Annex P to Mr Edwards’ affidavit.

Summary Judgment Principles

[5] Rule 12.2(1) of the High Court Rules deals with summary judgment applications and applies to Waipawa Finance’s counterclaim here. It provides:

12.2 Judgment when there is no defence or when no cause of action can succeed

(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

[6] The principles of summary judgment have been recently summarised by the Court of Appeal in Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26]:

The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1; (1986) 1 PRNZ 183 (CA), at p 3; p 185. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331; [1979] 3 WLR 373 (PC), at p 341; p 381. In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

[7] In addition, McGechan on Procedure at para HR 12.2.03 notes specifically:

Summary judgment will not be granted where there is a credible dispute since questions of credibility can be determined only when a witness is in the witness box on oath and cross-examined, and the summary judgment procedure does not normally permit that method of testing allegations.

[8] And at para HR12.2.08 of McGechan on Procedure the learned authors, in dealing with conflicting affidavits, say:

It is well established that as a general rule in determining summary judgment applications, the Court will refrain from attempting to resolve genuine conflicts of evidence or to assess the credibility of the parties’ statements in their affidavits. However, the object of the procedure will 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 12.2 where the onus is on the applicant.

[9] Turning now to the present application before the Court, the starting point in this case must be to keep firmly in mind that the onus here is on Waipawa Finance as

the counterclaim plaintiff to show that Mr Ridley and Ridley Turangi have no real defence to its counterclaim. Again, for the application to succeed the Court must be left without any doubt or uncertainty as to whether there may be a real question to be tried here.

[10] Bearing in mind those standard requirements as outlined in r 12.2(1), at the outset I need to say that in my view Waipawa Finance has fallen well short of meeting this test in the present case and the order for summary judgment sought is to be refused.

[11] I reach that conclusion for a number of reasons which I now set out.

[12] Principal among those reasons is the fact that here the sole evidence advanced by Waipawa Finance in support of its present application (in contrast to the six affidavits provided in this proceeding by and on behalf of Mr Ridley and Ridley Turangi – albeit in part for their substantive claim) is the affidavit of Graham Cameron Edwards (Mr Edwards) sworn 10 April 2012, and critical material and claims made in that affidavit are quite equivocal and generally unsubstantiated. Mr Edwards is one of the appointed liquidators to Waipawa Finance. Significantly at para 8 of that affidavit in part Mr Edwards deposes as follows:

... The allegations of the plaintiffs (Ridley Turangi and Mr Ridley regarding their initial claim for release of securities and guarantees on the basis that no debts were outstanding) have been referred to him (Mr Pickett) and the counterclaim has been prepared on the basis of his responses and the available transaction records for Waipawa. (emphasis added)

[13] There is no sworn evidence before the Court of Mr Pickett, however. Mr Edwards in his affidavit as Exhibit “O” does annex a five page handwritten letter from Mr Pickett addressed to the liquidators of Waipawa Finance. This letter dated

9 December 2008, however, is unverified, appears somewhat confusing and in my view cannot be given significant weight at this point. I say this given that Mr Pickett is at present in custody having been convicted for what has been described as a long and elaborate fraud at Waipawa Finance and is someone who acknowledges he has engaged in 20 plus years of theft, fraud and dubious dealings involving Waipawa Finance directly, its investors and presumably also its clients.

[14] Thus, by Mr Edwards deposing that Waipawa Finance’s counterclaim has been prepared on the basis of Mr Pickett’s responses to comments from Mr Ridley and Ridley Turangi, in my view to that extent the counterclaim until properly tested at trial cannot be given significant weight here for the reasons noted above.

[15] In so far as Mr Edwards next contention that the counterclaim has also been prepared on the basis of “the available transaction records for Waipawa”, again as I see it there is a major difficulty for Waipawa Finance and its claim here. This is because those transaction records it seems were almost exclusively prepared by the convicted fraudster Mr Pickett and certainly at the least emanated from information provided by him. From the available evidence which is before the Court, those records would appear to be entirely deficient, and where available confusing and in many cases quite contradictory.

[16] For the liquidators of Waipawa Finance to place reliance on those records, records which on Mr Edwards’ own evidence Waipawa Finance had significant difficulty in reconstructing, as I see it is entirely inadequate for present summary judgment purposes.

[17] At this point I would simply comment that these are all matters on which the confused and disputed evidence before this Court needs to be fully tested under cross-examination at trial, so the true position as to what was no doubt a detailed financial history between these parties can be properly established.

[18] Notwithstanding these conclusions, before me, Mr Toebes counsel for Waipawa Finance did endeavour to argue however that evidence provided in this case on behalf of Mr Ridley and Ridley Turangi in fact actually supports the Waipawa Finance contention that monies are owing here by the Ridley Group as claimed. In this regard, Mr Toebes referred to two affidavits before the Court by Gary Chapman (Mr Chapman) who has been the Ridley Group accountant since about 2008. What is clear from this affidavit evidence as I see the position, however, is that Mr Chapman for some time has endeavoured with very little success to obtain access to usual information, accounts and documents for the Waipawa Finance loans to show details of the loans alleged to have been made, interest claimed and all repayments provided.

[19] Mr Chapman in his affidavits is admirably frank and clear in his analysis that what can be proved as owing or not owing by Ridley Turangi, Ridley Taupo and Mr Ridley to Waipawa Finance (and indeed others) is completely unclear. He goes on to say that any outstanding loans certainly total (if anything) nothing like the amounts claimed in what is suggested as a corrupt record of ledgers and other documents prepared for Waipawa Finance no doubt by Mr Pickett and upon which Mr Edwards and his fellow Waipawa Finance liquidator rely in their present claim.

[20] Whilst it is correct that Mr Chapman in his evidence at one point does suggest that the floor plan loan No. 79037 might, on his current calculations, have a sum of approximately $71,000.00 still outstanding (assuming that the first floor plan loan advanced was used to repay the earlier Oxford Finance loan) the records upon which all these calculations are based would seem to be in such disarray that, even following the best possible reconstruction, it is difficult to contend here that the Court should be left with no real doubt or uncertainty that this is a clearly established debt and one which remains outstanding to Waipawa Finance.

[21] Again, I repeat the comments noted above that the helpful and detailed assistance provided by the evidence of Mr Chapman here (who no doubt has spent many hours in endeavouring to reconstruct the deficient Waipawa findings loan records) needs to be put into the mix and properly tested at substantive trial.

[22] A second reason supporting my conclusion that summary judgment is inappropriate in this case is provided in the evidence of Albert Edward George Jull (Mr Jull) the previous sole director of Waipawa Finance until 2005. Perhaps somewhat surprisingly, Mr Jull’s evidence in this affidavit sworn 16 July 2012 is filed in support of the opposition by Mr Ridley and Ridley Turangi to the present application. I say this given that Mr Jull until 2005 had been a shareholder in Waipawa Finance from the early 1970s, a business colleague and friend of Mr Pickett and the sole director of the company at the operative time.

[23] Significantly in my view, Mr Jull as director of Waipawa Finance deposes at paras 4, 5 and 6 of his 21 January 2011 affidavit:

4. Substantial amounts had been lent to the Ridley interest by Warren through the Company (and I was naturally interested in hearing about how safe the loans were. I particularly asked Warren about the loans in connection with

the Ridley interests in Taupo in 2005 and 2006. I knew these involved a substantial amount and I wanted to be reassured that the company would be and had been repaid.

5. After the sale Warren told me that the loans had been repaid. He used words like – “t hat ’s tid ied u p , end o f sto r y”. After that I heard nothing more about Ridley, and believe that no further monies were owing to the company.

6. The first I heard that their might still be money owing was after it was discovered that Warren had for many years defrauded many investors in the company and in an associated company Waipawa Holdings Limited. Warren himself told me about this before it became public knowledge. He said he had been deceiving me (and others) for 23 years. He was subsequently convicted of a number of offences and sentenced to imprisonment. Amongst the nearly $20,000,000.00 lost were some hundreds of thousands of dollars invested by members of my family.

(emphasis added)

[24] Mr Jull’s comments in this affidavit are important in my view and certainly would appear to be supported by his remarks to the liquidators of Waipawa Finance when they interviewed him in May 2009. A transcript of this evidence is annexed to his affidavit.

[25] This evidence of Mr Jull as sole director of Waipawa Finance at the time, must be seen as significant for present purposes, given also that no real issue or discussion of Mr Jull’s comments was made before me on behalf of Waipawa Finance. Again, as I see it, these are all matters which will need to be properly examined and tested at trial.

[26] A third matter here is the evidence from Mr Ridley himself, contained in affidavits filed in this proceeding on 25 January 2011 and 18 July 2012. This evidence makes reference to Mr Ridley’s “complete shock” first, at hearing of the deception by Mr Pickett who had been his accountant since 1998 and secondly, when he was presented with the claim by the liquidators against the Ridley Group for some $1.3 million.

[27] In this regard, at para 14.2 of his 18 July 2012 affidavit Mr Ridley deposes:

14.2 Secondly, to hear from the liquidators of Waipawa Finance that we supposedly owed over $1.3 million. This came via the liquidator’s solicitor, Mr Justin Toebes, and was confirmed in writing by an email dated

18 August to our solicitor. I now realise that Warren (Mr Pickett) must have been debiting advances and payments supposedly made on behalf of the company. That explains why we never saw any statements, demands,

interest rate notifications or calculations, and there were no replies to our requests for information or any annual financial statements.

[28] With respect to the annual financial accounts for the Waipawa Group, it seems that Mr Pickett completed, these but only up to the year ending 2002 and none thereafter. This in itself might raise questions over possible suggestions that, in doing so, Mr Pickett may have endeavoured to hide his personal actions in this whole matter to some extent by utilising Ridley Group entities and their financing arrangements.

[29] Further, Mr Ridley does note in his evidence that following the sale of the Taupo business, two repayments of $411,823.00 and $451,740.00 were made to Waipawa Finance. He contends that these fully repaid Waipawa Finance debt as far as he was aware. There does remain, however, the fact that certain ongoing monthly payments were still made by the Ridley Group to Waipawa Finance after this time, but those payments it is said were possibly made in error and certainly ceased soon thereafter. Significantly too, it seems no request to reinstate the stopped payments was made by or on behalf of Waipawa Finance at the time.

[30] Lastly on this aspect, when the Taupo business was sold, from the sale proceeds which he seemed to control, Mr Pickett directed that the sum of $25,000.00 was to be paid to Mr Ridley personally. In addition, no Waipawa Finance repayment statements are in evidence for this particular time. A reasonable argument exists therefore that, if funds were still outstanding under the loans and securities with Waipawa Finance then, it would seem somewhat curious that Mr Pickett on behalf of the company would agree to a voluntary payment of $25,000.00 being made to Mr Ridley from funds that would otherwise be available to reduce Waipawa Finance debt. No explanation of this has been provided to the Court.

[31] Again, as I see it, all this confused evidence needs proper testing and analysis at trial and clearly supports the position that the present matter is not one suitable for summary judgment.

[32] Fourthly, before me, Mr Macfarlane for the Ridley interests has suggested a possible alternative explanation of all that has occurred which he contends cannot be discounted here. This is to the effect that the alleged Waipawa Finance loans to the Ridley interests may well have involved moneys actually taken and disguised by the

fraudster Mr Pickett which in fact never found their way to the Ridley Group, and further that in any event, actual repayments made but not accounted for may have cleared all the genuine indebtedness of the Ridley interests.

[33] In this regard, Mr Macfarlane noted that throughout and on his own admission, Mr Pickett had been dishonestly taking and shuffling monies advanced to Waipawa Finance for over 20 years. The evidence before the Court seems to suggest that more than 2 years after the sale of the Taupo business Mr Pickett, in confessing to Mr and Mrs Ridley as to his past dishonesty, even at that point was evasive and lied to them about supposed payments made by Waipawa Finance for taxation for the Ridley interests to the Inland Revenue Department. As to this, Mr Pickett apparently said that some $270,000.00 had been paid by way of tax when in fact, even on the contentions now advanced by the liquidators of Waipawa Finance, the amount concerned was only approximately half that figure.

[34] And, on balance it certainly seems that, what documents that do exist in this case, appear to be entirely incomplete, have often been prepared or annotated by Mr Pickett, and it is said they are unlikely to withstand forensic analysis. No accounts have been prepared by Mr Pickett for the Ridley interests since 2002 and, upon the Taupo business sale, Mr Pickett provided no statements of any kind. Instead he simply gave directions as to the disposition of the sale proceeds which included the

$25,000.00 payment noted above to Mr Ridley personally, notwithstanding allegations now that Waipawa Finance debt always remained owing.

[35] The evidence before the Court indicates that repeated requests were made of Mr Pickett over many years to provide information and statements for the Ridley’s arrangements with Waipawa Finance but these it seems were all ignored. In addition, upon the Ridley’s cessation of further payments following the sale of the Taupo business Mr Pickett and Waipawa Finance did and said nothing.

[36] And finally, even the liquidators of Waipawa Finance themselves have said on occasions that, after endeavouring to resconstruct the records, it was still difficult to prove the Ridley entities owed anything to the company – see the report of this in the affidavit of Mr Jull dated 21 January 2011 at para 10.

[37] In conclusion, the possible scenario advanced by Mr Macfarlane here is that Mr Pickett, through falsifying records and himself handwriting bogus entries on cheque butts and Waipawa Finance bank statements, endeavoured to deflect and obscure his liability for defalcations onto his accounting clients Ridley Taupo, Ridley Turangi and Mr Ridley.

[38] Although this scenario might at one level seem rather far-fetched, for summary judgment purposes, aspects of it in my view cannot be totally discounted, given Mr Pickett’s lengthy and elaborate fraud throughout. I must therefore proceed accordingly.

[39] There are, however, two matters on which some further detailed explanation will ultimately be required by the Ridley interests. These relate first to the amounts which Waipawa Finance contends were paid by it through Mr Pickett to the Inland Revenue Department for taxation arrears due from the Ridley Group.

[40] The second matter relates to disputes over the general loan advance account debt loan No. 79035 and repayments following the Taupo business sale. I will now briefly touch on each of these matters in turn.

IRD Payments

[41] At one point before me, the parties accepted that at the relevant time, Ridley Taupo through its Taupo dealership business owed a significant amount by way of tax arrears to the IRD. The IRD had issued statutory demands for these amounts. The evidence seems to show a settlement arrangement with IRD was finally reached, it seems through Mr Pickett. This settlement appeared to require payments of

$15,000 per month over a period of about 9-10 months to clear the outstanding tax debt. Waipawa Finance now alleges that it made those payments, and added the amounts to the general loan advance account No. 79035 balance for the Taupo dealership. In response, Mr Ridley and Ridley Turangi contend however that without a full substantive hearing, and a consideration of all the available evidence, the proper facts surrounding these tax debts and their payments cannot be established.

[42] The evidence on these aspects currently before me seems to include affidavits of Mr Chapman and Mr Ridley and the one affidavit of Mr Edwards. In his affidavit, Mr Edwards’ deposes that cheque butts were made out on the Waipawa Finance bank account for these individual monthly payments to the IRD. Additionally, the Waipawa Finance bank statements noted (in Mr Pickett’s own handwriting) next to each of these payments to the IRD, that they were made on behalf of Ridley Motors’ Taupo dealership. The actual cheques however are not available. Nor is confirmation from the IRD that these amounts were ever received.

[43] Notwithstanding the irresistible inference here from all the material which is before the Court that these tax payments were made from further Waipawa Finance loan advances, Mr Ridley and Ridley Turangi do raise a dispute as to whether the payments were ever made on their behalf by Waipawa Finance. Instead, they suggest that Mr Pickett, as part of his grand deception, may have simply completed the Waipawa Finance cheque butts and bank statement notations for his own fraudulent purposes, and the IRD’s tax liability could have been met from other sources. This allegation seems to rest solely on Mr Pickett’s propensity for dishonesty in financial recording and receipt of funds. Although that does seem a rather long-shot argument here, strictly speaking, without a full hearing of all the evidence, at this stage it cannot be entirely discounted as a possibility.

Further disputes as to general loan advance account debt owing

[44] After the Ridley’s Taupo dealership was sold in 2006, as I have noted, most of the proceeds of sale were applied to settle debt to Waipawa Finance, with two payments of $411,823 and $451,740 paid directly to it. Ridley Turangi and Mr Ridley state this ought to have settled at least the floor plan debt and probably also any other debt owing, and that they were led to believe that it did.

[45] The actual position at the time is very difficult to determine given the entirely unsatisfactory state of the records of these loans and their repayments. In terms of Mr Ridley’s affidavit, he deposes that these payments discharged the debt owing to Waipawa, although no settlement statements or accounts were ever received. The affidavit of Mr Jull, the sole director of Waipawa Finance at the relevant time, noted

above also indicates that Mr Pickett led him to believe that there was no outstanding debt in respect of the Ridley companies after the Taupo business was sold.

[46] Waipawa Finance in its counterclaim contends that money is still outstanding on both the floor plan advance account and the general loan advance account. Again, I note that these alleged loans (and in particular the general loan advance account), their accounts and ledgers appear to have been adequately (or even minimally) documented.

[47] As I have noted above, it is not appropriate to enter summary judgment in this instance on the basis of the scanty, confused and disputed evidence which is before the Court. Although there is a written guaranteed loan agreement with Waipawa Finance for the Taupo dealership to establish the opening balance of the floor plan account, original evidence of other advances and repayments made on the floor plan account and the general advance loan account is substantially lacking.

Other Pleaded Defences to the Counterclaim

[48] Before me Mr Macfarlane for Mr Ridley and Ridley Turangi advanced affirmative defences in opposition to the present application based upon estoppel and limitation questions.

[49] Given my decision above that this summary judgment application should be dismissed for the reasons I have outlined there I do not need to address these affirmative defences at this point.

Conclusion

[50] For all the reasons outlined above it will be apparent that Waipawa Finance’s summary judgment application on its counterclaim fails. That application is dismissed.

[51] In doing so it is useful in my view to note a general explanatory comment made in his submissions by Mr Macfarlane for the Ridley interests at para 5 which I now repeat:

5. This case is not about Waipawa Finance Limited recovering loan money from a recalcitrant debtor in a conventional commercial setting. Instead it is about the remarkable but fraudulent behaviour of Mr Pickett, an accountant who ran a Ponzi scheme despite presenting as a decent man in a position of trust for hundreds of people

_{(including the Ridley interests) over many years.}

Costs

[52] In dismissing the present summary judgment application I make no award of costs at this point. Costs are generally to be reserved in cases such as the present where a summary judgment application has been dismissed in the absence of some fault – NZI Bank Limited v Philipott [1990] 2NZLR 403.

[53] Costs are therefore reserved to be dealt with on the ultimate disposition of this matter at substantive trial.

Further Direction

[54] Simply as a next event in this proceeding the Registrar is directed to list this matter for call in an appropriate list for further directions.

‘Associate Judge D.I. Gendall’