Helicopter Finance Limited v Tokoeka Properties Limited [2012] NZHC 686 (13 April 2012)

Last Updated: 13 September 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-6845 [2012] NZHC 686

BETWEEN HELICOPTER FINANCE LIMITED Plaintiff

AND TOKOEKA PROPERTIES LIMITED Second Defendant

AND HAWKER PACIFIC NZ LIMITED Third Defendant

AND N S A GRIMWOOD LIMITED Fourth Defendant

Hearing: 2 April 2012

Appearances: B D Gustafson for Plaintiff

S R Carey for Second Defendant

N S Gedye for Third Defendant

R M Lewis for Fourth Defendant

Judgment: 13 April 2012

_{RESERVED JUDGMENT OF ASSOCIATE JUDGE BELL}

_Solicitors:

This judgment was delivered by me on 13 April 2012 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules.

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

Registrar/Deputy Registrar

Buddle Findlay (P Mulligan) P O Box 1433 Auckland 1140 for Plaintiff

Email: [e-mail]

Russell McVeagh (Richard McIlraith), P O Box 8 Auckland 1140, for Second Defendant

Email: [e-mail]

Lowndes Associates (M W McCarthy) P O Box 7311 Auckland 1141, for Third Defendant

Email: [e-mail]

Lewis Callanan (R M Lewis) P O Box 35361 North Shore City 0753, for Fourth Defendant

_Email: [e-mail]

Copy for:

Bret D Gustafson, P O Box 1297 Auckland 1140 for Plaintiff

Email: [e-mail]

Philip G Skelton/ Sam Carey, P O Box 4314 Auckland 1140 for Second Defendant

Email: [e-mail] / [e-mail]

Nathan S Gedye, P O Box 2097 Auckland 1140 for Third Defendant

_Email: [e-mail]

HELICOPTER FINANCE LIMITED V TOKOEKA PROPERTIES LIMITED HC AK CIV-2009-404-6845 [13

April 2012]

Introduction

[1] The second and third defendants apply for further and better particulars of the amended statement of claim, and apply for security for costs against the plaintiff. The proceeding arises out of the plaintiff’s purchase of a Bell 206 Jet Ranger helicopter ZK-IBM serial number 1290 in October 2006. The plaintiff bought the helicopter from Tokoeka Properties Ltd, the second defendant. The second defendant is a corporate trustee of the JBS Resettlement Trust. Hawker Pacific NZ Ltd, the third defendant, is an aircraft engineer at Ardmore Airfield, South Auckland. The fourth defendant used to be called North Shore Aviation Services Ltd. It carries on business as an aircraft engineer at the North Shore Airfield, Auckland.

[2] The plaintiff bought the helicopter for USD$405,000 inclusive of GST under an agreement dated 5 October 2006. It says that it had the helicopter inspected shortly after purchase and found extensive defects. It had those defects repaired later. It says that the cost of repairs was $490,118.26 exclusive of GST. The plaintiff sues Tokoeka Properties Ltd for pre-contractual misrepresentation under the Contractual Remedies Act 1979, for breach of clause 3(b) of the agreement for sale and purchase and for breach of the Fair Trading Act. It says that under clause 3(b) of the agreement Tokoeka Properties Ltd agreed to arrange for the helicopter to have a

100-hour inspection before purchase. It sues Hawker Pacific Ltd for negligent misstatement and NSA Grimwood Ltd for negligent misstatement.

[3] The plaintiff has discontinued the proceeding against the first defendant. NSA Grimwood Ltd, the fourth defendant, has filed a statement of defence, but is not actively defending the proceeding. I was given to understand that it may not be good for any judgment given against it. It took no part in the present applications.

[4] The statement of claim pleads that from 2003 until August 2006 the third defendant was the second defendant’s aviation engineer responsible for all maintenance work necessary to ensure that the helicopter was airworthy under the Civil Aviation Rules. The Civil Aviation Rules prescribe general maintenance requirements for all aircraft, including the helicopter in this case. The person

carrying out maintenance on the aircraft is required to record particulars of the maintenance in an appropriate log-book. The Civil Aviation Rules also require compliance with airworthiness directives. There are rules against operating an aircraft unless it has had an annual or 100-hour inspection within the preceding

12 months and within the preceding 100 hours time in service. The rules also require an operator of an aircraft to maintain the aircraft in accordance with the manufacturer’s maintenance schedule. The operator is required to maintain accurate maintenance records. There is a maintenance manual for the Bell helicopter which includes inspection and component overhaul maintenance procedures. There is a schedule for a 10- hour and an annual inspection, including an inspection task description. The statement of claim gives details of relevant matters to be addressed in a 100 hour inspection.

[5] The third defendant carried out 100-hour inspections in November 2004 and

August 2005. The fourth defendant carried out a 100-hour inspection in September

2006.

[6] The statement of claim pleads misrepresentations in relation to the sale of the helicopter. An agent for the second defendant provided the March 2006 log-books, spreadsheet and other information showing that the helicopter had had its last 100 hour inspection in August 2005. The agent stated that the helicopter had approximately 4 to 5 hours to go before its 100-hour inspection. It is pleaded that this representation meant that the 100-hour inspection would be undertaken in accordance with the Civil Aviation Rules and the Bell maintenance manual, and that the helicopter was presently airworthy and would be airworthy before delivery.

[7] The second defendant provided the plaintiff with the helicopter’s aircraft and engine log-books for inspection in August 2006. The aircraft log-books are said to be representations that the second defendant had maintained the aircraft in an airworthy condition as required by the Civil Aviation Regulations, that the 100 hour inspections as required by the Civil Aviation Regulations and the Bell maintenance manual had been undertaken for the aircraft in the two years before, that is, in November 2004 and August 2005, and those inspections complied with the Civil Aviation Rules and the maintenance manual. The log-books are also said to

represent that the helicopter was fully released to service with a current annual review of airworthiness and the aircraft was airworthy as a matter of fact in accordance with the Civil Aviation Rules and the Bell maintenance manual.

[8] The plaintiff says that it bought the helicopter in reliance on those representations.

[9] Under the agreement for sale and purchase of 5 October 2006 the second defendant was required to arrange for the helicopter to have a 100-hour inspection and was to advise the plaintiff once that inspection had been completed.

[10] The plaintiff says that the second defendant represented that a 100-hour inspection had been carried out in September 2006 in accordance with a 100-hour inspection and under Civil Aviation Rules and that the helicopter was fit for release to service. Relying on those representations, the plaintiff completed the purchase of the helicopter.

[11] The plaintiff says that contrary to the representations, the inspections had not been fully and comprehensively undertaken. The aircraft was not airworthy and was not fit for release in November 2004, in August 2005 or in September 2006. The plaintiff detected defects in the aircraft shortly after delivery in October 2006. It took the helicopter out of service and it remained out of service until July 2008.

[12] Paragraph 24 of the statement of claim says that if legally compliant 100- hour inspections had been undertaken, listed defects would already have been remedied and the plaintiff would not have incurred repair and inspection costs. It then lists in a schedule alleged defects in the helicopter by reference to invoices of aircraft engineers, a description of the defect, a reference to the manual requirement for the matter to be inspected, the invoice costs, and also the amount of the invoice which was the subject of the claim as relating solely to remedying the defects.

[13] For all causes of action the plaintiff seeks judgment against the defendants for

$490,118.26 (exclusive of GST) or, alternatively, judgment for a sum to be quantified.

[14] The claim for breach of the agreement against the second defendant goes to the September 2006 inspection. The claims for contractual misrepresentation and breach of the Fair Trading Act also extent to the inspections in November 2004 and August 2005. These causes of action do not require proof of breach of a duty of care owed by the second defendant to the plaintiff.

[15] The third defendant is sued in negligent misstatement for breach of a duty of care in certifying the 100 hour inspections of November 2004 to August 2005 in the log-books.

[16] The fourth defendant is similarly sued in negligent misstatement for certifying its 100-hour inspection in September 2006.

Particulars application

[17] The third defendant led the application for further and better particulars. It says that these are the applicable principles for further particulars:

(a) The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet. Trial by ambush is not acceptable.

(b) A pleading should not just be a bare minimum but should “supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation”.

(c) Particulars of negligence are required under High Court Rule

5.21.12(4). In a negligence case a plaintiff needs to state with specificity and clarity how a defendant is alleged to have fallen below the requisite standard of care.

(d) In practice, this means that a plaintiff needs to state what a defendant allegedly did or omitted. This will require particulars as to times, persons, dates and amounts.

(e) The level of particularisation varies depending on the facts of the case.

(f) In a professional negligence case involving technical or complex facts, the plaintiff should provide sufficient technical and factual particulars to enable the defendant to understand what is alleged as a breach of the standard of care.

(g) From the court’s point of view, the requirement is for sufficient detail and clarity to understand at the outset the issues being posed for decision.

(h) From a defendant’s point of view there must be sufficient particularisation of fact to enable rebuttal evidence to be prepared in advance of trial.

(i) An allegation of negligence must particularise the causal link between the act or the omission and the loss.

[18] The third defendant attacks the plaintiff’s pleading in three ways:

(a) for not specifying what the third defendant is alleged to have done to breach any duty of care;

(b) for not showing the causal link between the third defendant’s actions and the plaintiff’s loss; and

(c) for “warehousing” the sums claimed for defects, that is, for claiming for remedial costs without adequately allocating those costs to particular defects.

[19] The second defendant does not face allegations of negligence. Its submission focused on lack of sufficient identification and description of defects and costings. It complained of difficulties of identification when an alleged defect might relate to

any one of a number of components within a helicopter. It also joined with the third

defendant’s complaint of warehousing.

[20] Both the third defendant and the second defendant drew support from affidavits sworn by aircraft engineers, retained as expert witnesses, who said that they could not understand the allegations made by the plaintiff and could not advise the third and second defendants as to the allegations made by the plaintiff.

[21] The first two complaints made by the third defendant indicate a misunderstanding of the plaintiff’s case and the way it intends to prove it. It will not be able to call direct evidence as to the way the third defendant carried out its inspections in 2004 and 2005. Instead, it is likely to try to prove its case by circumstantial evidence. It would do that by showing that:

(a) The helicopter had certain defects, when it took delivery in 2006;

(b) Those defects were also present in the helicopter at the time of the

third defendant’s inspections in November 2004 and August 2005;

(c) They were defects which the Bell helicopter maintenance manual and the Civil Aviation Rules required to be identified and remedied;

(d) An aircraft engineer using the appropriate level of skill and care would have identified and remedied the defects;

(e) An aircraft engineer using the appropriate level of skill and care would not have signed the log-book as showing that the aircraft was fit to fly in light of the 100 hour inspection requirements, unless all the defects had been identified and remedied; and

(f) The presence of the defects in 2006 is evidence that the third defendant had not complied with the required standard of care.

[22] This approach is a common way of proving negligence, particularly in cases of alleged negligent inspection and certification. It is followed in leaky building

litigation, but is not confined to those cases. It will often be used where the plaintiff cannot know exactly how a defendant carried out its task.

[23] In these cases, it is futile to require the plaintiff to specify in what way the defendant allegedly carried out its task in breach of the duty of care. All that the plaintiff can do is prove the defects and the required standard of care, along the lines set out above, and show that the defects would not have occurred if the defendant had carried out his work to the required standard.

[24] Technically, a plaintiff might plead in full all the steps that the defendant was required to do and then allege that the defendant had failed to carry out one or more of those steps adequately or at all. For example, it might be pleaded:

(a) that the defendant did not carry any or a sufficient inspection of the helicopter;

(b) that if the defendant had inspected the helicopter he failed to identify the defects in issue;

(c) that if he identified the defects, he failed to carry out any or sufficient repairs; and

(d) that he failed to make correct entries in the helicopter’s log-book.

Such pleading would not really add anything to the plaintiff’s case and would not give the third defendant any greater information as to the case against it. It is not necessary in this case.

[25] The same approach applies to the third defendant’s complaint of lack of pleading of causation. The plaintiff intends to prove the presence of the defects in the helicopter in 2006. It will then need to prove the presence of the defects at the dates of the earlier inspections in November 2005 and August 2005. Those matters are already within the case against the third defendant. Possible negligence by the third defendant which did not give rise to the defects in issue is left out. By proving its case backwards from the defects the plaintiff does not have to address the

causation questions that the third defendant raises. There is no need to require the plaintiff to plead in relation to any alleged acts of the third defendant how they gave rise to the defects identified in 2006.

[26] The defendants are on stronger ground on the identification of defects and the costs allocated for particular defects. The second defendant says that it cannot identify which parts of the fourth stage turbine wheel were operating outside their limits, which fuel pump had exceeded its operating limit, which transmission was unserviceable, which cowl rails had cracked, which doubler had cracked, and which tub joiners needed to be replaced. However, it seems to be pushing the matter too far in asking as to the extent of wear on a drag pin bearing. That is simply a matter of evidence.

[27] The defendants also point to a lack of sufficient linkage in some cases between alleged defects and items to be addressed on a 100 hour inspection.

[28] The plaintiff has claimed costs, broken down into labour, parts and other. The figures are taken out of listed invoices. It appears that in many cases the plaintiff has made an apportionment between work directed at remedying defects, and other modifications to the helicopter. In some cases the invoice is solely for remedial work for an identified defect, which is linked to a relevant provision in the Bell maintenance manual. However, in some other cases there is no reference to the relevant provision in the Bell maintenance manual. In other cases a number of defects are classed together with one lump sum claimed for diverse alleged defects. I accept that there is a point in the defendants’ complaint of warehousing. The statement of claim can be tidied up. I give these directions for particulars:

(a) The plaintiff is to file a further statement of claim with these particulars:

(i) It is to list and identify all defects it relies on.

(ii) Where the defects relate to an expired part, which required replacement under the manual, it should specify the expiry date for that part.

(iii) Where a reference to a component might refer to more than one component of the helicopter (such as transmissions or pumps), the pleading should identify the particular component in issue.

(iv) Where a common defect is alleged to have occurred in a number of different places within the helicopter (such as corrosion) each separate place within the helicopter where the defect was found is to be identified.

(v) The itemising and description of defects is not required to go into evidential matters such as the extent of corrosion or the extent of wear.

(b) For each defect, the statement of claim should provide a reference to the appropriate provision in the Bell maintenance manual requiring the matter to be inspected. A general reference to the manual is not sufficient. Identification of particular entries in the manual is required.

(c) If diagrams will assist in identifying defects or their location, they may be attached to the pleading.

(d) For each defect, the statement of claim is to allocate a repair cost claimed for that defect, and then to refer to the appropriate invoice in which it was charged. Where one task has addressed two defects at the same time, the statement of claim may combine the two defects as going towards one cost item. But in all other respects, the statement of claim should allocate a fair cost amongst individual defects. This may require some element of apportionment. Because apportionment

requires an exercise of judgment, the pleading may attach appropriate qualifications.

Beyond that, I see no need to require the plaintiff to provide further particulars.

[29] I direct that the plaintiff circulate a draft statement of claim addressing the above particulars by 27 April 2012. If there are lingering issues, they may be addressed in the chambers list on 17 May 2012.

Application for security for costs

[30] Rule 5.45 of the High Court Rules provides:

5.45 Order for security of costs

(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a) that a plaintiff—

(i) is resident out of New Zealand; or

(ii) is a corporation incorporated outside New Zealand;

or

(iii) is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b) that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

(2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3) An order under subclause (2)—

(a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i) by paying that sum into court; or

(ii) by giving, to the satisfaction of the Judge or the

Registrar, security for that sum; and

(b) may stay the proceeding until the sum is paid or the security given.

(4) A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5) A Judge may make an order under subclause (2) even if the defendant has taken a step in the proceeding before applying for security.

(6) References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[31] An application under r 5.45 follows these steps:

(a) Has the applicant satisfied the court of the threshold under r 5.45(1)? (b) How should the court exercise its discretion under r 5.45(2)?

(c) What amount should security for costs be fixed at? (d) Should a stay be ordered?

[32] The second and third defendants rely on r 5.45(1)(b). They say that there is reason to believe that the plaintiff will be unable to pay their costs if the plaintiff is unsuccessful in its proceeding. The plaintiff’s opposition is primarily to this threshold argument. It says that there is no evidence from which the court can infer that it would be unable to pay the costs of the defendants if it is unsuccessful.

[33] In Concorde Enterprises Ltd v Anthony Motors (Hutt) Ltd (No.2) Quilliam J

said that:[1]

... there should be credible (that is, believable) evidence of surrounding circumstances from which it may reasonably be inferred that the company will be unable to pay the costs. This does not, of course, amount to proof that the company will, in fact, be unable to pay them.

[34] Something more than silence as to its financial position is required to establish reason to believe that a plaintiff will be unable to pay a successful

defendant’s costs.[2] An applicant does not have to prove inability to pay in the normal civil sense.

[35] The plaintiff relies on this dictum from the judgment of Allan J in Wilson v

Auckland City Council:[3]

As a threshold issue, an applicant for an order must satisfy the Court that there is reason to believe that a plaintiff will be unable to pay costs if unsuccessful. In certain circumstances it may be appropriate for the Court to draw an adverse inference as to the plaintiff’s ability to meet an order for costs, where the plaintiff has failed to disclose his financial circumstances: Arklow Investments Ltd v MacLean.[4] But it will not be sufficient for the party seeking security simply to assert that the plaintiff has failed to establish his ability to pay. There must be some evidential foundation for the proposition that there is reason to believe that the plaintiff will be unable to do so, before the Court will be justified in drawing an adverse inference.

[36] In this case, the second and third defendants wrote to plaintiff seeking assurances that the plaintiff would be able to meet any orders for costs made against it if it failed in its proceeding. The plaintiff has not provided any information as to its financial position. It says that it is under no duty to do so. It says that in the absence of any information as to its financial position, no inference can be drawn that it will be unable to meet any order for costs.

[37] In Arklow Investments Ltd v MacLean, Thomas J accepted that a defendant cannot be expected to produce anything very conclusive to prove the plaintiff’s financial position. A defendant has no access to the plaintiff’s books of account and other records and can do no more than point to the surrounding circumstances, as the defendants have done in this case.

[38] Mr Gedye produced an estimate of the costs that might be awarded to the third defendant if it were successful in the proceeding. He suggested that a broad estimate of potential costs was $150,000-$170,000. That estimate can be adjusted. Mr Gedye’s estimate was based on the case requiring 12 days for hearing. After discussion with counsel I am satisfied that the case is likely to require 9 days, mainly

_{because of the reduced role of the fourth plaintiff. Mr Gedye claimed for second}

.

counsel. This case does not require second counsel. A ball-park estimate for costs payable to a defendant for successfully defending this proceeding is $120,000. Both the second and third defendants are actively defending the proceeding and are seeking costs. The fourth defendant is not actively defending the proceeding. For the plaintiff, I assume that there will be no order for costs payable to the fourth defendant.

[39] Is there reason to believe that the plaintiff will not be able to meet orders for costs to the second and third defendants totalling $240,000 or thereabouts? The information disclosed is that the plaintiff’s only significant asset is the helicopter. The helicopter has been adapted for agricultural/horticultural work. The plaintiff leases it to a third party and receives income by way of rent. It is not presently entitled to possession of that helicopter. It bought the helicopter for USD$405,000 including GST. It financed the purchase from UDC, although the amount borrowed has not been disclosed. After purchase, the plaintiff had work undertaken on the helicopter. Some of that work was modification, and other parts were repairs. In its first statement of claim the plaintiff says that the total cost of repairs was

$810,222.30. In its latest statement of claim it says that the amount attributable to repair and inspection costs is $490,118.26. The plaintiff has not disclosed to the court how it financed the repairs and modifications to the helicopter.

[40] The purchase price of the helicopter represents its market value at the date of sale (inclusive of GST) on the basis that it did satisfy the legal requirements to be operated as an aircraft. The modifications may have added some value to the helicopter. In the absence of any evidence from the plaintiff that it financed the modifications and repairs by an injection of capital from its shareholder, it is likely that that work was financed from borrowed funds, either shareholders’ advances or loans from a bank or finance company. Given that the plaintiff says that $490,000 was required to put the helicopter into the state it was represented to be at the time of sale, that other funds had been advanced for the purchase, and that any increase in value as a result of modifications is likely to have been financed by borrowed funds, I cannot see that there is sufficient equity in the company to meet potential orders for costs of $240,000.

[41] I also consider how the defendants might go about enforcing orders for costs amounting to $240,000. Because the plaintiff has leased the helicopter out to a third party, the defendants are unlikely to be able to arrange for the seizure and sale of the aircraft under a writ of sale. Instead, they are more likely to put the plaintiff into liquidation and to rely on a liquidator to see what value he can extract out of the company. The only value in the company appears to be in the helicopter. Whether there is a sale by liquidator or a sale by a sheriff under a writ of sale, a sale in such forced circumstances is unlikely to realise the full current market value of the helicopter. I find that there is reason to believe that the plaintiff will be unable to pay the costs of the second and third defendants if it does not succeed against them. The second and third defendants have satisfied the threshold.

[42] Ordinarily in a security for costs decision, at this stage I would consider the exercise of the discretion, taking into account the guidance of the Court of Appeal in A S McLachlan v NEL Network Ltd.[5] Although any assessment of the merits of the case at this stage can be little more than a matter of impression, I would come to some view as to the relative strength of the parties’ cases. I would balance the need to protect the defendants from the risk of not receiving costs if successful against

impeding the plaintiff’s access to the court to pursue its claim. That exercise of the discretion could result in the plaintiff being required to provide security for costs by way of a payment into court pending the final resolution of the proceeding.

[43] The balancing under the exercise of the discretion can result in unsatisfactory outcomes. Defendants seeking security resist any discounting, when any amount of security is set. But in this case, fixing security at close to the full amount of an award for costs places too great a hurdle on the plaintiff’s ability to continue the proceeding. On the other hand, setting security at a lower figure may not give the defendants adequate protection.

[44] Another unsatisfactory aspect is that security is usually given by a payment into court to await the outcome of the proceeding. The parties cannot use money

_{paid into court. It is dead money.}

[45] In the light of these considerations, another possibility occurred to me. That was that the plaintiff ’s director make himself personally liable for any order for costs that might be made against the plaintiff. If the director of the plaintiff were to assume personal liability for any order for costs made against the plaintiff, that may be a more effective form of security for the defendants. The director of the plaintiff is Mr Gunton. There is little evidence about his personal means, save that he is a businessman with interests in other enterprises. He is sole shareholder of the plaintiff. As the plaintiff is a company, a separate entity, Mr Gunton may have limited exposure to its liability to external creditors (there might be potential exposure indirectly if he were to breach his duty to the company as director, and the company were later to go into liquidation). However, if Mr Gunton were to face personal liability for any order for costs made against the plaintiff, that may give the defendants adequate protection against a barren order for costs. As a businessman, Mr Gunton would want to avoid the disabilities of bankruptcy. He is likely to face bankruptcy if he is unable to meet a court order for costs. That stimulus is therefore likely to ensure that an order for costs will be effective.

[46] Counsel did not have instructions on the question. I accordingly give them the opportunity to take instructions. This matter will be re-called in the chambers list on Thursday 17 May 2012 at 2.15 pm. On that date, the parties are to advise whether Mr Gunton will accept personal liability for an order for costs made against the plaintiff and whether the defendants will accept such an arrangement. There are a number of mechanisms whereby such an arrangement can be given effect. One possibility is for Mr Gunton to provide the court with an undertaking to be bound personally by any order for costs made against the plaintiff.

[47] If an arrangement along the lines above is not feasible, I will consider afresh in the chambers list on Thursday 17 May 2012 at 2.15 pm whether other orders for security for costs should be made against the plaintiff.

Summary

[48] There is an order that the plaintiff is to provide the particulars in [28] above in a draft statement of claim to be circulated to the defendants by 27 April 2012.

I will hear the parties on any outstanding questions as to particulars on 17 May 2012 at 2.15 pm. If there are no outstanding questions, the plaintiff is to file and serve its new statement of claim by 15 May 2012.

[49] On 17 May 2012 I will hear whether the parties have agreed on any arrangement for Grunton to accept personal liability for costs ordered against the plaintiff. If the parties have not agreed, I will hear argument and decide how to deal with the defendants’ security for costs application.

[50] On 17 May 2012 I will also consider what orders as to costs, if any, should be made on the present application, if the parties have not sooner agreed on costs. I will also consider what further case management directions are required. The parties are requested to file and serve memoranda addressing all the above issues by 15 May

2012.

_{..................................................}

_{R M Bell}

Associate Judge

---

[1] Concorde Enterprises Ltd v Anthony Motors (Hutt) Ltd (No.2) [1977] 1 NZLR 516 at 519.
[2] _{NZ Kiwifruit Marketing Board v Makeatataka Cool Pack Ltd (1993) 7 PRNZ 209 at 213.}
[3] _{Wilson v Auckland City Council HC Auckland, CIV-2009-404-1292, 28 September 2009 at [10].}
[4] Arklow Investments Ltd v MacLean (1994) 8 PRNZ 188 at 191

[5] A S McLachlan v NEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 at [13]- [16].