IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE	
CIV-2020-425-000048
[2021] NZHC 175	

BETWEEN	RUSSELL GRAHAM DRUMMOND
Plaintiff	
AND	JANEEN MAREE DRUMMOND
Defendant	

Hearing:	10 February 2021	
Appearances:	D R Tobin and R Reeve for Plaintiff J D Noble for Defendant	
Judgment:	16 February 2021	

JUDGMENT OF GENDALL J

This judgment was delivered by me on 16 February 2021 at 4 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DRUMMOND v DRUMMOND [2021] NZHC 175 [16 February 2021]

Introduction

[1]	The plaintiff and defendant were married in February 1996 but separated around July/August 2019. They are the sole shareholders and directors of RG & JM Drummond Farms Ltd (the Company) which is the subject of the present application before me. The Company carries on the family’s farming operation on three farms owned by trusts of which the plaintiff and defendant are the trustees and, among others, the beneficiaries. The company’s day-to-day management generally is in the hands of the plaintiff. Since separation, the defendant has moved away from the farms.

[2]	The dispute identified in this particular proceeding surrounds the defendant’s withdrawal of $78,000 from the Company’s Rabobank account and overdraft on or about 28 February 2020.

[3]	The plaintiff claims that, in making the unauthorised withdrawal without his approval or knowledge, the defendant breached her duty as a director to act in the best interests of the company (s 131 of the Companies Act 1993) and prejudiced the plaintiff as a shareholder (s 174). As a result, the plaintiff seeks summary judgment that the sum of $78,000 (plus interest) be immediately recovered from the defendant under ss 165 and 174. In the substantive proceeding itself, he also seeks an order that the defendant be removed as a director of the Company, but this aspect is not part of the summary judgment application before me.

[4]	The defendant admits the withdrawal but says summary judgment is unnecessary and inappropriate here as, first, she agrees to repay the $78,000 once the parties have, in due course, finally settled their relationship property issues and, secondly, she says also that, in any event, the Company owes her in excess of $78,000 and she has a set-off or counterclaim for this.

The summary judgment – the principles

[5]	The starting point for the plaintiff’s summary judgment application here is     r 12.2(1) of the High Court Rules. This requires that the plaintiff satisfy the Court that the defendant has no defence to any cause of action in the plaintiff’s statement of claim or to a particular cause of action.

[6]	I summarise the general principles which I adopt in relation to this application:

(a)	Common sense, flexibility and a sense of justice are required.1

(b)	The onus is on the plaintiff seeking summary judgment to show that there is no arguable defence. The Court must be left without any real doubt or uncertainty on the matter.2

(c)	The Court will not hesitate to decide questions of law where appropriate.3

(d)	The Court will not attempt to resolve genuine conflicts of evidence or to assess the credibility of statements in affidavits.4

(e)	In determining whether there is a genuine and relevant conflict of facts, the Court is entitled to examine and reject spurious defences or plainly contrived factual conflicts. It is not required to accept uncritically every statement put before it, however equivocal, imprecise, inconsistent with undisputed contemporary documents or other statements, or inherently improbable.5

(f)	In assessing a defence, the Court will look for appropriate particulars and a reasonable level of detailed substantiation – the defendant is under an obligation to lay a proper foundation for the defence in any affidavits filed in support of the Notice of Opposition.6

(g)	In weighing these matters, the Court will take a robust approach and enter judgment even where there may be differences on certain factual matters if the lack of a tenable defence is plain on the material before the Court.7

1	Haines v Carter [2001] 2 NZLR 167 (CA) at [97].
2	Pemberton v Chappell [1987] 1 NZLR 1 (CA).
3	European Asian Bank AG v Punjab & Sind Bank [1983] 2 All ER 508 (CA) at 516.
4	Harry Smith Car Sales Pty Ltd v Claycom Vegetable Supply Co Pty Ltd (1978) 29 ACTR 21 (SC).
5	Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC).
6	Middleditch v NZ Hotel Investments Ltd (1992) 5 PRNZ 392 (CA).
7	Jowada Holdings Ltd v Cullen Investments Ltd (CA248/02, 5 June 2003 at [28].

(h)	The need for judicial caution in summary judgment applications has to be balanced with the appropriateness of a robust and realistic judicial attitude when that is called for by the particular facts of the case. Where a last-minute, unsubstantiated defence is raised and an adjournment would be required, a robust approach may be required for the protection of the integrity of the summary judgment process.8

(i)	Once the Court is satisfied that there is no defence, the Court retains a discretion to refuse summary judgment but does so in the context of the general purpose of the High Court Rules which provide for the just, speedy and inexpensive determination of the proceedings.9

Submissions

Plaintiff ’s submissions

[7]	The plaintiff’s overall claim in this proceeding is divided into four causes of action:

(a)	two in respect of the $78,000 (for which summary judgment is sought):

(i)	one on behalf of the Company, for which the plaintiff has sought leave to bring a derivative action under s 165 of the Companies Act;

(ii)	one in his own right as a prejudiced shareholder under s 174 of the Act;

(b)	and two in respect of the removal of the defendant as director (not the subject of the present summary judgment application).

8	Bilbie Dymock Corporation Ltd v Patel & Bajaj (1987) 1 PRNZ 84 (CA).
9	Pemberton v Chappell, above n 2.

[8]	He contends the following evidence as to the prejudicial effect of the defendant’s actions on the Company’s position provides a useful backdrop for considering the present applications:

(a)	He says the company was on a “reasonably tight budget even before the monies were taken”. The plaintiff deposes that, as at 30 June 2018, the company had net equity of approximately $925,000. An extra $920,000 in further debt was then incurred to provide the defendant with a house.

(b)	The plaintiff gives evidence that his understanding was both parties agreed to limit their drawings from the Company as directors to no more than $30,000 each, or $60,000 total, per financial year.

(c)	His evidence is that the defendant’s unauthorised removal of $78,000 from the Company’s operating account left it short of funds (at the time the account, he says, was already overdrawn by $480,000, and the withdrawal meant approximately $100,000 in invoices could not be paid on time in April or May 2020), this being exacerbated by the general slow down in agriculture during the COVID-19 lockdown. In his words, the plaintiff claims the Company was pushed to the brink of defaulting on its overdraft facility in October 2020, and that this was only avoided because the plaintiff was able to borrow about $70,00 from an independent trust of which he and his mothers are trustees.

(d)	The plaintiff suggests the defendant’s evidence to the contrary that the Company has had no real issues over any of this (pointing only to a lowering of interest rates), is entirely unpersuasive.

Submissions as to section 165

[9]	Under s 165 of the Companies Act, the court may grant leave to a shareholder or director of a company to bring proceedings on behalf of a company where: the company will not otherwise do so, or it is in the company’s interests that the conduct of the proceedings not be left to the directors or to the determination of the shareholders as a whole.

[10]	The plaintiff submits that the prerequisites under s 165(3) for a derivative action are met. He suggests the defendant will not otherwise agree to the Company bringing these proceedings and that it is in the interests of the Company that the proceedings are brought as he says the Company is short of funds.

Submissions as to section 174

[11]	Section 174 of the Companies Act grants the court wide discretion to act in situations where a shareholder considers the affairs of the company have been conducted in a manner that is oppressive, unfairly discriminatory, or unfairly prejudicial to them. The Court may make any order it thinks fit, if it considers it just and equitable to do so.

[12]	As to s 174, the plaintiff submits here that there has been “a lack of probity” shown by the defendant in taking $78,000 from the Company’s account without justification. It is asserted the defendant breached her director’s duty to act in good faith and in what the director believes to be the bests interests of the company in terms of s 131(1) of the Act.

[13]	The plaintiff contends the defendant breached this duty by misusing her position to extract $78,000 from the Company’s overdraft account without prior approval, thereby increasing the overdraft and total Company indebtedness. He asserts she did this for her own purposes, and during a time when the Company was operating under financial constraints and in an adverse farming climate. The defendant has not made any claim that she thought taking the money was in the Company’s best interests, but she merely complains that she did so because the agreed monthly drawings of $400 per month were unilaterally stopped by the plaintiff.

[14]	The plaintiff adds that the following matters, he maintains, fall within the issues of conduct envisaged by s 174: that the Company’s bank, even before the lockdown, cautioned the Company on minimising spending; that the Company would have exceeded its overdraft limit in October 2020 but for the plaintiff’s injection of
$70,000; and that the Company is incurring interest at overdraft rates on the $78,000 that is of no benefit to it.

[15]	The plaintiff further suggests that the defendant’s failure to agree to the Company taking action to recover the money in reality breaches the defendant’s duties as a director.

[16]	On the basis of the evidence of the company’s accountant, the plaintiff submits the debt of $96,248 initially relied on by the defendant (but since accepted by her as wrong) was an accounting error and has since been corrected. Instead, he says the true amount is now only $5,248. The plaintiff attempts to suggest also that there is no factual foundation for the defendant’s claim that the Company is indebted to the defendant so the defendant is entitled to offset the money taken.

[17]	Hence, the plaintiff concludes he has been unfairly prejudiced by the defendant’s conduct and maintains that there is ample jurisdiction under s 174(2) for this Court to order the defendant to repay the $78,000 taken, together with interest, to the Company.

[18]	The plaintiff submits finally that many of the same considerations apply to the summary judgment application on behalf of the Company under the derivative action, if it is allowed, albeit that it is not necessary for the grounds of oppression to be made out.

Defendant’s submissions

[19]	The defendant at the outset acknowledges that the $78,000 is owing by her to the Company.

[20]	However, she maintains that, prior to the $78,000 withdrawal, the plaintiff unilaterally ceased paying the defendant’s monthly drawings from the Company’s account and refused her request that she be paid $500 per week by the Company or the trust.

[21]	The defendant accepts now the Company’s accounts to 30 June 2019 erroneously appeared to show the defendant was owed $96,248 by the Company, but he contends that they correctly record that the Company does owe the plaintiff and the defendant jointly the sum of $447,791. The defendant says, therefore, she has a set-

off or counterclaim and, in any event, she has agreed to repay the Company the
$78,000 when the plaintiff and defendant have settled relationship property issues following their separation, a separation which it appears occurred over 18 months ago. No property relationship proceedings have been initiated yet, as I understand it.

[22]	In her affidavit dated 15 October 2020, the defendant deposes:

Between the Company and the 3 Trusts that own the land, the Company farm and our investment trust, we have net assets with a rough value of between
$20 million and $25 million.

[23]	The defendant also says that the plaintiff made several Company purchases in the year to 30 June 2020 himself (including $428,000 on fertiliser, a $25,000 motorbike and he committed the Company to $150,000 on a spreader tillage machine.) As to the tillage machine, it seems the plaintiff made the decision for the Company to purchase this on 14 February 2020, two weeks before the defendant’s $78,000 withdrawal. All these payments, she says, are generally in excess of previous years’ spending and, in any event, were made without consultation with his co-director, the defendant. She contends that if the Company were truly in such a terrible financial position such purchases would not have been made.

Submissions as to section 165

[24]	As to the issue whether the court should grant leave to the plaintiff to bring proceedings on behalf of the Company under s 165(1) of the Act, the defendant concedes s 165(3) is satisfied as the Company does not intend to bring proceedings.

[25]	But, addressing the factors in s 165(2), the defendant advances the following points. First, there is no evidence, she says, that these proceedings will particularly enhance the Company’s interests; secondly, that the likelihood of the summary judgment application succeeding is not high (due to the available defence of repayment being required from the Company of the jointly owned debt owing to the plaintiff and defendant of $447,791); and, thirdly, that the likely imminent division of the Company’s assets as relationship property means it would be inappropriate for the Court to exercise its discretion to grant leave for derivative action by the Company against one of its 50 per cent shareholders at the behest of the other.

[26]	If the Court, however, does grant leave for the plaintiff to bring the derivative action, the defendant notes the $78,000 owing is substantially exceeded by the
$447,791 jointly owing by the Company to the plaintiff and defendant. As she says this amount is relationship property, the Company will need to pay a sum of
$223,895.50 to her in due course, in any event.

[27]	In her statement of defence, the defendant repeats this contention where she pleads too that the $78,000 debt should be set off against the $447,791 owing jointly to the plaintiff and the defendant, and thus that judgment for the $78,000 is unnecessary and inappropriate.

Submissions as to section 174

[28]	The defendant maintains that this Court simply is quite unable to hold on a summary judgment basis that the s 174(1) criteria are satisfied. She asserts that real and independent evidence of the effect of the withdrawal on the Company is lacking and, in any event, what is provided is clearly disputed:

(a)	the defendant deposes that both parties have long used the Company’s accounts for the directors’ personal benefits rather than exclusively for the Company’s benefit;

(b)	she disputes the plaintiff’s claim the withdrawal has prejudiced the plaintiff, arguing the transaction is ultimately fiscally neutral given the money remains an asset in its ledger, albeit one that remains owing;

(c)	she maintains the interest incurred as a result of the withdrawal will be modest and can hardly be said to be oppressive, unfairly discriminatory or unfairly prejudicial to the plaintiff; and

(d)	she claims she can be relied upon to repay the money in due course given the substantial assets owned by the parties and the Company and the parties’ imminent relationship property division.

[29]	Despite these arguments, if this Court does find the withdrawal was oppressive, unfairly discriminatory or unfairly prejudicial to the plaintiff, the defendant argues further that, given a range of additional factors, it would not be just and equitable for the Court to exercise its discretion to order the defendant to pay $78,000 to the Company in the present summary judgment hearing. These factors are:

(a)	the Company clearly owes the plaintiff and defendant jointly $447,791 as its June 2019 annual accounts confirm;

(b)	the defendant withdrew the $78,000 in response to the plaintiff unilaterally stopping her drawings and refusing her request to be paid
$500 per week post-separation;

(c)	both parties have made unilateral withdrawals of monies for their personal benefit, and also the Company continues to pay almost all the plaintiff’s daily personal expenses;

(d)	each of the parties’ 50 per cent shareholdings in the Company as well as the $447,791 loan noted at [29](a) are relationship property; and

(e)	there is no real or independent evidence to show the plaintiff has been unfairly prejudiced by the $78,000 withdrawal.

Analysis

[30]	The first issue for this Court to decide relates to the question whether the Court should grant leave to the plaintiff to bring these proceedings in the name of and on behalf of the Company pursuant to s 165(1) of the Companies Act.

[31]	At the outset, it is conceded that the Company does not intend to bring these proceedings against the defendant. It is clear, therefore, that s 165(3) is satisfied.

[32]	Section 165(2) sets out four non-exclusive factors that the Court must have regard to in exercising the discretion whether to grant leave. These are, first, the likelihood of the proceeding succeeding, secondly, the costs in relation to the relief

likely to be obtained, thirdly, any action already taken by the company to obtain relief and, finally, the interests of the company in the proceedings being commenced, continued, defended or discontinued as the case may be.

[33]	For present purposes only, I accept that this Court, having regard to the interests of the Company in the proceeding in terms of s 165(2)(d), should grant leave here under s 165(1). Clearly there are arguments to the contrary but, given my overall conclusion in this matter, which will follow, in an attempt to simplify matters, I now grant leave.

[34]	The second issue to be considered here relates to the present summary judgment application brought by the plaintiff pursuant to r 12.2(1) of the High Court Rules.

[35]	As to this, the plaintiff contends, first, that the application should succeed in terms of s 174 of the Companies Act. That section grants the Court a wide discretion to act in situations where a shareholder considers the affairs of a company have been conducted in a manner that is oppressive, unfairly discriminatory or unfairly prejudicial to she or he.

[36]	Common examples of this include conduct which is said to be burdensome, harsh and wrongful, or a visible departure from a standard of fair dealing, conduct that violates conditions of fair play and, lastly, that involves a lack of probity or fair dealing.

[37]	The plaintiff submits here that there has been a lack of probity on the part of the defendant in her taking of the $78,000 in an unauthorised way from the Company’s operating bank account either without any justification or that in any way might be considered as assisting the Company’s operations or interests.

[38]	As I have noted above, it is clear, first, that the defendant acknowledges she took the $78,000 from the Company’s operating account for personal use and that, as a debt owing to the Company, she will repay it. She says that repayment is subject to a set-off or counterclaim she has personally against the Company. This represents the

amount which she says the Company owes to her totalling some $223,000, being one half of the joint debt.

[39]	In response, Mr Tobin for the plaintiff argued before me that this $447,791 debt, is a partnership debt and the defendant cannot properly claim ownership of a share of it until the partnership is dissolved, partnership accounts completed and all matters between the parties resolved.

[40]	Whilst technically there may be something in this argument advanced for the plaintiff, there is no evidence before me at this summary judgment stage to suggest that previous partnership issues between the plaintiff and the defendant might mean the defendant is not entitled to the one half interest she claims in this $447,791 debt, a debt shown in the Company accounts as one jointly owned by plaintiff and defendant.

[41]	On its face then, broadly I conclude here that, despite the fact the defendant may have acted improperly in unilaterally withdrawing the $78,000 from the Company’s bank account, there is material before me, uncontradicted by any independent evidence, that as a joint owner of the $447,791 debt owed by the company, she has a cross-claim or counterclaim which needs to be brought into account.

[42]	In Grant v NZMC Ltd,10 Somers J delivering the judgment of the Court of Appeal said (at [12] and [13]):

The principle is, we think, clear. The defendant may set-off a cross-claim which so affects the plaintiffs’ claim that it would be unjust to allow the plaintiff to have judgment without bringing the cross-claim to account. The link must be such that the two are in effect interdependent, judgment on one cannot fairly be given without regard to the other, the defendant’s claim calls into question or impeaches the plaintiff’s demand. It is neither necessary, nor decisive, that claim and cross-claim arise out of the same contract.

[43]	In my view, this is entirely relevant to the situation before me. In Grant v NZMC Ltd the Court set aside the summary judgment because the defendant’s cross- claim qualified as a set-off and, being clearly arguable, prevented the entry of judgment summarily. As I see it, that is the position here. Clearly, the plaintiff in this

10	Grant v NZMC [1989] 1 NZLR 8 (CA).

case has been unable to satisfy the onus upon him to show that the defendant has no defence to the cause of action stated in his statement of claim or indeed to any particular part of that cause of action.

[44]	The present summary judgment application, therefore, must fail and it is dismissed. This is the case under the monies had and received cause of action advanced by the plaintiff either under s 165 or s 174 of the Companies Act or in any other respects.

[45]	For completeness, however, I now outline one further matter.

[46]	This relates to r 12.12(2) of the High Court Rules which states:

12.12	Disposal of application

…

(2)	If it appears to the court on an application for judgment under rule 12.2 or 12.3 that the defendant has a counterclaim that ought to be tried, the court—

(a)	may give judgment for the amount that appears just on any terms it thinks just; or

(b)	may dismiss the application and give directions under subclause (1).

[47]	Here, if I may be wrong in dismissing the plaintiff’s summary judgment application on the grounds I have outlined at paras [43]and [44] above, nevertheless in  any  event  I  would  have  dismissed  the  present  application  on  the  basis  of   r 12.12(2)(b) here.

[48]	McGechan on Procedure r HR12.12.01 addresses this provision and states in part:

Subclause (2) [of r 12.12] imports a measure of flexibility into the procedure where, although defendants may have no defence to the claim, they nevertheless have what appears to be a possibly meritorious counterclaim. Rather than give an immediately enforceable judgment to the plaintiff on the plaintiff’s claim (perhaps allowing that plaintiff to bankrupt the defendant before the latter’s counterclaim can be brought to judgment and offset), the Court may, and commonly does, grant the plaintiff summary judgment accompanied by a stay of execution of such judgment pending resolution of

the counterclaim, or occasionally dismisses the summary judgment application, directing trial of both claim and counterclaim: per McGechan J in Roberts Family Investments Ltd v Total Fitness Centre (Wellington) Ltd [1989] 1 NZLR 15, (1988) 1 PRNZ 88 at 21, 92.

[49]	In the present case, the issue of the defendant having a meritorious counterclaim or set-off relating to her share of the acknowledged jointly owned Company debt of $447,791 arises. Also, as I see it, outstanding relationship property claims (which directly affect the shares and assets of the Company, the three farm properties and the other investments held by the plaintiff and the defendant and their trusts) loom large. The net equity position in the overall farming and family assets between these parties after their nearly 24-year marriage seems to total between
$20 million and $25 million. The present proceeding relating to the $78,000 unauthorised withdrawal from the Company by the defendant, in my view, needs to be placed into this perspective. I accept the plaintiff’s argument that this unexpected withdrawal may have impacted upon the Company’s cashflow and resulted in him needing to inject $70,000 into the bank account from other sources. The only indication before me, however, of any financial or banking difficulties the Company may have been under at this particular time generally arise from the plaintiff’s own claims. The Company’s accountant, Mr Michael Hunter, despite providing an affidavit in this proceeding dated 12 November 2020 relating to the $96,248 error in the Company’s draft annual accounts, has made no mention of any kind relating to financial or cashflow difficulties the Company was facing, to support the plaintiff’s claims.

[50]	I accept, however, that the $78,000 withdrawal from the Company bank account by the defendant will mean that the Company might incur some overdraft interest on this amount, an amount it is accepted has been used for personal and not farming related expenses. Accounting adjustments for this can be made, however in the overall wash-up between these parties and their Company. This wash-up ultimately is likely to involve millions of dollars and any interest incurred that requires adjustment by comparison is likely to be minor.

[51]	Under these circumstances, even if the plaintiff had satisfied me that summary judgment should have been granted here, I would at most have dismissed the

application and directed trial of both the plaintiff’s claim and the defendant’s counterclaim in terms of r 12.12(2)(b) of the High Court Rules.

Result

[52]	For all the reasons I have outlined above, the plaintiff’s summary judgment application is dismissed.

Costs

[53]	Rule 14.8(3) of the High Court Rules, dealing with costs on summary judgments as interlocutory applications, expressly provides that the r 14.8 principle that the party who fails on an interlocutory application should pay the costs involved, does not apply to applications for summary judgment.

[54]	However, McGechan on Procedure, at para HR14.8.05, in recording that the Court’s practice regarding costs on summary judgment applications will vary according to the outcome, goes on to state:

HR14.8.05	Summary judgment

The Court’s practice on summary judgment applications varies according to outcome:

(a)	On a successful application, costs are usually awarded as costs following the event under r 14.2(1)(a).

(b)	On a plaintiff’s unsuccessful application, costs are usually reserved: NZI Bank Ltd v Philpott [1990] 2 NZLR 403, … That practice may be departed from in appropriate cases, as where a summary judgment application   was    not    appropriate:    Emmons    Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd [2016] NZHC 1244.

[55]	There is no doubt that in the NZI Bank case the Court of Appeal decided that in most cases of unsuccessful summary judgment applications the incidence of costs is best decided when the final result of a case is known. In that case, however, the Court of Appeal went on to find that this is not necessarily the correct course in every case – for example, where there is a bona fide question of fact that can only be decided at trial, yet the plaintiffs still embarked on summary judgment proceedings inappropriately knowing that to be the case.

[56]	In his decision in Emmons Developments, Associate Judge Matthews found the plaintiff was at fault in applying for summary judgment for the following reasons:

(a)	It should have been clear to the plaintiff there was considerable scope for argument on which judgment would need to be brought to bear;

(b)	The plaintiff appeared to think the defendant insurer was not serious in maintaining they had a right to a set-off, which is an established defence to a summary judgment application;

(c)	It was no answer for the plaintiff there to say it withdrew the application promptly as the onus on an applicant plaintiff for summary judgment is by definition high, and the time to assess whether the claim has a real prospect of success is before it is issued.

[57]	In the Emmons case, Associate Judge Matthews held that the plaintiff was at fault in bringing the summary judgment application and, because of this, the general principle in NZI Bank that costs be reserved should not apply. Accordingly, in Emmons, the plaintiff was ordered to pay to the insurers costs for certain specific steps in relation to the summary judgment application, including filing memoranda for case management conferences, filing a notice of opposition, preparation of affidavits and preparation of written submissions in relation to costs.

[58]	In the present proceeding before me, I am of the view there is a reasonable argument that in all the circumstances the summary judgment application brought by the plaintiff was not appropriate. As I see it, the issues of major importance between the plaintiff and the defendant relate to the untangling of their relationship property, including their farming assets, and their joint involvement as co-directors and co- trustees of the various trusts. These main issues need to be dealt with.

[59]	Although in the present case the issue as to whether the unsuccessful plaintiff should pay costs to the defendant on this summary judgment application is a fine one, on balance I have reached the view that, like the decision taken by the Court of Appeal in the NZI Bank case, the overall incidence of costs here is best decided when the final

result of this case, and indeed any other proceedings that may issue between these parties, is settled.

[60]	For these reasons, there is to be no order made for costs at this point.

...................................................
Gendall J

Solicitors:
Dean Tobin, Barrister, Dunedin Boyle Mathieson, West Auckland