IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE	
CIV-2022-488-000017
[2022] NZHC 2080	

BETWEEN	PAUL GERRARD KELLER, KAREN ELIZABETH KELLER, and ARK
CONTRACTORS LIMITED
Judgment Creditor	
AND	MALCOLM JAMES DAISLEY
Judgment Debtor	

	CIV-2022-488-000018	

BETWEEN	
PAUL GERRARD KELLER, KAREN ELIZABETH KELLER, and ARK
CONTRACTORS LIMITED
Plaintiff	
AND	MALCOLM JAMES DAISLEY
Defendant	

	CIV-2022-488-000019	

BETWEEN	
ARK CONTRACTORS LIMITED
Judgment Creditor	
AND	MALCOLM JAMES DAISLEY
Judgment Debtor	

Hearing:	16 August 2022	
Appearances:	J Browne and J Cartwright for the Judgment Creditor E Smith for the Judgment Debtor	
Judgment:	23 August 2022	

JUDGMENT OF ASSOCIATE JUDGE GARDINER

KELLER & Ors v DAISLEY [2022] NZHC 2080 [23 August 2022]

This judgment was delivered by me on 23 August 2022 at 2.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Introduction

[1]	This is an application to set aside three bankruptcy notices.

[2]	The judgment debtor, Mr Daisley, says that two of the bankruptcy notices are defective, he has a cross-claim against the judgment creditors and/or the Court should exercise its inherent jurisdiction to set aside or stay the bankruptcy notices as an abuse of process.

[3]	The judgment creditors, Mr and Mrs Keller and Ark Contractors Limited (Ark), say that the bankruptcy notices are valid, Mr Daisley has no cross-claim against them, and it was reasonable to issue and serve the bankruptcy notices.

[4]	The issues to be determined are:

(a)	Are two of the bankruptcy notices defective?

(b)	Does Mr Daisley have a cross-claim?

(c)	Should the bankruptcy notices be set aside or stayed as an abuse of process?

Background

[5]	The background to the dispute between the Kellers and Mr Daisley leading to the bankruptcy notices is set out in the judgment of the Court of Appeal:1

1	Keller v Daisley [2021] NZCA 351.

[1]	A business transaction between the Daisley interests and the Keller interests in 2009/2010 quickly turned sour. It spawned three sets of proceedings, which were heard before Walker J in the High Court over some three weeks in 2019 and 2020. From each of those decisions, the unsuccessful parties appeal to this Court.

[2]	The main dispute concerns the performance of agreements entered into on the eve of the first of four mortgagee sales of four properties owned by the Daisley interests. As contemplated by that arrangement, the Kellers established Ark Contractors Ltd (Ark). Ark purchased the four properties, using equity provided by the Kellers and bank funding. Ark was to be owned by the Kellers and the Daisleys, with shareholdings set by reference to initial equity contributions (the funds introduced by the Kellers, and the Daisleys’ remaining equity in the properties).

[3]	The parties signed an agreement setting out the essential elements of this arrangement on 2 December 2009 (the Ark agreement). Shortly afterwards, Mr Daisley claimed that this agreement had been entered into under duress. There was a re-negotiation in the period leading up to the date by which Ark needed to complete a purchase of the properties, to avoid a mortgagee sale. An agreement was reached to enable the transaction to proceed (the January 2010 agreement). That agreement included the terms of a shareholders agreement for Ark. Ark purchased the properties.

[4]	The Kellers then claimed that the January 2010 agreement was entered into under duress, and purported to set it aside, restoring the original terms.

[5]	The duress allegations — running both ways — occupied a significant part of the hearing time in the High Court. The Judge rejected these allegations. Those findings are not challenged on appeal. Thus the parties’ mutual rights and obligations are governed by the Ark agreement, as modified by the January 2010 agreement.

[6]	Further differences arose. The Daisley interests were to rent one of the properties, known as “the Depot”. They continued to occupy it. But they did not pay the agreed rent, and in August 2010 they moved out. They removed two office buildings from that property, and were in the process of removing more buildings when they were prevented from doing so by the Kellers. The Kellers say that the Daisleys converted those two buildings. The Kellers then locked the Daisleys out of the Depot. The Daisleys say that the Kellers converted various chattels which the Daisleys had not yet removed from the property before they were locked out. They say they were denied the opportunity to recover those chattels.

[7]	As a result of the various  disputes  that  arose  between  the  parties, Mr Daisley never received the shareholding in Ark that he had been promised. The Kellers have consistently taken the position that they are willing to issue those shares to Mr Daisley, once certain pre-conditions are met.

The main proceedings (CA271/2020)

[8]	The primary claim brought by the Daisley interests against the Keller interests alleged (as well as duress) breaches of contract, breaches of fiduciary duty and a constructive trust. The Judge did not accept any of those claims as pleaded. But the Judge found that the Kellers and Ark had breached a

contractual obligation to issue shares to Mr Daisley. The Judge found that this was also a breach of fiduciary duty. She made an award of equitable compensation/damages of $541,721 against Ark and the Kellers. This was the amount that Mr Daisley was treated as contributing to Ark by way of equity in the properties, under the Ark agreement as amended. Effectively, the Judge ordered that he be repaid his initial investment.

[9]	No claim for breach of an obligation to issue shares in Ark had been pleaded, and no formal application to amend the pleadings was made at trial
— indeed the Daisleys’ claim was only framed in this way in closing.

[10]	The Judge declined to award interest to Mr Daisley on the compensation/damages awarded, on the basis that no claim for interest had been pleaded.

[11]	On appeal, the Kellers challenge the award of equitable compensation/damages. The Daisleys challenge the Judge’s refusal to award interest.

The Depot proceedings (CA31/2021)

[12]	Ark brought proceedings against Mr Daisley for conversion of the two office buildings. Ark also claimed against two companies owned by the Daisleys — Action Fencing Ltd (Action Fencing) and HPL Distribution Ltd (HPL Distribution) — for unpaid rent in respect of the Depot. There was also a claim for reimbursement for certain expenses which Ark had met on behalf of the Daisleys. Those claims were largely successful.

[13]	Mr Daisley  appeals  in  relation  to  the  conversion  finding,  and  HPL Distribution appeals in relation to liability for rent.

The chattel conversion proceedings (CA30/2021)

[14]	Action Fencing, HPL Distribution and Mr Daisley claimed for conversion of property left behind at the Depot, which they say they were not permitted to remove, and some of which was delivered to third parties rather than to them. That claim was partly successful in the High Court. They appeal from the Judge’s decision dismissing their conversion claim in respect of a number of other items of property.

(citations omitted)

[6]	The Court of Appeal found for the Kellers in the main proceedings and set aside the award of damages/equitable compensation to Mr Daisley.

[7]	Mr Daisley was unsuccessful in his appeal of the Judge’s findings in the Depot proceedings.

[8]	Mr Daisley was partly successful in his appeal of the Judge’s decision to dismiss the conversion claim in respect of additional items of property, resulting in a modest increase to the damages award.

The bankruptcy notices

[9]	The three bankruptcy notices relate to three separate judgments:

(a)	CIV-2022-488-17 – this bankruptcy notice relates to Court of Appeal costs in the main proceedings (CA271/2020) which were ordered to Ark and the Kellers by order sealed on 28 October 2021. The only payment made towards those costs was the security for costs released to Ark and the Kellers. The amount demanded in the bankruptcy notice is $15,563.00.

(b)	CIV-2022-488-18 – this bankruptcy notice relates to High Court costs which were ordered  to  Ark  and  the  Kellers  by  order  sealed  on  18 October 2021. Again, the only payment made towards those costs was the security for costs released to Ark and the Kellers. The amount demanded in the bankruptcy notice is $71,358.98.

(c)	CIV-2022-488-19 – this bankruptcy notice relates to the judgment in favour of Ark against Mr Daisley for damages and interest in the  High Court by order sealed on 22 December 2020. Mr Daisley has not paid anything towards this debt. The amount claimed in the bankruptcy notice is $98,621.40.

[10]	Each  bankruptcy  notice  was  issued  on  21  April  2022  and  served  on   13 May 2022.

[11]	On 25 May 2022, Mr Daisley filed a separate application to set aside each of the bankruptcy notices.

[12]	On 10 June 2022, Mr Daisley  succeeded  in  a  claim  against  the  Whangārei District Council, obtaining around $5 million in damages.2

[13]	On 17 June 2022, Mr Daisley received his shares in Ark.3

[14]	On 11 July 2022, Ark entered into an agreement to sell a  property  at  Knights Road.4 The sale settles on 3 October 2022.

Legal principles

[15]	Section 17 of the Insolvency Act 2006 provides:

(1)	A debtor commits an act of bankruptcy if—

(a)	a creditor has obtained a final judgment or a final order against the debtor for any amount; and

(b)	execution of the judgment or order has not been halted by a court; and

(c)	the debtor has been served with a bankruptcy notice; and

(d)	the debtor has not, within the time limit specified in subsection (4), —

(i)	complied with the requirements of the notice; or

(ii)	satisfied the court that he or she has a cross claim against the creditor.

…

(7)	In subsection (1)(d)(ii), cross claim means a counterclaim, set-off or cross demand that—

(a)	is equal to, or greater than, the judgment debt or the amount that the debtor has been ordered to pay; and

(b)	the debtor could not use as a defence in the action or proceedings in which the judgment or the order, as the case may be, was obtained.

(emphasis added)

2	Daisley v Whangārei District Council [2022] NZHC 1372.
3	Resolution of Directors and Shareholders of Ark Contractors Limited dated 2 June 2022.
4	Affidavit of Tracey Robertson sworn 25 July 2022.

[16]	In Robertson v ASB Bank Ltd, the Court of Appeal reaffirmed the earlier decision of Sharma v ANZ Banking Group (NZ) Ltd.5 In so doing, the Court in Robertson held:

(a)	the onus is on the debtor to show that they have a genuine triable cross-claim;6

(b)	the debtor must show a genuine triable claim in terms of both liability and quantum;7

(c)	not only the existence of a cross-claim must be established but also that it is equal to or greater than the judgment debt and could not have been used as a defence in the proceeding in which that judgment was entered;8

(d)	the summary nature of the procedure is wholly unsuitable for the determination of disputed questions of fact;9 but

(e)	the court need not accept uncritically evidence that is inherently lacking in credibility, for example where it is inconsistent with contemporary documents or inherently improbable.10

Are two of the bankruptcy notices are defective?

[17]	Mr Daisley submits that two of the bankruptcy notices are defective because they combine the interests of Ark and the Kellers into a single notice. That is, Ark and Mrs and Mrs Keller, who are separate and distinct legal personalities, have issued a single bankruptcy notice when they should have issued one each.

5	Robertson v ASB Bank Ltd [2014] NZCA 597; Sharma v ANZ Banking Group (NZ) Ltd (1992) 6 PRNZ 386 (CA).
6	Robertson v ASB Bank Ltd, above n 5, at [22].
7	At [22].
8	At [22].
9	At [32]
10	At [32].

[18]	Mr Daisley relies on statements made by Associate Judge Osborne in Re Lister, ex parte Lister11 that the regime under the Insolvency Act 2006 and the High Court Rules 2016 provides for only a single debtor and a single creditor in a bankruptcy notice, and that if two separate persons obtain costs orders (whether through one or more judgments), each creditor must request and have issued its own separate bankruptcy notice. Mr Daisley submits that this is necessary to enable a debtor to raise a cross-claim against a creditor that may not be available against another creditor.

[19]	Further, the sums due to each of Ark and the Kellers are capable of separate specification, as evidenced by the Kellers’ proposed apportionment of sums received between them.12

[20]	I do not accept that the bankruptcy notices are defective. The two judgments in question ordered Mr Daisley to pay costs to Ark and the Kellers jointly. Therefore, for the purposes of bankruptcy notices to enforce those orders, Ark and the Kellers are a single creditor.

[21]	Considering bankruptcy notice CIV-2022-488-17 first, the Court of Appeal judgment states:13
The Keller interests have succeeded in relation to the appeal and cross-appeal in CA271/2020. They are entitled to costs in respect of the appeal and cross- appeal.

(emphasis added)

[22]	The sealed orders in relation to Appeal CA271/2020 state:

The respondent must pay the appellants costs in respect of the appeal and cross-appeal, in each case for a standard appeal on a band A basis, with usual disbursements, as set out in the schedule.

(emphasis added)

[23]	Turning to bankruptcy notice CIV-2022-488-18, the High Court costs judgment states:14

11	Re Lister, ex parte Lister [2018] NZHC 1743.
12	Affidavit of Paul Gerrard Keller sworn 17 June 2022 at [15].
13	Keller v Daisley, above n 1, at [288].
14	Daisley v Ark Contractors Ltd [2021] NZHC 2780 at [24] and [40](b).

… I award the Keller interests 2B costs against the plaintiffs jointly and severally with a 10 per cent uplift on all steps bar costs for second counsel (as per the schedule attached to Mr Browne’s costs memorandum).

…

For 2B costs against the plaintiffs jointly and severally in the Daisley proceeding (as per Mr Browne’s costs schedule) with a 10 per cent uplift on all steps bar costs for second counsel plus the disbursements claimed in that schedule.

(emphasis added)

[24]	The sealed orders state:

In proceeding CIV-2015-404-2799 costs and disbursements in favour of Ark Contractors Limited and P.G. & K.E. Keller against the plaintiffs, Malcolm James Daisley and SDD Limited, jointly and severally in the amount of
$114,840.49 in accordance with Schedule 1 attached. (emphasis added)
[25]	It is apparent from this analysis that the bankruptcy notices follow the form of the judgments and sealed orders.

[26]	The applicant’s reliance on Re Lister is misplaced. That case dealt with a highly unusual situation, where a debtor applied to the Court for an order joining a creditor to a bankruptcy notice issued by an unrelated creditor. The creditor opposed the joinder. Associate Judge Osborne declined the application, finding that it is for a creditor to decide whether to take steps to enforce its debt.

[27]	In obiter, the Judge said that even had the separate creditor decided to pursue enforcement of its debt through a bankruptcy notice, it could not join to another creditor’s bankruptcy notice (or adjudication proceedings) because the statutory regime only allows for a single debtor and a single creditor.15 The Judge went on to say that if two separate persons obtain costs orders, whether through one or more judgment, each creditor must request and have issued its own separate bankruptcy notice.16 I interpret the Judge as addressing the situation where separate creditors obtain separate costs orders arising out of one or more judgments. I do not interpret the Judge to be saying that where a single costs order is made in favour of two or more

15	Re Lister, above n 11, at [10].
16	At [11].

parties jointly, those parties must each enforce the costs order through separate bankruptcy notices. In such a situation, for the purposes of the bankruptcy notice, there is a single joint creditor.

[28]	Consistent with that approach, Re Lister involved three joint creditors issuing a bankruptcy notice against a single debtor.

[29]	Furthermore, the fact that the Kellers and Ark intend to distribute sums received for costs in proportion to how the litigation was funded as between them does not change the legal nature of the judgment debt. It remains a debt owed to the Kellers and Ark jointly.

Does Mr Daisley have a cross-claim?

[30]	Mr Daisley submits that he has an equitable set-off in the form of his shareholding in Ark. Since serving the bankruptcy notices, the Kellers have informed Mr Daisley that once the Knight Road property is sold, they will wind up Ark.17 It is not disputed that there has been no formal resolution to that effect yet and the legal process has not commenced.

[31]	Mr Daisley says that his cross-claim is his entitlement to a shareholder distribution from the surplus assets of the company when it is wound up. Mr Daisley holds 38,647 shares in Ark. He submits that the value of the anticipated distribution to him is readily quantifiable and will exceed the total amount claimed in the three bankruptcy notices.

[32]	Mr Daisley says that the commercially pragmatic solution is for the bankruptcy notices to be set aside based on this anticipated shareholder distribution, which will come to fruition within a matter of months.

[33]	As a gesture of good faith, Mr Daisley has offered as security a charge over his shares pending this set-off.

17	Letter from Henderson Reeves to Tailored Legal Solutions dated 24 March 2022 at [5].

[34]	I am not persuaded that Mr  Daisley has a cross-claim for the purposes of       s 17(7) of the Insolvency Act.

[35]	Set-off affords a defence to an action wholly or in part, depending on the amount, and is by its nature limited to money claims.18 Whereas common law set-off of mutual debts is confined to liquidated claims, the equitable right to set-off is not limited to liquidated cross-claims but extends to unliquidated claims for damages.19 In both cases, the cross-claim must be a money claim.

[36]	In the bankruptcy context, the High Court of Australia has said:20

The words of the section are that the debtor must satisfy the court that he  has “a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt.” In the first place it is accordingly clear that the counter-claim, set-off or cross-demand must be something sounding in money. What the section contemplates is a claim to the enforcement of a right sounding in money. It must be a real claim; it is insufficient that the debtor believes that he has a claim, and the authorities show that the matter to which the court looks is this – whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate.

[37]	The Court of Appeal observed that although the words “equal to, or greater than, the judgment debt” in s 17(7)(a) suggest a need to quantify a liquidated sum, Casey J in Clark v UDC Finance Ltd21 held that an unliquidated claim in tort could meet that criterion. The Court said that approach, not questioned in Sharma, reinforces the requirement for the Court to be satisfied that a genuine triable claim exists both as to liability and quantum.

[38]	Thus, it is not enough to say that it would be unjust to allow the bankruptcy notices to stand because Mr Daisley has a shareholding in Ark that will yield a distribution that will more than offset the judgment debts. There must be injustice arising out of a cross-claim that Mr Daisley has against the Kellers and/or Ark (as a joint creditor), being a money claim.

18	Grant v New Zealand Motor Corp Ltd [1989] 1 NZLR 8 (CA) at 5.
19	At 5 and 6.
20	Vogwell v Vogwell (1939) 11 ABC 83 (HLA) at [85], as quoted by the Court of Appeal in Robertson v ASB Bank, above n 5, at [23].
21	Clark v UDC Finance Ltd [1985] 2 NZLR 636 (HC).

[39]	A shareholding is not a cross-claim, it is an asset. Mr Daisley’s shares carry with them certain rights, including the right to appoint a director, to vote, and to receive a distribution if there are surplus assets when the company is wound up. These are rights. They are not money claims Mr Daisley has against Ark or the Kellers.

[40]	I find as a result that Mr Daisley has no money claim against Ark and/or the Kellers that could be viewed as a cross-claim for the purposes of set-off, all such claims having been resolved by the Court of Appeal.

Should the bankruptcy notices be set aside or stayed as an abuse of process?

[41]	Alternatively, Mr Daisley submits that the bankruptcy notices should be set aside or stayed because it is an abuse of the Court’s process for the Kellers to seek to bankrupt him. This ground was not advanced in the interlocutory applications to set aside the bankruptcy notices, but I deal with it anyway.

[42]	Mr Daisley says that service of the bankruptcy notices when the Kellers knew of his available set-off is an abuse of the bankruptcy process. He says it was clearly motivated to prompt a settlement of the judgment debts or obtain leverage in relation to negotiations over the shares.

[43]	Mr Daisley appeals to the Court to exercise its inherent jurisdiction to allow a pragmatic solution in circumstances where he will be in funds to pay the judgment debts within a matter of months. Mr Daisley points to cases where the Court is said to have taken such a pragmatic approach: Halifax Finance Ltd v McFarlane;22 Holloway v Darby,23 Re Blackler, ex parte Saker24 and Re Solicitor-General ex parte Alice.25

[44]	In the context of a bankruptcy notice, the Court’s inherent jurisdiction to prevent an abuse of process is typically invoked where the reliability of the judgment underpinning the bankruptcy notice is in question.

22	Halifax Finance Ltd v McFarlane HC Wellington CIV-2007-485-1377, 12 November 2007.
23	Holloway v Darby HC Hamilton CIV-2005-419-1085, 8 December 2005.
24	Re Blackler, ex parte Saker HC Wellington CIV-2008-485-124, 26 May 2008.
25	Re Solicitor General ex parte Ellis HC Wellington CIV-2007-485-791, 14 February 2008.

[45]	In the classic case, Re Wise ex parte Benecke,26 Master Kennedy-Grant considered that he had jurisdiction to grant relief to debtors who alleged they had a valid defence to a claim made by a creditor in the District Court, but which they were unable to put forward because they were unaware of the hearing at which the judgment was granted. The debtors had filed an application to set  aside  that  judgment. Master Kennedy-Grant concluded that he could grant relief to the debtors in reliance on the jurisdiction of the Court to control the abuse of its process. He found that the grounds on which the jurisdiction may be exercised were:27

(a)	a procedural defect in the obtaining of the judgment on which the bankruptcy notice is based, and/or

(b)	the existence of arguable grounds of defence to the claim for which the judgment was given.

[46]	He considered that there may be other grounds on which the Court feels it necessary to intervene to prevent injustice, but he made no finding on that point.

[47]	In Holloway v Darby, Associate Judge Faire considered this decision and emphasised that what was involved was a direct attack on the judgment that was the foundation for the request to issue the bankruptcy notice and the bankruptcy notice itself.28 In Holloway, there was no intention to challenge the two judgments in respect of which the costs orders were made and the bankruptcy notices issued; but the debtor had issued new proceedings against the creditor. Associate Judge Faire concluded that, in the unusual circumstances of that case, the Court should exercise its inherent jurisdiction rather than waiting until the creditor’s petition was filed and a new application was made for a stay.29

[48]	Similarly, in Re Blackler, the debtor had initiated a claim against the creditor in the District Court. Associate Judge Faire was not satisfied that the judgment debtor had a genuine triable cross-claim based on the statement of claim he reviewed.

26	Re Wise ex parte Benecke HC Auckland B227-95, 1 June 1995.
27	At 6.
28	Holloway v Darby, above n 23, at [8].
29	At [16].

However, he invoked the Court’s inherent jurisdiction to adjourn the application for a short period to allow the judgment debtor the opportunity to amend the statement of claim.30

[49]	Halifax Finance Ltd v McFarlane involved different circumstances. The Court invoked its inherent jurisdiction to stay an application to adjudicate the judgment debtor bankrupt because the debtor had applied for leave to appeal the judgment on which the bankruptcy notice was based.31

[50]	Here, there is no litigation by Mr Daisley against  Ark  or  the  Kellers  which, while not amounting to a triable cross-claim warranting the notices being set aside, might justify a stay of the bankruptcy process. The judgments Ark and the Kellers look to enforce through the bankruptcy notices are not under challenge. The appeal of the High Court judgment that is the subject of bankruptcy notice CIV-2022-488-19 was determined by the Court of Appeal  over  a  year  ago  in  June 2021. The two costs judgments underpinning bankruptcy notices CIV-2022-488- 17 and CIV-2022-488-18 have not been appealed or stayed. These judgments are now over 10 months old.

[51]	In these circumstances, I do not see any abuse of process in Ark/the Kellers taking the first step in the bankruptcy process in order to enforce the undisputed judgment debts.

[52]	Finally, I received some limited submissions on Mr Daisley’s financial position, although he did not address his solvency in his affidavit. Mr Daisley’s solvency or otherwise is irrelevant to the question of whether the bankruptcy notices should be set aside, which turns on whether he has a triable cross-claim. If the judgment creditors apply for an order adjudicating Mr Daisley bankrupt, the Court may in its discretion refuse to make the order if it is satisfied that, despite failing to meet the bankruptcy notices, he is able to pay his debts.32 Evidence of his financial position will be relevant at that stage.

30	Re Blackler, ex parte Saker, above n 24, at [24]–[28].
31	Halifax Finance Ltd v McFarlane, above n 22, at [33].
32	Insolvency Act 2006, s 37(b).

Result

[53]	Mr Daisley’s interlocutory applications to set aside the bankruptcy notices in CIV-2022-488-17, CIV-2022-488-18, and CIV-2022-488-19 are dismissed.

[54]	In accordance with r 24.10(1) of the High Court Rules, the time for complying with the bankruptcy notices expires with this determination.33 Time begins to run under s 13 of the Insolvency Act 2006.

[55]	As the unsuccessful party, Mr Daisley must pay the Ark and the Kellers (jointly) their 2B costs of $9,082 and disbursements of $607.50. The costs reflect two oppositions only, as calculated in the Schedule to their written submissions.

Associate Judge Gardiner

Solicitors:

Henderson Reeves, Whangārei
Tailored Legal Solutions Ltd, Dargaville

33	Body Corporate 34188 v Kelly [2016] NZHC 2230 at [54]; Dench v Gates [2013] NZHC 1133 at [37]; and Malley & Co v Burgess [2017] NZHC 950 at [26]–[41].