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DRAFT

AEROSPACE DEVELOPMENTS LIMITED v ALTITUDE AEROSPACE INTERIORS LIMITED [2013]NZHC 1337 [6 June 2013]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2012-404-2676

[2013] NZHC 1337

BETWEEN AEROSPACE DEVELOPMENTSLIMITEDPlaintiff

AND ALTITUDE AEROSPACE INTERIORSLIMITEDDefendant

Hearing: 28 May 2013

Appearances: C R Carruthers QC and L C A Farmer for plaintiffN S Gedye QC for defendant

Judgment: 6 June 2013

JUDGMENT NO.2 OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment

with the delivery time of 4.00 pm on Thursday 6 June 2013.

Solicitors/counsel :

Meredith Connell, Auckland

Nathan Gedye, Auckland

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Introduction

[1] In a judgment delivered on 17 October 2012, I made an order directing theplaintiff to provide security for costs in favour of the defendant in the sum of

$20,000.1 I also made certain timetable orders by consent.

[2] The order was intended to relate to costs arising in the early stages of theproceeding. I expressly left it open to the defendant to make a further application by

memorandum when stage one attendances were complete. I expressed the view that

the Court and the parties would be in a better position to analyse the strength of the

plaintiffs claim once discovery and inspection of documents had been completed.

[3] In this judgment, I deal with two further applications. The first is by thedefendant for an order directing that the plaintiff give further security in respect of

remaining interlocutory matters and the trial itself. The second application is by the

plaintiff which seeks an order in reliance on r 7.51 rescinding my earlier order for

security on the ground that it had been obtained fraudulently or improperly by the

defendant. The plaintiff argues that if the first order is rescinded then, as a matter of

principle, no further security ought to be ordered.

Security principles

[4] The ordinary principles governing applications for security for costs are wellestablished. For convenience I set out here the summary that appeared in my earlier

judgment:

[2] An application for security gives rise to the following issues:

(a) Has the applicant satisfied the Court of the threshold underr 5.45(1)?

(b) How should the Court exercise its discretion under r 5.45(2)?

(c) At what amount should security for costs be fixed?

(d) Should a stay be ordered?

[3] The ordinary approach was helpfully restated by the Court of AppealinA S McLachlan Ltd v Mel Network Ltd.2 Whether or not to order

1Aerospace Developments Ltd v Altitude Aerospace Interiors Ltd[2012] NZHC 2723.

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security, and if so the quantum, are discretionary. They are mattersfor the Judge, who is to take into account all the relevantcircumstances. The discretion is not to be fettered by constructingprinciples from the facts of previous cases.

[4] It is accepted by the plaintiff that the case meets the threshold test inr 5.45(1) because it accepts that it will be unable to pay the costs ofthe defendant if the plaintiff is unsuccessful in the proceeding.

[5] Where, for the purposes of the rule a plaintiff is impecunious, anorder having the effect of preventing a plaintiff from pursuing theclaim should be made only after careful consideration and in a casein which the claim has little chance of success. Access to the courtsfor a genuine plaintiff is not likely to be denied.3

[6] On a security for costs application the Court will endeavour to assessthe merits and prospects of success of the claim, but realistically,

such an inquiry will be limited in a relatively complex matter such asthis. Any assessment will be no more than a matter of impression.4

[7] A reasonable probability, established by persuasive evidence, thatthe plaintiffs impecuniosity results from the defendants actionscomplained of in the proceeding, is a factor that militates against anorder for security.5 But care must be taken to avoid the circularargument that because the defendant does not accede to the claimand pay damages, the plaintiffs impecuniosity is therefore its fault.6

[8] The amount of security is equally in the Courts discretion. It is notnecessarily to be fixed by reference to a likely costs awards. Rather,

it is to be what the Court thinks fit in all the circumstances.

7

Thosecircumstances will ordinarily include such matters as:

(a) The amount and/or nature of the relief claimed;

(b) The character of the proceeding, including the complexityand novelty of the issues, and therefore the likely extent ofinterlocutory disputes;

(c) The estimated duration of the trial;

(d) Probable costs payable if the plaintiff is unsuccessful.

2A S McLachlan Ltd v Mel Network Ltd(2002) 16 PRNZ 747 (CA) at [13]-[14]

3At [15]-[16].

4Meates v Taylor(1992) 5 PRNZ 524 (CA);A S McLachlan Ltd, at [21].

5Davy v Howell (1993) 7 PRNZ 141 (HC); Weld Street Takeaways & Fisheries Ltd v Westpac Banking

Corporation [1986] 1 NZLR 741 (HC).6Birnie Capital Partnership Ltd v Birnie HC Auckland CIV-2010-404-3000, 29 October 2010.

7A S McLachlan Ltd, above n 2.

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The r 7.51 jurisdiction

[5] Rule 7.51 of the High Court Rules provides:

Order may be rescinded if fraudulently or improperly obtained

(1) A Judge may rescind any order that has been fraudulently orimproperly obtained.

(2) The Judge may grant any further relief by way of costs that theinterests of justice require.

(3) This rule does not limit any other remedies of a party who has beenadversely affected by an order that has been fraudulently orimproperly obtained.

[6] The rule and its predecessor has received only limited attention in the cases.A helpful summary appears in the decision of Associate Judge Abbott in Yang v Ko.8

There, His Honour reviewed Hutchinson Bros Ltd v Auckland City Council,9 and

Nand v Williams (No.3).10 Associate Judge Abbott considered the following

principles could be drawn from those two authorities:

(a) The rule exists to prevent intentional or innocent misuse of the Courtsprocesses;

(b) The focus of the inquiry is the knowledge and conduct of the partythat obtained the order in question: orders are fraudulently obtained

when there is an intentional misuse of Court processes, but improperly

obtained when there is innocent misuse;

(c) A key factor in an inquiry into whether the order was improperlyobtained is whether the party obtaining it knowingly ignored a legal

obligation so that it would be contrary to the interests of justice to

allow the order to stand;

(d) The conduct of the party seeking to rescind the order is relevant onlyinsofar as it affects the knowledge of the party who obtained it;

8

Yang v Ko HC Auckland CIV 2005-404-4583, 31 July 2007.9Hutchinson Bros Ltd v Auckland City CouncilHC Auckland M184/88, 30 May 1988.

10Nand v Williams (No.3) HC Auckland CP429/97, 24 November 1998.

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(e) The fact that the order would not have been granted had the allegedimpropriety not occurred is a relevant fact in the exercise of the

discretion.

The plaintiffs argument

[7] It is common ground that the plaintiff is impecunious. Indeed, it has ceasedto trade. It is on that basis that the defendant made its initial application for security

for costs. That application was opposed by the plaintiff on the ground that the

defendants conduct complained of in this proceeding had brought about the

impecuniosity. In those circumstances, the Court was called upon to form an

impression as to the relative strengths of the parties respective cases.

[8] In my earlier judgment, I held that this was not a case in which the plaintiffhad established such a clear link between alleged blameworthy conduct on the

defendants part, and its own impecuniosity, so as to justify the refusal of an order.11

[9] On its present application for rescission, the plaintiff argues that thedefendant obtained its order for security by placing before the Court misleading

evidence upon which the Court relied. Mr Carruthers argues that in consequence,

the order was either fraudulently or improperly obtained. Whether the evidence was

deliberately or innocently misleading does not matter, he argues, because the

outcome ought to be the same: the earlier order ought to be rescinded.

Factual background

[10] The plaintiff specialised in furniture for corporate jets. It was a start upcompany which sought to leverage accumulated expertise in New Zealand derived

from the fitting out of super-yachts. It undertook the design, manufacture and

installation of bespoke aircraft furniture and interiors, including veneering, cabinetry,

and associated finishing services. Some of this work was subcontracted out by the

plaintiff.

11Aerospace Developments Ltd v Altitude Aerospace Interiors Ltd, above n 1,at [30].

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[11] The defendant, a subsidiary of Air New Zealand, provided a comprehensivefit-out service for corporate aircraft, subcontracting much of the work to yet more

specialised companies. The defendant provided supply, management, design,

engineering, certification, manufacturing, installation and maintenance services in

respect of aircraft interiors. There was some degree of overlap between the services

offered by the parties.

[12] The defendant had taken over Air New Zealands aviation design engineeringbusiness in about May 2008. The plaintiff was incorporated in about September

2008 in order to take over part of the operations of two other companies. There was

a degree of synergy between the respective businesses of the parties. They worked

together at times to attract clients and build capacity. They worked on prospective

leads together, and worked to convert those leads into sales.

[13] The plaintiff says that the parties were throughout engaged in a jointenterprise, and that each project they carried out together was in law a joint venture

pursuant to which the defendant was subject to fiduciary obligations of trust and

confidence owed to the plaintiff. The plaintiff accepts however, that it was not

intended that the parties would eventually execute a joint venture agreement. That is

plain from the draft documents passing between them. Rather, on the plaintiffs

case, it was eventually to become a preferred supplier to the defendant in respect of

work within its expertise.

[14] The present claim relates to two particular projects (known as OG3 andSamsung respectively). The plaintiff says that the defendant unlawfully refused to

engage the plaintiff on those projects after it had obtained the head contract with theplaintiffs assistance. It is common ground that the Samsung project was by far the

bigger and more lucrative of the two projects, and indeed, it has become virtually the

sole focus in this proceeding.

[15] The plaintiff says that it received no reward or recompense for its preliminarywork on the defendants behalf. Instead, the arrangement was that when the

defendant secured a contract, it would subcontract the tasks within the plaintiffs

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expertise to it. In reliance on those understandings, the plaintiff invested time and

money in building its capacity to carry out that work.

[16] Considerable time and money was expended by the plaintiff in anticipation ofa significant role in a potential contract to fit out a private Boeing 737 owned by the

South Korean conglomerate Samsung. In the negotiation stage, a sample cabinet

was prepared by the plaintiff at its sole expense and at the request of the defendant.

[17] The defendant did eventually secure the Samsung contract, but it did notengage the plaintiff to carry out the work. Although the plaintiff was initially offered

a minor role, namely digital veneering, even that prospect disappeared when no work

of that type was required. The plaintiff says that the loss of the Samsung subcontract

stripped it of its work flows and viability, and that it closed down soon afterwards.

[18] The plaintiff pleads breach of contract, breach of fiduciary duty, estoppel andbreach of s 9 of the Fair Trading Act 1986. In respect of the claim for breach of

fiduciary duty, it seeks an account of the value of the veneering and associated

services work on the OG3 and Samsung projects, together with declaratory relief in

respect of the other causes of action. It also seeks an inquiry as to damages.

[19] In respect of the Samsung contract, the plaintiff contends that its losses raninto many hundreds of thousands of dollars. The defendants position is those losses

would not have exceeded US$110,000.

[20] For its part, the defendant acknowledges that the parties were from time totime engaged in contractual relationships, pursuant to which the plaintiff carried out

work on a subcontract basis for the defendant. It remained willing throughout the

relevant period to enter into further subcontracts where appropriate. However, it

says, there was never an element of exclusivity about the relationship between the

parties. Each was free to contract with others. Accordingly, the plaintiff was entitled

to source and carry out work for other customers. Likewise, the defendant was

entitled to look to other subcontractors as appropriate.

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[21] The defendant accepts that the parties were working towards a formal writtenagreement but says that the overall relationship was not, and was never intended to

amount to, a joint venture.

[22] In respect of the Samsung project, the defendant says that the plaintiff failedto secure a subcontract because it was unable to satisfy Samsung that it had the

capability (either itself or through its own subcontractor) to produce the very high

standards required by the customer.

[23] In my earlier judgment, I placed some reliance on evidence to that effect,holding that the plaintiff had not established to the requisite level that its

impecuniosity had been caused by the defendant.12

[24] The plaintiffs argument now is that the defendants affidavit evidence uponwhich I relied was either fraudulently or innocently misleading.

[25] I turn now to a more detailed consideration of that argument.The rescission argument

[26] In my earlier judgment I said:[18] Importantly, in respect of the Samsung contract, the defendantalleges that there was never any practical prospect of the plaintiff becomingentitled to the associated veneering and cabinet work. That was because,prior to entry into the contract, representatives of Samsung had visited thepremises of SMI, a company to which the plaintiff sub-contracted some ofits work. On the defendants case, the Samsung representatives were notimpressed and expressly refused to let the contract to the defendant unless

the veneering and cabinetry work was undertaken by another sub-contractor.There was explicit affidavit evidence to that effect. The plaintiff is in noposition to refute that evidence as yet, because discovery is incomplete andinspection has not been undertaken.

[26] The second important aspect of the plaintiffs claim concerns theSamsung contract. Mr Flanagan accepts that this contract lies at the heart ofthe proceeding. It is said that the plaintiff spent a great deal of time andmoney in preparing for what it believed was a strong likelihood that thedefendant would get the head contract from Samsung, and that the plaintiff

12Aerospace Developments Ltd v Altitude Aerospace Interiors Ltd, above n 1, at [18].

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would get the relevant sub-contract. The defendant did ultimately get thecontract, but the plaintiff did not benefit. That was because, on thedefendants affidavit evidence, Samsung personnel had formed anunfavourable view of the plaintiff and its associates, and would not permitthe defendant to sub-contract to the plaintiff.

[27] Mr Flanagan submits that the Court ought not to accord significantweight to that contention because, although it is supported by swornevidence, the defendant has not as yet given full discovery on the issue.While that is correct, I consider there to be substance in Mr Gedyessubmission that it is inherently unlikely that the defendants deponent wouldsimply have made the Samsung story up, or somehow embellished the truth.If Samsung would not work with the plaintiff then the defendant could notbe in breach of any obligation, contractual or fiduciary, to the plaintiff inrespect of the Samsung sub-contract, because the defendants hands weretied by its customer.

[28] Standing back and assessing these considerations, I conclude as a matterof impression that the plaintiffs case, although not weak, faces certainhurdles. It follows that the link between the defendants alleged conduct andthe plaintiffs impecuniosity is not strongly established, and certainly not tothe point at which the Court would be justified in refusing an order forsecurity on that ground alone.

[27] In forming a view about the respective strengths of the parties cases inrelation to the Samsung project, I relied to some considerable extent on the evidence

of Mr Pervan, who had sworn an affidavit in support of the defendant. He is the

defendants general manager, who in that capacity had dealings with the plaintiff

from September 2008 onwards.

[28] In his first affidavit he said:I have been advised it would not be appropriate to go into the facts in detailin this affidavit. However, I briefly state further that the defendants client inthe Samsung project did not regard ADL, or its sub-contractors as acceptablefor that project. Regardless of any other issues between the parties, it was

not feasible to provide the veneered cabinetry contract to ADL in respect ofthe Samsung contract.

[29] Mr Pervan swore a further affidavit on 29 November 2012 in support of thedefendants application for further security for costs. MrCarruthers is critical of the

fact that this affidavit is not expressed to have been filed in opposition to the

plaintiffs application for rescission, but the two applications with which I am

dealing are closely inter-related and counsel have each dealt at length with material

appearing in them.

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[30] I will summarise the salient features of Mr Pervans later affidavit:(a) By January 2010, the Samsung contract had not been signed and the

defendant was actively and intensively endeavouring to secure

Samsungs agreement;

(b) For that purpose, the defendant needed to persuade Samsung that ithad the capability to carry out the major fit out job in prospect;

(c) Therefore, the capability and reliability of the defendants subcontractsuppliers was a matter of prime importance;

(d) A number of Samsung representatives visited New Zealand in January2010 to investigate the possibility of entering into the fit out contract

with the defendant. As part of that visit they went to Whangarei to

view the premises of SMI which was a proposed subcontractor of the

plaintiff, intended to carry out much of the veneering and finishing

work for the aircraft cabinetry. Indeed, SMI would be doing most of

the work at a practical level, the plaintiff having chiefly a projectmanagement role.;

(e) The Samsung delegation was most unimpressed by the state of SMIspremises and personnel, and later expressed grave misgivings about

SMIs involvement in the Samsung work. It is common ground that

Samsung subsequently asked the defendant to secure an alternative

subcontractor to replace SMI;

(f) At that time the defendant was unaware of any other veneer supplieror finisher having associations with the plaintiff;

(g) The defendant had two options: either it could endeavour to findanother supplier to replace SMI, or it could attempt to persuade

Samsung that SMIs offering could be brought up to standard;

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(h) During early February 2010, the defendant continued to work withSMI in the hope that the first sample cabinet prepared for Samsung

could be finished to the necessary standard, but the defendant

entertained serious doubts about whether Samsung would accept SMI,

given the vehemence with which its opinions of its personnel had

been expressed earlier;

(i) During this period, the defendant was investigating potentialalternative suppliers of cabinetry and veneering work, including The

Nordam Group, a major US aviation component manufacturer which

had a long standing relationship with Air New Zealand;

(j) The defendant was also aware of Robinson Marine, an Aucklandbased yacht building company which had cabinetry and veneering

capabilities;

(k) In mid-February 2010 Mr Sheppard, managing director of theplaintiff, advised the defendant that the plaintiff would not be using

SMIs services on the Samsung contract (Mr Pervan says that the

defendant was told by Mr Sheppard that the plaintiff had severed its

relationship with SMI completely. Mr Sheppard says that the plaintiff

continued to work with SMI on other projects. Nothing turns on that

discrepancy in my view);

(l) Also in mid-February 2010, Mr Sheppard advised the defendant thatthe plaintiff had formed a relationship with a new supplier which was

able to undertake the relevant veneering and finishing work;

(m) The new supplier turned out to be Robinson Marine. So far asMr Pervan knew, Mr Sheppard had not had any significant prior

relationship with Robinsons, but the defendant was prepared to

investigate a possible plaintiff/Robinsons joint offering;

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(n) In view of the uncertainty, and because the defendant wanted tosecure the Samsung contract, it agreed to enter into a formal

agreement with Samsung that contained a condition precedent

enabling Samsung to terminate if it was dissatisfied with a mock up

aircraft cabin to be produced by the defendant in its Christchurch

facility. The contract was signed on 9 March 2010.

(o) Some time after Mr Sheppards advice of his new relationship withRobinsons, Mr Khan of Robinsons contacted the defendant to indicate

that he did not wish to work on the Samsung project via the plaintiff,

because it did not make business sense to have a middle man.

Subsequently the defendant formed the view that the plaintiffs

offering was no longer viable because Robinsons wished to work

directly with the defendant, and without a subcontractor, the plaintiff

had no relevant part to play;

(p) In early June 2010, Robinsons indicated that they were unable toundertake the work in any event because their resources were

committed elsewhere. At that stage the defendant was already

concerned about Robinsons, given that their expertise was chiefly in

marine work;

(q) At that point the defendant switched to Nordam;(r) The plaintiff was offered the digital veneer (or thin film transfer) work

for the Samsung project but it declined to accept it. Later that work

was deleted from the project altogether in any event.

[31] It is important to note that the plaintiff does not accept much of whatMr Pervan says. For example, Mr Carruthers points to evidence that the plaintiff

was itself experienced in project management. In addition to its specialist skill in the

digital veneering field, it had developed expertise in the areas of marketing, project

scoping, project management and installation, documentation, and veneer matching

and procurement. Accordingly, Mr Carruthers argues, the defendant had no proper

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basis to conclude that without Robinsons, the plaintiff had nothing to offer the

defendant in relation to the Samsung project.

[32] For the same reason, the plaintiff does not accept the defendants contentionthat the plaintiff and SMI were intertwined to the point that the loss of SMI spelt the

loss of any real contribution from the plaintiff.

[33] Likewise, the plaintiff does not accept the defendants claim that Robinsonssimply decided that it no longer wished to do the work. The plaintiffs case is that

the defendant failed to send contract documents to Robinsons until late May 2010,

by which time it was too late for Robinsons to begin work on a second sample

cabinet intended to be submitted to Samsung. Moreover, the defendants proposed

contract was too onerous for Robinsons.

[34] Further, the plaintiff does not accept the defendants evidence that Mr Khandid not wish to deal through the plaintiff. Mr Carruthers points to an e-mail of

4 March 2012 in which Mr Khan himself advised the plaintiff that Robinsons were

ready to sign a contract with the plaintiff.

[35] These and other points made by Mr Carruthers do not require resolution now.They are matters for trial. For present purposes, the question is whether the very

brief evidence Mr Pervan gave in his first affidavit ought now to be regarded as

misleading to the extent that it led to the obtaining of an order fraudulently or

improperly. The plaintiff relies principally on Mr Pervans second affidavit which

Mr Carruthers argues cannot be reconciled with his first brief statement.

[36] Among the factors identified by Associate Judge Abbott in Yang v Ko asrelevant to the exercise of the Courts discretion, two are of particular application

here.

[37] The first is whether Mr Pervan knowingly ignored a legal obligation whenswearing his first affidavit so that it would be contrary to the interests of justice to

allow the order to stand. The second is whether or not the order would have been

granted had the alleged impropriety not occurred.

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[38] The first must plainly be answered No. Mr Pervans first affidavit wassworn in support of an application for security for costs at a time when the issue of

impecuniosity (and so the merits of the parties respective cases) had not yet been

formally raised. Mr Pervan made it clear in his affidavit that he had received legal

advice to the effect that it was inappropriate to go into the facts of the case in detail.

[39] Mr Pervans statement that Samsung did not regard the plaintiff as acceptablemay well be open to a degree of criticism. The more detailed evidence recently

tendered by Mr Pervan suggests that, at best, his earlier evidence was a shorthand

way of saying that Samsung was opposed to the involvement of SMI, which was

crucially important to the plaintiffs prospects.

[40] But Mr Gedye submits that, although it is correc t that Samsungs criticismswere directed chiefly at SMI, given that the plaintiffs offering was a joint one with

SMI and that the plaintiff itself would carry out little if any, of the work, the

Samsung criticisms inescapably applied to the plaintiffs offering.

[41] Viewed in that general sense, there is some substance in that submission,particularly when, at the time Mr Pervans first affidavit was sworn, the question of

the merits of the respective claims in the case did not loom particularly large.

Although MrPervans statement about Samsungs attitude may have been somewhat

conflated, I am satisfied that he had no intention to mislead.

[42] The second factor is whether I would have made an order for security forcosts had Mr Sheppard given in his first affidavit, the evidence he gave in his second

with respect to the detail of the Samsung/plaintiff/defendant relationship.

[43] I am satisfied that I would have made such an order. The Court now appearsto have in affidavit form from various deponents much of the detailed evidence that

will be given at trial. But of course, none of it has been the subject of cross-

examination. Moreover, of necessity, the Court has had no more than limited

submissions from counsel.

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[44] As the Court of Appeal observed in McLachlan, it is not possible in mostcases to form anything more than an impression of the merits of the plaintiffs claim

on an application for security for costs. The factual matrix in this case is complex.

Matters developed over a period of many months. A great many documents have

been discovered. A number of witnesses have sworn affidavits and more will no

doubt be called at trial.

[45] Having now carefully read Mr Pervans second affidavit, and a number ofother affidavits filed in respect of the present applications, my assessment of the

plaintiffs claim is the same as it was in October 2012. In other words, had

MrPervans second affidavit been available at that time, I would have concluded that

this was not a case in which the plaintiff had established such a clear link between

allegedly blameworthy conduct of the defendant and the plaintiffs own

impecuniosity, so as to justify the refusal of an order.

[46] Stepping back and considering the overall justice of the case, I have reachedthe clear view that it would not be appropriate to rescind the order for security for

costs, because I am not satisfied that the earlier order was improperly obtained. The

application for rescission is accordingly dismissed.

Further security

[47] Given that the plaintiffs impecuniosity is common ground, it is not seriouslydisputed that the defendant is entitled to an order for further security. It is not

suggested that the making of a further order would bring the proceeding to an end.

(The amount of the earlier order has been duly paid).

[48] This case has a ten day fixture to commence on 25 November 2013. Iconsider that time estimate to be reasonably accurate. Mr Gedye now estimates the

likely total costs of the defendant following a ten day trial to be of the order

$110,000. At the earlier hearing Mr Flanagan argued that MrGedyes figures were

too high, but on this occasion Mr Carruthers simply asks me to take into account the

usual factors and to reach a figure that is appropriate in all the circumstances of the

case.

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[49] The amount of security is in the Courts discretion. It is not necessarily to befixed by reference to a likely ultimate costs award but is to be fixed having regard to

what is appropriate in all the circumstances. I consider an appropriate further figure

to be $40,000, making a total of $60,000 in all. The sum of $40,000 is to be paid on

or before Friday 28 June 2013, and is to represent security for the whole of the costs

for the rest of the proceeding, including the trial.

Next steps

[50] The plaintiff has filed an application for further particular discovery againstthe defendant in respect of certain defined categories of documents. Any notice of

opposition, together with affidavits in support, is to be filed and served by thedefendant on or before 13 June 2013.

[51] The proceeding is to be called for further mention in the Commercial List at9.15 am on Friday 14 June 2013, when attention can be given to the timetabling of

further interlocutory steps.

Costs

[52] The defendant having succeeded, there will be an order directing the plaintiffto pay to the defendant a single set of costs calculated on a Band 2B basis, together

with reasonable disbursements to be fixed by the Registrar if necessary.

C J Allan J