Olah v Cook Islands Investment Corporation [2011] CKHC 41; Misc82.2010 (8 April 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
MISC. NO. 82/2010

IN THE MATTER of a Motion for Judicial Review pursuant to Section 50B of the Judre Amendment ment Act 2008

ter">AND

BETWEEN

ALEXANDER TEARIKI OLAH
Applicant

THE BOARD OF THE COOK ISLANDS INDS INVESTMENT CORPORATION
Respondent

Hearing: 8 April 2011
Counsel: Ms S Inder for Respondent

Judgment:

JUDGMENT OF HUGH WILLIAMS J

A. CIIC’s application to strike out the proceedings brought against it by Mr Olah is adjourned part heard to give him the opportunity, within 28 days from delivery of this Judgment, and if he thinks it appropriate, to amend his claim.

B. Within 14 days of the filing and service y amended statement of clai claim or on the expiration of the said 28 day period, CIIC is to advise the Court and Mr Olah what a it intends to t to take in relation to its striking-out application, and the matter can then be determined.

D. In formal terms, ANZ’s217;s application for the payment to it by the unsuccessful party to these proceedings of the interest accruing on its loan to Cliff Gadsby Construction (Cook Islands) Limited and Mr Heather is adjd for determitermination on the resolution of these proceedings.

Solicitors:
Paul Lynch, Rarotonga, for Applicant
Browne Harvey & Associates, Rarotonga, for Respondent
Little & Matysik, Rarotonga, for ANZ

Leases Approval Tribunal, Box 111 Rarotonga, (abiding decision of Court)
H & A Ariihee C/- Browne Harvey Associates (abiding decision of Court)Introductory

[1] When this matter came before the Court on 8 April 2011, there were extar>

1. An application by the appl, Mr&Olah, for the production of documents relating to submissions made by the Board oard of thef the Cook Islands Investment Corporation (“CIIC”) to the Cabinet of the Cook Islands Government, together with Cabinet approvals, all documents in possession of CIIC and all documents referred to in the First Schedule, Second and Third Part of CIIC’s affidavit of documents dated 28 October 2010. Priv hadebeen claimedaimed for the documents listed in the Second and Third Parts of CIIC’s affidavit of documents dated 28 October;2010.
   
2. An application by CIIC to strike out the proceedings on the grounds they disclosed no reasonable cause of action.
   

[2] During exchanges between Bench and Bar in the course of the hearing of Mr Olah’sication to prod produce the documents mentioned, it was suggested, first, that no evidentiary basis had been adduced which would entitle the Court to go beyond #8217;s sworn affidavit of documents and accordingly there here was no basis on which the application could be granted; that, although the Court has power under r 143 to inspect documents as part of resolving a contested discovery application, such was not a practice to be generally followed[1] and was not a practice that was justified in this instancd, thirdly, that the form oorm of the interlocutory application chosen seemed inappropriate in the circumstances when what Mr Oltually sought was evidencidence as to whether CIIC’s statements of corporate intent from 2006 existed or were in a form whomplied with CIIC’s legal obligations. It was suggested – not “recommendemended” as later said by Mr Lynounsel for Mr Olah Olah – under ther the Court’s Rules there were other ways available which would be more like produce evidence of the facts on those issues. In response to Mr Lyn217;s query,uery, mentioention was made of notices to admit facts, answers to interrogatories or statements of agreed fact.

[3] At the conclusion of the hearing judgment was reserved sure sufficient time was avas available to hear other matters also set down. The files were sent to Hugh Williams J in New nd aariving on 26&n 26 April 201, on 60;#160;April #160;2011, the Courwarded aded an application for leave to admer ingatories together with supporting affidavit and a letter from Mr Lynch seekiseeleng leave tove to withdraw the application to produce docu.

[4] Leave is accs accordingly granted. The application for leave to produce accordingly requires no further discussion andbalance of this Judgment dent deals with CIIC’s application to strike the claim out.

Mr Olah’s claim

[5] Mr Ola17;s claim is an applicaplication for judicial review of what he pleads was an exercise of statutory power by the CIIC in exercising its option to purchase a Deed of Lease dated 12 August;2004 part of Kiri Seri Seci Section 88E Arorangi, taking an assignment of the lease from the Australian and New Zealand Bankingp Limited (“ANZ”) and assigning it to a Mr and Mrs Ariihee underlyinglying facg facts are, with some amendment, as a in a statement of issues fues filed by Ms Inder dated 4 March<2That reads:
:

7. By Deedease dated 12th Augustugust 2004, CIIs leao Mr Geo0;Geoffrey Heather part of this land being an area of 1,064m2.

8. rey Heather is a is a succesuccessor of an original landowner.

9. Mr Geoffrey Heather used the Deed of lease as security for a loan the Australia and New Zeal Zealand Banking Group Limited (“ANZ”).

10. When Mr Heather defaulted on the Aan, ANZ became the Mortgagee in Possession of the Deed of lease between CIIC as Lessor and Mr Geoffrey Heather as Lessee.

11. ANZ Advertised the sale of the Deed of Lease by public tender.

12. >12. The Applicant was the successful tendin the amount of $175,000.00.

13. The Applicant entered into an Agreement for Sfor Sale and Purchase of the Lease with the ANZ as the vendor dated 9th August 2010.

14. the the Deed of lease dated 12th August 2004 with Mr Heather, has the right of f of first refusal to the transfer, assignment or sublease of the Lease.

15. The sale agrt wasitionon CIIC CIIC as L as Lessor not exercising its right of first refusal to purchase the LeaseLease.

16. ANZ as vendor under the sale agreement by letter from its solicitor dated 16th August 2010, offered the right rstfirst refusal of the assignment of the Lease to CIIC.

17. CIIC was contacted by successors of the original landowners wishing to purchase thse anporting to exercise their right of first refusal.usal.

18. By Board resolution dated 25th August 2010 the Board resolved to exercise its right of first refusal subject to the proposed purchaser depositing the sum of $175,000.00 into CIIC’s account on or before 15th September 2010.

19. receireceived payment of $175,000.00 from the proposed purchaser, Mr and Mrs Ariihee, by ANZ chdated 08td 08th September 2/p>

20. CIIC by leby letter from its solis to itors for the ANZe ANZ Bank Bank dated 16th Sepr 2010 advised they they wished to exercise their right of first refusal pursuantlause;5 of the Deed ofed of Leas Lease dated 12th August 2004.

21. intenintended to acquire the Lease and then on sell ituccessors of the original lnal landowners, Mr and Mrs Ariihee.

[6] Mr Olahds that CIIC breached ihed its statutory powers in exercising its option to purchase, having the lease assigned to it and in its decision to assign the lease to Mr and Mrs Ariihee. He seedeclan to thto that effect fect and a further declaration that, in those decisions, CIIC acted in excess or misuse of its statutory p used it unreasonably, or failed to take into account relevant considerations or failed to d to exclude irrelevant considerations, all not “intended by Parliament” under the Cook Islands Investment Corporation Act 1998. He also seeks a declaration as to his right to specific performance against ANZ in respect of an agreement for sale and purchase dated 9 August&#160 entinto betweentween those parties.

[7] CIIC’s defence is that its challehallenged actions were not the exercise ofatutory power but the exercise of contractual rights consistent with CIIC’s Act. It t It therefore denies it has acted in excess of any statutory power and denies Mr Olah is entitled to fic perc performance of the 9 Au#160;2010 contract, as thas that was always conditional on waiver of CIIC’s right of first refusal and once that right had been exercised the assignmf thee to the fourth rrth respondents was simply a matter of conf contract.

Application to strike out

[8] The application asserted, in an unparticularised way, that Mr Olah&#821roceedings disclossclosed no reasonable cause of action, but Ms Inder for CIIC submitted that, on the uncontested facts, r&131 of the Code applied since on judicial review the Court’s inquiry relates to the mthe manner in which a statutory power is esed, not into the merits of the decision.[2]

[9] She submitted CIIC’s exercise of its option to purchase was a purely commercial decision arising solely from contract, namely clause 5 of the lease of 12&#1gustugust 2004, and could not be to b to be a statutory power of decision. The exercise of contractual rights is generally eviewable as not being a power “conferred by or under any Act”.[3] Ms Inder submitted contractualctual decisions are only subject to judicial review if they verge towards the public component end of the spectrum aDiagnostic Medlab Limited v. Auckland District Health Board[4] in deciding which Courts look at the nature of the decision. She submitted CIIC’s decision in this case was no more than a party to a contract exercising its rights under that contract unaffected by the fact that CIIC was a statutory corporation under its own Act, s 5 of gives it power to admo administer and manage the Crown’s real property including leases on behalf of the Crown. She submithat, in those circumstances, a contractual party’s decision to exercise its rights whts was devoid of any public component, particularly where no assertion of fraud, corruption or bad faith was pleaded.[5]

[10] Ms Inder further submitted that the assignment decisions were a natural consequence of CIIC exercising its right of first refusal, and further, that Mr Olah l standing to challengllenge the decision by CIIC to assign the lease to Mr and Mrs Ariihee as heno power affecaffected by that decision: the only legal rights he had were those arising from his contract with the ANZ and thatconditional on CIIC waiving its right of first refusal.

[11] Mr Lynch submittbmitted CI217;8217;s actions must either have been undertaken by the exercise of its powers under the CIIC Act or, if it went beyond those powers, its actions were unlawfts decision to exercise its right of first refusal was, he , he submitted, the exercise of a statutory power of decision by its Board. He submitted the latter was demonstrated – at least to a point sufficient to defeat an application to strike out Mr Olah’s claim – by the position concerning CIIC’s statements of corporate intent for the 2010-13 period.

[12] Mr Lynch further submitIIC wasC was amenable to judicial review as Mr Olah alleged its rohibited ited it from both engaging in trade in the private sector and acting to benefit private interests. There was thus a public component to CIIC’s ese of the option but there was little public benefit. She iShe indicated the claim may be amended to plead fraud.

[13] It should be noted that Ms Indeo filed comprehensive sive submissions which responded to a set of submissions apparently furnished by Mr Lynch, which were not on w on which he relied at the hearing.

Discussion and decision

[14] The principles on which applications to strike out proceedings are to be determined are well settled.

[15] Striking-out applications proceed on the basis that the allegations in the statement of claim are provable. Affidavits as to the facts are, in general, inadmissible unless they depose to matters which are wholly uncontentious. On the hearing of such applications Courts do not embark on a consideration of the facts of the matter, still less of the merits and, even more so, make no attempt to resolve disputed questions as to fact. Against that background, the jurisdiction is to be sparingly exercised so as to preserve citizens’ rights of access to the Courts and proceedings are only to be struck out in clear cases. That notwithstanding, the complexity of the issues and the fact they may require extensive argument is no bar to proceedings being struck out provided that they clearly demonstrate that no reasonable cause of action is pleaded. Again to preserve citizens’ rights of access to the Courts, if a pleading is defective but capable of being amended so as to disclose a triable case, the opportunity for amendment will be given: “the difference ... is between a pleading which is a total write-off and one which is deficient but is capable of effective repair”.[6] Put concisely, defendants will only have proceedings struck out if they can show that, as a matter of law or fact or both – and even if the claims are amended - the plaintiff must lose the case against them.

[16] What has Mr Olah pleaded? Ience, he clae claims he would have become the purchaser from ANZ of the lease had it not been for CIIC exercising its first option to acquire the lease under thd of Lease, acquiring it and selling it to Mr and Mrs AriihAriihee for the same price, $175,000.00, as Mr Olah tendered to the Ae alle alleges that CIIC’s Board resolved on 25 August&#160 to exercise thee the option and acquire the lease and seland “allocated public funds to be made available to effect the acquisition”. Th;. That, Mr Olah alleges, was in brea the CIIC Act in a number ober of ways. Though lengthy, it is necessary to quote them:

20. Pursuant to the Act, Cas established as a statutory corporation and is responsible to administer and manage real real property of the Crown, such as leases over property, on behalf of the Crown for the public benefit.

21. Under Section 5 of the Act, the functions of CIIC are:

(a) to administer and manage real property and shareholding interests;

(b) to control and manhe undertakings of statutory corporations;

(c) to negotiate the disposal of reaf real property or undertaking of a statutory corporation;

(d) to facilitate the disposal of personal property;

(e) to give directions on the management of personal property.

22. Under Section 6 of the Act, the principal objectives of the Corporation are (inter alia):

(a) the efficient, profitable and professional management of assets and statutory corporations; and

(b) to recognise Government’s social responsibilitbility in the performance of its functions.

23. Section 1uires CIIC to “delivdeliver to the Minister for Cabinet approval statement of corporate intent (the “SCI”) notr than 1 month before the commencement of each financial year of the Corporation”. Th;. The SCI contains Government’s policy as it affects CIIC’s asset management and activities for next three financial years. The SCI for the earlier period ending June/July 2010 had exp No approved SCed SCI is in existence for the three year period from June/July 2010.

25. Section 25(2) permits that &;Where the Corporation intends to dispose of any real propeproperty or the principal undertaking of a statutory corporation and that disposition would be inconsistent with the statement of corporate intent, the Corporation shall not negotiate the terms of such disposal unless Cabinet first agrees upon a modified statement of corporate intent”.

26. The First Respondent at the time of making the decisions which are complained of in this Judicial Review failed to sign off on the draft SCI for the 2010-13 period and failed to submit the SCI to the Minister for Cabinet approval as required under Section 13 of the Ac>

27. T27. The First Respondent failed to obtain the prior approval of Cabinet for the SCI as required under the Act.

28. The First Respondent having failed to obtain the approval of Cabinet for the SCI tSCI then acted and made decisions without the legal basis provided in the Act under a valid approved SCI.

29. The SCI has no legal effect as it remains in draft form as at the time of the Board’s decision-making, the SCI has not been submitted to the Minister for Cabinet approval as required under the Act. The SCI therefore cannot provide a legal and legitimate basis upon which CIIC can rely upon in dealing with real property and disposals of assets.

30. Section 26 on Principles of Disposal, requires that the “Corporation will ensure that every disposition is consistent with the statement of corporate intent and is a transparent competitive process ensuring a maximum return”.

31. Section 26(2) states that “The Corporation may depart from the principles of subsection (1) where ... (2) the reason for the departure is disclosed in the statement of corporate intent of the Corporation”.

STATEMENT OF CORPORATE INTENT (SCI)

32. The draft SCI contains a requirement in clause b. 3.6.1 relating to Crown Land at page 22 that “The role of the Corporation with regards to Crown land is to manage the land and associated buildings in accordance with best commercial practice. The Corporation will revie seek to clarify Crown’s interest in land where necesnecessary to advance other objectives as set out in the statement of corporate intent. In dealing with the Crown’s interest consideration will be given to the interests of original landowners and/or their successors”.

33. The First Respondent has failed to obtain the prior approval of Cabinet for the SCI as required under the Act to permit CIIC to consider the interests of landowners and/or successors when dealing with the Crown’s interests in this disposal of this Lease.

34. The draft SCI therefore cannot provide a legal and legitimate basis upon which CIIC can rely upon in dealing with assets and disposal of assets. The disposal must therefore be governed by the principles and functions contained in the Act and not as contained in the draft SCI which was not approved by Cabinet.

35. In particular under Section 6 of the Act, accorto the pthe principal objectives of the Corporation are (inter alia) that the disposal be undertaken primarily as part of “the efficient, profitable and professional management of assnd statutory corporations;&ons;”.

36. And under Section 26 of the Act that the disposal be part of “a transparent, competitive process ensuring a maximum return”.

37. The First Respondent has failed to manage the acquisition and disposal of the Deed of lease according to “best commercial practice” in acting in a manner to unfairly favour the Fourth Respondents over any other member of the public.

38. As stated in paragraph 3 above,rights of the landolandowners were thereby fully extinguished by the effect of the Order in Council. Consequently there are no &;original landowners” and consequently no “successors” for CIIC to give cive consideration to or favour, as any such antecedent rights of ownership ended with the effective passing of the Order in Council dated 28th January 1952.

39. In 1952, f52, financial compensation was paid by the Crown and accepted by the previous landowners for the cancelling ofr rigf ownership.

40. Consequently, the Fourth Respondents and other persopersons wins with extinguished antecedent rights such as successors, stand equally with any other member of the public in the Cook Islands in respect of this disposal.

41. All members of the public would be entitled to tender to acquire the asset from CIIC if CIIC had adopted a “transparent competitive process ensuring a maximum return” according to “best commercial practice”.

42. The First Respondent has, in acting in a manner intended to unduly favour the Fourth Respondents, over any other member of the public, breached its principal objectives under Section 6 of the Act requiring the#“efficient, profitable and professional management of assets and statutory corporations”.

43. The First Respondent has in this aition and disposal breached one of its primary functions unns under Section 5 of the Act.

44. Th4. The Act does not provide CIIC with statutory powers to benefit private interests over the public interest. The SCI (and exceptions thereto) is subservto and cannot be used to over-ride the express provisions oons of the Act relating to the key function of CIIC “to administer and manage real property” for the public benefit in Section 5 of the Act.

[17] CIIC pleads:

1. Its statement of corporate intent for the period 1 July&#160 – 30 J160;June 2013 igned off by its BoardBoard on 22 Sepr 2010, submitted tted to its Minister for Cabinet approval on 12 Octob60;20nd apd by Cabinet on 25 October 2060;2010 for reasonch it s it sets out.
   .
   
2. It says the provision it relied on to acquire the lease and on-seln-sell it has been in its statements of corporate intent since 1998 and was lawful under ss 25 and 26 of its Ac>

100. It generally denies Mr Olah’s claim and in particular pleads:
     

“The dehe decision to exercise the right of first refusal is not governed by the statement of corporate intent ans not require Cabinet approval. It was expressly allowed foed for in the original Deed of Lease and a condition of the agreement for sale and purchase to the applicant. The first respondent by exercising its right of first refusal acted consistently with the functions of objectors of the Corporation under ss 5 and 6 of the Act”.

[18] Assessing those pleadings against the well-settled principles applying to applications to strike out proceedings, the first question which arises is to query why Mr Oramed his sole cause of acof action as an application for judicial review of CIIC’s actions when, in essence, the nub of his claim is that CIIC acted unlawfully in exercising its right ost refusal, taking the assi assignment and on-selling not because those actions were not open to it under the Deed of Lease but because they were not in conformity with its statute and were not sanctioned by an operative SCI.

[19] Even if the matters he raises might arguably have something of the flavour of judicial review about them possibly sufficient to avoid the proceedings being struck out, it is difficult to understand why he did not plead a sole – or, if he thought it appropriate, an alternative - cause of action simply alleging that CIIC could not act in the way it did for the reasons he sets out and its actions were therefore unlawful. Were he to be successful in proving that, Mr Olah might achieve thelt helt he seeks – or at least avoid his claim being struck out - without the overlay of additionally having to prove the various additional steps requirebasing his claim in judicial review.

[20] Put anot another way, Mr Olah has to accept tIICRC’s actions can be seen as no more than actions by a party to a contract sanctioned by that contract.

[21] To that point Ms Inder’s ssions that CIIC was only exercising its commercial rights ghts have significant weight. However, the nub of his claim is that those actions, though commercial and contractual in themselves, were nonetheless unlawful because they were taken in non-compliance with statute or not sanctioned by an operative SCI.

[22] While, as with so many other matters in relation to this case, a final decision must remain for the future, it should be noted that, even if Mr Olah were tsuccessful in arin arguing that CIIC’s Board resolution of 25 August 2010 was unlawful, hed appe appear still to face what may well be a formidaurdle in showing that CIIC’s right of first refusal esal embodied in a lease dated 12 August 20s any otng other a comaceomace commercial coal conditindition customarily appearing in documents of that nature. If that proved to be the position, CIIC’st of refusal would remain in force and, following delg deliveryivery of this judgment, its Board could, it would appear, again resolve to exercise it, this time making doubly sure its actions were legally unchallengeable.

[23] For all those reasons, even if Mr Olah may ultimately be to p to prove the steps required of him as applicant in this application for judicial review, he may still not finish up as the lessee of the property at Kiri Section 88E, Arorangi.

[24] The appropriate conclusion is accordingly that Mr Olah&#821urrent claim may wmay well be misdirected or misconceived for the reasons just discussed. But, CIIC’s striking-out application, though possibly soundly based if CIIC’s actions were seen solely as commercial and contractual and divorced from the CIIC Act and its SCIs (or lack of them) must, when what would appear to be the true nature of Mr Olah’s claim is seen more clearly, also seem to be misconceived or misdirected.

[25] If CIIC’s Act and its SCIs are taken out of the equation, there is force in Ms Inde17;s submission that inat in exercising its rights in the manner discussed in this Judgment, CIIC was merely making commercial decisions in accordance with its contractual rights. But, in lighthe essence of Mr Olah;Olah&#821leading ̵– if not its phraseology – CIIC’s Act and its SCIs cannot presently be divorced from the exercise.

[26] The appropriate conclusion, therefore, as far as concerns the matters before the Court are to adjourn the application part-heard to give Mr Olahopportunity to re-pleadplead his claim and CIIC the opportunity reconsider its striking-out application in the light of any amendment.

[27] All questions ots should similarly be adjo adjourned for determination when the interlocutory applications come to an end, but it must be said that the choice of Mr Olah&#8217le cause of actioaction and the manner of its pleading could be regarded as tantamount to an invitation to CIIC to apply to strike it out.

Injunction and interest

[28] On 4 Octob60;2010, Savage J160;J issued anrim injunctjunction in this case against the then four respondents, namely CIIC, ANZ Banking Group Limited, the Leases Approval Tribunal and Mr and Mrs Arieffecy freezing the sthe status quo and preventing any respondenondent from taking any action to implement CIIC’s decision to exercise its right of first refusal and on-sell.

[29] On 14 January 2011, a consent orde made sade striking the ANZ, the Tribunal and Mr and Mrs Ariihee out of the proceedings but extending the injunction until further order of the Court. Eachy wasay their own costs subject to ANZ reserving its rits right ight to “claim interest from any of the remaining parties to these proceedings that has accrued to the debt owed by Cliff Gadsby Construction (Cook Islands) Limited” to the Bank.

[30] By memorandum dated 7 Ap160;2011 Mr Little, tle, counselANZ, adZ, advised that Cliff Gadsby Construction (Cook Islands) Limited’s borrowing was apparently secured by a mortgage granted by Geoffrey Heather to the ANZ. The interest rate under trtgage was 12.6 percenercent whiogether witr with costs claimed by the Bank, amounted to $32,388.13 interest owing at the date of Mr Little’s memorandum. The ANZ accordingly sought an order that interest be paid by the unsuccessful party in these proceedings to the ANZ at 12.6 percer annum on the price oice of $175,000.00 from 4 October 20til drgcharge of the inju injunction, a sum which, as at 8 April&#160, amounted to $11o $11,236.45.

[31] Though questions whether interest is payao ANZwhat sum, for what period and by whom, must remairemain untn until the ultimate disposition of these proceedings, it would appear that whether the Court could or should make the order sought by Mr Little in his memorandum is debatable.

[32] ANZ put the lease out to tender as mortgagee in possession and entered into a contract to sell it to Mr Olr $175,000.00. Had thatrahatract settled – or if it settles in the future - Mr&# Mr Olah wappear to be entitleditled to become the lessee under the lon payment of $175,000.00 (plus, perhaps, any interest paya payable pursuant to his contract with the ANZ) and, as with any mortgageee loan is in default, the Bthe Bank would suffer a loss being the difference between $175,000.00 (plus any contractual interest) payable to it under its contract with Mr Olah and the amount, including interest, due to it on the date of settlement by Cliff Gadsby Construction (Cook Islands) Limited and Mr Heather under eparate, inde independent, mortgage contract.

[33] If, on the other hand, the outcome of these proceedings is to uphold CIIC’s exercise of its rights under the lease and the pr by which it sold those rige rights to Mr and Mrs Ariihee with the Lease Approval Tribunal’s sanction, then the Court’s tentative view is that CIIC could only be liable to the ANZ for the principal and interest owing to the Bank by Cliff Gadsby Construction (Cook Islands) Limited and Mr Heather if the termshe leas lease and the manner of CIIC’s exercise of its rights thereunder it made it contractually liable to the ANZ. Should there be no obligation on CIIC under the lease and the exercisits right of first refusal usal to pay anything on account of principal or interest to the ANZ as an incident of that contract then, again, it would appear ANZ would suffer a loss equivalent to difference in the amount payable under that contract and the amount of principal and interest owing to it by Cliff Gadsby Construction (Cook Islands) Limited and Mr Heather at the date of seenlement of CIIC’s taking over the lease pursuant to its right of first refusal.

[34] The Court’s tentativelusion is similarly that there is likely to be no legal or contractual basis under which Mrch Mr and Mrs Ariihee under their contract can be made liable to the ANZ for any of the principal and interest owing to the Bank by Cliff Gadsby Construction (Cook Islands) Limited and Mr Heather uthe mortgage.


[35] However, as mentioned, those are all issues which will need to be determined as part of the resolution of this proceeding should the ANZ continue to seek orders such as those appearing in Mr Litt217;s 7 April&#160 2011 memum.ndr>

Result

[36] CIIC’s application to strike out the proceedings brought against it by Mr Olah is adjourned partd to d to give him the opportunity, within 28 days from delivery of this Judgment, and if he thinks it appropriate, to amend his claim.

[37] Within 14 days of the filing and service of any amended statement of claim or on the expiration of the said 28 day period, CIIC is to advise the Court and Mr Olah what acit intends to t to take in relation to its striking-out application, and the matter can then be determined. It is not necessary that Hugh Williams J complthe hg of this matt matter.

[38] All issues of cosf costs to date are reserved (hearing time on 8 April 2011 1 hou&#160tminu but thut the issues relevant to costs between the remaining parties mentioned ined in [27] above will need to be taken aken into into account.

[39] In formal terms, ANZ’s application for the payment to it by the unsuccessful party to these proceedings of the interest accruing on its loan to Cliff Gadsby Construction (Cook Islands) Limited and Mr Heather is adjourned for determination on the resolution of these proceedings, but the Court’s tentative views on that issue listed in [28] to [35] above may need to be taken into account in that regard.

[40] The injunction ordered on 4 October 2010 is to remain in place pending further order of the Court.

Hugh Williams J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.

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^[1] General Accident Fire and Life Assurance Corporation Ltd v. Elite Apparel Ltd [1987] 1 NZLR 129.
^[2] Chief Constable of the North Wales Police v. Evans [1982] UKHL 10; [1982] 1 WLR 1155 at 1173.
^[3] Section 50A Judicature ment Act&#16t 2008.
^[4] [2007] 2 NZLR 832.
^a> Mercury Energy Ltd v. ECNZ [1994] 2 NZLR 385 (PC).
^[6] Marshall Futures Limited v. Marshall [1992] 1 NZLR 316 at 324. See also Attorney-General v. Prince & Gardner [1998] 1 NZLR 262 at 267.