ALARM NEW ZEALAND LIMITED v 15 HOPETOUN LIMITED [2016] NZHC 152

ALARM NEW ZEALAND LIMITED v 15 HOPETOUN LIMITED [2016] NZHC 152 [12 February 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2014-404-001293[2016] NZHC 152BETWEEN ALARM NEW ZEALAND LIMITEDPlaintiffAND 15 HOPETOUN LIMITEDDefendantHearing: 10 February 2016Appearances: B M Stainton for the Plaintiff/ApplicantR Butler for the Defendant/RespondentJudgment: 12 February 2016JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSENThis judgment was delivered by me on12.02.16 at 4:30pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateBackground[1] The plaintiff applies for particular discovery and a freezing order. Theplaintiff is the tenanted occupant of Level 3, 15 Hopetoun Street, Freemans Bay,Auckland (Level 3). It entered into a lease of Level 3 by deed dated 1 October 2013.Its lease is for 10 years. It has a five year right of renewal.[2] The defendant acquired ownership of the building at 15 Hopetoun Street in December 2013.[3] The building comprised 11 levels. On 2 December 2013 the defendant obtained resource consent for a change of use of the building from commercial offices to 91 residential apartments. On 19 December 2013 the defendant applied to Auckland Council (the Council) for building consent to add a further three levels to the building and to convert each tower level to six self contained residential apartments. The building consent application showed the plaintiff's leased premiseson Level 3 were divided into six residential apartments.[4] The building consent application plans included seismic structural strengthening design construction features.[5] The evidence is that the plaintiff did not know nor was consulted regardingthe plans for Level 3.[6] There was discussion between the parties in February 2014 concerning disruption of the plaintiff's quiet enjoyment of the lease during building renovationworks. On 23 February the plaintiffs sent an email to Mr Mahoney the defendant'sdirector and sole shareholder setting out possible terms and conditions for relocatingincluding the requirement for assistance with expenses, costs and compensation.There was no reply.[7] On 24 February the defendant's consultant engineers expressly acting as the defendant's agents wrote to the Council's building consent division advising theyhad carried out a review of the building and identified what they considered werecritical structural weaknesses, requiring to be addressed in the building consent. Theplaintiff says this and other communications on behalf of the defendant amounted toa request by the defendant for the Council to issue an earthquake prone notice whenthe defendant and its agents knew or ought to have known that the building did notmeet the criteria required for the issue of such.[8] On 27 February 2014 the Council issued an earthquake prone notice (Council Notice) in respect of the building. On 11 March 2014 the defendant forwarded the Council Notice with the defendant's own notice as lessor citing clause 21.1 of thelease and requiring the plaintiff to give full and uninterrupted access to the leasedpremises to carry out the structural strengthening work as described in the CouncilNotice.[9] On 21 March 2014 the defendant's solicitor wrote to the plaintiff stating thatdue to the Council Notice and advice from engineers stating the building could notbe occupied while Council Notice work was carried out, that the plaintiff would berequired to vacate the premises until that work was completed and to enable entryinto the premises to carry out the repair work.[10] The defendant indicated work would be completed by 30 September 2014.[11] The defendant refused to offer any compensation.[12] On 15 August 2014 the Chief Executive, Ministry of Business Innovation and Employment (MBIE) determined pursuant to s 188 of the Building Act 2004 that the Council incorrectly exercised its power of decision in issuing the Council Notice and reversed that decision.[13] Issues arose regarding the need for the plaintiff to have relocated at all andregarding the sufficiency of proper reasons to justify any requirement for the plaintiffto relocate. From the plaintiff's point of view the removal process was manufacturedby the defendant and the defendant refused to compensate the plaintiff for relocationcosts, inconvenience costs and loss of profit.The plaintiff's claim[14] The plaintiff's initial statement of claim was filed on 29 May 2014. It soughtspecial damages of $255,000 for temporary relocation costs and $120,000 for loss ofbusiness profit. At the same time the plaintiff filed an application for ordersrestraining the defendant from pre-selling any proposed apartments on Level 3 orfrom undertaking any work on Level 3 not related to earthquake structuralstrengthening, and preventing the defendant from removing the plaintiff's fitout orfrom erecting any walls, partitions or otherwise reconfiguring the layout of Level 3.Those issues resulted in the defendant's undertaking agreeing that Level 3 would notbe converted to residential apartments while the plaintiff's lease of the premises wason foot.[15] An amended statement of claim was filed on 23 January 2015. That claimed damages of $530,277 for temporary relocation costs, loss of business profit and legal expenses. Causes of action included, inter alia:(a) Breach of quiet enjoyment of the lease for failing to take all steps to arrange for the renovation work to be carried out in ways and by means that minimised disruption of access and due to having deliberately sought an incorrect and invalid notice from the Council in order to force the plaintiff to relocate.(b) Misrepresenting the reasons why the plaintiff should relocatetemporarily by promising the work required to be done would belimited when the Council Notice did not require the property to bevacated at all.(c) That the defendant breached undertakings including permitting reoccupation on 30 September 2014 and failed to honour undertakings to consult in a timely way with the plaintiff as to additional workbeing done on Level 3 which had not been heralded.(d) Misleading and deceptive conduct by the manner and means used to require the plaintiff to relocate by 31 May 2014 when no such properreason existed.(e) Trespass – for all those various reasons already identified.[16] Mr Stainton for the plaintiff summarises the position as the defendant removing the plaintiff it having obtained and relied upon an invalid earthquake-prone notice issued by the Council and misrepresented the plaintiff would be inbreach of its lease unless it vacated to enable building strengthening work requiredby the notice. Further that it was in fact the defendant that carried out all therenovation work using Level 3 and having failed to reinstate Level 3 premises to thesame standard as it undertook to this Court and to the plaintiff. Further, the plaintiffsays the defendant has lost the fitout the plaintiff had when it vacated Level 3.The defence[17] The defendant filed a statement of defence on 13 February 2015. The defendant does not dispute the plaintiff's lease "continues" in the sense that it runswith the title to Level 3.[18] Regarding the plaintiff's claim that the defendant obtained and relied on theNotice in order to obtain possession over Level 3 and to undertake renovations forthe remainder of the building, this is denied. The defendant does admit:(a) It wrote to the Council with respect to the presence of non-ductile, and therefore earthquake prone, columns within the building;(b) The Council for its part issued the Notice;(c) The plaintiff was served with the Notice, and a related notice underclause 22.1 of the lease, which, in effect, required the plaintiff tovacate the premises;(d) The parties entered into negotiations with respect to the plaintiff'srelocation and the plaintiff relocated as a result;(e) The Notice was subsequently found by MBIE to have been invalidly issued; and(f) The defendant gave undertakings, dated 19 June 2014, to the effect that the renovations were without prejudice to the plaintiff's rightsunder the lease.The discovery and freezing order applicationsDiscovery application[19] On 17 August 2015 the plaintiff filed separate applications for particulardiscovery and freezing orders. As to the latter application the plaintiff sought anorder that the defendant retain title to Level 3 subject to the plaintiff's lease, or anorder restraining the defendant from disposing of its rights, title and interest inLevel 3, pending further order of the Court.[20] The former application sought documents including relating to thedefendant's purchase of the building and the Council consents obtained in relation tothe partial demolition and renovation of the building. Attached to that applicationwas a schedule listing 21 categories of documents the plaintiff wanted discovery of.Categories included:2. Documents received relating to the seismic strength and structuralaspects of the building.4. Correspondence with the defendant's financiers as to the plaintiffsexisting lease rights.6. Instructions issued to the construction company as to the plaintiff'sexisting lease rights.9. Correspondence/agreements for sale and purchase for proposed Level 3 apartments.10. Correspondence with commercial tenants required to vacate while the building was being redeveloped;11. All minutes and reports of the defendant board relating to redevelopment proposals for Level 3 – in conflict with the plaintiffs lease interest.12. Documents relating to the plaintiff's lease and advice received requiring Level 3 to be vacated.13. Documents relating to the plaintiff's request for alternative access for the plaintiff during construction;14. Copies of contract and correspondence with subcontractors who wrapped the concrete columns and braced the stairs and in particular correspondence explaining delay in relation to that work.15. Copy of building consent plans and specifications approved by Auckland Council and copy of main contractor's contract;16. A list of subcontractors and their subcontracts.17. Correspondence relating to the removal of the electricity generator from the building;18. Notes and communications of the defendant'smanager/director/employee regarding removal of existing fitout, wiring, chattels, fixtures, partitions and external window alterations required to Level 3.20. Correspondence by defendant and any associated entity and BGT Structures instructing such engineers to seek from the Council theissue of a Council Statutory Notice requiring strengthening of the building structure.[21] Three days after those applications were filed the Court convened a telephone conference and in the outcome issued a minute which recorded:[1] Mr Stainton confirms the plaintiff accepts assurances of goodwillon behalf of the defendant and an offer to provide security in the event itsells that part of its property which the plaintiff leases. The defendant agreesthat the sum of $500,000 will be paid by it into its solicitor's trust account tobe held as security pending determination of the plaintiff's claim in thisproceeding.[2] Council agree the finer points of the undertaking are to be reduced into writing and up to 10 days may be needed for that purpose.[6] Counsel agree both parties are to supply the discovery documentsinformally within 21 days i.e. by 11 September 2015.Court case management of the plaintiff's applications[22] The plaintiff's applications were then directed to be called in a chambers liston 13 November 2015. In advance of that call counsel for the plaintiff filed amemorandum dated 4 November 2015. It noted having received an email from thedefendant advising that progress was being made in providing relevant discoverabledocuments but that further time was required.[23] Regarding the freezing order application and the promise to place $500,000in a solicitor's trust account, the plaintiff advised no draft of such an undertaking hadbeen provided.[24] On 30 November 2015 the Court allocated today's hearing date to deal with the plaintiff's outstanding applications. The defendant's notices of opposition werefiled on 11 December 2015. In opposition to the freezing order application thedefendant pleaded the plaintiff was effectively seeking an order for security in itsexpectation of succeeding in its claim; that the plaintiff's leasehold interest wouldrun with the property if the defendant should sell it; and the plaintiff's expectation oflimiting the defendant's ability to deal with the property was unnecessarilyprejudicial.ConsiderationsDiscovery[25] Counsel advise, as indeed correspondence indicates, that ahead of the hearing upon the plaintiff's applications the parties have reached some agreement in relationto the provision of further discovery and advise that the Court's focus for presentpurposes shall be upon Schedule categories 4, 6, 9, 11 – 14, 16 – 18, and 20.[26] The plaintiff's application is made pursuant to HCR 8.19 which providesinter alia that if the Court considers there are grounds for believing that a party hasnot discovered one or more documents or a group of documents that should havebeen discovered the Court may order an affidavit to be filed stating whetherdocuments are of have been in the parties' control and if they have been but nolonger are, then for the deponent to state the parties' best knowledge and belief as towhen those documents ceased to be in the parties control and who now has control ofthem.[27] Asher J1 developed a four stage approach in considering Rule 8.19:(a) Are the documents sought relevant, and if so how important will they be?(b) Are there grounds for belief that the documents sought exist? This will often be a matter of inference. How strong is that evidence?(c) Is discovery proportionate, assessing proportionality in accordance with Part 1 of the discovery checklist in the High Court Rules?1 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Limited [2015] NZHC 2760.(d) Weighing and balancing these matters, in the Courts discretion applying r 8.19, is an order appropriate?[28] What is clear from the pleadings and the present applications is the focus upon Mr Mahoney's actions. The pleadings level significant claims about themanner in which it is claimed the plaintiff was required to vacate Level 3, thepurpose for which it was required to vacate, and the reasons for delay in permittingre-entry, and why the plaintiff's occupation fittings and fixtures were meanwhileremoved and not replaced. In the background of these matters Level 3 wasdeveloped and advertised for sale as providing six residential units – although thatpromotion has since been withdrawn.[29] Evidence in opposition to the particular discovery application has not been provided by Mr Mahoney but by Mr Love who deposes he is the Chief Financial Officer for the defendant. He deposes that since the plaintiff's application forparticular discovery was filed the defendant has provided documents relating tocategories 1, 2, 3, 5, 7, 15, 19, 20 and 21. In particular he says the defendant hasnow obtained and discovered the Council's file with respect to the developmentwhich file comprises over 750 documents but which he says specifically addressesthe plaintiff's request such as:(a) Documents that refer to the seismic strength and structural aspects of the building;(b) Copies of the original plans and specifications and engineering calculations provided to the Council with the defendant's applicationfor building consent;(c) Initial architectural plans;(d) Copies of building consent plans and specifications approved by the Council although the defendant has not discovered a copy of the main contractors construction contract because he says the defendant does not have a copy of this because it was not a party to it;(e) Correspondence between the defendant and/or their consultants with the Council;(f) A copy of the draft survey plan.[30] Regarding the category 6 documents relating to instructions issued to the construction company as to the use of Level 3 during the construction of other floors, Mr Love deposes the defendant does not have any of the documents in its possession or control.[31] In relation to category 9 documents being correspondence/agreements for sale and purchase for proposed apartments on Level 3, Mr Love states the defendant objects to the provision of these because they are irrelevant to the proceedings andsays the contracts that did exist were cancelled and are of no legal effect.[32] Regarding the balance of the plaintiff's request for further discovery Mr Lovedeposes:(a) The defendant opposes the request for category 4 documents (correspondence with financiers regarding plaintiff's lease rights) onthe basis that they are not relevant to the proceedings;(b) Regarding category 10 documents (correspondence with commercial tenants terminating lease interests) Mr Love advises further enquiries are being made in this regard for some of those documents may have been provided as third party discovery in other and unrelatedproceedings and so may be subject to an applied undertaking;(c) In relation to category 11 documents Mr Love deposes the defendant does not have a board and no minutes were kept;(d) Regarding category 12 documents (concerning the plaintiff's leaseand advice to vacate the building) Mr Love deposes he has searchedfor material in this regard and says he can confirm the defendant doesnot have any of the documents requested. [In submissions before theCourt, Mr Butler counsel for the defendant advised the plaintiff has acopy of the lease as it will have copies of the parties correspondenceregarding same];(e) Concerning category 13 documents (relating to the plaintiff's requestfor alternative access to level 13. Mr Love deposes having searchedfor material but cannot locate any and says that likely many of thedealings in relation to the plaintiff's lease would have been face toface or telephone discussions; and that it is likely any written materialhas been destroyed;(f) Regarding category 14, 16 and 18 documents, Mr Love deposes the defendant has no copies of contracts with subcontractors other thanthose disclosed by the Council's file. He says they were not contractsthe defendant entered into. [Mr Butler counsel for the defendant adds it is difficult to see how such agreements could be relevant for the length of the plaintiff's relocation is now a known quantity];(g) Regarding category 17 documents (correspondence relating to removal of the electricity generator) Mr Love deposes the plaintiff isalready in possession of correspondence between the parties related tothis issue, but that a small bundle of emails is now being reviewed bythe defendant's lawyers for discoverable material in this regard.[33] In his submissions in support of the defendant Mr Butler reminds the Court that the onus of proving a requirement for further discovery is upon the plaintiff. Henotes it is important to appreciate the plaintiff has reoccupied Level 3 sinceDecember 2015. He suggests, correctly, an amended statement of claim may berequired; that it is inevitable the plaintiff will need to reformulate its claim and, inparticular, finalise its pleaded losses – the extent of which the plaintiff should now beable to assess and quantify. Further, he submits the plaintiff itself will need toprovide a reasonable significant further amount of material by way of discovery tosupport claims of losses.Freezing Order[34] To succeed in relation to this application the plaintiff will need to show that:(a) There are assets to which the order can apply; and(b) There is a real risk that the defendant will dispose of the assets in such a way as to prejudice the plaintiff's ability to enforce a prospectivejudgment.[35] There is no issue regarding the availability of assets to which the order could apply. The defendant owns the building and has title therein to Level 3.[36] Regarding elements of risk Mr Butler submits there is no evidence of an immediate intention by the defendant to dispose of its title in Level 3 other than to another related company. Mr Butler submits correctly that the disposition of an asset on its own is not sufficient to justify a freezing order. He submits it appears plain that the freezing order is not truly sought on the basis that there is a risk that dissipation will frustrate judgment; rather the order is sought on the basis that it is necessary to preserve the plaintiff's rights under the lease and in relation to thedefendant's undertakings. As Mr Butler notes the notice of application states that theorder is necessary to preserve the rights of the plaintiff particularly as to thepreservation of rights under the lease. As Mr Clifton for the plaintiff deposed:It is essential that the defendant remain as owner and title holder of the leased premises and is that landlord so that the plaintiff is able to seekremedies as between the landlord and tenant relying on the undertakingsgiven.[37] Mr Butler submits that is not an appropriate use of the jurisdiction and is misconceived – the plaintiffs rights under the lease persist in the event of a transfer,and it is beyond dispute that the lease runs with the title to Level 3.[38] Mr Butler submits there is no basis to suspect that damages cannot be met by the defendant in the event that it transfers its interest in Level 3. On the contrary he says the defendant has provided draft undertakings to the effect that if it does sell, ortransfer, the title to Level 3 it will deposit either $500,000 (as the Court's minutedated 20 August 2015 records) or $250,000 (as Mr Love deposed was later offered).[39] Mr Butler submits there is no suggestion the amounts proposed were not able to be paid and therefore there was no proper basis to suspect any judgment obtained could not be met simply because the defendant might transfer its interest in Level 3.[40] Mr Butler submits that what the plaintiff truly seeks is not a freezing orderbut an order for security for an, as yet, unobtained judgment – that such was not anappropriate use of the freezing order jurisdiction.[41] Mr Butler refers the Court to the judgment of Asher J in Oaks Hotels and Resorts NZ Ltd v Body Corporate 3588512:The jurisdiction is not designed to provide an applicant with pre-judgment security. The general rule that a respondent can deal with its assets, without constraint, still reflected in [Rules 32.5 and 32.6]. Even if the disposal will result in insufficient funds to pay a plaintiff, a Court is unlikely to interfere ifthe disposition is genuine and in the ordinary course of business Theprospective judgment debtor must be able to trade or carry on business in thesame way.[42] Asher J3 went on to state:In short, the common law restrictions on the ambit of a remedy remain, and it will not be permitted to be used by an applicant to force a respondent who could ultimately pay the judgment debt to hold funds for the benefit of its opponent.[43] Mr Butler submits that in this case as in Oaks there was no indication that any judgment may go unsatisfied or that the defendant is trying to defeat judgment. Counsel submits the Court needs to be satisfied that there is a danger of the prospective judgment being unenforceable because of the transfer. Further, that theoverall interests of justice did not favour restraining the defendant from dealing withits indefeasible interest in Level 3 for an indefinite period of time because the effectof the order sought would be to prevent the defendant from dealing with its title; thatit would give to the plaintiff, who as yet is not a judgment creditor, an influence over2 [2013] NZHC 2695, [20].3 Ibid [21].the defendant's title which is arguably inconsistent with, or superior to, thedefendant's mortgagee.ConclusionsDiscovery[44] The plaintiff's application for particular discovery requested any affidavits inresponse be required from Mr Mahoney. He is the sole shareholder and director ofthe plaintiff and who uses the email address Michael@taweragroup.com for the defendant business. It is clear the defendant is one of a number of companies operated under the umbrella of Tawera Group.[45] Mr Stainton suggests and the Court agrees it is likely emails affecting the defendant may not have been accessible or indeed have been known to Mr Love when he deposed there was an absence of written records to provide by way ofdiscovery. Mr Stainton complains, correctly the Court considers, that Mr Love'saffidavit in opposition to the plaintiff's application was provided in general narrativeform and not in form G 37 at it should have been; and therefore did not comply withthe requirements of Rules 8.15(2) and 8.16 in that he did not give particulars of thesteps he had taken to fulfil the defendant's discovery obligations, or to refer todocuments no longer in the defendant's control, or to documents that the defendantknows would be discoverable if the defendant had control.[46] Instead as Mr Stainton submits and the Court agrees that when Mr Love advised that the building renovation was not contracted by the defendant, he ought to have said who contracted the work, who the contractors were, and who issued the construction documents relating to Level 3.[47] Mr Stainton submits that Mr Love's affidavit actually raises more issues thanit answers, such as why documents were destroyed and for not advising who was the principal in the construction contract and who holds all the construction documentation and who issued the necessary instructions in relation to Level 3 where they differed from the consented plan.[48] The Court cannot make any assessment of that criticism except to say that perhaps Mr Mahoney could have provided appropriate evidence in that regard. The actions of Mr Mahoney are very much the focus of the plaintiff's claims. Evidencesuggests construction work directly affecting access to Level 3 may have been ableto be completed within two weeks.[49] When clause 22.1 was utilised to require the plaintiff to vacate Level 3 anindication was given that the period of relocation would be six months. In fact it wasmore than 18 months before the plaintiff regained possession of its leased premises.It is far from clear what reasons explain those promises or that outcome. Theplaintiff's amended statement of claim speculates on possibilities which, for presentpurposes the Court is prepared to accept are provable.[50] In this background of matters the Court accepts there may be grounds for belief that all documents identified by the plaintiff's schedule of documents sought,may indeed exist. If they do not then a deposition to that effect ought to be providedby Mr Mahoney who best should know and in that regard clearly if such documentsare not contained by the defendant but are elsewhere then evidence to that effect isrequired.[51] The Court will want to know why the Council issued its Notice, and whether in that regard any reliance was placed on information or material provided by the defendant or a person on its behalf.[52] In this case the Court does not consider it is unreasonable to suspect that there exist relevant documents which Mr Love has deposes are not retained by the defendant.[53] Such enquiry may be assisted by downloading emails from Mr Mahoney'scomputer and going through the files and accounts of the defendant. Whilst the defendant may not have kept relevant minutes pertaining to these events it does seem likely that Mr Mahoney would have kept a governance or correspondence file or even emails giving directions on such a large project that he was in control of. Such communication must certainly have included reports to financiers. Issues ofproportionality should not arise because emails are readily able to be downloaded; the files and accounts of the defendant ought readily to be accessed.[54] Mr Love deposed that the defendant did not contract with the main contractor. If that is correct then he should have said, as surely he or Mr Mahoney would have known, just who did contract with the main contractor. In fact Mr Lovedoes not explain who of the defendant's agents renovated the building. Nor does heprovide any documents in that regard whilst clearly that information would be before the defendant. Mr Stainton submits the evidence points to Mr Mahoney's TaweraGroup as acting as agents of the defendant in this regard.[55] The Court accepts the submission that the defendant is able to provide moredocuments and information relevant for the Court's purposes of enquiry into theplaintiff's claims.Freezing order[56] This application focuses upon the plaintiff's rights of occupation pursuant toits lease. The defendant says the lease and right of occupation are not in dispute.Consideration of this assurance needs to be measured against factors including:(a) Issues surrounding the defendant's requirement that the plaintiffrelocate whilst renovation work was undertaken;(b) The defendant's actions if any in effecting the issue of the Council'sNotice;(c) The period of time that elapsed until the plaintiff could resumeoccupation;(d) The defendant's actions, initially, to advertise for the sale theavailability of Level 3 residential apartments;(e) The undertakings given by Queens Counsel on behalf of the defendant as recorded by the Court's minute dated 20 August 2015 the terms ofwhich were never questioned on behalf of the defendant;(f) The subsequent undertaking Mr Love deposes was provided namely that the defendant would not transfer title to Level 3 and associated areas without depositing $250,000 in its solicitors trust account and that if Level 3 was transferred to another [defendant] group company the defendant would ensure that the group company agreed to the terms of the undertaking.[57] Contrary to the plaintiff's view that the undertaking to the Court on 20August 2015 provided an unequivocal and binding undertaking, Mr Love and hisaffidavit refers to this as being an "original draft undertaking". In itself that may callinto question the undertaking provided in Mr Love's affidavit which allows for thetransfer of the asset without any proposal for the transfer of the defendant'sliabilities.[58] Mr Butler submits lease obligations will transfer with any change of owner of Level 3. However, and within recent weeks the title to Level 3 has been mortgaged. Also and because the 20 August 2015 undertaking does not cover any intercompany transfer of the legal and beneficial interest in Level 3 the plaintiff would, as MrStainton submits, need the transferee to sign undertakings to the plaintiff which arethe same as the defendant's undertakings previously given and as well the transfereeshall have to undertake to protect the asset from other trading activities of thatpurchasing entity.[59] In the circumstances the Court considers there may be cause to hesitate to agree to any transfer that may undermine the strength of undertakings already given.[60] It is to be recorded that on 10 February 2016 the plaintiff provided to theCourt an undertaking that if, by reason of the grant of a freezing order, the defendantsustains any damages that in the opinion of the Court the plaintiff ought to pay, theplaintiff will abide by any order that the Court may make in respect of such damages.Result[61] There will be orders accordingly:(a) To provide an affidavit in routine form detailing to the extent the rules require those documents in the plaintiff's schedule which have notbeen provided, and for any affidavit filed in that regard to besworn/verified by Mr Mahoney.(b) To restrain the defendant from disposing of or diminishing the value of its right, title and interest, (legal or beneficial) in Level 3, pending further order of the Court.(c) The defendant shall pay the plaintiff's costs upon these applicationson a 2B basis for which purpose hearing time of a half day is certified.If counsel cannot agree upon calculations of cost then they are to filememoranda in that regard for determination by the Court on thepapers in due course.Associate Judge Christiansen