BUSINESS CONTROL (SCHWEIZ) AG v SHIBALOVA [2023] NZHC 3278

BUSINESS CONTROL (SCHWEIZ) AG v SHIBALOVA [2023] NZHC 3278 [20 November 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV 2021-488-1[2023] NZHC 3278BETWEEN BUSINESS CONTROL (SCHWEIZ) AGPlaintiffAND INNA SHIBALOVADefendantOn the papersCounsel: S Wroe for the plaintiffM Phillipps for the defendantJudgment: 20 November 2023JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 20 November 2023 at 12.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarIntroduction[1] In February 2012, the defendant's former partner, Andrey Ivanov, wasconvicted by a court in Italy of embezzling almost USD 10 million from the defendant.The plaintiff was part of a team of investigators who worked both to secureMr Ivanov's conviction and to recover the funds. The funds were traced to a bankin Italy, and EUR 7,038,072 was frozen pending conclusion of criminal and civilproceedings against Mr Ivanov. After Mr Ivanov's conviction and an unsuccessfulappeal in 2015, restitution orders were made for the return of the frozen amount to thedefendant.[2] The plaintiff claims commission on the recovered funds. It relies on anassignment of the written contract between the defendant and the lead Australian firmof investigators, MPOL Group Pty Ltd (MPOL and the contract). The contractprovided that 35 per cent of all monies collected on the defendant's behalf that werereturned to her directly or to a family member or bank account would be payable asa fee (the commission). The plaintiff claims a commission of EUR 2,864,938.61.[3] The defendant denies liability for the commission. She says there was anadditional oral term to the contract providing that if the money went to a familymember, she would only be liable for the commission if it was able to be deductedfrom the collected amount before it was paid to the family member. She says she didnot receive, either directly or indirectly, any of the funds recovered. She says the fundswere received by her father, Alexander Shibalov.[4] This proceeding was scheduled to be heard at a five-day trial commencing17 April 2023. On 28 March 2023, counsel advised by joint memorandum that sevento eight days would be needed. The court was unable to accommodate the extra time,and therefore vacated the April 2023 fixture. An eight-day trial has been scheduledto commence 7 October 2024.Application by plaintiff in relation to waiver of privilege[5] This judgment deals with an application by the plaintiff for orders that thedefendant has waived privilege and confidentiality in relation to communications withher Italian lawyer, Nino Grippaldi.Background[6] According to the defendant, the funds that were embezzled originated from herfather. She says she was not meant to deal with the funds except with her father'spermission. She says that, without her father's permission, she transferred the fundsto Mr Ivanov in 2006. At that time, the defendant was living in Melbourne.[7] The defendant became aware that Mr Ivanov had defrauded her in mid-2007.At about that time, she engaged MPOL to assist her to recover the funds.[8] MPOL traced some of the funds to a bank account in Sicily, Italy. Italian Policebegan to investigate. The defendant says MPOL recommended that she engagea Sicilian lawyer to assist in communications with Italian Police and prosecutors. Thedefendant engaged Mr Grippaldi, a lawyer practising in Sicily, in about October 2007.[9] In about November 2007, an order was made freezing funds in the Sicilianbank account. The plaintiff says that, following the conviction of Mr Ivanov,a restitution order was made by an Italian court in 2012 directing that half the frozenfunds be paid to the defendant or on her behalf to her attorney Mr Grippaldi. Theplaintiff says a further restitution order in the same terms for the other half of thefrozen funds was made in 2015.[10] In a brief of evidence that the defendant served prior to the scheduled April2023 trial, the defendant said that in about mid-2012 Mr Grippaldi emailed her andasked her to go to Italy and provide him with a power of attorney so he could receivethe frozen funds. The defendant was by then living in New Zealand. She went toItaly. She said Mr Grippaldi said to her that the Italian prosecutor "asked him toorganize for money to be returned to where it originally came from". She said shesigned the power of attorney for Mr Grippaldi. She said that thereafter she did notspeak to or communicate with Mr Grippaldi.[11] In her brief of evidence, the defendant also said she did not receive any of thefunds from the frozen bank account. She said she assumed that some funds were paidto Mr Grippaldi but she does not know when or to what particular account. She saidthat Mr Grippaldi never gave her those details and that she did not need to know"because I understood from [Mr Grippaldi] that any funds released from the bankwould be paid to my father".[12] The defendant has, as part of further disclosure, provided to the plaintiff anemail chain between her and Mr Grippaldi from 29 to 30 May 2012. The email chaindeals with, among other things, instructions by the defendant to Mr Grippaldi for thedisbursement of the first half of the frozen funds.Alleged waiver of privilege and orders sought[13] The plaintiff claims that the defendant has, by providing the email chainbetween her and Mr Grippaldi, and by referring in her brief of evidence to certaincommunications with Mr Grippaldi, waived privilege in relation to the followingcategories of information:(a) The circumstances around the power of attorney being given by thedefendant to Mr Grippaldi including the reasons for it and its terms.(b) What information and instructions Mr Grippaldi was given in relationto using the power of attorney to obtain and distribute the fundsincluding any communications from the defendant or her familymembers.(c) Information about the steps that Mr Grippaldi took under the powerof attorney in relation to acting on the restitution orders and distributingthe funds.[14] The plaintiff says the waiver in relation to these matters was under s 65 of theEvidence Act 2006. The plaintiff acknowledges that the defendant engagedMr Grippaldi in Italy in relation to proceedings in the Italian courts. But the plaintiffsubmits that under conflict of law principles, issues of privilege are procedural issuesgoverned by the domestic law of the forum.[15] The plaintiff also says that the third category of information is in any case notprivileged.[16] The plaintiff wishes to question Mr Grippaldi about these matters and,if necessary, call him to give evidence. The plaintiff's representatives have contactedMr Grippaldi. Plaintiff's counsel advises that Mr Grippaldi has confirmed that heis "available to discuss the case subject to any privilege or confidentiality". Counselsays that Mr Grippaldi requires, before speaking with the plaintiff's representativeson these matters, either confirmation that the defendant consents to him answering theplaintiff's questions and that he is not bound by privilege or confidentiality on thesematters, or a court order confirming the same.[17] The plaintiff wrote to the defendant's solicitors shortly before the trial that wasscheduled for April 2023 asking for written confirmation that the defendant consentedto Mr Grippaldi discussing these matters with the plaintiff and acknowledging that,for the purposes of this proceeding, he is no longer bound by his duty of confidentialityin relation to those matters. The defendant's solicitors responded as follows:Our client does not maintain privilege in respect of the provision of a powerof attorney to Nino Grippaldi and her enquiry of Nino Grippaldi regarding thedistribution of the funds held by the bank. There is no property in a witnessand you are free to approach Mr Grippaldi if that is what you wish to do.[18] However, after further discussion between the parties' solicitors, thedefendant's solicitors stated the next day that:We do not consent to Mr Grippaldi talking directly or providing informationdirectly to you or your client about our client's matters and we (on behalf of[the defendant]) do not release him from his obligations of privilege andconfidentiality to our client. He must contact us in the first instance if hewishes to be released from his obligations. If he has any relevant informationhe must provide it to us in the usual way and we will provide further discoveryaccordingly. This will include the usual exercise in relation to claims ofprivilege and confidentiality, which we have already foreshadowed in ourprevious correspondence. We note that we had previously sought suchinformation from Mr Grippaldi without success.[19] In these circumstances, the plaintiff sought, by memorandum,1 orders that thedefendant has waived privilege and confidentiality in relation to the categories ofinformation set out in [13] above.Defendant's response[20] The defendant resists the orders sought by the plaintiff. She says the partieshave already dealt with this issue in the context of discovery and that the parties agreedin July 2021 that the defendant would take steps to request documents fromMr Grippaldi. The defendant's steps met with no response from Mr Grippaldi. Thedefendant says the plaintiff is therefore seeking to re-open a discovery issue.[21] The defendant confirms that she does not maintain privilege in respect of theprovision of a power of attorney to Mr Grippaldi and her inquiry of Mr Grippaldiregarding the distribution of funds held by the bank. The defendant says this waiverof privilege relates to "the particular communication, information or documentpertaining to the provision of the power of attorney and the specific inquiry regardingthe distribution of the funds held by the bank". The defendant says she does nototherwise release Mr Grippaldi from his obligations of confidentiality and privilege.[22] The defendant says there is no jurisdictional basis for the orders sought by theplaintiff. Any such orders "must be made under the rules of discovery". Thedefendant proposes that documents should be listed and discovered and claims ofconfidentiality or privilege made in the usual way. The defendant also submits thatthe plaintiff has not made any submissions on Italian law regarding legal privilege andthat the court cannot make a binding order regarding Mr Grippaldi's obligations underItalian law which govern the relationship between the defendant and Mr Grippaldi.1 When vacating the April 2023 fixture, Andrew J referred to the plaintiff's memorandum and madetimetable directions for further submissions.Does New Zealand or Italian law govern?[23] The plaintiff contends that New Zealand law, as the law of the forum, governsthe issues that arise on this application. The defendant submits that Italian lawgoverns.[24] Determining the governing law depends on identifying and then characterisingthe issue that arises on the application. The plaintiff wants to obtain evidence for thisproceeding from a potential witness, Mr Grippaldi, on matters that would, were it notfor the alleged waiver, be protected from disclosure (that is, privileged) by reason ofMr Grippaldi's duty of confidentiality to the defendant. I consider the issue thereforeis:To what extent has the defendant, by providing to the plaintiff the email chainand by making reference in her brief of evidence to some of hercommunications with Mr Grippaldi, waived her privilege over hercommunications with Mr Grippaldi, in respect of any questions the plaintiffwishes to ask Mr Grippaldi for the purposes of obtaining evidence in thisproceeding?[25] The italicised words are important. The plaintiff is not merely some inquisitivethird party wishing to speak to Mr Grippaldi for purposes unconnected with thisproceeding. The plaintiff wishes to question Mr Grippaldi only for the purposes ofobtaining evidence in this proceeding. This suggests that the issue that arises on thisapplication is properly characterised as procedural and evidential.[26] I acknowledge that the privilege protecting communications with legaladvisers is not merely a rule of procedure and evidence. It is a substantive rule, notconfined to the context of legal proceedings, that means that a client's confidentialcommunications with a lawyer cannot be disclosed without the client's consent.2 Thismight indicate that the scope of the privilege, and of any waiver of privilege, shouldbe governed by the proper law of the defendant's engagement of Mr Grippaldi, which2 B v Auckland District Law Society [2004] 1 NZLR 326 (PC). Section 53(5) of the Evidence Act2006 provides that the Act does not affect this substantive rule of law. This underlines that therules in the Evidence Act are (unsurprisingly) rules of evidence.is likely to be Italian law. But I consider the position is different where the scope ofthat privilege (and any waiver) arises in relation to procedural and evidential issuesin a proceeding conducted in a New Zealand court.[27] If the alleged waiver of privilege were to be advanced in relation to a disputeover the defendant's discovery obligations (and such a dispute appears possible), thatdispute would be resolved by applying New Zealand law relating to discovery,privilege and waiver of privilege. This is contemplated by the Evidence Act. Section54 confers a privilege for communications with legal advisers. "Legal advisers" aredefined in s 51 to include overseas lawyers. The privilege in s 54 therefore extends tothe defendant's communications with Mr Grippaldi. Likewise, the waiver rules in s65 apply to the defendant's privilege in respect of those communications. One effectof the privilege conferred by s 54 is stated in s 53(1): the defendant has the right torefuse to disclose, in this proceeding, her privileged communications with MrGrippaldi.[28] If Mr Grippaldi were called as a witness at the trial (by either party), theprivilege conferred by s 54 would also mean that the defendant could require thatMr Grippaldi not disclose her privileged communications in his evidence: s 53(3). Theextent to which the defendant could assert that privilege would depend on whether shehad waived any privilege, and any waiver would be determined in accordance with therules in the Evidence Act. These are quintessentially matters of the law of evidencethat would be governed by New Zealand law, not Italian law.[29] I consider the position is the same where, as here, the plaintiff wishesto question Mr Grippaldi for the purposes of obtaining evidence in this proceeding.There is, as the defendant's solicitors properly acknowledged in correspondence, no"property" in a witness. Neither party can (questions of privilege and confidentialityaside) prohibit the other party from seeing a witness of fact, from getting the factsfrom that witness and from calling the witness to give evidence or from issuing thewitness with a subpoena.3 Lord Denning said this was because "the primary duty of3 Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 (CA) at 1384.the court is to ascertain the truth by the best evidence available".4 This is, in my view,a matter of procedure and evidence that is governed by New Zealand law.[30] For these reasons, I consider that the issue I have identified above is properlycharacterised as procedural and evidential. Issues of procedure and evidence,including the role of privilege in relation to them, are governed by the law of theforum.5[31] It would be odd if it were otherwise. New Zealand law would undoubtedlygovern the position if Mr Grippaldi gave evidence as a witness. I see no reason whya different system of law should govern the position if the plaintiff questionsMr Grippaldi for the purposes of obtaining evidence in this proceeding.I acknowledge that Mr Grippaldi is not subject to the jurisdiction of this court. Thisdoes not mean that the orders that I make below are futile. The orders bind thedefendant and determine the extent to which, for the purposes of this proceeding, hercommunications with Mr Grippaldi are, or remain, privileged.To what extent has the defendant waived privilege?Express waiver of privilege[32] The defendant expressly accepts that she does not maintain privilege in respectof two communications:(a) The first is the provision of a power of attorney to Mr Grippaldi. Thedefendant says her waiver relates to "the particular communication pertaining to the provision of the power of attorney". It is unclear whatis meant by the "particular communication". In her brief, the defendantreferred at [50] both to an email from Mr Grippaldi asking for a powerof attorney and to Mr Grippaldi saying that the Italian prosecutor asked4 Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 (CA) at 1385.5 Lord Collins and Jonathan Harris (eds) Dicey, Morris and Collins on the Conflict of Laws (16thed, Sweet & Maxwell, London, 2022) vol 1 at 4R-001 and 4-023; Martin Davies, Andrew Bell,Paul Brereton and Michael Douglas Nygh's Conflict of Laws in Australia (10th ed, LexisNexisButterworths, Chatswood, 2020) at 16.26.him to organise for the money to be returned to where it originally camefrom.(b) The second is her inquiry of Mr Grippaldi regarding the distribution offunds held by the bank. The defendant says her waiver relates to thespecific inquiry regarding the distribution of the funds. I take that to bea reference to the email chain of 29 to 30 May 2012, already disclosedto the plaintiff.[33] There is, therefore, uncertainty as to the scope of the first express waiver.In any event, the plaintiff submits that the defendant has impliedly waived privilegeover a broader range of communications.Implied waiver of privilege: s 65(2)[34] The plaintiff first submits that the defendant has waived privilege unders 65(2). This provides:A person who has a privilege waives the privilege if that person, or anyonewith the authority of that person, voluntarily produces or discloses, or consentsto the production or disclosure of, any significant part of the privilegedcommunication, information, opinion, or document in circumstances that areinconsistent with a claim of confidentiality.[35] There are two limbs to s 65(2):(a) There must have been voluntary disclosure of any significant part ofa privileged communication. Whether a "significant part" of aprivileged communication has been disclosed depends on the substancerather than the quantity of what has been disclosed.6(b) That disclosure must have happened in circumstances that areinconsistent with a claim of confidentiality.[36] As to the first limb, the plaintiff said that the defendant had discloseda significant part of her "communications" with Mr Grippaldi in relation to what6 Houghton v Saunders (2009) 19 PRNZ 476 (HC) at [55].Mr Grippaldi told her about where the money needed to go and why, and whatMr Grippaldi told her about where the money would go. The plaintiff also said thatthe defendant had produced the email chain of 29 and 30 May 2012 but that thisdisclosed only a "partial reply" by Mr Grippaldi to the defendant's queries. Theplaintiff submitted that in these circumstances it would be unfair for the defendantto rely on parts of her "communications" with Mr Grippaldi when "all of it" is relevantto the issues in this case. The plaintiff said the defendant should not be able to preventthe plaintiff from making inquiries on the "full extent" of her communications withMr Grippaldi on these issues.[37] Section 65(2) focuses on the communication in issue. It follows that the effectof s 65(2) is that voluntary disclosure of any significant part of a privilegedcommunication, in circumstances that are inconsistent with a claim of confidentiality,will waive privilege in that communication. Section 65(2) does not, by itself, leadto waiver of privilege in respect of other communications.7[38] However, the principle of collateral waiver overlays s 65. This principleprevents a party from presenting the court with a selective view of the relevantevidence. The principle arises where a party has waived privilege in relation toa communication that is helpful to the party's case on an issue, while assertingprivilege over other communications on the same issue that may be unhelpful to itscase. In such circumstances there is a collateral waiver of privilege over those othercommunications.8[39] There may, therefore, be a primary waiver of privilege (whether under s 65(2)or otherwise) and then a collateral waiver of privilege that arises from it. Thedefendant's submission that any express waiver of privilege relates only to"particular" communications overlooks this principle.7 Financial Markets Authority v Hotchin [2014] NZHC 2732 at [57]; and Everest ServicedApartments Ltd v Body Corporate 511909 [2022] NZHC 1925 at [50(a) and (b)].8 NZX Ltd v Ralec Commodities Pty Ltd [2015] NZHC 241; and Capital + Merchant Finance Ltd vPerpetual Trust Ltd [2015] NZHC 1233 at [29]. The collateral waiver principle overlays s 65because the Act does not purport to be a complete code as to waiver of privilege.[40] As to the second limb, the plaintiff appears to have assumed that referenceto significant parts of privileged communications in a brief served before trialis inconsistent with a claim of confidentiality. That is not necessarily so. As Katz Jexplained in Capital + Merchant Finance Ltd v Perpetual Trust Ltd,9 referenceto privileged communications in a served brief is not necessarily inconsistent witha claim of confidentially, given that the brief might be amended or might not be readat trial. Katz J went on to explain, however, that injustice can arise if a party is ableto defer until trial the decision whether to retain the reference to privilegedcommunications.10 Her Honour therefore required the party in that case to elect, wellbefore trial, whether to retain the reference to privileged communications (andtherefore waive privilege) or remove it. I shall do the same. Given that the brief wasserved some time ago and that the plaintiff will face some practical issues ininterviewing Mr Grippaldi, I will require the plaintiff to elect by 15 December 2023.[41] I now turn to the possible waivers of privilege by the defendant.[42] First, the defendant voluntarily produced the May 2012 email chain indiscovery (rather than merely referring to it in her brief). That was a primary waiverof privilege. It appears the defendant will rely on this in relation to the issue of what(if any) instructions she gave to Mr Grippaldi about the distribution of the recoveredfunds. This means she has collaterally waived privilege over any othercommunications between her and Mr Grippaldi relevant to that issue.[43] Secondly, at [50] of her brief, the defendant says she recalls that in mid-2012Mr Grippaldi emailed her asking her to go to Italy to provide him with a powerof attorney so he could receive the frozen funds from the bank. This disclosesa significant part of that email (which may or may not be one of the emails in the May2012 email chain). If this remains in the brief, it will therefore be a primary waiver ofthe entire email. It appears the defendant will rely on this email in relation to the issueof what reasons Mr Grippaldi gave her for requesting a power of attorney from her.The defendant will therefore collaterally waive privilege over any othercommunications between her and Mr Grippaldi relevant to that issue.9 Capital + Merchant Finance Ltd v Perpetual Trust Ltd [2015] NZHC 1233 at [22].10 At [25].[44] Thirdly, later in the same paragraph, the defendant says that Mr Grippaldi saidthat "the Italian prosecutor asked him to organize for money to be returned to whereit originally came from". It is unclear whether this communication was oral or wasin writing (though the former appears more likely). In any event, if this remains in thebrief, it will be a primary waiver of the communication. It appears the defendant willrely on this communication in relation to the issues of whether Mr Grippaldi told thedefendant that the money needed to be returned to her father and whether the recoveredfunds were paid by Mr Grippaldi to her father. The defendant will thereforecollaterally waive privilege over any other communications between her andMr Grippaldi relevant to those issues.[45] Fourthly, at [66] the defendant says she "understood from [Mr Grippaldi] thatany funds released from the bank would be paid to my father". By necessaryimplication, the defendant is saying that her understanding arises from somecommunications with Mr Grippaldi, though it is unclear whether thesecommunications were oral or in writing. In any event, if this remains in the brief, itwill be a primary waiver of those communications. It appears the defendant will relyon these communications in relation to the issues of whether Mr Grippaldi told thedefendant that the money would be returned to her father and whether the recoveredfunds were paid by Mr Grippaldi to her father. The defendant will thereforecollaterally waive privilege over any other communications between her and MrGrippaldi relevant to those issues.Implied waiver of privilege: s 65(3)(a)[46] The plaintiff also says there has been an implied waiver of privilege unders 65(3)(a). This provides:(3) A person who has a privilege waives the privilege if the person—(i) acts so as to put the privileged communication, information,opinion, or document in issue in a proceeding [47] The plaintiff says that the defendant has put two matters in issue. The first iswhat Mr Grippaldi told her as to the reasons for the power of attorney. I have alreadyconcluded that, under s 65(2) and the principle of collateral waiver, there will bea waiver of privilege over communications relevant to this issue if the brief remainsin its current form. I need not consider this matter under s 65(3)(a).[48] The plaintiff says the second matter that the defendant has put in issue is whocommunicated with Mr Grippaldi about the distribution of funds. I consider that thissubmission does not engage with s 65(3)(a). The provision applies when a party putsa privileged communication in issue. This is not the same as putting a matter in issue.11Is the third category of information privileged?[49] The plaintiff wishes to ask Mr Grippaldi questions about the steps that he tookunder the power of attorney in relation to acting on the restitution orders anddistributing the recovered funds. The plaintiff submits that this information and anydocuments relating to it are not privileged. The defendant does not dispute this, otherthan to say that this issue is one of discovery. The defendant proposes that anyinformation and documents be provided by Mr Grippaldi to the defendant, who candiscover the documents in the usual way.[50] I generally agree with the plaintiff that information about the steps thatMr Grippaldi took under the power of attorney in relation to acting on the restitutionorders and distributing the funds, and any documents relating to that information, arenot subject to a privilege enjoyed by the defendant. This is subject to the exceptionthat the defendant would ordinarily enjoy a privilege in respect of her communicationswith Mr Grippaldi relating to these steps. However, that exception does not applybecause I have held, at [42] above, that the defendant has waived privilege over anycommunications between her and Mr Grippaldi relevant to the issue of what (if any)instructions she gave to Mr Grippaldi about the distribution of the recovered funds.[51] I accept the defendant's point that discovery obligations may be engaged. Butdiscovery is not the exclusive means by which a party to a proceeding can obtainrelevant documents, let alone information. The plaintiff wants to speak to MrGrippaldi and is entitled to do so. It will assist that process if it is clear to the plaintiffand Mr Grippaldi what information and documents are subject to privilege in favour11 Shannon v Shannon [2005] 3 NZLR 757 (CA) at [47].of the defendant. For these reasons, I also consider that my conclusions on the extentof the defendant's waiver of privilege should be reflected in orders that are made now,rather than awaiting a discovery process.Result[52] I make the following orders:(a) The defendant has waived privilege over any communications betweenher and Mr Grippaldi relevant to the issue of what (if any) instructionsshe gave to Mr Grippaldi about the distribution of the recovered funds.(b) Information about the steps that Mr Grippaldi took under the powerof attorney in relation to acting on the restitution orders and distributingthe funds, and any documents relating to that information, are notsubject to a privilege enjoyed by the defendant.[53] Unless by 15 December 2023 the defendant serves an amended brief removingthe material referred to in [43]–[45] above, I will make a further order that thedefendant has waived privilege over:(a) The email that Mr Grippaldi sent the defendant in mid-2012 asking herto go to Italy to provide him with a power of attorney so he couldreceive the frozen funds from the bank, and any other communicationsbetween the defendant and Mr Grippaldi relevant to the issue of whatreasons Mr Grippaldi gave her for requesting a power of attorney fromher.(b) The communication in which Mr Grippaldi said to the defendant that"the Italian prosecutor asked him to organize for money to be returnedto where it originally came from", and any other communicationsbetween her and Mr Grippaldi relevant to the issues of whetherMr Grippaldi told the defendant that the money needed to be returnedto her father and whether the recovered funds were paid byMr Grippaldi to her father.(c) Any communication that gave rise to the defendant's understandingfrom Mr Grippaldi that any funds released from the bank would be paidto her father, and any other communications between her andMr Grippaldi relevant to the issues of whether Mr Grippaldi told thedefendant that the money would be returned to her father and whetherthe recovered funds were paid by Mr Grippaldi to her father.Costs[54] The plaintiff is entitled to costs on the application on a 2B basis.______________________Campbell J