CHESTERFIELD PRESCHOOLS LTD AND ORS V THE COMMISSIONER OF INLAND REVENUE HC CHCH CIV 2004-409-001596

CHESTERFIELD PRESCHOOLS LTD AND ORS V THE COMMISSIONER OF INLAND REVENUE HC CHCH CIV 2004-409-001596 13 September 2005IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2004-409-001596BETWEEN CHESTERFIELD PRESCHOOLS LTD First Plaintiff AND DAVID JOHN HAMPTON Second Plaintiff AND DAVID JOHN HAMPTON AND THERESE SISSON TRADING AS CHESTERFIELDS PARTNERSHIP Third Plaintiff AND DAVID JOHN HAMPTON AND THERESE SISSON TRADING AS CHESTERFIELDS PRESCHOOLS PARTNERSHIP Fourth Plaintiff AND ANOLBE ENTERPRISES LIMITED Fifth Plaintiff AND THE COMMISSIONER OF INLAND REVENUE Defendant Hearing: 13 September 2005 Appearances: M Andrews for Plaintiffs P J Shamy for Commissioner of Inland Revenue Judgment: 13 September 2005JUDGMENT OF FOGARTY J[1] The context of the proceedings before me today is that the Commissioner of Inland Revenue is endeavouring to recover a sum in the order of$3 million from a number of different legal entities and persons including the five plaintiffs in these proceedings. All of these persons are united by being members of the Hampton family or being trusts or corporate entities formed by the Hampton family. The most important person within the family for these purposes is the second plaintiff, Mr David John Hampton. [2] Many of the transactions that excite the interest of the Commissioner of Inland Revenue are dealings by Mr Hampton with his former wife Ms T A Sisson or with his parents Mr and Mrs Hampton Snr or with his sister, Mrs Stikkelman and with various of the corporate entities. For example, Anolbe Enterprises Ltd is an entity which appears to be the vehicle for holding the interest in the family trust. Mr Andrews advises that Mr David Hampton is the trustee for Anolbe Enterprises and the shareholders of that company were the trustees of the Anolbe Family Trust. [3] The sum being pursued by the Commissioner, said now to be in the order of $3 million, has built up over time, in respect of a number of these parties, following upon what the Commissioner says are various defaults, whether as to paying GST or other payments and accumulating penalties. [4] Today before me are four applications requiring determination. First there is an application for a Mareva injunction, ancillary orders and pre-judgment charging orders. Then there are three applications which are inter-related. One is an application to transfer proceedings filed in the Taxation Review Authority to this Court, which proceedings, to a degree, overlap the contentions in these judicial review proceedings. Further, there is an application to consolidate these judicial review proceedings with some applications for summary judgment against some of the plaintiffs which have in turn been transferred from the District Court to this Court. And there is also an application to consolidate proceedings brought in opposition to a statutory demand by Chesterfield Preschools Ltd. [5] The Mareva injunction application seeks Mareva injunctions against the plaintiffs to these proceedings, their directors and officers, employees, agents or otherwise to restrain them until further order from disposing of or encumbering or otherwise dealing with in any way their money, property or other assets, whether intheir own names or not and whether solely or jointly owned up to a value of $3 million. There are various exceptions to enable the plaintiffs to pay continuing legal expenses to meet continuing taxation liabilities, ordinary accountancy fees, ordinary and proper business expenses and to meet the ordinary living expenses of David John Hampton and Therese Anne Sisson. Second, against non parties Mr and Mrs Hampton Snr, the Commissioner seeks an order that they be restrained from disposing or encumbering or in any way dealing with 8 Kahu Road. Third, in respect of Mr David Hampton's sister, Mrs Susan Stikkelman, a non party, there is a request that she be restrained from disposing, encumbering or any way dealing with the business known as Chesterfield Preschools, with some exemptions to enable her to meet her ongoing taxation liabilities, statutory requirements, the ordinary and proper business expenses and her ordinary living expenses. Ancillary orders are sought that the plaintiffs disclose by affidavits the whereabouts of their assets and that the non parties, Mr and Mrs Hampton Snr and Mrs Stikkelman also make similar disclosure of their assets. [6] In addition the Crown seek charging orders under r 567 over a number of properties being real estate under the control of the plaintiffs. Particularly, the argument for the Crown in support of these orders is that they have a very strong claim for a judgment deed against various parties totalling $3 million. [7] Mr Shamy submits that the judicial review proceedings are for practical purposes the last attempt by Mr David Hampton and his family to resist suit by the Commissioner to obtain judgment for liabilities arising under the taxation legislation. [8] Second, the Crown argues that there is a substantial history of moving assets into different vehicles within the family which raises the risk of the assets being dissipated or disposed of. In this regard the Crown relies on two events, a sale of 8 Kahu Road, that property being first registered in the name of Mr David John Hampton to his parents and second, the transfer of the Chesterfield Preschools business to Mr David Hampton's sister, Mrs Stikkelman, a transfer which is said may yet turn out to be a sham.[9] The Crown accepts that the overall justice between the parties needs to be considered but the Crown says that it has a genuine concern that without these orders the Hampton family may take steps to place assets beyond the reach of enforcement proceedings securing judgments which may be ultimately obtained from this Court against them. [10] Mr Andrews appears for the plaintiffs in these proceedings but not for the non parties. So Mr and Mrs Hampton Snr and Mrs Stikkelman are not represented. Mr Andrews proceeded by first tackling the merit of the proposition that there was any risk of dissipation, and focussed upon the transactions in respect of Kahu Road and the transfer of the Chesterfield Preschool. [11] The property at 8 Kahu Road has been recently transferred by Mr David Hampton as registered proprietor to his parents, Mr and Mrs John Hampton. There may be some dispute as to the fine detail of the transfer but in substantial terms it provides for a sale price of $400,000 and includes a credit in that sum for $226,314 in this way:$226,314 as per payments claimed Schedule B paid on signing contract attached hereto.[12] Mr David Hampton says that he held the property at 8 Kahu Road as trustee for the Anolbe Family Trust, that the property was transferred to the parents partly due to the personal circumstances of his parents. His father is gravely ill and there is a natural wish within the family for the parents to be settled in 8 Kahu Road, the property they had earlier lived in before there was an attempt to sell the property on the open market, by auction. Incidentally, that sale collapsed, partly it would appear, because of the service of a s 157 notice on the putative purchaser, a Mr Gopperth, back in October 2004. This latter transaction appears to have taken place some time in April of this year, it being registered in July of this year. [13] There is a degree of mystery about the credit of $226,314. Mr Andrews has not been able to produce from his client a schedule. That is a reasonably large sum of money. Inter-family loans are not uncommon, particularly among wealthy families. But what is common is for the loans to be carefully documented otherwisethere is a risk that the transfers of money will be seen to be gifts and to attract gift duty. I do find it unusual and indeed extraordinary for sums of money amounting to this sort of level not to be clearly explained by notes of loan. There are real issues as to whether or not the money represents advances that may have been made by Mr David Hampton's parents to him for his family and may not, on strict analysis, be advances made for the benefit of the beneficiaries of the Anolbe Family Trust. That in turn raises in my mind a serious question as to whether or not the transfer of 8 Kahu Road was for a purpose other than settling the parents, to give them peace of mind by being in a house of their own, in the personally stressful situation they are in given the grave illness of the father. I was not accordingly satisfied on the submissions of Mr Andrews that this is an ordinary inter-family transaction. [14] As to the Chesterfield transaction, I have had occasion to describe this earlier to some extent in a judgment delivered on 13 June and I will keep the description here brief. So far as I can understand, the unity between all the plaintiffs in these proceedings is that there has in fact been one business generating accessible income and GST liabilities in the first place and that is the Chesterfield Preschools business. There have been related property transactions generating both GST credits and GST liabilities but the core of the business activity is one business, the Chesterfield Preschools. That business now appears, at least as a matter of law, to be owned by Mr David Hampton's sister, Mrs Stikkelman. Mr David Hampton is now employed by that business, since July last, receiving a gross payment of $1500 per week. The liability to pay PAYE and to pay 20% of the income after PAYE under s 157 triggers on 20 September. [15] There are enough curiosities in this Chesterfield Preschools transaction, particularly when set against the tax litigation as a whole, to raise a real issue as to whether or not the transaction is, as the Commissioner says it is, a convenient transfer of an asset away from Mr David Hampton to another family member, in order to make it that much more difficult for the Commissioner to collect unpaid tax. [16] Mr Shamy selected these two transactions, but I am satisfied generally, mainly due to the incredibly complicated transactions going on within the family, swirling around the Chesterfield Preschools business, that the Commissioner hasreason to believe that the family is transferring and shuffling assets and with an intent to avoid, where possible, tax liability and ultimately enforcement of any liability sustained by them as a result of legal process. [17] So, in short, I am satisfied for the purposes of a Mareva injunction that there is a sufficient history to justify a real risk or apprehension that the Hampton persons and vehicles may or will dissipate or dispose of assets so as to render themselves, as far as possible, judgment free. They may not have the ability to render themselves completely judgment free but given the amount at stake, $3 million, there is an incentive to remove assets to the extent that they can do. [18] I am not finding that there is any real risk of the plaintiffs acting dishonestly in a personal sense, but the pattern of behaviour shows that Mr Hampton and his family and entities are quite capable of entering into ingenious transactions, no doubt believing personally that these are within the law and so legitimate, but having the happy consequence of making it that much more difficult for the Commissioner to enforce tax liabilities and collect tax. [19] I turn now then to the legal objections assembled by Mr Andrews in opposition to the Mareva injunction. I deal with them in the order that he sets them out in his summary of bases for opposition. [20] First, he argues that the Mareva orders are sought in judicial review proceedings where the Commissioner is a defendant responding to the plaintiffs' claim. So because the Commissioner is not pursuing an underlying action in judicial review he cannot seek Mareva orders. [21] Mareva orders are orders in personam, arising out of the equitable jurisdiction inherent in the High Court. They are designed to maintain the efficacy of Court process. They are based on a recognition that the applicant applying for Mareva orders has a good cause of action against at least some of the parties the subject of the orders, which cause of action is likely to be defeated unless the assets of that person are secured, so they cannot be removed from the jurisdiction or otherwise dissipated.[22] It is totally inconsistent to the conception and development of the Mareva application to tie it down procedurally to the accidents of process at the time that the application was lodged. [23] The second objection is that the Commissioner's application represent an abuse of the Court process as there is another statutory remedy available to the defendant, which indeed it has regularly employed against the plaintiffs, and these third parties, and can continue to employ, being s 157 of the Tax Administration Act 1994. [24] The effect of these notices are analysed in the same earlier judgment that I have referred to, delivered on 13 June. They are a method whereby persons who may be paying money to a taxpayer can be given notice so that the payments are in whole or in part diverted to the Commissioner of Inland Revenue. [25] The problem with these notices in the context where the taxpayer may be motivated to dissipate assets is that the Commissioner has to identify in advance persons who may be making a payment. This is easy if the person identify is the employer or someone in a permanent relationship with the subject taxpayer. It is, for all practical purposes, impossible if it is an attempt to identify persons who may purchase assets of a taxpayer without notice of the taxpayer's dispute with the Inland Revenue Department. In this regard I am simply not satisfied that s 157 was ever intended by Parliament to be the only remedy available to the Commissioner to secure payments. [26] The third argument of Mr Andrews is that the defendant's application represents an abuse of the Court process as the evidence lodged by the Commissioner in support of the application for Mareva appears to rely to a considerable extent on the defendant's notices or investigations under s 17 of the Tax Administration Act. Section 17(1) of the Tax Administration Act provides:17 Information to be furnished on request of Commissioner(1) Every person (including any officer employed in or in connection with any Department of the Government or by any public authority, and any other public officer) shall, when required by the Commissioner, furnish in writing any information and produce for inspection any books and documents whichthe Commissioner considers necessary or relevant for any purpose relating to the administration or enforcement of any of the Inland Revenue Acts or for any purpose relating to the administration or enforcement of any matter arising from or connected with any other function lawfully conferred on the Commissioner.[27] It may be noted that it is a mechanism of obtaining information and producing for inspection: any books or documents which the Commissioner considers necessary or relevant for any purpose relating to the administration and enforcement of any of the Inland Revenue Acts. (Emphasis added)It may be given to any person. [28] There appears to be no doubt that the Commissioner has either issued s 17 notices against various professionals dealing with the parties and non parties or made informal requests using implicitly the natural authority that goes with a request from the Inland Revenue Department for information. In substance the Commissioner has obtained information from non parties other than by way of orders for discovery against non parties applied for and obtained pursuant to the High Court Rules. [29] Mr Andrews submits that it is an abuse of process to use such s 17 information in civil proceedings whether these civil proceedings are understood to be these judicial review proceedings or the application for Mareva. He says this is contrary to an interpretation of s 17 of the High Court as read consistent with s 27(3) of the New Zealand Bill of Rights Act 1990. Section 27(3) of the New Zealand Bill of Rights Act provides:27 Right to justice (3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.[30] Mr Andrews relies on a recent decision of Simon France J in Vinelight Nominees Limited v The Commissioner of Inland Revenue (High Court, Auckland, CIV 2005-404-2774, 14 July 2005). [31] In this decision the Judge held:[52] Section 17 is broad in its wording but its use after proceedings have been commenced must be consistent with s 27(3) of the New Zealand Bill of Rights Act 1990.And then in paragraph [55]:[55] I reject any suggestion that there is some absolute bar, and accordingly it would not be correct to say that s 17 must generally be read down so that the power is not available when the intended subject matter of the Notices is also the subject of concurrent proceedings. The situation in Miller was different, in my view, in that there the Commissioner was seeking to change the actual assessment that was already before the Court. Here the context is acquiring information for an assessment not yet made. On the other hand, I likewise reject any suggestion that s 17 can be exercised without regard to the existence of concurrent proceedings. Each case will require its own analysis of whether in the circumstances the Notices are breaching the principle of litigation on an even basis. It is, I consider, reasonably clear that Notices could not be issued for the sole purpose of extracting information for the Court proceedings, and this is so, in my view, regardless of whether the Commissioner thinks the Court would be assisted by the collection of such information. If that is the motivation, then the Court's own processes available to both the parties must be allowed to take their normal course. This limit on s 17 is consistent with the obiter observations of Richardson J in Green v Housden, and seems mandated by s 27(3) of the Bill of Rights.[32] Within paragraph [55] there is a reference to the concept of the principle of litigation being on an even basis. This was also referred to by Mr Andrews as a reference to the equality of arms principle. The Judge in Vinelight also referred by way of explanation to the background to s 27(3) to a reference to the White Paper that preceded the enactment of that statute:[54] The White Paper (para 10.177) said that: An individual should be able to bring legal proceedings against the Government, and more generally to engage in civil litigation with it, without the Government enjoying any procedural or jurisdictional privileges.[33] I consider that that explanation in the White Paper is useful and reinforces the true subject matter of s 27(3). It has not always been the case that private litigantscould sue the Crown, or agencies of the Crown. Legislation such as the Crown Proceedings Act 1950 has enabled that. It is now practically a constitutional position that the Crown should be in no better position in civil proceedings than any other litigant. That indeed is the underlying premise of the Crown Proceedings Act and it is the proposition underpinning s 27(3). [34] With respect to my brother Judge, I see the law as different, by degree, from the way he stated it in Vinelight. I do not think the principle of litigation on an even basis was intended to be pursued in respect of the recovery of unpaid tax for the purposes of the Inland Revenue Acts and in particular for the interpretation and application of the Tax Administration Act. [35] There is a history of the utilisation by Parliament of the High Court Rules as to civil procedure in the enforcement of statutory liabilities where the enforcement requires, as a matter of justice, careful identification of the issues prior to trial. Unlike criminal proceedings which do not have statements of claim and statements of defence, civil proceedings are designed to identify the issues for trial well before trial so that there will be a fair trial. So we have in New Zealand the utilisation of civil processes in tax administration for the hearing of objections against assessments and then later for the actual recovery of the debt. Under the Commerce Act 1986 we have the utilisation of civil procedure in enforcement proceedings under Part 2, even where the proceedings are seeking not damages but simply penalties. Civil procedure is used in a pragmatic way, because it is useful, not because there are civil proceedings. [36] Where a citizen is subject to legal proceedings for non payment of tax or breach of statutes which impose penalties, conduct close to or over the line is usually conducted as privately as possible, without notice to the Crown. The special powers to obtain information given in statutes such as the Tax Administration Act and the Commerce Act, are granted in order to counter the advantage persons have to avoid the reach of the law by behaving secretively. [37] The genesis of the concept that the Crown should be in no better position than any other person in civil proceedings has its place in the fact that the Crowndoes business along with other persons. It enters into contract. It buys and sells property. It also can sometimes be negligent and cause loss and so is liable for tort. The concept was that inasmuch as the Crown acts as a private person doing business and sometimes accidentally causing harm it should be in no better position than any other private person in the civil proceedings. There is a natural justice to that proposition. [38] There is not, however, a natural inference that the same principle should apply when the Crown is pursuing tax collection. Indeed the Tax Administration Act is full of procedures designed to enable the Crown to obtain information against all persons, not just a potentially defaulting taxpayer, for the purposes of collecting tax. That is the purpose of s 17. Section 17, on any view of it, cannot be read as pursuing the principle of litigation on an even basis. [39] The Tax Administration Act has to be read in the context of the New Zealand Bill of Rights. The relevant provisions are ss 4 and 6. It would appear from a close reading of paragraph [52] that Simon France J was applying s 6, which provides:6 Interpretation consistent with Bill of Rights to be preferredWherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.[40] The Judge says that s 17 is broad in its wording. It is. It is as broad as Parliament can make it. Section 6 of the New Zealand Bill of Rights Act was never intended by Parliament to enable the purpose of a statutory provision to be defeated. Where s 6 refers to an enactment being given a meaning, it is not referring to the bare text of the section construed without regard to its purpose. Section 5(1) of the Interpretation Act 1999 provides:5 Ascertaining meaning of legislation(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.[41] It is plain when one reads s 17 that it is intended by Parliament to be an effective instrument for obtaining information, particularly documents. That is its purpose and that is why Parliament has used the broadest words possible in the text referring to any purpose and any aspect of enforcement of the Inland Revenue Acts. [42] For these reasons I can see no basis in the text and purpose of s 17, to suggest that the meaning of s 17 is consistent with a suspension of the power in that section, once some aspect of the proceedings, or all aspects, have become subject to the High Court Rules. [43] There is an issue as to whether or not s 17 can be used to interrogate parties and so breach a right of silence. That is a separate question which does not arise in this case and I note appears to be one of the concerns in two of the authorities discussed by Simon France J in: Re Spiraflite Limited [1979] 2 All ER 766 (Ch D) and Bletchley Boat Co Ltd [1974] 1 All ER 1225 (Ch D). [44] I do not think that the decision of Miller v CIR, McDougall v CIR (1997) 18 NZTC 13,127 is on the point as it was raising the question of whether or not the Commissioner had the power to amend the assessments when the assessment was in the control of the Taxation Review Authority. [45] In short, I am not persuaded that the principle of 'equality of arms' or the principle of litigation 'on an even basis' applies to the enforcement of the Inland Revenue statutes, by reason of s 27(3) of the New Zealand Bill of Rights Act. To do so would, ironically, give an advantage to defaulting taxpayers. It seems to me that to apply such a principle would defeat the clear purpose and meaning of s 17 of the Tax Administration Act. [46] There may be occasions when it is more appropriate, particularly as a courtesy for the Court, for the Commissioner to use the Court supervision to obtain discovery of documents and pursue interrogatories after litigation has been commenced. But in this particularly case where the Commissioner has been making urgent enquiries trying to track the movement of assets it was entirely appropriate for the Commissioner to have used s 17, or inferentially have s 17 as a backstop, inorder to obtain the information it has gathered to support this application for a Mareva injunction. [47] The final argument of Mr Andrews is that Mareva orders are not required as the plaintiffs have advised the Commissioner that they are prepared to enter into undertakings not to disclose of assets, except on notice, and that the Court should take the least invasive approach. Mr Shamy for the Commissioner has essentially submitted that the Commissioner has lost any trust in the word of the plaintiffs. [48] I consider that Mr Andrews' submission has considerable weight in respect of the position of Ms Sisson. She is a barrister and solicitor in practice and thus an officer of this Court. I regard an undertaking given by her to this Court as effective as any Mareva order, and as more appropriate given her status, and in her case I think that an undertaking is perfectly adequate to meet the Commissioner's concerns. [49] In respect of the other plaintiffs I think that given that I have made a finding on the facts that there is a real risk that the plaintiffs will dissipate or dispose of assets, and given as I have said and reiterate that the plaintiffs in my judgment are not dishonest people, but are nevertheless persons who believe that transactions can be created readily enabling the movement of assets, that they may be of the state of mind that they would not be breaching undertakings, if they did something which appeared to be not quite caught by the undertaking or somehow outside. The safer course is to subject their conduct to the supervision of the Court. [50] For these reasons I am of the view that the Commissioner's application for Mareva and ancillary orders (requiring affidavits as to assets) has merit and at the conclusion of the judgment I will be discussing with counsel the making of these orders. [51] I turn now to the question of pre-judgment charging orders as enabled by r 567 of the High Court Rules. This rules provides:567 Leave to issue charging orderLeave to issue a charging order before judgment shall be granted only on proof that the opposite party, with intent to defeat [either his creditors or the party applying or both]— (a) Is making away with his property; or (b) Is absent from or about to quit New Zealand.[52] Mr Shamy submitted that for all practical purposes the test to be satisfied to trigger the issuing of a charging order before judgment is the same as a Mareva. I am not satisfied that this is so. The language of r 567 is emphatic as saying that such orders shall be granted only on proof that the opposite party with intent to defeat is making away with his property. I am not satisfied on the facts that the Commissioner has made out that case. [53] There is a background here where the common law has been most reluctant to encumber assets with charging orders prior to judgment. That reluctance predates the Mareva jurisdiction and in my view has not been completely supplanted by the Mareva remedy. It may be one day, but while the High Court rules contain r 567 with its current wording I think the threshold requirement of standard of proof is simply higher, and has not been made out in this case. These applications are dismissed on the basis that the evidence currently before the Court does not meet the requirements of r 567, but reserve leave to the Commissioner to reapply if the Commissioner can assemble a stronger case on the facts. [54] I now turn to the question of non parties. I am satisfied in the circumstances that although Mr and Mrs Hampton Snr have not been represented today, nor Mrs Stikkelman, that in all the circumstances it is appropriate that the Mareva orders as summarised above in their respect as to 8 Kahu Road and Chesterfield Preschools should be made. In respect of Ms Sisson I already indicated that there should not be Mareva orders but that there should be a personal undertaking to the Court as to that aspect of the conduct of her practice which involves these parties. In respect of the non-parties there is leave to apply to come to Court to set aside these orders. Ms Sisson is a party, as a partner of the third and fourth plaintiffs.[55] I turn to the question of the consolidation of the proceedings. I deal first with the proceedings before the Taxation Review Authority. It does seem common ground that they will overlap. Mr Andrews has said that he intends to refine the judicial review statement of claim. He is not currently instructed in the TRA proceedings. They appear to have been drafted by Mr David Hampton. I am satisfied that the only point that Mr Andrews could put up showing any potential prejudice is the loss of the right of appeal from the TRA to the High Court. [56] In the totality of all the circumstances I think there is a serious argument that lodging proceedings before the Taxation Review Authority when there are all these proceedings before the High Court is quite inefficient, if not itself threatening to unfairly prevent the Commissioner of Inland Revenue from enforcing the tax statutes. These proceedings will be and are transferred to the High Court. [57] I turn now to the balance of the question of the consolidation of the proceedings. There is now a measure of common ground I think between the parties. The proceedings cannot be consolidated in a formal sense. They are too different in their character. However, in lieu of a formal consolidation order all the proceedings, a schedule of which will be attached to this judgment, are to be allocated to me as judicial officer, and placed under case management by me. The first case that will be heard will be the judicial review proceedings. But the other cases will be managed so as to be ready to proceed immediately after the hearing of the judicial review proceedings. If at the end of the judicial review proceedings it is not possible to deliver an oral judgment and that decision is reserved, I will decide then whether or not it is possible to continue on with the other proceedings. In short, where possible as many proceedings as possible will be dealt with at the same fixture. But, however, depending on what happens in judicial review proceedings it may be necessary for the other proceedings to be adjourned to a further fixture date. I suspect that those issues as to adjudication may become more refined in the course of telephone conferences that will be held before the end of this year. [58] As to orders affecting this judgment I propose that the judgment be understood as taking effect from now but that they will be perfected by Mr Shamy drafting orders for approval and then sealing and submitting them in draft toMr Andrews in the next couple of days with leave of either counsel to come back to me for clarification by way of telephone conference. [59] Have heard counsel on costs I would summarise the position this way. The Commissioner has been substantively successful in his applications for Mareva and related orders though partially unsuccessful inasmuch as he has not obtained charging orders and has not obtained Mareva orders against Ms Sisson. I would also note that the parties were reasonably close on the subject of the future management of the litigation save only for the question of the transfer of the TRA. Overall I am satisfied that the Commissioner has succeeded substantially. The Commissioner will be entitled to costs on a 2B basis, to be calculated according to the schedule, and then discounted as to 20%, to accommodate the partially successful opposition by the plaintiffs in these proceedings. Fogarty JSolicitors: Minter Ellison Rudd Watts, Wellington, for Plaintiff Raymond Donnelly & Co, Christchurch, for Defendant