MARCONEE SEAFOODS NZ LIMITED v CANISTER FISHING COMPANY LIMITED [2013] NZHC 3178

MARCONEE SEAFOODS NZ LIMITED v CANISTER FISHING COMPANY LIMITED [2013] NZHC 3178 [29 November 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-2672[2013] NZHC 3178BETWEEN MARCONEE SEAFOODS NZ LIMITEDPlaintiffAND CANISTER FISHING COMPANYLIMITEDDefendantHearing: 13 November 2013Appearances: J W G Grant for Defendant in supportJ D Turner for Plaintiff to opposeJudgment: 29 November 2013JUDGMENT OF ASSOCIATE JUDGE BELLThis judgment was delivered by me on 29 November 2013 at 4:45pmpursuant to Rule 11.5 of the High Court Rules....................................Registrar/Deputy RegistrarSolicitors:McVeagh Fleming (J D Turner/A G Carbon) Auckland, for PlaintiffJT Law (J W G Grant) Wellington, for Defendant[1] Marconee Seafoods NZ Ltd has applied for Canister Fishing Company Ltd to be put into liquidation. It says that it is a creditor of Canister for $110,400 for 3,000 kilograms of crayfish annual catch entitlement it supplied to Canister in the 2012/2013 fishing year. Marconee relies on a statutory demand served on Canister on 7 June 2013, which Canister did not comply with.[2] Canister has applied to stay this proceeding. It says that it did not agree to buy the annual catch entitlement from Marconee. Even if it is liable for crayfish annual catch entitlement, the price claimed by Marconee is too high. It is entitled to claim deductions off the debt. It adds that it is solvent.[3] Marconee Seafoods NZ Ltd is a licensed fish receiver. Although it has its registered office in Wellington, it operates from Masterton. Until 2012 its chief executive was Mr Brendan Meo. He died of cancer in August 2012. Since then, Mr Richard Hitchings, also a director, has had effective control and management of the company.[4] As a fish receiver, Marconee buys fish landed by fishermen. It also provides seasonal finance to commercial fishermen. Fishermen require annual catch entitlements as a condition of holding a fishing permit. Marconee provides annual catch entitlements to fishermen. It holds some quota in its own right and also leases parcels of annual catch entitlements from quota-holders. It combines various parcels of annual catch entitlements received from quota-holders to transfer to fishermen.[5] Canister Fishing Company Ltd has its registered office and its base on Pitt Island in the Chatham Islands. Mr Robert Lanauze (also known as Ruka) is a director of the company. He is one of those hardy fishermen who work between Stewart Island and the Outlook for Tomorrow. Canister fishes for both blue cod and crayfish. It owns eight tonnes of blue cod quota but does not have any quota for crayfish. Mr Lanauze has been fishing for over 30 years. His wife is also a director and shareholder of Canister. Mr Lanauze is not strong on paper-work. He says that he is dyslexic. He is not good on computers. His wife tends to look after thepaperwork side of the business, but at the relevant times in this case she was on the mainland.The approach under r 31.11[6] Canister Fishing New Zealand Ltd applies under r 31.11:Power to stay liquidation proceedings(1) If an application for putting a company into liquidation is made under rule 31.3, the defendant company, or, with the leave of the court, any creditor or shareholder of that company or the Registrar of Companies, may, within 5 working days after the date of the service of the statement of claim on the defendant company, apply to the court—(a) for an order restraining publication of an advertisement required by rule 31.9 or any other information relating to that statement of claim; and(b) for an order staying any further proceedings in relation to the liquidation.(2) The court must treat an application under subclause (1) as if it were an application for an interim injunction and, if it makes the order sought, it may do so on whatever terms the court thinks just.(3) The inherent jurisdiction of the court is not limited by this rule.[7] In Taxi Trucks Ltd v Nicholson1 the Court of Appeal set out the approach on applications for a stay:It has long been settled that the Court may under its inherent jurisdiction restrain or stay winding-up proceedings that are an abuse of the Court's process. The abuse consists of using the winding-up procedure, involving as it does the advertising of the petition with the likely consequence of serious commercial damage to the company, as a means of obtaining payment of a genuinely disputed debt. For in general, a winding-up order will not be made where there is a genuine dispute. This is not an inflexible rule, as was stated in and illustrated by Bateman Television Ltd v Coleridge Finance Co Ltd[1969] NZLR 794 (CA), [1971] NZLR 929 (PC); and in this respect the law in New Zealand differs somewhat from that in England, which is more unbending. The principles to be applied appear succinctly in this passage of the judgment of this Court in Exchange Finance Co Ltd v Lemmington Holdings Ltd [1984] 2 NZLR 242 at p 245, which follows a reference to the judgments in the Bateman case:1 Taxi Trucks Ltd v Nicholson [1989] 2 NZLR 297 (CA) at 299."Obviously the jurisdiction to restrain winding-up proceedings has to be exercised with that settled New Zealand law in mind. We think that the governing consideration can only be whether presenting or proceeding with a petition savours of unfairness or undue pressure. Whether that stigma attaches to a petition must depend on the particular facts. In many cases where there appears to be a genuine and substantial dispute about the present existence of a debt it will be right to grant an injunction. But there will be cases sufficiently out of the ordinary to justify a Judge in holding his hand."... The applicant must show a genuine and substantial dispute as to the existence of the debt, and that it would be unfair - as it usually would be - to allow that dispute to be resolved by the Companies Court rather than by action commenced in the usual way. That assessment must be made on the material before the Court, and not on the hypothesis that some other material, which has not been adduced, might nonetheless be available.[8] That case was decided before the company law reforms of 1993.2 They replaced the old notice under s 218 of the Companies Act 1955 with the statutory demand and provided for applications to set aside statutory demands. These days companies that wish to contest a statutory demand will typically apply to set aside the demand under s 290 of the Companies Act 1993. So stay applications are now less common. But they may still serve a useful purpose, as when the time for applying under s 290 has expired.3[9] While it is generally inappropriate to allow a liquidation application when theapplicant's debt is the subject of a genuine dispute, there may be cases where anapplication may proceed notwithstanding the dispute. Section 288(5) of the Companies Act allows for this:288 Evidence and other matters...(5) An application to the Court for an order that a company be put into liquidation on the ground that it is unable to pay its debts may be made by a contingent or prospective creditor only with the leave of the Court; and the Court may give such leave, with or without conditions, only if it is satisfied that a prima facie case has been made out that the company is unable to pay its debts.[10] Where the debt claimed is subject to genuine and substantial dispute, the claimant may be a prospective creditor under s 288(5). A prospective creditor may2 Companies Amendment Act 1993 and Companies Act 1993.3 Heron's Flight Ltd v NZ Properties International Ltd [2012] 1 NZLR 424 (HC).apply for a liquidation order on the grounds that the company is unable to pay its debts, but it will only be able to do so with leave of the court and upon satisfying the court that there is a prima facie case that the company is able to pay its debts. In this case Marconee has not applied for leave under s 288(5). Its case is that it does notneed to seek leave, because there is no dispute as to Canister's liabilities.[11] In applications for stay under r 31.11 the usual focus is on whether the plaintiff has standing to apply for an order. So in Anglian Sales Ltd v South Pacific Manufacturing Co Ltd, the Court of Appeal said:4These considerations, where a petition is founded on the alleged inability of a company to pay its debts under s 218 of the Companies Act 1955, arerelated to the creditor's locus standi to present his petition by virtue of the company's neglect to pay the amount alleged to be owing to him.Under the equivalent English section ... it has been held that where a petition is based on a debt disputed on substantial grounds, the existence of thedispute is likely to prevent the petitioner meeting the status of "creditor"within the meaning of the relevant provision. ... In other words, as a matter of statutory construction, in that situation, the petitioner cannot be said to be a creditor; he has no locus standi as such ... Furthermore, because the Companies Court will not define the issue of bona fide disputed debt on a petition for winding-up, such a petition will be restrained by the court as an abuse of its processes. ...[12] The Court also noted that if a petition is founded on a debt for a sum which would entitle a creditor to a winding-up order, the claim that a lesser amount only is owed will not stop the petition if the lesser sum is sufficient to found the petition.[13] The Court of Appeal dealt with the question of a counterclaim for an amount alleged to be in excess of the debt claimed by the creditor. It held that such a counterclaim does not go to the standing of a creditor to bring an application butonly goes to the court's exercise of the discretion at a hearing of the application.McMullin J said:5It follows that where the existence of the debt on which the petition is founded is unchallenged it cannot be said with the same confidence that the proceedings amount to an abuse of process merely by reason of an alleged counterclaim. Where therefore the debtor, while admitting the debt, advances a counterclaim in an attempted answer to a petition, the latter4 Anglian Sales Ltd v South Pacific Manufacturing Co Ltd [1984] 2 NZLR 249 (CA) at 250–251.5 At 252.should normally proceed to determination, with the court retaining a discretion as to whether it ultimately makes a winding-up order or not.[14] Greig J said:6Other considerations apply when the debt is not disputed in whole, as is the situation in this case, but there is a cross-claim or counterclaim which isalleged to equal or exceed the amount of the creditor's debt. In that case thecreditor is still a creditor. On the hearing of the petition it remains a matter of discretion as to whether the petition will be granted or not. ... It is not a discretion which is invariably or inevitably exercised against the petitioner. That being the case it cannot be said in these proceedings that the petitioner is bound to fail even though there may be some doubt as to whether the petition will be granted. That, however, is a matter for the exercise of thecourt's discretion on the hearing of the petition and raises differentconsiderations to those which apply in the hearing of a motion to restrain, such as this.[15] In this regard, an application for a stay under r 31.11 has a narrower scope than an application to set aside a statutory demand under s 290(4)(b) on the grounds of a counterclaim, set-off or cross demand. Under the section a cross demand may be grounds for setting aside even if it does not amount to a set off. On a stay application a set off may be a ground for a dispute as to liability as it goes to a substantive defence, but a counterclaim or cross demand does not.[16] Because the focus of a stay application is whether the plaintiff has standing as a creditor, a claim that the defendant is solvent is usually not a stand-alone ground for granting a stay. Evidence of solvency may, however, go to bolster evidence that the defendant is genuine in disputing its liability for the debt claimed by the plaintiff. In AMC Construction Ltd v Frews Contracting Ltd,7 the Court of Appeal held that solvency could rarely be a stand-alone ground to set aside a statutory demand. The same approach applies here.Annual catch entitlements[17] Each year annual catch entitlements are allocated to owners of individual transferable quotas. Rock lobster (crayfish) is a quota species. Under s 74 of the Fisheries Act 1996, fishermen are required to hold a minimum annual catch6 At 255.7 AMC Construction Ltd v Frews Contracting Ltd [2008] NZCA 389, (2008) 19 PRNZ 13, (2009) 10 NZCLC 264,450.entitlement at the time they take any fish for the species listed in Schedule 8 of the Fisheries Act. Under Schedule 8 the minimum holding of annual catch entitlement for crayfish in the Chatham Islands is 3,000 kilograms. Commercial fishermen who do not own quota themselves may acquire annual catch entitlements from quota- holders or from those who deal in annual catch entitlements such as Marconee. Section 128 of the Fisheries Act provides for an annual catch entitlement register, which shows information as to annual catch entitlements held by any person at any time, the amounts of annual catch entitlement allocated under certain provisions and held by any person, transfers of annual catch entitlements with the names of the transferors and transferees, the amounts transferred, the time and date of registration and similar information. Sections 155-160 of the Fisheries Act 1996 provide for the registration of transactions, including transfers of annual catch entitlements. The system is now administered by FishServe Commercial Fishery Services Ltd (FishServe). If a fisherman catches more fish than he holds annual catch entitlements for, the Ministry of Primary Industries can demand payment of deemed values under s 76 of the Fisheries Act. The calculation whether a fisherman has landed more catch than he has annual catch entitlement for is made monthly. If his catch exceeds the entitlement he holds, he has 20 days to obtain further catchentitlement or is otherwise required to pay the "deemed value" amount of theshortfall. If a fisherman owes more than $1,000 in deemed value amounts, his permit is suspended.[18] When a fisherman obtains annual catch entitlements from a licensed receiver, as a matter of business practice the fisherman will land catch of the stock for that entitlement to the receiver. The transactions are documented through buyer- generated invoices. Examples of buyer-generated invoices show fish receivers making deductions from payments to fishermen for catch landed on account of sums owing to the receiver for annual catch entitlement transferred.[19] Marconee and Canister had been dealing with each other for a number of years. From 2006 Marconee had transferred to Canister annual catch entitlements to allow it to catch crayfish in the Chathams. During these years, Marconee also operated an advance account with Canister under which it made seasonal advances to allow Canister to meet business expenses such as wages, repairs, maintenance andbait. These advances were repaid out of the proceeds of catches during the fishing year. Traditionally Marconee did not charge interest - although the charging of interest is contentious in this case.Did Canister agree to take crayfish annual catch entitlements in 2012?[20] Marconee says that just as it had sold 3,000 kilograms of crayfish annual catch entitlements to Canister in the years before, in 2012 it sold the same catch entitlement to Canister. Mr Lanauze disputes this. He says that it was normal for him to meet Mr Meo each year and to plan for the coming fishing year. They woulddiscuss Canister's advance account and agree on prices for fish landed. He says thatat the 2012 meeting they decided that Canister would target blue cod first. The reason he gives for that was that blue cod prices were high in 2012 at $4.00 per kilogram and not much crayfish was caught in the first part of the season. Mr Meo was to obtain an additional nine tonnes of blue cod annual catch entitlements. At the time Mr Lanauze was travelling frequently to the mainland because his wife and son were there. It made sense to fish blue cod first because it did not require the same effort as crayfishing, and also because of the higher prices and the travel. His evidence shows that he did land blue cod to Marconee, which issued an invoice for blue cod landed.[21] He says that Marconee did transfer 3,000 kilograms of crayfish annual catch entitlements in June 2012, but he denies that he or anyone in Canister requested it. He also says that Canister did not need crayfish annual catch entitlements from Marconee at the time and was later able to source annual catch entitlements from Caroline Fishing Company Ltd, a Lanauze family company.[22] Marconee does not have direct evidence that in 2012 it entered into an agreement with Canister to supply it with 3,000 kilograms of crayfish annual catch entitlements. Its case is that the person who entered into the agreement with Canister is Mr Meo, but he has since died. He transferred the crayfish annual catch entitlement to Canister, but otherwise left no record of having made any such agreement with Canister. Instead, Marconee relies on circumstantial evidence:(a) Marconee had supplied Canister with crayfish annual catch entitlements for the last six years and it was consistent with that course of dealing for it to supply crayfish annual catch entitlements for 2012.(b) Mr Meo did arrange the transfer of the annual catch entitlements and he would not have done so unless there was an agreement.(c) Canister needed at least 3,000 kilograms of crayfish annual catch entitlement at the outset of the season to be entitled to fish for crayfish. It could only satisfy that requirement by recourse to the annual catch entitlement Marconee had transferred to it during the season. The other annual catch entitlement held by Canister was not enough to cover all the crayfish it caught. It was only able to catch all its crayfish lawfully, because it held and used the annual catch entitlement transferred by Marconee.(d) Canister knew that Marconee had transferred the crayfish annual catch entitlement to it.(e) If a commercial fisherman does not require the annual catch entitlement which has been transferred to him, it is a common practice to return the annual catch entitlement. Canister did not return this annual catch entitlement.(f) Mr Hitchings rang Mr Lanauze from time to time during 2012 enquiring when Canister would start fishing and landing crayfish. Mr Lanauze always replied, "We will start soon".[23] Canister did not land crayfish to Marconee. Marconee alleges that Canister was free-loading on its annual catch entitlement.[24] To add to its case that Canister is stalling for payment, Marconee refers toCanister's silence to a letter of demand sent by Marconee's lawyers in February 2013and the failure to apply to set aside the statutory demand after it was served on 7 June 2013.[25] Matters in rebuttal for Canister are:(a) Mr Lanauze says that when Mr Hitchings did enquire when Canister would start landing crayfish he replied that Canister would not land crayfish until Marconee had paid Canister amounts it owed Canister. His evidence is that Marconee had not paid Canister for crayfish landed in 2011 (although Mr Hitchings disputes that).(b) Canister did not land crayfish to Marconee because it had not agreed to take crayfish annual catch entitlement from Marconee.(c) Any use of Marconee's annual catch entitlement was inadvertent andnot significant.(d) In the past Mr Meo and Mr Lanauze agreed on the price for the annual catch entitlement. Here Marconee has claimed a reasonable price for the catch entitlement. Its inability to show an agreed price goes against any agreement.(e) Part of Mr Lanauze's conduct can be explained on the basis that hewas not good at paper-work, he did not have the time or know how to operate a computer, did not know how to make transfer of annual catch entitlements and, to a large extent, he relied on the local fisheries officer to alert him if he needed additional annual catch entitlement.[26] Marconee has not issued Canister with an invoice for the supply of the 3,000 kilograms of crayfish annual catch entitlement. If it had issued an invoice, that would have been consistent with its belief that it had entered into an agreement to supply the annual catch entitlement to Canister. Although the Goods and ServicesAct 1985 provides for tax invoices,8 its absence is not a defence to Marconee's rightsto enforce the debt if there is one. The absence of an invoice can be explained by theparties' practice of charging for annual catch entitlement by way of contra entries in Marconee's buyer-created invoices. In this season that did not happen because Canister did not land any crayfish to Marconee.[27] I do not draw any adverse inferences against Canister on account of Mr Lanauze's failure to respond to steps taken by Marconee through its lawyers.There is enough in the evidence to show that Mr Lanauze may be a practical man, but he is not one for staying on top of his paper-work.[28] From a legal point of view, the failure to take steps to apply to set aside the statutory demand has resulted in a presumption of insolvency arising under s 288 of the Companies Act. But, that aside, there is no legal barrier to Canister contesting liability to the debt. Instead Marconee says that on the facts an inference can bedrawn from Canister's failure to apply to set aside the statutory demand. That needs to be put into context. The service of a statutory demand on Pitt Island must be unusual. Marconee makes play of the trouble it was put to in serving the demand. Equally, it must be difficult for anyone served with a statutory demand on Pitt Island to be able to respond in a timely way. Mr Lanauze did not ignore it.[29] For me to accept the argument for Marconee that its circumstantial evidence is enough to prove an agreement means that I must reject the evidence of Mr Lanauze. There is a conflict in the evidence between Marconee and Canister on the question whether the companies did enter into an agreement for crayfish annual catch entitlement in 2012. The evidence of Mr Lanauze cannot be put to one side as implausible. The well-known dictum of Lord Diplock in Eng Mee Yong v Letchumanan does not apply in this case.9 Only a full hearing, preceded by discovery and other interlocutory steps, and with witnesses subject to cross- examination will establish whether there was in fact an agreement dated 2012 for Marconee to transfer a crayfish annual catch entitlement to Canister. On the8 Goods and Services Tax Act 1985, ss 24 and 24BA.9 Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at 341.evidence available, I cannot resolve the matter in this proceeding. Canister has established that there is a genuine and substantial dispute as to the agreement.Is the price charged by Canister reasonable?[30] Marconee accepts that it cannot prove that a particular price was agreed with Canister for the annual catch entitlement. It has charged for the annual catch entitlement at $32.00 plus GST per kilogram. It says that that is a reasonable price to charge in the absence of agreement as to a specific price. Canister disputes that. It says that that price is too high. Marconee says that it reached the price of $32 as an average for all its leased annual catch entitlement for that season. On the other hand, Mr Lanauze has put in evidence invoices from other fish receivers for the 2012/2013 fishing year, showing prices charged for crayfish annual catch entitlement. They range from $20.00 plus GST per kilogram to $28.00 plus GST per kilogram. Mr Lanauze accepts that $28.00 plus GST per kilogram would be a reasonable price.[31] In this proceeding I cannot resolve the differences between the parties as to price. I find that there is a genuine and substantial dispute as to the amount ofMarconee's claim. That dispute ought properly to be determined by way of anordinary civil proceeding.Did Canister receive an incontrovertible benefit?[32] Marconee says that even if it cannot prove that it entered into a contract with Canister to supply it with crayfish annual catch entitlement, it indisputably did supply the annual catch entitlement and Canister did benefit from that supply. It makes a free acceptance claim, presumably based in quantum valebat. The basis for such a claim can be seen in the judgment of Miller J in Cassels v Body Corporate 86975:10The elements of a quantum meruit claim are threefold: the plaintiff provided services for the defendant; the plaintiff wanted payment and made that reasonably apparent to the defendant; and the defendant freely accepted the services or at least acquiesced in their provision. The authorities recognise afurther class of quantum meruit claims involving "incontrovertible benefit".10 Cassels v Body Corporate 86975 (2007) 5 NZ ConvC 194,466 (HC) at [43].A defendant may be required to pay in certain circumstances, although there was no request and nothing to show that the defendant ought to have appreciated that payment was wanted. Relief appears to be limited to cases in which it is clear either that the plaintiff saved the defendant an expensethat it would necessarily have incurred or that the plaintiff's work resulted inthe defendant making a realisable financial gain: Goff and Jones at [1-023].[33] In this case, Marconee says that there was incontrovertible benefit, becauseduring the fishing year, Canister's ability to take crayfish lawfully depended on thecrayfish annual catch entitlement that Marconee had transferred to it. In parts of theyear, Canister did not hold sufficient annual catch entitlement without Marconee's3,000 kilograms. It shows that at times of the year the amount of crayfish landed by Canister exceeded the amount of non-Marconee annual catch entitlement Canister held. Canister could only lawfully land crayfish because of the Marconee annual catch entitlement it held.[34] Canister concedes the point to the extent of 233 kilograms. To that end it haspaid the sum of $7,502.60 into its solicitor's trust account to cover a payment for233 kilograms of annual catch entitlement at a price of $28.00 plus GST per kilogram.[35] Marconee goes further. It says that Canister's use of the annual catch entitlement was more extensive. Marconee says that Canister's incontrovertiblebenefit was 650 kilograms of annual catch entitlement. It identifies a further 417 kilograms in addition to the 233 kilograms conceded by Canister. These figures arederived from the FishServe record, showing Canister's annual catch entitlement andcatch information for the 2012/2013 fishing year. By January 2013 Canister had landed 9,609 kilograms of crayfish. At that time the annual catch entitlement recorded transferred to it was 12,192 kilograms, including the 3,000 kilogramstransferred by Marconee. If it had not held Marconee's annual catch entitlement, itwould have fallen short on the required annual catch entitlement by 417 kilograms.[36] I accept this analysis. Canister did not have an effective answer to it. The value of the incontrovertible benefit received by Canister is at least $20,930.00 being the sum of 650 kilograms of annual catch entitlement at $28.00 per kilogram plusGST. The amount of the benefit will be higher if the reasonable value of the annual catch entitlement is more than $28.00 per kilogram.Can Canister claim any set-offs?[37] Canister claims set-offs for interest charged on its advance account, and for being double-charged for annual catch entitlement in the 2011/2012 fishing year.[38] Marconee has put in evidence its ledger showing transactions on Canister'sadvance account with it. That ledger shows a nil balance. Canister says that Marconee wrongly charged it interest. The entries of interest in the ledger are:30 September 2011 $9,180.0031 March 2012 $650.0031 August 2012 $945.42$10,775.42[39] Canister has shown an arguable basis for claiming that it was wrongly charged interest on the advance account. The ledger put in evidence from 1 April 2006 to 11 March 2013 shows that on the whole there were no charges for interest. Marconee does not seriously contend that it was entitled to charge interest. Canister has an arguable claim against Marconee that it was wrongly charged interest totalling $10,775.42.[40] Canister has also shown that it was arguably double-charged for crayfish annual catch entitlement in the 2011/2012 fishing year. Mr Lanauze explains that in that year Canister over-fished its annual catch entitlement for March 2012 and it required further catch entitlement to top-up. Mr Meo of Marconee sourced annual catch entitlement from a Mr James Ryan and transferred it to Canister. He debited Canister's advance account with the sum of $9,760.05. Mr Lanauze says thatMarconee also deducted charges for the annual catch entitlement from landings to Marconee, as well as debiting the advance account. In particular, he takes issue with a debit of $5,352.10.[41] The evidence of Mr Lanauze on this cannot be discounted out of hand. The interest charged and the double-charge for annual catch entitlement total $16,127.52.[42] These claims totalling $16,127.52 can be set-off against Marconee'sentitlement for conferring an incontrovertible benefit in the sum of $20,930.00. They are liquidated sums and are matters of legal set-off, not just cross demands or counterclaims. When they are taken into account, there is an outstanding balance of $4,802.48.Outcome[43] The point I have reached is that the indisputable debt for which Marconee isentitled to maintain its liquidation application is $4,802.48. Given Canister'sassertions of its solvency, I expect it to be able to pay that sum. If it is able to pay that sum, there is no point in allowing this proceeding to continue.[44] I make these orders:(a) Upon Canister paying Marconee the sum of $4,802.48, this proceeding will be stayed;(b) If Canister does not pay Marconee the sum of $4,802.48 by 20 December 2013, Marconee will be entitled to continue with this proceeding. It may advertise the proceeding under r 31.9 and ask for the case to be listed in the next liquidation list.[45] Costs have still to be determined. I invite the parties to confer as to costs. If they are not able to agree, memoranda may be filed. The party filing second should file its memorandum within 5 working days of the earlier party. I will decide costs on the papers............................................Associate Judge R M Bell