NEW ZEALAND ASSOCIATION OF CREDIT UNIONS v FINZSOFT SOLUTIONS (NEW ZEALAND) LTD [2019] NZHC 3198

NEW ZEALAND ASSOCIATION OF CREDIT UNIONS v FINZSOFT SOLUTIONS (NEW ZEALAND) LTD[2019] NZHC 3198 [4 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-002618[2019] NZHC 3198BETWEEN NEW ZEALAND ASSOCIATION OFCREDIT UNIONSApplicantAND FINZSOFT SOLUTIONS (NEWZEALAND) LIMITEDRespondentHearing: 4 December 2019Appearances: T Fitzgerald and S Cooper for ApplicantW Irving and M Brengauz for RespondentJudgment: 4 December 2019ORAL JUDGMENT OF WYLIE J[Ex parte interim relief]Solicitors/counsel:Bell Gully, AucklandRussell McVeagh, AucklandThe application[1] The applicant, the New Zealand Association of Credit Unions, trading as Co-op Money NZ (Co-op Money), seeks an interim order on an ex-parte basis. It seeksan order that the respondent, Finzsoft Solutions (New Zealand) Ltd (Finzsoft) not takeany steps to implement a notice of termination of a master services agreement betweenCo-op Money and Finzsoft pending further order of the Court or an arbitral tribunalconstituted under the master services agreement.[2] Notwithstanding that the order is sought on an ex-parte basis, the applicationwas served on Finzsoft's solicitors. Finzsoft has not as yet taken any formal steps butits solicitors have engaged in the matter on a limited basis. I am grateful to them forthat.Background[3] The background is relatively straightforward.[4] Co-op Money is an association of credit unions. It provides banking andpayment product services to credit unions (both members and non-members) and toother customers. It provides these services by purchasing them from third partysuppliers on a wholesale basis and then reselling them to its members and customers.Its members and customers then use those services to provide services for their owncustomers.[5] The application relates to the provision of mobile banking services. Co-opMoney purchases these services from Finzsoft under a master services agreement. Itcomprises two documents – an agreement dated 31 March 2014 and a furtheragreement dated July 2015. Both govern the parties' relationship. Finzsoft providesmobile banking services to Co-op Money under the agreements. Co-op Money resellsthe mobile banking services to its members and customers. It currently supplies themobile banking services to six credit unions; three are members and three are not.These credit unions then provide the services to their retail banking customers. Themobile banking services are accessed via an "app" that customers download onto theirmobile devices. The app provides the customers of each of the credit unions with anumber of functions, including access to bank account information, account balanceinformation, automatic payment information, money transfer options and accountstatement information. There are approximately 10,000 retail customers who use themobile app regularly. They log in around 340,000 times per month. The affidavitevidence suggests that the mobile app has become a "channel of choice" for asignificant number of the customer credit unions' "Mum and Dad" customers.[6] Co-op Money has experienced a number of membership changes over theyears. When the first master services agreement was signed in March 2014, it had 17members. In July 2015, when the new master services agreement was signed, it had13 members. In March 2019, when it gave notice renewing the master servicesagreement, it had 10 members.[7] Co-op Money primarily raises equity by issuing base capital notes. In aneconomic sense, such notes are similar to shares. They rank equally betweenthemselves and rank after creditors in a winding up.[8] Recently, one of Co-op Money's members, Credit Union Baywide (Baywide)entered into a series of transactions with the other then members of Co-op Money,which resulted in Baywide acquiring 100 per cent of Co-op Money's base capitalnotes. Prior to this acquisition, Co-op Money had seven members. Following theacquisition, four members resigned. As a result, there are presently three members ofCo-op Money – Baywide and two others. The other two members have entered into aseparate agreement with Baywide whereby they have agreed to resign from Co-opMoney if they are requested to do so. At present however they retain their membershipand the associated voting rights.[9] Co-op Money is subject to the Friendly Societies and Credit Unions Act 1982.Section 106(8) of that Act provides that on every matter which is determined by vote,every member shall be entitled to vote, and shall have one vote only.[10] It is clear from the affidavits filed that the Baywide acquisitions are a first stepin a restructuring of Co-op Money into a corporate organisation.[11] The acquisitions by Baywide were announced to the market on 22 November2019. On the same day, Finzsoft gave notice terminating the master servicesagreement effective as from 12.00 pm on 29 November 2019.[12] Notice was given pursuant to clause 15.4(d) in the first master servicesagreement. It provides as follows:15.3 Finzsoft's right to terminate: Finzsoft may terminate this Agreementby written notice to the Customer if: (d) there is a material change in the effective control of the Customer oreffective management of the Customer is transferred to any person who doesnot exercise such control or management as at the date of this Agreement;[13] Co-op Money's application was filed on 29 November 2019. After consideringthe papers, I convened a telephone conference with both Mr Fitzgerald for Co-opMoney, and Mr Irving, for Finzsoft. As a result of that conference, Mr Irving, onbehalf of his client, undertook to the Court and to Co-op Money, that it would not takeany steps to implement the termination notice it has given under the master servicesagreement between the parties pending further order of the Court. I recorded thatundertaking in a minute issued on 29 November 2019, and I directed that there was tobe a hearing today – 4 December 2019 – to further consider the issue.[14] In the interim, Mr Fitzgerald has filed further affidavits, confirming that Co-op Money has funds available either itself, or from Baywide, to meet the undertakingas to damages offered by it in support of the application. Mr Fitzgerald advised methat an undertaking by Baywide to support Co-op Money if necessary has been signedby Baywide. He told me that the undertaking will be signed by Co-op Money latertoday. Mr Irving responsibly accepted that the documents demonstrate that Co-opMoney has the ability to meet its undertaking as to damages.[15] Against this background, I turn to consider whether or not I should grant theinterim relief sought by Co-op Money.Dispute resolution provisions[16] The first master services agreement puts in place provisions for disputeresolution. In short, a party claiming a dispute gives written notice to the other, whothen has five business days to designate its representative to attend a meeting with aperson of similar authority from the other party. The parties' representatives arerequired to meet promptly, to discuss the matter and to negotiate in good faith toresolve the dispute. If no agreement is reached within 20 business days, either partyto the dispute is entitled to give notice in writing to the other requiring that the despitebe finally resolved by arbitration under the Arbitration Act 1996 (the Act).[17] There are existing disputes between Co-op Money and Finzsoft. In particular,there is a dispute over the moneys payable by Co-op Money to Finzsoft under themaster services agreements. That dispute has progressed through the disputeresolution provisions and is now subject to arbitration, due to proceed to hearing on10 and 13 December 2019. This existing arbitration does not extend to the validity ofthe notice of termination given by Finzsoft.[18] Co-op Money, by letter dated 28 November 2019, gave notice under the firstmaster services agreement invoking the dispute resolution processes in relation to thenotice of termination given by Finzsoft. Finzsoft replied on the same day advising,inter alia, that it will write to Co-op Money "in relation to its authorised representativeas required by clause 14.1". As I understand it from counsel, Finzsoft has not as yetnominated its authorised representative, but the five day period within which it isrequired to do so, does not expire until tomorrow. For obvious reasons, an arbitratorhas not as yet been appointed to consider the dispute in relation to the notice oftermination given by Finzsoft.[19] For the sake of completeness, I record that Co-op Money has also given noticeto terminate the agreements. That notice was given pursuant to clause 15.1 of the firstagreement. It comes into effect on 28 June 2020.Jurisdiction to grant interim measures[20] Clause 14.4 of the master services agreement provides as follows:Condition precedent: subject to any right any party may have to apply to acourt for any interim or preliminary relief in respect of the dispute, completionor termination of a negotiation as set out in this section shall be a conditionprecedent at the commencement of arbitration under clause 14.3.[21] As can be seen, the first master services agreement expressly contemplates thatthis Court has jurisdiction to grant interim or preliminary relief. This is consistentwith the Act.[22] Under the Act, and pursuant to s 6(1)(a), the provisions of sch 1 apply in respectof arbitrations. This Court's power to grant interim relief under the Act derives fromart 9(1) in sch 1 to the Act. It provides as follows:(1) It is not incompatible with an arbitration agreement for a party torequest, before or during arbitral proceedings, from a court an interimmeasure and for a court to grant such measure.[23] As I noted in an earlier judgment,1 the purpose of an interim measure is tomaintain or restore a state of affairs pending the determination of the underlyingdispute. It is a holding or temporary order.2 The words "interim measure" are definedin the Act as follows:interim measure means a temporary measure (whether or not in the form ofan award) by which a party is required, at any time before an award is madein relation to a dispute, to do all or any of the following:(a) maintain or restore the status quo pending the determination of thedispute:(b) take action that would prevent, or refrain from taking action that islikely to cause, current or imminent harm or prejudice to the arbitralproceedings:(c) provide a means of preserving assets out of which a subsequent awardmay be satisfied:(d) preserve evidence that may be relevant and material to the resolutionof the dispute:(e) give security for costsThe reference to the status quo in para (a) of the definition is relevant in this case.1 Smith Elements & Controls Ltd v EPI Group Ltd [2018] NZHC 336.2 Safe Kids in Daily Supervision Ltd v McNeill [2012] 1 NZLR 714 (HC) at [26]–[27].[24] Notwithstanding art 9, the Court will be loath to grant interim relief unless itis either impossible or impracticable for the arbitral tribunal to deal with the matter.The purpose of Court imposed interim measures is to compliment and facilitatearbitrations, and not to encroach on the powers of arbitrators or act as a substitute forthem.3 The Court and the arbitral tribunal are not "jurisdictional competitors".4[25] Commentators have suggested that the Courts should defer to the arbitraltribunal unless there are compelling reasons for it to grant the interim measuressought.5 It may, for example, be appropriate for a Court to grant interim measureswhere the tribunal has not been formed, where the interim measures are sought againsta non-party (an arbitral tribunal has no power to make interim orders against a non-party),6 where it is sought to enforce interim measures outside the jurisdiction, orwhere the place of the arbitration is in a foreign jurisdiction.7 It is only if the situationdemands that the Court should grant an interim measure of protection, as opposed toan arbitrator.8[26] The Courts have a discretion whether or not to grant an interim measure andthey will generally be reluctant to express views on the merits, or take steps that mightbe seen as intruding on the arbitrator's domain.93 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, [1993] 1 All ER664 (HL) at 688; Sensation Yachts Ltd v Darby Maritime Ltd HC Auckland CIV-2005-404-1908,16 May 2005 at [22].4 Smith Elements & Controls Ltd v EPI Group Ltd, above n 1; David AR Williams and AmokuraKawharu Williams & Kawharu on Arbitration (2nd ed, LexisNexis, Wellington, 2017) at [9.4.3].5 At [9.4.3].6 Worldwide Holidays Ltd v Liu [2018] NZHC 3443 at [40].7 Williams and Kawharu, above n 4, at [9.4.4].8 David A R Williams Laws of New Zealand Arbitration (online ed) at [36].9 Coastal Tankers Ltd v Port Wellington Ltd HC Wellington CP32/99, 18 February 1999; MarnellCorrao Associates Inc v Sensation Yachts Ltd (2000) 15 PRNZ 608 (HC). Here, interim measureswere granted because, although the arbitral tribunal had been appointed, its ability to provideurgent interim measures was questionable, since the dates on which the tribunal would be able toconvene had not been settled, and secondly, the hearing before the Court had occupied two days,and the Court decided not to require the parties to go through the time, expense or re-argue theapplication. The Court also took the view that the nature of the application did not have the effectof usurping the decision-making power of the arbitral tribunal; Mike Pero Real Estate Ltd vTauranga Realty Ltd [2015] NZHC 1162; Pathak v Tourism Transport Ltd [2002] 3 NZLR 681(HC) at [40]; Williams and Kawharu, above n 4, at [9.6]; Phillip Green and Barbara Hunt Green& Hunt on Arbitration Law & Practice (online looseleaf ed, Thomson Reuters, 2017) at[ARSch1.17A.02].[27] In this case I am being asked to grant interim relief by restraining Finzsoft fromacting pursuant to the notice of termination it has given pending further order of theCourt or such arbitral tribunal as shall be appointed. As yet, no arbitrator has beenappointed to deal with the dispute in relation to the termination notice. The parties areonly at the first stage in implementing the disputes resolution process they have agreedto be bound by. I do not consider that if I grant interim relief, I will be usurping thedecision making power of any arbitral tribunal that might ultimately be appointed ifthe dispute cannot be resolved by negotiation. Any risk in that regard can beminimised if I am careful to avoid expressing a view on the merits of the dispute. Theinterests of a large number of third parties are in play – member credit unions and non-member credit unions, and in both cases, their customers. They will not be parties toany arbitration. In my judgment, this is a situation where the Court should not be shywhen exercising the power conferred on it under both the master services agreementsand the Act.Should interim relief be granted in this case?[28] Relevantly, article 9(2) of the first schedule to the Act provides as follows:(2) For the purposes of paragraph (1), the High Court or has the samepowers as an arbitral tribunal to grant an interim measure under article17A for the purposes of proceedings before that court, and that articleand article 17B apply accordingly subject to all necessarymodifications.[29] Articles 17A and 17B provide as follows:17A Power of arbitral tribunal to grant interim measureUnless otherwise agreed by the parties, the arbitral tribunal may, at the requestof a party, grant an interim measure.17B Conditions for granting interim measure(1) If an interim measure of a kind described in subparagraph (a),(b), or (c) of the definition of that term in article 17 isrequested, the applicant must satisfy the arbitral tribunalthat—(a) harm not adequately reparable by an award ofdamages is likely to result if the measure is notgranted; and(b) the harm substantially outweighs the harm that islikely to result to the respondent if the measure isgranted; and(c) there is a reasonable possibility that the applicant willsucceed on the merits of the claim.(2) If an interim measure of a kind described in subparagraph (d)of the definition of that term in article 17 is requested, theapplicant must satisfy the arbitral tribunal of the mattersspecified in paragraph (1)(a) to (c), but only to the extent thatthe arbitral tribunal considers appropriate.(3) If an interim measure of a kind described in subparagraph (e)of the definition of that term in article 17 is requested, theapplicant must satisfy the arbitral tribunal that the applicantwill be able to pay the costs of the respondent if the applicantis unsuccessful on the merits of the claim.(4) A determination by the arbitral tribunal on the matterspecified in paragraph (1)(c) does not affect its discretion tomake any subsequent determination.[30] The application falls to be determined by applying the tests set out in art 17B.10The approach taken by the Court has been to reverse the considerations specified inart 17B(1) and deal first with whether or not there is a reasonable possibility that theapplicant will succeed on the merits of the claim.11 I consider that issue first.[31] Co-op Money maintains that there has been no material change of effectivecontrol. It argues first that there has been no change of control as a result of Baywideacquiring all of the base capital notes. It says that it has three members, each of whichhas a vote in meetings, and that no single member has overall control. In thealternative, it says that even if there has been a change of control, there has been nomaterial change in effective control. As a further alternative argument, it says thateven if clause 15.3(d) has been engaged, Finzsoft has not validly exercised its powerunder the clause, because the exercise of the right to terminate cannot be exercisedcapriciously or for an improper purpose. Here, it says that there is no proper purposefor the purported exercise of the right, and that the apparent purpose appears to be tocause maximum disruption to Co-op Money's preparation for the mediation hearing10 See Safe Kids in Daily Supervision Ltd v McNeill, above n 2, at [18].11 Safe Kids in Daily Supervision Ltd v McNeill, above n 2, at [30]–[31]; Solid Energy New ZealandLtd v HWE Mining Pty Ltd HC Hamilton CIV-2010-419-904, 5 August 2010 at [33]; DiscoveryGeo Corp v STP Energy Pte Ltd [2012] NZHC 3549, [2013] 2 NZLR 122 at [54].scheduled for 10 and 13 December next week. It also says that Finzsoft is obliged togive reasonable notice, and that the period of notice given – five working days – isunreasonably short.[32] As I have noted, the application has been filed on an ex-parte basis. I have nothad the benefit of contrary affidavits from deponents for Finzsoft. Mr Irving filedbrief submissions, and I have considered those. Further, a letter from Finzsoft'ssolicitors is annexed to the affidavits filed by Co-op Money in the proceedings. Thestance in that letter is that ownership of Co-op Money has been effectively transferredto Baywide, and that a change in ownership is a paradigm case of a change of control.It is argued that even if the description of members' voting entitlements advanced byCo-op Money is correct, there has nevertheless been a material change of control. Itis noted that prior to the Baywide purchase, when Co-op Money had seven members,each of the remaining three exercised one seventh of the management power of Co-opMoney, but that they now exercise one third of the management power of Co-opMoney. It is also asserted that any two of the three current members of Co-op Moneycan now exercise majority control of Co-op Money, whereas they could previouslyexercise only two sevenths of the management power. Finzsoft asserted that it wasentitled to terminate the master services agreement in these circumstances and that anyfailure by Co-op Money to consider the potential consequences of the acquisition byBaywide of the base capital notes is not its concern. It is argued that there is nothingin clause 15.3(d) that suggests that Finzsoft's interests must be adversely affected byany material change in control, and that in any event, whether or not Baywide'sacquisition of the base capital notes is adverse to Finzsoft's interests, is a matter for it.It is argued that the master services agreement does not prescribe any notice periodand that Finzsoft was entitled to terminate the agreement when it served the notice. Ithas said that it allowed one week for the termination to take effect so that Co-op Moneycould make alternative arrangements.[33] Co-op Money points to cl 14.6 in the first master services agreement. Itprovides as follows:Continuation of performance: For the avoidance of doubt, the existence ofa Dispute shall not relieve any party from its obligations under this Agreementand, notwithstanding the Dispute, each party shall continue to perform suchobligations in accordance with this Agreement to the maximum extentpossible (having regard to the nature of the Dispute).Co-op Money says that it has invoked the disputes resolution process, and that Finzsoftis obliged to continue to perform its obligations under the master services agreementto the maximum extent possible until the dispute is resolved either by negotiation orby an arbitral award. Finzsoft says that cl 14.6 does not apply. It does not argue thatthe existence of the dispute relieves it from its obligations. Rather, it asserts that whatit says is a material change in effective control of Co-op Money has given it the rightto terminate, which it has exercised. It says that the application of cl 14.6 as contendedfor by Co-op Money, would put a stop to its right to terminate under cl 15.[34] Both parties are seeking to rely on the terms of the first master servicesagreement. The parties disagree as to the meaning to be given to the relevanttermination provisions.[35] Traditionally, the Courts in New Zealand applied the "plain meaning" rule – ifthe words of an agreement were plain and unambiguous as they stood, they weretreated as speaking for themselves and evidence of context was not admitted to showthat the parties intended something different. More recently, the Courts have becomemore willing to receive evidence of surrounding circumstances for the purpose ofinterpreting written agreements. Such evidence can sometimes have the effect thatwhat prima facie seems the most obvious meaning of the words used, is displaced bya secondary, less obvious meaning. The Courts have held that evidence of the contextin which a contract was entered into can be admitted, because it is always possible thatwhat appears to be the plain meaning of the document may, on further examination,turn out not to be.12[36] This modern approach was best articulated by Lord Hoffmann in InvestorsCompensation Scheme Ltd v West Bromwich Building Society.13 He said as follows:14 I do not think that the fundamental change which has overtaken this branchof the law is always sufficiently appreciated. The result has been, subject12 See generally Jeremy Finn, Stephen Todd and Matthew Barber Burrows, Finn and Todd on theLaw of Contract in New Zealand (6th ed, LexisNexis, Wellington, 2018) at [6.3.1].13 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL).14 At 912.to one important exception, to assimilate the way in which such documentsare interpreted by judges to the common sense principles by which any seriousutterance would be interpreted in ordinary life. Almost all the old intellectualbaggage of "legal" interpretation has been discarded. The principles may besummarised as follows:(1) Interpretation is the ascertainment of the meaning which the documentwould convey to a reasonable person having all the backgroundknowledge which would reasonably have been available to the partiesin the situation in which they were at the time of the contract.(2) The background was famously referred to by Lord Wilberforce as the"matrix of fact," but this phrase is, if anything, an understateddescription of what the background may include. Subject to therequirement that it should have been reasonably available to theparties and to the exception to be mentioned next, it includesabsolutely anything which would have affected the way in which thelanguage of the document would have been understood by areasonable man.(3) The law excludes from the admissible background the previousnegotiations of the parties and their declarations of subjective intent.They are admissible only in an action for rectification. The law makesthis distinction for reasons of practical policy and, in this respect only,legal interpretation differs from the way we would interpret utterancesin ordinary life (4) The meaning which a document (or any other utterance) wouldconvey to a reasonable man is not the same thing as the meaning ofits words. The meaning of words is a matter of dictionaries andgrammars; the meaning of the document is what the parties usingthose words against the relevant background would reasonably havebeen understood to mean. The background may not merely enable thereasonable man to choose between the possible meanings of wordswhich are ambiguous but even (as occasionally happens in ordinarylife) to conclude that the parties must, for whatever reason, have usedthe wrong words or syntax (5) The "rule" that words should be given their "natural and ordinarymeaning" reflects the common sense proposition that we do not easilyaccept that people have made linguistic mistakes, particularly informal documents. On the other hand, if one would neverthelessconclude from the background that something must have gone wrongwith the language, the law does not require judges to attribute to theparties an intention which they plainly could not have had (Citations omitted)[37] This statement of the law was adopted in New Zealand in Boat Park Ltd vHutchinson.15 It has recently been relied on in numerous contractual interpretation15 Boat Park Ltd v Hutchinson [1999] 2 NZLR 74 (CA) at 81-82.cases since. Recently, in Firm PI 1 Ltd v Zurich Australian Insurance Ltd,16 theSupreme Court declined to reconsider the principles of contractual interpretation, andreferred again to Lord Hoffmann's approach as representing the position in NewZealand.[38] It follows that the exercise of interpreting contractual provisions involvesidentifying what the parties meant through the eyes of a reasonable reader. Thatmeaning is most likely to be gleaned from the language used,17 but the Courts will alsolook at the contract as a whole, and in context, because the words used by the partiesmust be set in that context. The Courts are prepared to look at the factual matrix, evenif the words of the contract seem clear at first sight.18 The context of an agreementwill usually operate as a cross-check, but the plain meaning of a provision isprovisional, and is always susceptible to being altered by context.19 Pre-contractualnegotiations, if they shed an objective light on meaning, can be relevant andadmissible, but not if they are simply evidence of subjective intention.20[39] Both parties allege that the provisions on which they seek to rely are plain ontheir face. I cannot however, consistent with the relevant authorities, be confident thatthat will ultimately prove to be the case. In order to interpret the first master servicesagreement, the arbitral tribunal may well have to have regard to the evidence of thosewho were involved in its lead up, to the factual context in which the agreements wereentered into, and perhaps to the parties' negotiations. The correct interpretation of therelevant termination provisions – cl 15.3(d) and cl 14.6 – could well fall to be assessedby reference to these matters.[40] For present purposes, I accept that there is a reasonable possibility that Co-opMoney will succeed on the merits of its claim – particularly in regard to cl 14.6. Thevalidity of the termination notice has been put in issue by Co-op Money and it hasinvoked the disputes resolution processes set out in the first master services agreement.Finzsoft has indicated that it will engage in those processes by appointing its16 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60].17 Arnold v Britton [2015] UKSC 36, [2015] AC 1619 at [17].18 Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 444 at [4] perBlanchard J, at [22] per Tipping J, at [64] per McGrath J.19 At [24] per Tipping J.20 At [20] per Tipping J.representative for the negotiations. On the face of it, cl 14.6 would seem to apply. Theposition regarding the validity of the termination notice is not so clear. It will have tobe determined by the arbitral tribunal and the merits of that dispute are best left to it.[41] I now turn to the issue set out in art 17B(1)(b) – likely harm. The potentialharm to Co-op Money and to the various third parties with which it trades, (if Finzsoftis allowed to act on the termination notice), in my judgment, substantially outweighsthe harm that is likely to result to Finzsoft if it continues to provide the requiredservices pursuant to the master services agreements.(a) Unless interim relief is granted, Finzsoft will withdraw Co-op Money'sright to access the mobile banking platform which Co-op Money in turnprovides to its members and customers. Co-op Money's customers willlose mobile banking functionality. In practical terms, this will meanthat thousands of "Mum and Dad" credit union customers will beunable to access their bank accounts via their mobile apps over theChristmas period. This will cause significant disruption to a number ofpersons and entities who will not be parties to any arbitration. Thisdisruption would have severe effects for not only Co-op Money but alsofor its customers. If Co-op Money is not able to deliver mobile bankingservices to its customers, then it is likely that it will suffer reputationalharm and financial loss. The "Mum and Dad" customers will be lesslikely to use credit unions associated with Co-op Money, and the creditunions are less likely to purchase banking services from Co-op Money.There would likely be adverse publicity for Co-op Money.(b) In contrast, there is no obvious loss to Finzsoft. It will still be entitledto payment for the services it provides, albeit under sufferance. Infinancial terms, Finzsoft is likely to be better off if the master servicesagreement remains on foot pending further order of the Court. There isno additional work required from Finzsoft to maintain the mobileservices. The app is already in place, and as I understand it from theaffidavits filed, it is hosted and maintained by Co-op Money.[42] Turning to art 17B(1)(a), the harm that will likely be suffered by Co-op Money,is not, in my view, readily reparable by an award of damages in the event that Co-opMoney ultimately succeeds before the arbitral tribunal. The financial consequenceswould be difficult to assess accurately. There would be a number of intangibles, forexample, the likelihood that Co-op Money's revenue stream would decrease and therisk that it would lose further business opportunities because of its inability to providereliable mobile banking services. The losses to individuals, and third party customersof Co-op Money would be even more difficult to ascertain. Co-op Money's liabilityfor those losses would no doubt be in dispute. All of these problems are made worseand harder to mitigate by the fact that the Christmas period is looming. Co-opMoney's credit union customers, and in turn their customers, need to be able to accessmobile banking services over the Christmas period.[43] Accordingly, I grant interim relief, largely in the terms sought. I order thatFinzsoft is not to take any steps to implement the notice of termination of the masterservices agreement given by it to Co-op Money on 22 November 2019, pending furtherorder of this Court.[44] Co-op Money initially proposed that the restraint should remain in placepending further order of this Court, or of the arbitral tribunal which may be constitutedunder the master services agreement. I am not prepared to cede the jurisdiction of thisCourt over orders made by it to an arbitral tribunal. The resolution of the disputebetween the parties will be for an arbitral tribunal if negotiations between the partiesare successful. If those negotiations are successful, or once any arbitral tribunal hasruled on the dispute, then the parties can apply to this Court for whatever consequentialorders are required in relation to the interim relief I am granting.[45] The interim relief is given on conditions:(a) Co-op Money is to take all reasonable steps to ensure that the disputeresolution provisions contained in the first master services agreementare implemented expeditiously;(b) the application has proceeded on an ex-parte basis. Leave is reservedto Finzsoft to seek to apply to set aside the interim order on fiveworking days' notice. Finzsoft can also seek to set aside the interimorder if Co-op Money does not comply with the first conditionrequiring that it act expeditiously.[46] I decline Co-op Money's request that I should order Finzsoft to pay Co-opMoney's costs. It seems to me that such an order would be premature. Any costs ordershould await resolution of the dispute between the parties.___________________________________Wylie J