OFFICIAL ASSIGNEE v ASHBY [2017] NZHC 917

OFFICIAL ASSIGNEE v ASHBY [2017] NZHC 917 [9 May 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV-2016-488-100[2017] NZHC 917IN THE MATTER of the deceased estate of Paul AntonyHargraves, the bankruptcy of Paul AntonyHargraves, the Insolvency Act 2006 andthe Administration Act 1969BETWEEN THE OFFICIAL ASSIGNEE INBANKRUPTCY OF THE PROPERTY OFPAUL ANTONY HARGRAVESApplicantAND KIM-MARIE ASHBY AS EXECUTOROF THE DECEASED ESTATE OF PAULANTONY HARGRAVESFirst RespondentDOROTHY HARGRAVESSecond RespondentBRIAN HARGRAVESThird RespondentHearing: 3 April 2017Appearances: G E Slevin for the PlaintiffM D OʼBrien QC as AmicusJudgment: 9 May 2017JUDGMENT OF GORDON JThis judgment was delivered by meon 9 May 2017 at 3.00 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: Insolvency and Trustee Service, ChristchurchCounsel: G E Slevin, ChristchurchM D O'Brien QC, AucklandIntroduction[1] Paul Hargraves was adjudicated bankrupt by the Official Assignee (the OA) on 1 May 2013, on his own application. He died between 13 and 14 August 2015, leaving numerous unpaid debts. At the time of his death, Mr Hargraves held a KiwiSaver account with Fisher Funds totalling $31,565.82 (the funds). The OA seeks orders declaring that Mr Hargraves' interest in the funds vested in the OA atthe time of his death pursuant to s 102 of the Insolvency Act 2006 (the IA).[2] On 2 March 2016 the funds were paid to the first respondent, Ms Ashby, in her capacity as the executor of Mr Hargraves' estate. Since that time, Ms Ashby'ssolicitors, Turner Hopkins, have paid $24,905.71 to the second and third respondents, comprising $8,291.95 towards funeral expenses and $16,613.76 as repayment of various advances made to Mr Hargraves over his lifetime.1 Turner Hopkins deducted their costs of $5,275.00 from the estate and the remainder, totalling $1,913.88, was retained on interest bearing deposit for the residuarybeneficiary, Mr Hargraves' son.2[3] At the time when these payments were made, Mr Hargraves had not been discharged from bankruptcy and accordingly had not been released from the debts provable in his bankruptcy, pursuant to s 304 of the IA. Mr Hargraves was automatically discharged from bankruptcy on 1 May 2016, nearly nine months after his death.[4] Creditors have lodged claims for $155,493.68 against Mr Hargraves'bankrupt estate. Other creditors whose claims total $20,909.00 have been notified to the OA but those creditors have not lodged claims in the bankruptcy. The second and third respondents have not lodged claims in the bankruptcy. The OA has also incurred costs of approximately $19,540.00 in administration of the bankruptcy.1 These amounts are taken from the Agreed Statement of Facts. There is a small variation between two of the amounts recorded in the Agreed Statement of Facts and the amounts set outin the second and third respondents' memorandum of 27 March 2017 (see [11] below).2 The individual amounts set out in the Agreed Statement of Facts do not add up to the total $31,565.82. However, for the reasons given in this decision, that discrepancy does not affect the outcome.[5] The OA therefore seeks further orders directing Ms Ashby to pay $31,656.82 (or so much of that sum as the Court sees fit to order) to the OA; and directing the second and third respondents to pay $24,905.71 (or so much of it as the Court sees fit to order) to the OA.[6] Alternatively, the OA seeks orders:(a) Determining Ms Ashby's liability to pay, as debts of the deceased, thedebts provable in Mr Hargraves' bankruptcy;(b) Determining Ms Ashby's liability to pay, as debts of the deceased, the OA's costs of administering the bankrupt estate;(c) Determining, if necessary, the respective priorities of Mr Hargraves'pre-adjudication and post-adjudication creditors;(d) Directing, if necessary, Ms Ashby to take such steps as may be required to achieve a proper distribution of the estate; and(e) Such other orders as the Court may see fit to make.[7] The decision of the Court is understood to have precedential application for the OA. In an affidavit sworn on 14 March 2017 on behalf of the OA it was deposed that there are currently 3,399 undischarged bankrupts known to have KiwiSaver accounts and the total known value of their accounts at the dates of adjudication was $20,165,288.00. Of these bankrupts, eight have balances of over $50,000.00 with an average account balance of $65,656.27 for that group. The highest known individual account balance is $102,341. It is thought that these figures are likely to be understated. It is further deposed that in the period from 2007 to 31 March 2015, 27 per cent of all persons adjudicated bankrupt had KiwiSaver accounts. In the period 1 April 2015 to 28 February 2017, 4,081 individuals were adjudicated bankrupt and 55 per cent of them have KiwiSaver accounts. Finally, it is noted that over the last 10 years there were nine estates administered by the OA under Part 6 of the IA, four of which were in the last five years.[8] Because of the precedential value of this decision, Thomas J appointed Mr O'Brien QC as amicus.[9] The respondents indicated their willingness to abide the decision of the Court and sought permission to withdraw from the hearing, which was granted.[10] The second and third respondents further advised the Court by memorandum dated 27 March 2017 that they had arranged for payment of the sum of $16,609.76 into the trust account of their solicitors, Turner Hopkins, such funds being held pursuant to their express authority and instructions to distribute those funds in accordance with direction or ruling of the Court.[11] The second and third respondents advised in their memorandum that the amount of $16,609.76 was calculated as follows:(a) Total amount distributed to the second respondent(b) Dorothy Hargraves $24,901.71(c) Less reimbursement of funeral expenses incurred $8,186.05(d) Less reimbursement of costs of flowers incurred $105.90(e) Balance $16,609.76[12] Further to that advice from the second and third respondents, the Court made an order directing that the $16,609.76 paid to Turner Hopkins, Solicitors, Auckland, be held by them and not distributed otherwise than in accordance with a direction or ruling of the Court.Issues[13] In a minute dated 9 December 2016, Bell AJ identified the following issues for determination:(a) Was the deceased's interest in his KiwiSaver fund released, by hispassing, from the restriction on assignment imposed by s 127 of the KiwiSaver Act 2006 (the KSA)?(b) If so, did the deceased's KiwiSaver interest immediately vest in theOA under s 102 of the IA, or in the executor under his will?(c) If it vested in the OA, was the executor obliged to pay or direct payment of the interest to the OA on receiving it?(d) If it vested in the executor, was the executor obliged to pay the debts provable in the bankruptcy as debts of the deceased?(e) If the executor was obliged to pay both the provable and post- adjudication debts, in what order of priority was she obliged to pay them?(f) In all the circumstances of the case, what steps should the executor take to properly administer the estate?(g) In all the circumstances of the case, what amount (if any) should the executor pay to the OA?[14] Bell AJ directed that the issues were to be decided in two phases, the first phase being a hearing on the issues in (a)-(e) above.The status of deceased's KiwiSaver interest upon death[15] The first two issues identified by Bell AJ can be dealt with together. Broadly,the question which this Court must determine is whether the Mr Hargraves' interestin the funds became available to the OA upon his death.[16] The starting point in relation to this issue is s 127 of the KSA, which provides:127 Member's interest in KiwiSaver scheme not assignable(1) Except as expressly provided in this Act, a member's interest or anyfuture benefits that will or may become payable to a member under the KiwiSaver scheme must not be assigned or charged or passed to any other person whether by way of security, operation of law, or any other means.(2) However, subsection (1) does not prevent a member's interest or any future benefits that will or may become payable to a member under the KiwiSaver scheme from being released, assigned, or charged, or passing to any other person if it is required by the provisions of any enactment, including a requirement by order of the court under any enactment (including an order made under section 31 of the Property (Relationships) Act 1976).[17] In Trustees Executors Ltd v Official Assignee, the Court of Appeal consideredwhether s 127 of the KSA operated to prevent a bankrupt's KiwiSaver interests from passing to the OA upon adjudication.3 In the Court of Appeal the parties agreed thata bankrupt's KiwiSaver interests were "property" within the meaning of the IA. The OA submitted that s 127(2) applied and that a bankrupt's KiwiSaver intereststherefore passed to the OA upon adjudication in accordance with "the provisions of [an] enactment", being s 101 of the IA.[18] The Court of Appeal held that a bankrupt's KiwiSaver interests were exemptfrom the general vesting provision in s 101 of the IA. It noted the emphatic languageof s 127(1) that a member's interest must not be assigned, charged or passed to any other person "except as expressly provided in [the KSA]" (emphasis added).Reading s 127(2) in light of that strong direction, the Court held that divestment of amember's Kiwisaver interest would be "required by the provisions of any enactment" in accordance with s 127(2) only if the enactment expressly provided for the vesting in a third party of the member's interest in a KiwiSaver scheme. Therewas no such provision in the IA. Accordingly, a bankrupt's interest was not "required" to pass to the OA in terms of s 127(2). The Court of Appeal alsoconsidered that interpretation was supported by the express statutory purpose and the objective of the KSA.[19] At this point, and to give context to counsel's submissions and the Court'sdiscussion, I set out further key provisions of the KSA and the IA.3 Trustees Executors Ltd v Official Assignee [2015] NZCA 118, [2015] 2 NZLR 224.[20] Rule 9 of the KiwiSaver Scheme Rules, enacted as Schedule 1 of the KSA provides:9 Withdrawal on deathIf a member dies, the manager must,—(a) on application by the member's personal representative, payto that person an amount that is equal to the value of themember's accumulation at the date on which the applicationis accepted as part of the member's estate; or(b) if the requirements of section 65 of the Administration Act 1969 are met, pay to the relevant person any sum authorised by that section, subject to that Act.[21] "Personal representative" is defined in s 4 of the KSA as follows:personal representative, in relation to a deceased person, means a person to whom probate of the will of the deceased person, letters of administration of the estate of the deceased person, or any other similar grant, has been granted, whether in New Zealand or anywhere else[.][22] The relevant parts of s 101, 102 and 105 of the IA state:101 Status of bankrupt's property on adjudication(1) On adjudication,—(a) all property (whether in or outside New Zealand) belonging to the bankrupt or vested in the bankrupt vests in the Assignee without the Assignee having to intervene or take any other step in relation to the property, and any rights of the bankrupt in the property are extinguished; and(b) the powers that the bankrupt could have exercised in, over, or in respect of any property (whether in or outside NewZealand) for the bankrupt's own benefit vest in the Assignee.102 Status of property acquired during bankruptcy(1) Between the commencement of bankruptcy and discharge of the bankrupt,—(a) all property (whether in or outside New Zealand) that the bankrupt acquires or that passes to the bankrupt vests in the Assignee without the Assignee having to intervene or take any other step in relation to the property, and any rights of the bankrupt in the property are extinguished; and(b) the powers that the bankrupt could have exercised in, over,or in respect of that property for the bankrupt's own benefitvest in the Assignee.105 Effect of other laws(2) Sections 101 to 104 do not affect the operation of any other law that prevents any property from vesting in the Assignee.[23] Mr Slevin accepted that the decision in Trustees Executors prevented Mr Hargraves' KiwiSaver interests from vesting in the OA prior to his death.However, he submitted that the Court of Appeal decision does not address theexception in s 127(1) which allows funds to "be assigned or charged or passed to any other person" where such is expressly provided for by the KSA itself. Mr Slevinfurther submitted that where that exception applies, s 127(1) cannot have the effect of preventing the funds from vesting in the OA; and the exception applies wheneveran express provision of the KSA allows the transfer of a member's funds. In otherwords, Mr Slevin said that once an exception to 127(1) applies, there is simply norule of law to prevent the operation of ss 101 and 102 to vest the deceased'sKiwiSaver interests in the OA.[24] In this case, Mr Slevin said that permitted withdrawals are provided for by r 9 and accordingly upon the death of a bankrupt, the statutory bar to divestment in s 127 falls away.[25] Mr Slevin noted that the rule and the KSA generally are silent as to whether r 9 applies immediately on a member's death or at a later point but submitted that therule must be interpreted in the light of its purpose, which he submitted was to overcome the bar to assignment in s 127(1) so that a permitted withdrawal can be made. He said that an application may be necessary before the transfer can be given effect but the rule itself must of necessity take effect from the time of the member'sdeath. At that point, Mr Slevin said, ss 101 and 102 of the IA operate to vest thedeceased's KiwiSaver interests in the OA. He acknowledged that this outcomewould be inconsistent with the common law rule that a deceased person's propertyvests in the executor(s) named in their will at the moment of death. Nevertheless,Mr Slevin submitted, such an outcome would present a practical, workable and sensible approach to the problems posed by the interrelationship between the IA, KSA and Administration Act 1969.[26] He further submitted that this interpretation is not inconsistent with the decision in Trustees Executors, nor he said with the policy of the KSA as determined by the Court of Appeal, being to preserve a bankrupt member's retirement savingsfor their support in retirement and prevent them from becoming a burden on the State in the future.[27] Mr O'Brien disagreed with this approach. He submitted that r 9 was an exception "expressly provided for" in the KSA itself within the terms of s 127(1) andmust apply in accordance with its terms. Rule 9(a) gives the personal representative of a deceased person a right to apply to the relevant KiwiSaver manager for payment. It does not pass to the deceased so cannot be said to be property of thebankrupt within the terms of the IA. Accordingly, Mr O'Brien submitted, s 101 and102 of the IA have no application.[28] In my view, the interpretation put forward by Mr O'Brien is the correct one,for a number of reasons. First, I disagree with Mr Slevin's submission that thes 127(1) bar falls away upon the death of a bankrupt. As noted by Mr O'Brien,s 127(1) is limited in its scope; it applies "[e]xcept as expressly provided in [the KSA]". Rule 9 is incorporated into sch 1 to the KSA and accordingly, is an express provision within the KSA which creates an exception to the general rule set out in s 127. In my view, therefore, s 127 continues in effect after the death of a bankrupt meaning, as determined by the Court of Appeal in Trustees Executors, that thebankrupt's KiwiSaver interests are not vested in the OA.[29] My second reason for rejecting Mr Slevin's contended approach arises fromr 9 itself. Rule 9 provides for a right to payment of KiwiSaver funds. The rightcomes into existence after the bankrupt's death and accrues directly to the bankrupt'spersonal representative. It does not accrue to the bankrupt and so cannot be said to be the property of the bankrupt. Accordingly, it cannot be vested in the OA. Thisinterpretation is consistent with the language of r 9, which provides that "themanager must" (emphasis added) pay the funds to either the member's personalrepresentative, or to a relevant person listed in s 65 of the Administration Act (which does not include the OA). There is no scope, therefore, for a manager to pay amember's accumulated funds to the OA.[30] The answer to the first issue identified by Bell AJ, namely whether thedeceased's interest in his KiwiSaver fund was released by his passing from therestriction on assignment imposed by s 127 of the KSA, is "no, it was not". Itfollows that the second and third issues identified by Bell AJ fall away.The role of the executor[31] The final two issues to be determined in this judgment concern the role of the executor, specifically:(a) Was the executor obliged to pay the debts provable in the bankruptcy as debts of the deceased?(b) If the executor was obliged to pay both the provable and post- adjudication debts, in what order of priority was she obliged to pay them?[32] The question of whether a deceased bankrupt's personal representative mustpay the provable debts of a deceased bankrupt appears not to have arisen before, no doubt due to the size of the estates typically involved.[33] Both counsel submit that the answer to this question must be "yes". I agree.[34] Section 78 of the IA provides that if the bankrupt dies after adjudication, the bankruptcy continues in all respects as if the bankrupt were alive. It follows that debts existing at the date of adjudication are not extinguished on adjudication. They subsist through the bankruptcy, except to the extent paid, and the bankrupt continues to be bound by them until released by discharge under s 304 of the IA. In this case, Mr Hargraves died before discharge.[35] The fundamental task of an executor is to administer the estate of the deceased. This requires the collection and realisation of assets, the payment of debts and the distribution of any surplus to those being officially entitled under thedeceased's will.4 The first duty5 is to collect in and realise the assets. The second duty6 is to pay the deceased's debts. For the reasons referred to above, these mustinclude debts existing at the time of adjudication to the extent not already paid and whether provable or not. The position is the same with administrators.7[36] An issue identified by counsel is that, as already noted, there is no automatic payment under r 9(a) of the KiwiSaver Scheme Rules but instead a right to apply for payment. The position is the same under r 9(b). This gives rise to the possibility of an executor or administrator electing not to apply for payment under r 9 pending adeceased's discharge from bankruptcy, thus allowing KiwiSaver funds to be payableto beneficiaries under a will or family under an intestacy. This would be to the detriment of creditors.[37] However, the duty to collect in the assets would, in my view, preclude an executor or administrator from declining to exercise the right under r 9 until after expiry of bankruptcy. To do so, would be to prefer beneficiaries and would be against public policy and in breach of fundamental duties.[38] Mr Slevin and Mr O'Brien agreed that the debts of a bankrupt remain extantuntil such time as the bankrupt is discharged, either by passage of time or by court order. Accordingly, the debts of the bankrupt, both provable and post-adjudication,are enforceable against the bankrupt's estate and the executor has a duty to ensurethat the debts are paid.[39] In practice, this outcome does not usually give rise to any problem as thebankrupt's estate is typically very small, the bankrupt's property having vested in theOA upon adjudication. However, where the bankrupt holds significant funds in a KiwiSaver account, those funds will pass to the estate (subject, of course, to an4 John McGhee (ed) Snell's Equity (33rd ed, Thomson Reuters, London, 2015) at [31-001].5 At [31-003].6 At [31-001].7 Administration Act 1969, s 26.application being made under r 9). This complicates the performance of theexecutor's duty, as the executor is then required to put the KiwiSaver funds to anyoutstanding debts of the bankrupt, before the funds can be distributed to any beneficiaries.[40] That brings me to the final issue in this proceeding, which concerns the relative priorities of provable and post-adjudication debts. In order to determine this issue, it is necessary to consider the principles that govern the distribution of assets by the administrator of an insolvent estate. The administrator may approach this task in one of two ways.[41] The first option is for the administrator to assume responsibility for paying the debts out of the estate. Any debts of the deceased may be paid out in accordance with common law principles (albeit modified slightly by s 33 of the Administration Act). However such principles are, to quote the editors of Dobbie's Probate andAdministration Practice, "notoriously difficult and complex".8 The same editors suggest that:9The administrator would be well advised either to administer as under Part 6 without an order of the court to that effect, or seek such an order, rather than to conduct the administration under common law principles.[42] Section 31 of the Administration Act provides that the administrator may apply the estate in accordance with pt 6 of the IA:31 Payment of claims where estate insufficientWhere the estate within the meaning of Part 6 of the Insolvency Act 2006 of any deceased person is insufficient to pay his or her debts, funeral, and testamentary expenses in full, it shall be lawful for the administrator to apply that estate in accordance with the priorities that would be applicable if it were being administered under that Part, without the administrator being under any obligation to have recourse to that Part or to administer that estate thereunder, and any surplus shall be held for the person or persons lawfully entitled thereto.(emphasis added)8 John Earles and others (eds) Dobbie's Probate and Administration Practice (6th ed, LexisNexis NZ Ltd, Wellington, 2014) at [51.1.3].9 At [51.1.3].[43] Part 6 of the IA provides that the assets of an insolvent estate must be distributed in accordance with the normal law and practice of bankruptcy, subject to a few modifications.10 For example, a surviving spouse is entitled to any of thedeceased's necessary household furniture and effects, as he or she chooses.11 The administrator may also, with the consent of the creditors, make an allowance to a surviving spouse and/or any relatives or dependants of the deceased.12 Thereafter, pt 6 provides that the estate must be distributed in the following order:13(a) First, payment of all proper costs, charges, debts, and expenses of the due administration of the estate, whether incurred before or after theorder is made. This includes solicitors' costs, which in this caseamount (so far) to $5,275.00.(b) Second, payment of the deceased's reasonable funeral expenses. Thesecond and third respondents in the present case have expended $8,291.95 on funeral expenses. The OA has accepted that those costs were reasonable.(c) Third, payment of medical expenses and reasonable expenses for hospital care incurred in the three months immediately before the death of the deceased. It is not clear whether any expenses of that nature have been incurred in the present case.(d) Fourth, payment of other claims and interest in accordance with s 274 of the IA. Section 274(1) provides that the fees and expenses properly incurred by the OA in the bankruptcy must be paid in preference to all other debts. The OA says it has incurred costs of approximately $19,540.00 in administration of Mr Hargraves' bankruptcy. This sum exceeds the funds remaining in Mr Hargraves' estate after payment ofthe expenses listed in (a) and (b) above, leaving no funds to pay other creditors.10 Insolvency Act, s 388.11 Section 389.12 Section 390.13 Section 393.(e) Last, all other claims, which rank equally and abate in proportion if there is insufficient to pay them in full.[44] If the first respondent elects to distribute the estate in accordance with s 31 ofthe Administration Act, therefore, she must first pay the solicitors' costs of$5,275.00, followed by the funeral expenses of $8,291.95. The remainder of the estate must be paid to the OA as a contribution to costs. This approach is attractive in its simplicity and could be implemented without imposing an undue burden upon the first respondent. There would be no funds in the estate to pay any other debts and, therefore, no need to determine the priorities between provable and post- adjudication debts.[45] However, for completeness, I address this point briefly.[46] Section 393 governs the distribution of an insolvent estate. The section is exhaustive in its terms: where s 393 applies, there is no scope for the application of other legal principles to the distribution of the estate. The terms of s 393 do not contemplate any distinction between provable and post-adjudication debts. Once the costs of administration, funeral expenses and medical expenses have been paid, subs (1)(d) provides that the administrator must make payment of other claims and interest in accordance with s 274 of the IA. That direction must be read in light of s 393(2), which provides that:(2) For the purposes of subsection (1)(d), a reference in section 274 to the date of adjudication must be read as a reference to the date of thedeceased's death.[47] Thus there is no scope under subs (1)(d) for differentiating between provable and post-adjudication debts.[48] Section 393(1)(e) then provides that the administrator must lastly pay "allother claims, which rank equally and abate in proportion if there is insufficient topay them in full." The wording of the subsection is unequivocal: all claims rank equally. Again, therefore, there is no scope under subs (1)(e) for differentiating between provable and post-adjudication debts.[49] The answer to the final issue identified by Bell AJ is that (had there been sufficient funds available) the executor was obliged to distribute the estate in accordance with the priorities set out in s 393 of the IA, drawing no distinction between provable and post-adjudication debts.An alternative approach[50] Another option for managing insolvent estates is for the administrator or executor to make an application to the court for an order that the estate be administered in accordance with pt 6 of the IA,14 either by the OA or by some other person, as the court thinks appropriate.15 Such application may be joined with the application for a grant of administration, or may be made at any time after the grant of administration.16 Alternatively, a creditor of the estate or a beneficiary may request the administrator to make such an application.17 The court may, if it sees fit to do so, make an order requiring the costs of the application to be paid out of the estate.18[51] If the court makes an order that an estate be administered under the IA, the whole of the estate vests in the person who is appointed by the court to administer it.19 That person has, in relation to the estate, the same authority, powers, and functions as the OA would have in relation to the property of a bankrupt.20 The assets of the estate must be distributed in accordance with the normal law and practice of bankruptcy, subject to particular modifications set out in pt 6.21[52] The relationship between the administration of the bankrupt's insolvent estateunder pt 6 and the existing bankruptcy proceedings is not clear. For example, it is not immediately obvious whether creditors would be required to make new claimsagainst the bankrupt's estate, in addition to those made in the bankruptcy. It is easy to foresee a situation in which the concurrent administration of the bankrupt's estate14 Insolvency Act, s 380.15 Section 385.16 Section 380(2).17 Section 381. In many cases, the OA may be a creditor of the estate.18 Section 384.19 Section 387.20 Insolvency Act, s 392.21 Section 388.alongside bankruptcy proceedings becomes an inefficient and costly muddle of duplicated steps and general confusion. Given that the number of bankrupts who die while holding an interest in significant KiwiSaver funds is likely to increase, legislative reform may be required.Conclusion[53] The answers to the issues identified at [13] above are as follows:(a) Section 127 continues in effect after the death of a bankrupt,preventing the deceased's KiwiSaver funds from vesting in the OA.(b) The executor or administrator of a deceased bankrupt's estate isobliged to pay the debts of the deceased, including debts provable in the bankruptcy, as debts of the deceased.(c) The executor or administrator may pay the debts of the deceased in accordance with the priorities set out in s 393 of the IA.[54] The remaining two issues, concerning the steps which the executor should take in order to properly administer the estate, were to be determined in the course of a second hearing. However, as will be evident from the discussion at [43] and [44]above, those issues have become intertwined with the issues discussed in thisjudgment. Mr Slevin and Mr O'Brien (and the other parties, if they wish) are to file memoranda advising the Court whether a second hearing is necessary or whether any remaining issues can be dealt with by way of a conference. In any event, it will be necessary for the Court to make an order in relation to the funds presently held by Turner Hopkins.22Costs[55] Without wishing to be seen to predetermine the issue, my inclination is to direct that costs should lie where they fall. However, the question of costs will be22 See [10] - [12] above.determined following any further hearing and/or conference, at which point counsel may make submissions on costs.___________________________________Gordon J