PLATEAU RETAIL SERVICES LTD v CBI COMPANY LTD [2020] NZHC 1862

PLATEAU RETAIL SERVICES LTD v CBI COMPANY LTD [2020] NZHC 1862 [29 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-002735[2020] NZHC 1862BETWEEN PLATEAU RETAIL SERVICES LIMITEDPlaintiffAND CBI COMPANY LIMITEDDefendantHearing: 1 July 2020Appearances: N G Lawrence for PlaintiffE J Grove for DefendantJudgment: 29 July 2020JUDGMENT OF ASSOCIATE JUDGE P J ANDREWThis judgment was delivered by me on 29 July 2020 at 3.30 p.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors / counsel:Fencible Law, AucklandCouch Harlowe Kovacevich, AucklandC Patterson, AucklandIntroduction[1] The plaintiff, Plateau Retail Services Ltd (PRS), seeks summary judgmentagainst the defendant, CBI Company Ltd (CBI), in the context of a failed agreementfor the sale and purchase of the Al's Deli Café business (Business) in central Auckland.[2] PRS says that CBI has failed to make any payment at all for its purchase of thebusiness from PRS. PRS seeks a declaration that the sale and purchase agreement wascancelled, and an order that CBI deliver up to PRS the chattels that CBI uplifted fromthe café premises in March/April 2020.[3] CBI contends that PRS has not complied with the strict proceduralrequirements under the High Court Rules 2016 (HCR) for summary judgment. It alsoclaims to have an insolvency set-off under s 310 of the Companies Act 1993(1993 Act) in relation to the chattels. CBI says that the purchase of the Business wasa financial disaster and has caused it significant loss. It claims that there were multiplebreaches of the sale and purchase agreement by PRS, including a failure to providehand-over support, and a complete absence of business records. CBI says it could notobtain a liquor licence because the lease of the café premises could never betransferred to it.Factual background[4] In 2018, CBI and PRS entered into:(a) A sale and purchase agreement dated 5 March 2018;(b) a variation of the sale and purchase agreement dated 5 March 2018; and(c) a second variation of the sale and purchase agreement dated29 June 2018.(Together, the SPA.)[5] The relevant terms of the SPA are as follows:(a) CBI would purchase the assets of the Business;(b) The purchase price of $550,000 was to be paid in the following way;(i) $100,000 payable in monthly instalments of $10,000 fromCBI to PRS, starting 29 July 2018;(ii) $50,000 from CBI to PRS by 29 September 2018;(iii) $50,000 from CBI to PRS by 29 December 2018; and(iv) $330,000 balance less a lease compromise amount of $19,904from CBI to PRS by 29 June 2019.(c) If CBI failed to pay any instalment, PRS could give notice for the fullpurchase price which, upon service of the notice, would becomeimmediately due and payable.(d) PRS would remain the lessee until such time that CBI could on-sell thebusiness and arrange for a transfer of the lease, or until the lease wasterminated.(e) CBI would ensure, after settlement date, that all rent and otheroutgoings associated with the lease were kept current and up-to-date.(f) The chattels and other assets owned by PRS were to be transferred toCBI on the settlement date (subject to a general security agreement overall of CBI's present and after-acquired property).[6] On 3 July 2018, CBI took possession of the Business at the premises.In September 2018, Mr Reece Logan and Mr Rhys Cain, insolvency practitioners ofChristchurch, were appointed liquidators of PRS by this Court.[7] As at 29 September 2018, CBI failed and/or refused to make the first $50,000instalment payment due and owing under the SPA.[8] As at 29 December 2018, CBI failed and/or refused to make the second$50,000 instalment payment due and owing under the SPA.[9] As at 29 June 2019, CBI failed and/or refused to make final payment under theSPA of $330,000, and all $10,000 monthly instalments.[10] As at the date of this judgment, CBI had not made any payments it agreed tounder the SPA.[11] On 18 October 2019, the liquidators gave notice to CBI demanding it pay the$550,000 outstanding under the SPA, as CBI had failed to make any instalmentpayments, plus interest of 12 per cent.[12] On 2 November 2019, CBI responded by way of its solicitors, claiming thatPRS was in breach of subcls 2.5(2) and (3) of the SPA by failing to transfer an assignedauthority for information concerning web pages, customer details, and intangibleassets; and alleged that this reduced the value of the business by $312,000. CBI madean offer to settle for $75,000. CBI also alleged that the director of PRS agreed todiscount the sale price by $150,000 if he did not return to New Zealand to take upemployment with CBI. CBI provided a PDF copy of an email, dated 27 June 2018,between its principal Mr Denize and PRS' principal at the time, Mr Lazic.[13] On 7 November 2019, the liquidators responded (by way of their solicitors)that the alleged loss of value of $312,000 did not represent a realistic value on anyobjective analysis; and that much of the information which allegedly had not to beentransferred, had in fact been provided to CBI. Further, the liquidators investigated theallegation that there was a $150,000 reduction agreed between the parties – uponreceiving the original version of the 26 June email from Mr Lazic, they formed theview that Mr Denize's PDF version was an alteration of that email as there was noreference to any reduction in the original version. The liquidators proposed to meetwith CBI to negotiate a resolution.[14] During the second half of November and early December 2019, the liquidatorsrequested documents from CBI to support its claims. CBI provided some documents,but the liquidators say they were incomplete.[15] On or around 14 December 2018, the liquidators gave notice to CBI, pursuantto s 261 of the 1993 Act, requiring CBI's director, Mr Denize, to be examined on oathabout matters relating to the affairs of PRS.[16] On 19 December 2018, CBI (by way of its solicitors) provided some of therequested documents and advised that Mr Denize was available to meet in January2019. CBI also made an offer to settle for $150,000.[17] On 20 December 2018, the liquidators (by way of their solicitors) again gavenotice to CBI, pursuant to s 261, requiring Mr Denize to be examined on oath aboutmatters relating to the affairs of PRS, and to provide documents about PRS.[18] On 14 January 2019, Mr Denize attended the offices of the liquidators, but theproposed meeting never took place. The liquidators say that they were waiting in aroom for Mr Denize, but because he either declined to or was unable to tell thereceptionist who he was meeting, the meeting never took place and Mr Denize left thepremises.[19] On 17 January 2019, the liquidators, yet again, gave notice to CBI, pursuant tos 261, requiring Mr Denize to be examined on oath about matters relating to the affairsof PRS and to provide documents.[20] On 24 January 2019, Mr Denize again attended the offices of the liquidators,to be examined. Mr Denize promised to provide accounts to show that the businessearnings decreased after settlement due to an inability to access the business' websiteand social media accounts. The liquidators say he failed to provide those accounts.[21] On 14 February 2019, the liquidators again gave notice to CBI, pursuant tos 261, requiring Mr Denize to provide documents about PRS.[22] On 15 May 2019, with no resolution being reached, and no payment beingreceived under the SPA, the liquidators made a further demand to CBI for either$550,000, or such other sum as agreed by the liquidators.[23] On 12 September 2019, the liquidators served CBI with a notice under ss 28and 29 of the Property Law Act 2007 (PLA) setting out that CBI was in breach of theSPA by failing to make payment, and that such breach could be remedied by makingpayment of $356,400 to the liquidators of PRS within 12 working days (the PLAnotice).[24] At the expiry of the 12 working days from the PLA notice, CBI had notcomplied with the notice.[25] By its statement of claim dated 13 December 2019, PRS seeks an order forcancellation of the SPA and possession. No order is sought in relation to the chattels.The interlocutory application for summary judgment dated 13 December 2019,likewise, does not seek any order in relation to the chattels.[26] Sometime during the COVID-19 level 4 lockdown (in late March or April2020), CBI (or its agents) entered the café premises and removed the ovens, chairs, asign, and a cash register.[27] Prior to 24 April 2020, the landlord re-entered the premises due to CBI failingto pay rent.[28] On 12 May 2020, PRS' solicitors wrote to the solicitors for CBI seeking anundertaking that CBI would – not dispose of or treat the chattels that had beenremoved, including any other assets in CBI's possession; and keep them in whole untilthe outcome of the litigation. PRS claimed that a GSA was never granted and, as such,title to the chattels never transferred.[29] On 12 May 2020, PRS gave notice to CBI of the cancellation of the SPA.[30] PRS filed an amended interlocutory application for summary judgment on12 May 2020, which included, in terms of relief, an order that CBI deliver up allchattels it removed from the café premises.[31] On 23 June 2020, after CBI had filed an amended Notice of Opposition dated3 June 2020, Ms Logan swore an affidavit in support of the amended interlocutoryapplication for summary judgment.[32] A second affidavit was sworn by Ms Logan in support of the application forsummary judgment on 30 June 2020.Relevant legal principles[6] Rule 12.2(1) of the HCR provides:The court may give judgment against a defendant if the plaintiff satisfies thecourt that the defendant has no defence to a cause of action in the statementof claim or to a particular part of any such cause of action.[7] The principles are summarised in Krukziener v Hanover Finance Ltd:1[26] The principles are well settled. The question on a summary judgmentapplication is whether the defendant has no defence to the claim; that is, thatthere is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1(CA) at 3. The court must be left without any real doubt or uncertainty. Theonus is on the plaintiff, but where its evidence is sufficient to show there isno defence, the defendant will have to respond if the application is to bedefeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The court will notnormally resolve material conflicts of evidence or assess the credibility ofdeponents. But it need not accept uncritically evidence that is inherentlylacking in credibility, as for example where the evidence is inconsistentwith undisputed contemporary documents or other statements by thesame deponent, or is inherently improbable: Eng Mee Yong vLetchumanan [1980] AC 331 (PC) at 341. In the end the court's assessmentof the evidence is a matter of judgment. The court may take a robust andrealistic approach where the facts warrant it: Bilbie Dymock Corporation Ltdv Patel (1987) 1 PRNZ 84 (CA).(Emphasis added.)1 Krukziener v Hanover Finance Ltd [2008] NZCA 187.[8] In Gardner v Gardner, Associate Judge Osborne summarised the generalprinciples of summary judgment. These include:2(a) Common-sense, flexibility and a sense of justice.(b) In determining whether there is a genuine and relevant conflict of facts,the Court is entitled to determine and reject spurious defences or plainlycontrived factual conflict. It is not required to accept uncritically everystatement put before it, however equivocal, imprecise, inconsistentwith undisputed contemporary documents or other statements, orinherently improbable.(c) In assessing a defence, the Court will look for appropriate particularsand a reasonable level of detailed substantiation — the defendant isunder an obligation to lay a proper foundation for the defence in theaffidavits filed in support of the notice of opposition.(d) In weighing these matters, the Court will take a robust approach, andenter judgment even when there may be differences on certain factualmatters if the lack of a tenable defence is plain on the material beforethe Court.(e) The need for judicial caution in summary judgment applications mustbe balanced with the appropriateness of a robust and realistic judicialattitude when that is called for by the particular facts of the case.Analysis and decision[33] There are four issues for determination:2 Gardner v Gardner [2015] NZHC 2018 at [20].(a) Does the second verifying affidavit of Ms Logan, sworn 30 June 2020(and filed in support of the amended application for summaryjudgment), comply with rr 9.8(2) and 12.4(5) of the HCR?(b) Has PRS, as plaintiff, established that CBI has no defence to its claimfor a declaration that the SPA has been cancelled?(c) Can the Court make an order for delivery of the chattels when no suchorder is sought in the statement of claim, but has been sought in theamended interlocutory application for summary judgment?(d) If so, has PRS, as plaintiff, established that CBI has no defence ofinsolvency set-off under s 310 of the 1993 Act in relation to thechattels?(a) Does the second verifying affidavit of Ms Logan comply with the HCR?[34] The first affidavit filed by PRS in support of the original application forsummary judgment, namely, the affidavit of Mr Rhys Cain, liquidator (sworn6 December 2019) did not comply with r 12.4(5)(b) of the HCR – it did not verify theallegations in the statement of claim which alleged the defendant has no defence, anddid not depose to any belief that the defendant has no defence to the allegations. Thefirst affidavit of Ms Logan, a senior manager of corporate restructuring at Ernst Young,filed in response to the affidavit of Mr Peter Denize (sworn 3 June 2020) on behalf ofCBI, likewise, makes no attempt to address the requirements of r 12.4(5).[35] In her second affidavit, sworn 30 June 2020, Ms Logan, who says she isworking for and assisting the liquidators of PRS, says at para 4:I verify the allegations contained in the statement of claim and say that to thebest of my belief the defendant in this proceeding has no defence to theallegations contained in the statement of claim.[36] Mr Grove for CBI submitted that there were multiple procedural irregularitieswith PRS' application for summary judgment which, in combination, are fatal to thesummary judgment application. That includes, but it is not confined to, the objectionsCBI takes to Ms Logan's second affidavit.[37] In relation to that second affidavit, Mr Grove submitted that it is "recursive",and was given on behalf of the liquidators, not the company, as it should have been(implying there is inappropriate delegation going on). No mention of the company ismade in that affidavit. He further submitted the deponent has not adequately set outthe grounds for her belief in a lack of defence, and that it is unclear whether she hasactual knowledge of the matters to which she deposes.[38] In my view, these objections are not wholly without merit. However, in thecircumstances, I find there has been substantial compliance with r 12.4(5) and,therefore, that there is no proper basis to reject the affidavit. Rule 1.5 provides that afailure to comply with strict requirements is not to be treated as a nullity, but rather, asan irregularity, and the Court has a discretion as to the way in which that irregularityis to be treated. I also note that a liberal approach is appropriate, to prevent injusticescaused by mindless adherence to technicalities.3[39] In my view, it is apparent from the affidavit that Ms Logan has personalknowledge of matters at issue. She is a senior manager of corporate restructuring andis working for and assisting the liquidators. It is perhaps regrettable and incorrect forMs Logan to have referred to her affidavit as "a formality". Likewise, and strictlyspeaking, the affidavit should have been sworn on behalf of PRS. However, thosematters are, in the context here, highly technical irregularities, and have not in any realway given rise to any prejudice.[40] In my view, this is a different case from Rafiq v Mediaworks TV Ltd,4 wherethere was no compliance with r 12.4, and a need for a correcting affidavit to be filed.[41] As to whether there has, in combination, been so many irregularities withrespect to the summary judgment procedural requirements that I should refuse3 See approach of UK Court of Appeal in Singh v Atombrook [1989] 1 All ER 385.4 Rafiq v Mediaworks TV Ltd [2014] NZHC 1699 at [15].summary judgment. That is a matter I consider below in relation to the relief claimedfor the delivery of the chattels.(b) Has PRS established that CBI has no defence to the claim seeking an order forcancellation?[42] Mr Grove for CBI makes no fundamental objection to an order for cancellation.Rather, the consequences of cancellation are really at issue between the parties – andin particular, the fate of the chattels, which appear to be the only assets of any value.[43] In the statement of claim, PRS relies upon ss 28 and 29 of the PLA as the basisfor cancellation. It claims to have served CBI with a s 28 notice, complying with s 29,and at the expiry of the relevant notice period, the breach complained of had not beenremedied.[44] Mr Grove contended that a notice under s 28 of the PLA can only be issuedwhere there is an agreement for the sale and purchase of land. In this case, while theSPA did provide for the transfer of the lease of the café premises to CBI, that had neveroccurred. At all times, the lease remained with PRS and the landlord cancelled thelease by way of notice to PRS.[45] Section 28 of the PLA applies to a right to cancel an agreement for the sale andpurchase of land. Section 8 provides that the PLA applies to land in New Zealand.The critical issue is whether the SPA was an agreement for the sale and purchase ofland and, if not, could the parties nevertheless agree to the application of ss 28 and 29of the PLA by way of contract.[46] While no lease was formally transferred to CBI, PRS, as lessee, granted CBIthe right to occupy the premises and enjoy the benefits of the lease under the terms ofthe SPA. In my view, CBI had a legal interest in the land and the SPA can, for thepurposes of the PLA, properly be categorised as an agreement for the sale and purchaseof land.[47] I also incline to the view that it was open to the parties to agree to use andapply, with modifications, the standard PLA cancellation provisions regarding noticeand cancellation. The parties agreed to the application of the relevant provisions ofthe PLA as a matter of contract. In this regard, I note that cl 9.1.3 of the SPA providesthat, if the purchaser is in possession of the premises, the vendor's right to cancel willbe subject to ss 28-36 of the PLA.[48] In any event, regardless of whether the PLA applied, PRS was entitled to givenotice to cancel the SPA and has established that CBI has no defence to an order forcancellation. The SPA was clearly at an end. In my view, this is a case of cancellation,not frustration, as Mr Grove suggested. This is not a case where there is no default byeither party, nor is there some supervening event which has frustrated the parties'object.[49] In accordance with s 37 of the Contract and Commercial Law Act 2017(CCLA), the payment of the purchase price was clearly an essential term of the SPA,and CBI's breach of that essential term substantially reduced the benefit of the contractto PRS, as the cancelling party. As Mr Lawrence submitted, the failure to pay thepurchase price, in fact, eliminated all benefit of the SPA to PRS; and the non-paymentof rent by CBI resulted in the landlord's re-entry, and loss of the premises from thepool of assets that would have otherwise been available to the liquidators of PRS.[50] I also find that the SPA was cancelled in accordance with the provisions of theCCLA.(c) Can the Court make an order for delivery of the chattels when no such order issought in the statement of claim, but is claimed in the amended interlocutoryapplication for summary judgment?[51] Rule 5.31 of the HCR provides:Specifying relief sought(1) The relief claimed must be stated specifically, either by itself or in thealternative.(2) Despite subclause (1), it is not necessary to ask for general or otherrelief but the court may, if it thinks just, grant any other relief to which theplaintiff is entitled, even though that relief has not been specifically claimedand there is no claim for general or other relief.[52] Essentially, there is a two-stage test to determine whether the Court shouldexercise its discretion under this rule. The first inquiry is whether the plaintiff is"entitled" to the relief sought on the facts. If that is the case, then the second inquiryis whether it is "just" for the Court to do so.5[53] The question of the delivery of the chattels was squarely at issue in theargument before me at the hearing. CBI was on notice that the delivery of the chattelswas at issue and specifically addressed it in its submissions and amended notice ofopposition. In the circumstances, there is no real prejudice or breach of natural justicein allowing, as a matter of discretion, PRS to now claim an order for delivery of thechattels.[54] I further note that the issue of delivery of the chattels did not arise untilMarch/April this year (after the summary judgment proceedings had been filed), whenCBI removed them from the premises.[55] I find that PRS is entitled to the relief sought, namely, an order for the deliveryof the chattels (subject to the defence of insolvency set-off addressed below). Thediscretion under r 5.31 is to be exercised in PRS' favour.[56] I further note that the exercise of discretion arises in a context where the onlyassets of any substance (namely, the chattels) appear to have a modest value and theliquidators of PRS are trying to act in the most cost-efficient way, with a view toprotecting the interests of the creditors. There is a clear need for some finality andresolution.[57] I acknowledge that there are several procedural irregularities associated withthese proceedings. They are regrettable and, in another context, possibly fatal to aplaintiff's claim. However, in viewing the matters in this case overall, I find that thecombination of the irregularities is not disqualifying. The defendant, CBI, can pointto no real prejudice.5 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR5.31.04].(d) Has PRS, as plaintiff, established that CBI has no defence of insolvency set-offunder s 310 of the 1993 Act in relation to the chattels?[58] CBI contends that, since PRS went into liquidation in September 2018, it wasentitled to apply (as against the purchase price) a statutory set-off pursuant to s 310 ofthe 1993 Act. CBI claims this is because the debt allegedly owed to PRS (the purchasemonies) and the losses caused to CBI (from alleged misrepresentation, breach ofwarranty, and the like) flow from the same transaction – namely, PRS' sale of itsbusiness to CBI.[59] As noted, the focus of the statutory set-off claim is on the chattels, currentlyheld by CBI. The factual circumstances pertaining to the chattels are important indetermining whether the statutory set-off claimed is plausible and/or capable ofmeeting the threshold of a reasonably arguable defence.[60] CBI took possession of the café premises in late June 2018 and made use ofthe chattels in the operation of the Business. As Mr Denize of CBI acknowledged,CBI purchased the Business knowing it was "in severe financial trouble". CBI vacatedthe premises and shut the Business down in March 2020. At no time did CBI pay anyof the purchase price, yet, it uplifted the chattels sometime in late March or April 2020.Mr Denize described the chattels as the "only salvageable assets". PRS, as theplaintiff, has of course claimed that CBI is indebted to it in the sum of $550,000 plusinterest (though does not seek that amount be paid to it, only that the SPA andpossession be cancelled on the grounds of non-payment).[61] PRS contends that title to the chattels never passed to CBI. PRS relies uponsubcl (d) of the second variation to the agreement, dated 29 June 2018, which states:The chattels and other assets owned by Platinum Retail Services Ltd are to betransferred to CBI Company Ltd on the settlement (subject to the GSA, asdefined below).[62] The GSA was defined under subcl (g) of the second variation, and requiredCBI to provide PRS with a general security over all of CBI's present and after-acquiredproperty.[63] On this basis, PRS submits that the transfer of title was contingent on CBIgranting a GSA. However, because CBI never granted PRS a GSA, PRS says that titlenever transferred.[64] In its response submissions, dated 8 July 2020, CBI contends that because thetransfer of title was expressed to be subject to the granting of the security interests,that is to be treated as title having passed, subject to the plaintiff's right to have asecurity interest (with that right having been extinguished through the s 310 set-offarising).[65] Generally, set-off under s 310 is available if all the following elements can besatisfied:6(a) The claims of the creditor against the insolvent company must beprovable in the liquidation;(b) each of the claims must have been incurred before the commencementof the liquidation;(c) each of the claims must be reduceable to a money claim, only then canan account be taken;(d) there must be mutuality between the parties so that in relation to theclaim that is sought to be set off there are only two parties (both debtorand creditor of the other), and that each claimant is acting in its ownright – that is, they are both beneficial owners of the debt or other claimand are personally liable;(e) none of the claims in which the set-off is sought to be exercised havebeen incurred during the prescribed period (s 310(2)).6 Company Law (online looseleaf ed, Thompson Reuters) at [CA310.03].[66] Set-off under s 310 (otherwise known as insolvency set-off) is mandatory andself-executing. Insolvency set-off operates automatically to extinguish credits, debts,and dealings that fall within its scope.7[67] I accept it is arguable that CBI could (if a debt is proven) have a claim inliquidation; and that the claim, arguably, occurred prior to liquidation.[68] However, in my view, there is no tenable basis for concluding that elements (c)and (d) above have been satisfied. First, it is difficult to ascertain where the claimeddebt (whatever the amount) has actually arisen from. CBI never paid any part of thepurchase price for the business and/or the chattels. There is thus no purchase priceagainst which to claim the set-off. While I accept it is arguable that CBI did not getwhat it bargained for, it is quite another thing to claim that it owes no part of thepurchase price at all, and in addition to that, can claim that when proper account istaken of the mutual credits and debts, PRS owes it money.[69] No attempt has been made by CBI to reduce its claim to a money claim for theCourt to conclude there is an arguable net balance that could then be calculated inaccordance with the requirements of s 310. There is also no documentary evidence tosupport the bare assertion that CBI paid a deposit of $50,000. In my view, it isimplausible that CBI is not indebted at all to PRS, and that PRS (as a matter of netbalance) is indebted to CBI in a sum equivalent to, or greater than, the value of thechattels. CBI purchased the Business knowing it was in severe financial difficulty andnow seeks to walk away, free of any legal obligation to pay any of the purchase price,while also retaining the chattels, being the only asset of value. CBI had of coursepreviously agreed to settle in the sum of $150,000.[70] In substance, what CBI has done here is take the chattels (the title of which, inmy view, remains with PRS) on the grounds that it did not get what it bargained for,and it now wrongly relies on s 310 as a justification for its improper actions. It doesso without making any credible attempt to quantify what the net balance might be.Moreover, I do not see how the provisions of the Personal Property and Securities Act1999 can assist CBI.7 Finnigan v He HC Auckland, CIV-2009-404-753, Duffy J, 1 December 2009.[71] I find that the plaintiff, PRS, has established that CBI has no defence based ona set-off under s 310 of the 1993 Act, and otherwise has no other defence to the orderthat CBI deliver the chattels to PRS.Result[72] I grant the orders sought at paras 1(b), (c) and (d) of the plaintiff's amendedinterlocutory application for summary judgment, dated 12 May 2020.[73] I declare that the sale and purchase agreement, inclusive of its variationsbetween PRS and CBI, was cancelled on 12 May 2020.[74] I order that CBI is to deliver to PRS all chattels it removed from the premises.[75] As to costs, I am of the preliminary view that, having succeeded, PRS isentitled to costs on a 2B basis plus disbursements. If costs cannot be agreed, thenmemoranda (no more than three pages) are to be filed and served within 14 days._______________________Associate Judge P J Andrew