PRESTIGE MOTORS LTD v MY TRUSTEE COMPANY LTD [2021] NZHC 895

PRESTIGE MOTORS LTD v MY TRUSTEE COMPANY LTD [2021] NZHC 895 [27 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-80[2021] NZHC 895IN THE MATTER of Articles 9, 17A and 17B of Schedule 1 tothe Arbitration Act 1996 and s 253 of theProperty Law Act 2007BETWEEN PRESTIGE MOTORS LIMITEDApplicantAND MY TRUSTEE COMPANY (NIKOLASAND PETRA) LIMITEDRespondentHearing: On the papersAppearances: J Long and G Morrison for the ApplicantD Purusram for the RespondentJudgment: 27 April 2021JUDGMENT (NO 2) OF GORDON JThis judgment was delivered by meon 27 April 2021 at 1 pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors: DK Law, AucklandVictorian Lawyers, Papakura, AucklandCounsel: J Long, AucklandG Morrison, AucklandIntroduction[1] This is an application by the respondent, My Trustee Company (Nikolas andPetra) Limited (MTC), to correct the judgment I gave in favour of the applicant,Prestige Motors Limited (Prestige) on 22 February 2021.1[2] This judgment is given on the papers with the consent of both parties.Background[3] Prestige ran its automotive services and repair business from premises at14-16 Dryden Place, Mt Wellington (the premises) until it was locked out from thepremises by the landlord, MTC. Prestige claimed MTC had unlawfully purported toterminate its lease (the lease), evict it from the premises, and deny it access to thepremises on a number of occasions. Prestige claimed it had suffered considerablelosses because of MTC's actions as it was unable to conduct its business. As aconsequence, Prestige applied for urgent interim measures and relief regarding thetenancy.[4] The lease contains an arbitration clause. Pending any arbitration, Prestigesought interim measures under arts 9, 17, 17A and 17B of Schedule 1 of the ArbitrationAct 1996. Prestige sought those measures to restore the status quo under the lease andto prevent MTC from taking action that was likely to cause harm or prejudice to thearbitral proceedings.[5] Article 9 of Schedule 1 of the Arbitration Act empowers the Court to grantinterim measures before or during an arbitration. The Court is restricted to the samepowers as those of the arbitral tribunal (under arts 17A and 17B). The Court'sjurisdiction is therefore auxiliary to and complements and facilitates, the arbitralprocess. The ordinary jurisdiction for interim injunctions does not apply.2[6] Prestige's case was that MTC's cancellation of the lease was unlawful becausethe notice given by MTC did not comply with the code for cancellation of leases under1 Prestige Motors Ltd v My Trustee Co Ltd [2021] NZHC 237.2 Safe Kids in Daily Supervision Ltd v McNeill [2012] 1 NZLR 714 (HC) at [18].the Property Law Act 2007 (PLA). Applying the criteria in art 17B(1)(a)–(c), Iaccepted that Prestige had an arguable case that the PLA notice was not valid, and Iconsidered that there was a reasonable possibility that Prestige would succeed on themerits. Further applying the test, I accepted that Prestige was likely to suffer harmthat would not be adequately remedied by an award of damages if the application werenot granted and that the harm that would be suffered by Prestige if the application werenot granted substantially outweighed any harm that was likely to result to MTC if Iwere to grant the measures sought.[7] Prestige therefore succeeded on its application.[8] The orders I made were as sought in Prestige's amended application of4 February 2021 and included a direction that MTC (including its directors, agents andcontractors and specifically Stephen Penney, one of two directors of MTC):3[65](f) reinstate all property moved from or around the premises by MTC,including but not limited to signage, the emergency power generator andtelevisions belonging to Prestige.[9] On 18 March 2021, Mr Purusram, on behalf of MTC, filed an "application" byway of memorandum seeking an order correcting my judgment under r 11.10(1)(a) orr 11.10(b) of the High Court Rules 2016 (HCR), or alternatively an order varying myorder under r 7.49 of the HCR. The memorandum also referred to s 27(1) of the NewZealand Bill of Rights Act 1990 (NZBORA). In the memorandum, Mr Purusram saidhe was instructed that MTC denied liability about "having misplaced of [sic] theTV/generator" and that the directors of MTC felt offended by the wording of [65](f).[10] MTC sought correction of [65](f) by the deletion of the words "the emergencypower generator and televisions" from that paragraph. Mr Purusram did not providean explanation for the delay in filing the "application". Prestige filed a memorandumin opposition on 23 March 2021 and Mr Purusram filed a reply on 24 March 2021.[11] On 31 March 2021, I issued a minute in relation to the "application" underr 7.49. I noted that this was neither a formal application nor were there reasons3 Prestige Motors Ltd v My Trustee Co Ltd above n 1, at [65](f).provided for the memorandum being out of time. I granted an indulgence to MTC sothat Mr Purusram might file a formal application in place of his memorandum and anexplanation as to why MTC applied out of time. I made it clear that in giving MTCthe opportunity to regularise its filing, that was not an indication that the applicationwould be granted.[12] I also gave MTC the opportunity to file and serve an affidavit from Mr Penneyas to his position on the removal of the generator (Mr Penney had referred to thetelevisions in his affidavit for the hearing but not the generator). I made it clear thatin giving that opportunity the Court had not determined whether or not it would in factadmit the evidence.[13] MTC filed an application which is recorded in the Court's system as beingreceived the day after it was directed to be filed along with an affidavit of Mr Penneysworn 7 April 2021 also filed one day after the directed time. There was noexplanation for the delay in filing. The application did not refer to any specific rulesbut generally relied on parts 7 and 11 of the HCR and s 27 of NZBORA.[14] In his affidavit dated 7 April 2021, Mr Penney denies all knowledge of thepower generator and denies that he admitted moving the generator when he appearedbefore the Duty Judge on 3 February 2021 (as alleged in the affidavit evidence forPrestige for the hearing).[15] MTC subsequently filed an amended application relying on rr 1.6, 7.49, 11.9and 11.10 of the HCR along with s 27 of BORA and art 17H(a) of Schedule 1 of theArbitration Act.Evidence[16] In his affidavits, Uditha Pallewatte, the director of Prestige, said that the powergenerator belonging to Prestige had been removed from the premises. Other property,including eight televisions packed in wooden pallet boxes had also been removed. Theapplication was called before the Duty Judge on 3 February 2021. Counsel appearedfor Prestige and Mr Pallewatte and his family attended Court. Mr Penney and his co-director appeared for MTC with the leave of the Court. Prestige's position in itsaffidavit evidence was that at the call on 3 February 2021, Mr Penney admitted to theCourt that he had removed property belonging to Prestige from the premises.Prestige's position is that Mr Penney specifically admitted he had removed Prestige'ssignage and power generator.[17] The Duty Judge made interim orders including that " nothing shall be alteredor removed from the premises pending further order of this Court".4[18] Prestige recorded what it says were Mr Penney's admissions, incorrespondence to MTC dated 4 February 2021 and subsequently in Mr Pallewatte'sthird affidavit of 15 February 2021. Prestige also filed an amended originatingapplication dated 4 February 2021 to take account of what it says were MTC'sadmissions before the Duty Judge to require the reinstatement of its removed propertyand signage. That order sought became the order at [65](f) of my judgment referredto in [8] above.[19] Prestige followed up in relation to its 4 February 2021 letter, but did not receivea response. Nor did MTC address the issue of the removed power generator in itsnotice of opposition or in Mr Penney's affidavit dated 12 February 2021. Mr Penneydid say, in respect of the paragraphs in which Mr Pallewatte referred to the televisionspacked in wooden pallet boxes that, "I am not aware of these and therefore denysame". MTC's written submissions did not respond to Prestige's submissions relatingto the power generator or any other removal of property.[20] The orders in my judgment were sealed by Prestige on the date of judgment,22 February 2021.Rule 11.10 of the HCR[21] Mr Purusram refers to the part of my judgment where I said:[6] Prestige and MTC disagree on most factual matters. Decisions onthose disputed facts will be for any arbitration. It is not possible to resolvethose issues on untested affidavit evidence. And, in any event, it is notnecessary to do so in order to determine the application.4 Minute of Paul Davison J at [3](a).[22] He goes on to submit that that wording makes it clear that I did not intend tomake any order about the televisions and the generator specifically and the inclusionof those items in the order are by error/omission or mistake, or through oversight andneed to be deleted accordingly. He says that the orders were made on an urgent basisto enable Prestige to have peaceable entry to the premises. The issue regarding thetelevisions and generator is not an urgent issue. He further adds that there is noevidence of ownership or any proprietary interest in the televisions and generator.Finally, he submits that the deletion of the two items will cause no prejudice to Prestigeas the paragraph will still direct MTC "to reinstate all property moved from or aroundthe premises by MTC". The deletion of those two items will be no bar to Prestigepursuing the issue in the course of arbitration.[23] Rule 11.10 of the HCR provides:11.10 Correction of accidental slip or omission(1) A judgment or order may be corrected by the court or the Registrarwho made it, if it—(a) contains a clerical mistake or an error arising from anaccidental slip or omission, whether or not made by an officerof the court; or(b) is drawn up so that it does not express what was decided andintended.(2) The correction may be made by the court or the Registrar, as the casemay be,—(a) on its or his or her own initiative; or(b) on an interlocutory application.[24] This rule allows the Court to correct a judgment where there is an error arisingfrom an accidental slip or omission or where it is drawn up so that it does not expresswhat was decided and intended.[25] Rule 11.10, often called the slip rule, reflects the Court's inherent jurisdictionto correct errors as a result of a slip or accidental omission. It is a jurisdiction usedsparingly and is aimed at inadvertence.5 The rule may not be invoked to improve onor to permit second thoughts about the judgment obtained,6 to amend an order to amore convenient form,7 or vary an order in a fundamental way.8[26] The jurisdiction under r 11.10 will not be invoked where determination of thequestion at hand would require the calling of further evidence.9 I therefore putMr Penney's affidavit of 7 April 2021 aside in my assessment of the application underr 11.10.[27] MTC does not suggest that the judgment does not accurately record what wasdecided. It does suggest by reference to [6] of my judgment, that the judgment doesnot accurately record what was intended. In response to that submission I note first,in relation to Prestige's case that Mr Penney removed the power generator from thepremises, this was the subject of evidence from Mr Pallewatte that was undisputeduntil Mr Penney's affidavit of 7 April 2021. I have already said I put that affidavit toone side for the purpose of this assessment.[28] In relation to the televisions, Prestige's position is that it took Mr Penney'salleged admission at the 3 February 2021 hearing to include the removal of all property(including the televisions) and proceeded on the basis that Mr Penny removed thepower generator and televisions. MTC amended its original application to include thereinstatement of all property, including the power generator and televisions. That wasnot addressed in MTC's notice of opposition.[29] I acknowledge that there was a bare denial of knowledge of the televisions byMr Penney in his 12 February 2021 affidavit, but MTC did not address this point inwritten submissions. Even though the denial was a bare denial, I accept that MTCmight say there was an evidential dispute. But I do not consider this is a matter thatcan be "corrected" under r 11.10. There was no error arising from an accidental slip5 See Andrew Beck and others (eds) McGechan on Procedure (online looseleaf ed, ThomsonReuters) at [HR11.10.01]; and Bank of New Zealand v Mulholland (1991) 4 PRNZ 299 (HC).6 See Bhullar v Auckland Co-operative Taxi Society Ltd (No 2) [2018] NZHC 1375 at [3] citingBroadview Investments Co Pty Ltd v Corporate Interiors (NZ) Ltd HC Wellington CP123/92,12 August 1998 in relation to r 11.10(b).7 Bank of New Zealand v Mulholland, above n 5 at [302].8 See for example R v Cripps, ex p Muldoon [1983] 3 All ER 72.9 Brickell v Attorney-General (2002) 16 PRNZ 557 (HC) at [6].or omission.10 Nor is the judgment drawn up so that it does not express what wasdecided and intended under r 11.10(1)(b). That rule more naturally refers to the formalorder drawn up following a judgment.11Rule 11.9 of the HCR[30] Rule 11.9 provides:11.9 Recalling judgmentA Judge may recall a judgment given orally or in writing at any time before aformal record of it is drawn up and sealed.[31] As is apparent, the rule is not available where, as here, final orders have beensealed. The leading statement in New Zealand is that of Wild CJ in HorowhenuaCounty v Nash (No 2):12Generally speaking, a judgment once delivered must stand for better or worsesubject, of course, to appeal. Were it otherwise, there would be greatinconvenience and uncertainty. There are, I think, three categories of cases inwhich a judgment not perfected may be recalled – first, where since thehearing there has been an amendment to a relevant statute or regulation or anew judicial decision of relevance and high authority; secondly, where counselhave failed to direct the Court's attention to a legislative provision orauthoritative decision of plain relevance; and thirdly where, for some othervery special reason justice requires that the judgment be recalled.(emphasis added)[32] Although the application is not made in reliance on the Court's inherentjurisdiction, Mr Purusram nevertheless refers in his submissions to the ability of theCourt to recall a judgment in exceptional circumstances, including situations where aslip or omission may be rectified, and where a supplementary judgment may be givento cover a matter not previously dealt with.13 He submits that there are exceptionalcircumstances here as there has been an omission or slip and that a supplementaryjudgment must be delivered to rectify the references to the televisions and thegenerator.10 High Court Rules 2016, r 11.10(1)(a).11 Bhullar v Auckland Co-operative Taxi Society Ltd (No 2), above n 6 at [3].12 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.13 Herron v Wallace (2016) 23 PRNZ 620 (HC) at [33].[33] Acknowledging the decision in Herron v Wallace, Prestige accepts that theCourt retains an inherent power to recall or rescind a judgment after it has beensealed.14 But it says there are no exceptional circumstances here.[34] In Herron v Wallace, Faire J was required to consider whether the Court hasjurisdiction to recall or rescind a perfected judgment. After a review of cases whichconsidered this issue,15 the Judge set out the principles which he considered could beextracted from those cases, as follows:16(a) The starting point must be the finality of litigation which reflects thepublic interest in there being an end to litigation, and the privateinterests of the parties in not being subject to vexatious litigation;however(b) absolute finality of litigation is unsafe. There are circumstances inwhich the Court may invoke its inherent jurisdiction. There are someestablished categories of exception to the finality of litigation:(i) a slip or omission may be rectified;(ii) a judgment may be set aside, usually by separate action,where it was obtained by fraud;(iii) a case may be reopened where fresh evidence not previouslyavailable has come to light which is material to the outcomeof the case;(iv) a judgment obtained by consent may be reopened; and(v) a supplementary judgment may be given to cover a matter notpreviously dealt with.[35] I accept Prestige's submission that there are no exceptional circumstances:there was no slip or omission; the judgment was not obtained by fraud; the newaffidavit evidence of Mr Penney now asserting he did not acknowledge removing thegenerator does not qualify as fresh evidence; the judgment was not obtained byconsent; and the issue now raised is not a matter not previously dealt with.14 At [4(d)].15 At [17] to [32].16 At [33].[36] MTC's application cannot succeed under r 11.9 as the judgment has beensealed. Nor does it succeed in reliance on the Court's inherent jurisdiction for thereasons given.Rule 7.49 of the HCR[37] MTC's amended application introduces new grounds, namely art 17H(a) ofSchedule 1 of the Arbitration Act and r 1.6 of the HCR. However, these new groundsare only advanced to support the application under r 7.49. They are not advanced asgrounds in their own right.[38] Mr Purusram submits that the originating application was dealt with as aninterim application pending determination of the main disputes by way of arbitrationor other proceedings. He notes that art 17H(a) to Schedule 1 of the Arbitration Actprovides that if the arbitral tribunal grants or issues an interim measure or apreliminary order, it may modify, suspend, or cancel the measure or order on theapplication of a party. He submits the Court has an ability to modify the judgmentunder art 17H(a).[39] He also refers to r 1.6 submitting that the HCR appear silent on this issue.Rule 1.6 provides:1.6 Cases not provided for(1) If any case arises for which no form of procedure is prescribed by anyAct or rules or regulations or by these rules, the court must dispose ofthe case as nearly as may be practicable in accordance with theprovisions of these rules affecting any similar case.(2) If there are no such rules, it must be disposed of in the manner that thecourt thinks is best calculated to promote the objective of these rules(see rule 1.2).[40] Mr Purusram refers to Prestige's reliance on the decision of Mike Pero (NewZealand) Ltd v Krishna17 and submits it should be distinguished as the Court did notrefer to art 17H(a) in that case.17 Mike Pero (New Zealand) Ltd v Krishna [2016] NZHC 1255, (2016) 14 NZELR 244.[41] Mr Purusram also relies on three cases, two of which refer to the Court'sinherent jurisdiction to modify or revoke procedural orders, which are of continuingeffect at any time before a substantive judgment finally determines the parties' rights,18and a third where the Court considered it had jurisdiction to vary or rescind a non-publication order, which was an order of continuing effect.19 In summary,Mr Purusram submits it is open to interpretation as to whether the Court may applyr 7.49 coupled with r 1.6 and art 17H(a) of Schedule 1 of the Arbitration Act, for thepurposes of establishing jurisdiction under r 7.49.[42] Rule 7.49 provides:7.49 Order may be varied or rescinded if shown to be wrong(1) A party affected by an interlocutory order (whether made on a Judge'sown initiative or on an interlocutory application) or by a decisiongiven on an interlocutory application may, instead of appealingagainst the order or decision, apply to the court to vary or rescind theorder or decision, if that party considers that the order or decision iswrong.(2) A party may not apply under subclause (1) if the order or decision wasmade or given—(a) with the consent of the parties; or(b) on an interlocutory application for summary judgment underrule 12.4.(c) [Revoked](3) Notice of an application under subclause (1) must be filed andserved,—(a) if it is made by a party who was present or represented whenthe order was made or the decision given, within 5 workingdays after the order was made or the decision was given:(b) if it is made by a party who was not present and notrepresented, within 5 working days after receipt by the partyof notice of the making of the order or the giving of thedecision, and of its terms.18 Ryde Holdings Ltd v Sorrenson (1995) 8 PRNZ 339, Haylock v Patek [2010] NZCA 289, [2011]1 NZLR 100 at [39].19 Havenleigh Global Services Ltd v Henderson [2015] NZHC 3354.[43] This rule allows for a party to apply to vary or rescind an interlocutory order.That term is defined in r 1.3 as follows:interlocutory order—(a) means an order or a direction of the court that—(i) is made or given for the purposes of a proceeding or anintended proceeding; and(ii) concerns a matter of procedure or grants some relief ancillaryto that claimed in a pleading; and(b) includes—(i) an order for a new trial; and(ii) an order striking out the whole or part of a pleading; and(iii) an order varying or rescinding an interlocutory order.[44] As was pointed out by Faire J in Mike Pero (NZ) Ltd v Krishna,20 the abovedefinition clearly provides that an interlocutory order can only be an order made forthe purposes of a proceeding or an intended proceeding. "Proceeding" is defined as"any application to the court for the exercise of the civil jurisdiction of the court otherthan an interlocutory application".21[45] As Faire J went on to say in that case (as is the case here), there was noapplication to the Court for the exercise of civil jurisdiction, nor was there intended tobe, other than an application for interim orders. That was because the parties intendedto take the dispute in that case to arbitration, and the interim orders were made by theCourt under the Arbitration Act.22 The Court in this case is in precisely the sameposition.[46] In this case, the orders I made determined an originating application underPart 19 of the HCR.2320 Mike Pero (NZ) Ltd v Krishna, above n 17.21 At [50].22 Mike Pero (NZ) Ltd v Krishna, above n 17, at [50].23 Rule 19.2 provides that applications under the Arbitration Act must be made by originatingapplication (apart from an application for enforcement of an arbitral award as a judgment or anappeal on a question of law).[47] Rule 19.10 of the HCR contains a list of rules concerning interlocutoryapplications which apply to proceedings commenced by originating application.Rule 7.49 is not included in that list. The commentary in McGechan on Procedurestates: 24The order made on an originating application is a final and not an interlocutoryorder so the method of challenge is by appeal to the Court of Appeal, and theprocedure of review under rr 7.49 and 7.50 is not available.[48] I also accept the submission made on behalf of Prestige that in addition to thereasons set out by Faire J, in a case such as this, the Court is expressly confined to thesame power as an arbitral tribunal by art 9(2) of Schedule 1 of the Arbitration Act, tothe exclusion of the High Court's interlocutory jurisdiction.25 The Court's jurisdictionis expressly limited (by operation of art 9(2)) to arts 17A and 17B of Schedule 1 of theArbitration Act and does not extend to modification of interim orders under art 17H.Article 17H is therefore irrelevant to any assessment under r 7.49. Only an arbitraltribunal, once formed, has jurisdiction under art 17H. The Court in Mike Pero wascorrect not to consider art 17H and the case cannot be distinguished on that basis.[49] MTC's efforts to expand the Court's jurisdiction under r 7.49 by reference toother enactments or the HCR does not assist MTC to overcome the proceduralimpediment that interim measures under the Arbitration Act are by way of final orderson an originating application. They are not interlocutory orders.[50] Nor do I accept that r 1.6 can be applied to vary existing procedural rules suchas r 7.49. Rule 1.6 only applies to fill gaps where there are no procedural rulesgoverning the particular situation.26 To apply r 1.6 to expand r 7.49 in the way MTCsubmits can be done would have the opposite effect. It would cut across the expresswording and application of r 7.49 which, as I have said, only applies to interlocutoryorders.[51] As to the three cases relied on by MTC regarding orders having continuingeffect, they all relate to variation of continuing interlocutory orders made within the24 Andrew Beck and others (eds) McGechan on Procedure, above n 5, at [HCR19.10.06].25 Safe Kids in Daily Supervision Ltd v McNeil, above n 2, at [18].26 Andrew Beck and others (eds) McGechan on Procedure, above n 5, at [HCR1.06].Court's civil jurisdiction pending final judgment within the Court's jurisdiction.However, that jurisdiction does not apply here because the Court is only seized of thedispute for the purposes of final orders on Prestige's originating application.[52] To conclude, r 7.49 does not apply in this case. MTC must appeal to the Courtof Appeal if it wishes to challenge or vary the orders made.27[53] The absence of jurisdiction being clear, I do not go on to consider theapplication on its merits. But I do note the application (even accepting that thememorandum of 18 March 2021 was the application) was well outside the five-daytime limit. Where there has been a long delay, time for an application will not beenlarged without sufficient explanation.28 In this case Mr Penney says that since thejudgment, MTC has been fully engaged in addressing another condition of myjudgment in relation to an electrical report and also MTC believed there would be noopposition to the correction sought. That is an inadequate explanation for the periodof 18 days which it took before the memorandum was filed.Section 27 of the NZBORA 1990[54] Finally, MTC relies on s 27 of the NZBORA which provides:27 Right to justice(1) Every person has the right to the observance of the principles ofnatural justice by any tribunal or other public authority which has thepower to make a determination in respect of that person's rights,obligations, or interests protected or recognised by law.(2) Every person whose rights, obligations, or interests protected orrecognised by law have been affected by a determination of anytribunal or other public authority has the right to apply, in accordancewith law, for judicial review of that determination.(3) Every person has the right to bring civil proceedings against, and todefend civil proceedings brought by, the Crown, and to have thoseproceedings heard, according to law, in the same way as civilproceedings between individuals.27 At [HCR19.10.06].28 Kiwi Operative Dairies Ltd v Capital Dairy Products Ltd (1989) 1 PRNZ 622 (HC) at 625; andArkley v Fraser Mill Properties Ltd (1988) 1 PRNZ 616 (HC) at 617.[55] Section 27 does not provide a separate jurisdiction enabling a Court to correctorders made in response to an originating application under the Arbitration Act or moregenerally. It does not apply to this case.Admissibility of affidavit of Stephen Penney[56] I admit the parts of paragraphs 5 to 11 of the affidavit of Stephen Penney swornon 7 April 2021, which address the reasons for the delay in filing the application.Other parts of those paragraphs that make allegations against Prestige, in particular inparagraphs 6, 7 and 8 which make allegations in connection with Prestige's allegeddamage to the premises, are not admitted. The balance of the affidavit, containingMr Penney's explanations regarding the televisions and the generator are not admitted.As noted above, r 11.10 will not be invoked where further evidence is required; r 11.9is not available as the judgment has been sealed; and as far as r 7.49 is concerned,there is no jurisdiction to make the order and the affidavit is therefore not required.Section 27 of the NZBORA does not found a separate jurisdiction to correct myjudgment.Result[57] The application to correct my judgment of 22 February 2021 is refused.Costs[58] Although the Court did not hold a hearing (with consent of the parties) Prestigewill have nevertheless incurred costs in filing submissions. It is prima facie entitledto an award of costs being the successful party. If the parties can agree on costs, Idirect a joint memorandum be filed within 15 working days of the date of thisjudgment.[59] If costs cannot be agreed, Prestige is to file and serve its memorandum withinfive working days of the date for the joint memorandum. MTC is to file and serve itscosts memorandum within five working days of the date of service of Prestige's costsmemorandum. Memoranda should not exceed four pages (excluding attachments). Iwill determine costs on the papers.___________________________________Gordon J