PUBLIC TRUST AS TRUSTEE OF THE MORTGAGE DISTRIBUTION FUND V B KUMAR AND ANOR HC AK CIV-2009-404-4886

PUBLIC TRUST AS TRUSTEE OF THE MORTGAGE DISTRIBUTION FUND V B KUMAR AND ANOR HC AK CIV-2009-404-4886 13 October 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-4886BETWEEN PUBLIC TRUST AS TRUSTEE OF THE MORTGAGE DISTRIBUTION FUND Plaintiff AND B KUMAR First Defendant AND J KUMAR Second Defendant Hearing: 8 March 2010 Counsel: D M Keen for Plaintiff R McKelvin for Defendants Judgment: 13 October 2010 at 4.45 pmRESERVED INTERIM JUDGMENT OF ASSOCIATE JUDGE SARGISSON (Summary Judgement Application)This judgment was delivered by me on 13 October 2010 at 4.45pm pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar Date ..........................Solicitors: Simpson Grierson, PO Box 2402, Wellington Khan & Associates, PO Box 23492, Hunters Corner, Manukau[1] The Public Trust seeks summary judgment on its claim against Mr Biram Kumar and Mrs Jennifer Kumar under a guarantee. The Kumars oppose the application.Background[2] In April 2007 the Public Trust advanced $445,900 to the Kumars' company, Rotorua Property Developments Limited. [3] The loan was secured by the Kumars' guarantee and a mortgage granted to Public Nominees Limited, the nominee company of the Public Trust. The mortgage was over 11B Hall Road, Ngongotaha, at which the Ngongotaha Tavern is located. [4] Rotorua Property defaulted on its payment obligations under the loan. On 20 October 2008 the Public Trust served notices under the Property Law Act 2007 on Rotorua Property and the Kumars requiring them to remedy the default. The notices went unheeded. On 1 December 2008 the Public Trust by its solicitors issued written demands on Rotorua Property and the Kumars requiring repayment of all monies outstanding under the loan agreement as at that date. The demands went similarly unheeded. On 29 July 2009 the Public Trust commenced this proceeding. It sought summary judgment for the sum outstanding as at 1 December 2008 of $490,091.91, plus interest and costs as provided for under the terms of the loan. [5] The Public Trust's nominee company had earlier commenced steps to market and sell the property by tender pursuant to its power of sale as mortgagee. It appointed Harcourts Wakelin Real Estate Limited as its agent. Harcourts undertook an extensive advertising campaign in February and March 2009. Tenders closed on 19 March 2009. Only one tender was received, in the sum of $201,000 including GST. This was not acceptable to the Public Trust or its nominee company. Harcourts continued to advertise the property. [6] In May 2009 a further offer was received. The offer was made by a Ms Khan. The parties entered into an agreement for sale and purchase on 4 June 2009, conditional on satisfactory due diligence and finance. The agreement lapsed,apparently due to inability to raise finance. The agreement was later revived when Harcourts persuaded the Public Trust to provide vendor finance. The result was that on 3 September 2009 the sale agreement for $325,000 plus GST ($365,625) (the Khan agreement) was reinstated. On 10 September 2009 it was declared unconditional following the acceptance of the terms for the provision of vendor finance. The property transferred on settlement on 17 September 2009 to Ms Khan's nominee, the Khan Whanau Trust. Net sale proceeds of $272,588.12 were applied to the sum outstanding. A shortfall of $217,503.79 resulted. [7] The Public Trust now seeks summary judgment against the Kumars for the sum now outstanding under the loan of $217,503.79, plus interest and costs and solicitor/client basis. [8] At the hearing, counsel for the Kumars accepted that the sum owing under the loan is as claimed and that the Kumars are prima facie liable for that amount under the guarantee. The application is opposed on the basis that the Kumars have an arguable defence. Three grounds are advanced: a) That the Public Trust failed in its duty under s 176 of the Property Law Act to take reasonable care to obtain the best price reasonably obtainable as at the time of sale for the mortgaged property by electing on two opportunities not to proceed with another agreement that was on more favourable terms. b) That the Public Trust's sale may be impugned as in breach of s 176 by reason of its providing vendor finance to its buyer. It is contended that the provision of vendor finance shows that the sale was not at arm's length and that this had the effect of thwarting sale on the more favourable terms mentioned above. c) That the Kumars have an arguable counterclaim for seizure of chattels and goodwill by reason of the Public Trust's unlawfully assuming the right to sell these with the land and buildings.[9] All three questions ostensibly relate to the Public Trust's conduct in connection with the mortgagee sale. Strictly speaking, the power of sale was that of the Public Trust's nominee company, and the evidence shows that it was indeed the nominee company that exercised the power. Counsel for the Public Trust was, however, content to proceed on the basis that the distinction was of no moment. I proceed on that basis also.Legal principles – summary judgment[10] The legal principles applying to applications for summary judgment are well settled. Counsel for the Kumars helpfully referred to the succinct statement of the Court of Appeal in Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26]:The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried:Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court's assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).[11] While the onus is on the Public Trust, it was accepted that the Kumars need to provide some evidential foundation for the defences they raise: Australian Guarantee Corporation (NZ) Ltd v McBeth [1992] 3 NZLR 54 (CA) at 59.Legal principles – the duty of a mortgagee exercising a power of sale[12] The Kumars rely on s 176 of the Property Law Act. Section 176 states:176 Duty of mortgagee exercising power of sale(1) A mortgagee who exercises a power to sell mortgaged property, including exercise of the power through the Registrar under section187, or through a court under section 200, owes a duty of reasonable care to the following persons to obtain the best price reasonably obtainable as at the time of sale:(a) the current mortgagor: (b) any former mortgagor: (c) any covenantor: (d) any mortgagee under subsequent mortgage: (e) any holder of any other subsequent encumbrances. (2) A mortgagee who exercises a power to sell mortgaged property may not become the purchaser of the mortgaged property except in accordance with section 196 or an order of a court made under section 200. (Emphasis added.)[13] The nature of the mortgagee's duty of care is discussed in Crown Money Corporation Ltd v Pink-Martin HC Auckland CIV-2008-404-297, 5 September 2008. In that case, Associate Judge Faire extracted the following general propositions from the authorities (at [32]):a) Section 176 of the Property Law Act 2007 and its predecessor s 103A of the Property Law Act 1952, codify the duty which, under the general law, a mortgagee exercising a power of sale would be taken to owe to the persons mentioned in s 176 of the Property Law Act 2007: [Apple Fields Ltd v Damesh Holdings Ltd [2003] UKPC 54, [2004] 1 NZLR 721 at [22]]. I have already mentioned that this now has been extended to cover guarantors.b) The duty of care is concerned with obtaining the best price reasonably obtainable as at the time of sale: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd [(2001) 4 NZ ConvC 193,480 (HC)] at [70]. It is a duty to take reasonable care. It does not necessarily follow that the best price reasonably obtainable will be achieved. c) The duty has to be measured at the time of the sale: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd at [75]. The duty arises at the time the decision to sell is made: Tse Kwong Lam v Wong Chit Sen [[1983] 3 All ER 54 (PC)] at [77]. There is thus a need to analyse the steps taken once the decision to sell is made, up to the time of sale. d) The duty of care does not qualify the mortgagee's right to decide if and when to sell: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd at [70]; Downsview Nominees Ltd v First City Corporation Ltd [1993] 1 NZLR 513 [(PC)].e) When deciding for the purposes of s 176 whether reasonable steps have been taken by a mortgagee to obtain the best price, the steps taken by the mortgagee and those acting with it must be looked at in the round. The issue is a commercial one to be viewed in practical commercial terms: Apple Fields v Damesh Holdings Ltd at 729. f) Assistance in determining the issue mentioned in (e) above can be found by considering the steps endorsed by Fisher J in Harts Contributory Mortgages Nominee Co Ltd v Bryers [HC Auckland CP403-IM00, 19 December 2001] at [43] where the following matters were mentioned: [c] Where the security is substantial, or specialised property is involved, it will usually be necessary for the mortgagee to obtain and act upon specialised advice as to the method of sale: Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54 (PC). Appointing a competent agent to sell does not discharge the mortgagee's duties, but since its duty is ultimately only one of reasonable care, putting the matter in the hands of a competent agent will usually go a long way towards discharging the mortgagee's duties. [d] In the normal course the proposed sale will need to be advertised with an adequate description of the property's attributes and, within reason, widely enough to attract all possible purchasers. In some cases this will need to extend to both general and specialist publications: See Kwong supra at p 61; [Ansell v New Zealand Insurance Finance Ltd HC Wellington A434/83, 14 May 1984]. [e] There is no obligation to postpone the sale in the hope of a better price later, or to break up the assets and sell in a piecemeal manner if this can only be carried out over a substantial period or at a risk of loss: Kwong supra at p 59. [f] When assets are sold by tender or auction, a reasonable period must usually be allowed for purchasers to inspect the property and arrange finance before submitting bids: see [Seafarer Fishing Co Ltd v Broadlands Finance Ltd HC Timaru A35/77, 17 August 1984]; discussed by Ross, supra, along with Ansell v NZI Finance Ltd.g) For the breach of duty to be actionable there must be proof of damage: Apple Fields Ltd v Damesh Holdings Limited at 729 PC. (Emphasis added.)First ground: election not to proceed with agreement on more favourable terms[14] Counsel for the Kumars submitted the Public Trust breached its duty under s 176(1) to take reasonable care to obtain the best price reasonably obtainable as at the time of sale. [15] There was no wide-ranging challenge to the steps taken to market and sell the property. Counsel accepted that, in broad terms, they are indicative of the proper exercise of the power of sale and of the above duty having been fulfilled. Counsel accepted, for example, that the Public Trust put the sale in the hands of a competent real estate agent who advertised the property in a manner normal and appropriate in the circumstances. He accepted that there can be no criticism of the valuation obtained, the chosen method of sale by tender, or indeed the further advertising that was undertaken or the decision to continue negotiations with Ms Khan following the conclusion of the tender process. Ms Khan's was an offer that exceeded the only other by some $164,000. Counsel recognised that were it not for another party entering the scene, there could be no suggestion that acceptance of Ms Khan's offer was unreasonable. [16] It was not in contention, then, that the sale process, when viewed in the round and in practical commercial terms, satisfied the requisite standard. But counsel submitted that there were discrete breaches of the duty at two points. At each of these points, counsel submitted, the Public Trust had the opportunity to suspend dealings with Ms Khan and elect to proceed with another agreement on more favourable terms. In breach of its duty it failed to do so. [17] The other agreement is one I shall refer to as the Protech agreement. On 28 August 2009 the Kumars arranged, privately and entirely independently of the Public Trust, for Rotorua Property to enter into an agreement, conditional as to finance, with Protech International Ltd to sell the land, buildings, chattels and goodwill of the Ngongataha Tavern for $900,000. [18] Counsel submitted that there were discrete breaches of the duty:a) In the period immediately prior to 3 September 2009 (on which date the agreement with Ms Khan was reinstated) during which it is alleged the Public Trust was, or should have been, aware of the Protech agreement; and b) On 8 September 2009, on which date the Kumars' solicitor wrote to the Public Trust making it aware of the Protech agreement and that it was to settle on 24 September 2009. [19] Counsel submitted that but for the actions of the Public Trust, the sale to Protech would have proceeded to settlement with the result that more than sufficient monies would have been realised from the sale to clear Rotorua Property's debts without the need to call on the Kumars' guarantee. [20] It is not in dispute that if the Protech agreement had proceeded to settlement, this would indeed have been the case. Rather, dispute centres around whether the Public Trust was aware, or should have been aware, of the Protech agreement at the relevant points, and whether, in any case, there was any realistic prospect that the Protech agreement would have proceeded to settlement.The period immediately prior to 3 September 2009[21] Counsel for the Kumars submitted that during this period the Public Trust was aware of the Protech agreement. This submission may be disposed of at the outset. There is no evidence to that direct effect, nor any evidence that otherwise supports it. [22] Mr Kumar makes no claim that he took any steps in the period immediately prior to 3 September 2009 to advise the Public Trust of his independent pursuit of an agreement or to persuade it to suspend its own negotiations. Rather, he deposed that when he was served with the application for summary judgment he consulted his solicitors and eventually received advice to seek an injunction to stop the sale of the property. He says he could not afford to seek an injunction, but while waiting for advice from his solicitors he: attempted to find a buyer for 11B Hall Road, Ngongataha Rotorua. In terms of this an agreement was reached on 28 August 2009. My then solicitors advised the mortgagees on 8 September 2009 that settlement would occur on 24 September 2009 and that as a result of this the sum of $900,000.00 would be realized. [23] I turn presently to the letter of 8 September 2009. It is the only evidence of any steps having been taken to advise Public Trust of the Protech agreement. Suffice it to say it contains no hint of any prior advice. [24] Mr Doug Coward, the real estate agent who negotiated the Protech agreement on the Kumars' behalf, similarly makes no claim that he took any steps to advise the Public Trust of the agreement. He deposed only that:On or about 28 August 2009 an agreement was reached between Rotorua Property Developments Limited and Protech International Limited for the sale and purchase of 11B Hall Road, Ngongataha, Rotorua, the sale price for the above agreement being $900,000.00. The agreement was genuine and would have gone ahead had the sale and purchase of the property not been sold by mortgagee sale.[25] There is no evidential foundation for the submission that the Public Trust knew of the Protech agreement in the period immediately prior to 3 September 2009. [26] Counsel for the Kumars submitted, secondly, that during this period the Public Trust, if not aware of the Protech agreement, should have been aware of it. It should have made enquiries. [27] The duty under s 176(1) demands that the proposed sale be advertised, within reason, widely enough to attract all possible purchasers: Tse Kwong Lam v Wong Chit Sen [1983] 3 All ER 54 (PC) at 61. It was not suggested that the Public Trust did not do so. As a matter of general principle, it is not incumbent on a mortgagee to enquire as to whether the mortgagor or the mortgagor's guarantor might be negotiating with prospective buyers independently of the mortgagee sale process. Such was ultimately not pressed by counsel for the Kumars. [28] Rather, counsel submitted, the Public Trust had sufficient notice of Protech's interest to require that further enquiry be made. This submission was based on theevidence of the Public Trust's real estate agent. His evidence was that in the first week of September he was contacted by a Ms Nand, whom he later learned was a director of Protech. He deposed that Ms Nand expressed an interest in making an offer should the Khan agreement not go unconditional. She indicated her offer would be between $330,000 and not more than $350,000 (including GST). [29] Had further enquiry been made, counsel submitted, the Public Trust would have become aware of the Protech agreement and its more favourable terms, and had the opportunity to suspend its dealings with Ms Khan prior to reinstating their agreement. But there is nothing in this evidence that amounts to notice of Protech's interest sufficient to require that the Public Trust make further enquiry. Specifically, the indicative figures fell short of the amount preserved by the Khan agreement. [30] There is, then, no evidence that in the period immediately prior to 3 September 2009 the Public Trust was aware, or should have been aware, of the Protech agreement. There can be, accordingly, no question that the Public Trust breached its duty of reasonable care in failing to elect to allow it to proceed.The Kumars' solicitor's letter of 8 September 2009[31] In any case, the Public Trust became aware of the Protech agreement on 8 September 2009. On that date, the Kumars' then solicitors, Inder Lynch, wrote to the Public Trust. Their letter states:We understand that you have instigated mortgagee sale proceedings on the above property on behalf of the first mortgagee, Public Nominees Limited. Our client instructs that the property did not sell at auction and currently there is no offer on the property, although one is under negotiation. We advise that Rotorua Property Developments Limited have received an offer for the sale of the property and the business located thereon for $900,000.00, with the transaction to settle on the 24 th of September 2009. At this stage, we are awaiting confirmation from the vendor's solicitors that the Agreement is unconditional in all respects which we are endeavouring to confirm today. At this stage, we would simply ask that you hold off any other offer that may be presented for the next 24 hours until we can confirm that the offer our client has received privately is unconditional.We enclose a copy of the Agreement that we have received, although you may have some difficulty reading it as it is not very clear. If you have any queries please contact the writer.[32] Counsel for the Kumars submitted that, as on receipt of the letter the Khan agreement remained conditional on the provision of finance, and as finance was then to be provided by the Public Trust, the Public Trust could have agreed to the request to hold off any other offer for 24 hours by suspending its offer of finance for that period. Counsel submitted it was in breach of its duty in not doing so.[33] It is insufficient, however, that the Public Trust became thus aware of the Protech offer and its more favourable terms. There must be an evidential foundation to show that it was unreasonable – that is, in breach of its duty – to elect to proceed with the Khan agreement, rather than suspend the offer of vendor finance and with it that agreement, and proceed with the Protech agreement. In my view, this requires that there be an evidential foundation to show that there was a realistic prospect of the Protech agreement proceeding to settlement. This issue is to be approached in practical commercial terms. It must be borne in mind that the duty under s 176(1) does not qualify the mortgagee's right to decide if and when to sell: Agio Trustees Co Ltd v Harts Contributory Mortgages Nominee Co Ltd (2001) 4 NZ ConvC 193,480 (HC) at [70]. The mortgagee is not obliged to postpone a sale in the hope that a better overall price would be achieved: Tse Kwong Lam v Wong Sen at 59.[34] There is simply no evidential foundation to show that there was a realistic prospect of the Protech agreement proceeding to settlement. The evidence is to the contrary effect: a) The Protech agreement appears to have all but lapsed from inception. It is dated 25 August 2009, though both Mr Kumar and Mr Coward say it was made on 28 August 2009. It provided for finance to be arranged by 28 August 2009. Neither Mr Kumar nor Mr Coward claim the finance date was extended. Yet as of, at the earliest, 8 September 2009, finance had not been arranged.b) If the Kumars were of the view that there was a realistic prospect of the Protech agreement proceeding to settlement – that is, had they genuinely thought the agreement had reached the point where the Public Trust might reasonably be asked to suspend its exercise of the power of sale – they would have brought the agreement to the attention of the Public Trust. There is no evidence to suggest that they did so prior to Inder Lynch's letter of 8 September 2009. One can only conclude that there was nothing of consequence to disclose. c) If Ms Nand of Protech was of a view that there was a realistic prospect of the agreement proceeding to settlement, one might equally have supposed she would have mentioned it to the Public Trust's real estate agent in her telephone conversation of early September. She evidently did not. Indeed, the real estate agent's evidence is that she advised him of her interest in making an offer of between $330,000 and $350,000 (including GST) if the Khan agreement fell through. This is entirely inconsistent with there being an undisclosed agreement extant, or with that agreement being for $900,000 (I do not overlook that the latter included chattels and goodwill). d) Further, when the Protech agreement was brought to the attention of the Public Trust, far from containing anything that might warrant the Public Trust's assuming any degree of confidence as to the prospect of its proceeding to settlement, its tenor suggests Inder Lynch had no such basis. Tellingly, no confirmation eventuated within the 24 hours requested. I can only assume the 24 hours came and went without Inder Lynch having anything positive to report. e) Finally, there is no evidence to suggest that the $900,000 purchase price reserved under the Protech agreement was based on a sensible valuation or had any prospect of being realised. [35] Rather, the only evidence to support the contention that there was a realistic prospect of the Protech agreement reaching settlement is that of Mr Coward. MrCoward deposed that the agreement was genuine and would have gone ahead. I am satisfied, however, that this is nothing more than bare assertion. It is for the Kumars to lay an evidential foundation to show that there is a real question to be tried and bare assertion is simply not enough. A robust approach to this aspect of the Kumars' case is plainly warranted. [36] Approaching the question in practical commercial terms, there is no evidential foundation for the proposition that there was a realistic prospect of the Protech agreement reaching settlement. It is therefore not arguable that the Public Trust breached its duty in electing to proceed with the Khan agreement, to the extent that at the relevant points it had knowledge of the same.Second ground: breach of duty in that sale not at arm's length[37] The Kumars' second ground is effectively that the Public Trust acted in breach of its duty by making an offer of finance to the Khan interests. They say the offer of vendor finance meant the Khan agreement, on its less favourable terms, would inevitably proceed to completion, and that the Protech agreement was thereby thwarted. [38] The alleged breach of duty is again of s 176(1), rather than s 176(2) which regulates the purchase of mortgaged property by a mortgagee in exercise of the power of sale. Underlying the argument, however, is the suggestion that a mortgagee's provision of finance is likely analogous to a mortgagee's purchase and that in both situations the vendor will be promoting its own interest rather than those served by its duty to take reasonable care to obtain the best price reasonably obtainable. [39] Whether or not the provision of vendor finance points to a possible breach of the duty of care is a question of fact in the individual case. The evidence in the present case lends no support for the possibility that such a conflict was at play. Indeed, the contrary is the case. The sale process adopted by the Public Trust was in general terms, as counsel for the Kumars accepted, beyond criticism. The process unfortunately produced a single tender of $201,000, which the Public Trustconsidered it ought not properly to accept. A further period of advertising produced Ms Khan's offer, which was higher by some $164,000, but her offer lapsed due to lack of finance. It is against that background that the Public Trust's agreement to provide vendor finance must be assessed. Viewed in practical commercial terms, the decision to provide vendor finance was a sensible and pragmatic step to secure the revival of the better of the two offers that the Public Trust had actually received in a mortgagee sale process which was properly and reasonably conducted. The Public Trust was entitled to reach the decision it did, that if it waited until the buyer found another source of finance it could have lost the buyer and found itself in a precarious position. [40] Given this finding, it is unnecessary to consider whether, as is submitted, the provision of vendor finance thwarted the Protech agreement. However, for the reasons above, there is no evidence beyond bare assertion that the Protech agreement had a realistic prospect of proceeding to settlement. It cannot be said it was in any way thwarted.Third ground: counterclaim[41] In their notice of opposition, the Kumars opposed the Public Trust's application on a third and final ground. It was pleaded they had a counterclaim for an amount in excess of that claimed, in that the Public Trust had seized their chattels and goodwill. [42] This ground was abandoned at the hearing. That was entirely appropriate. There was no seizure of the chattels. The Khan agreement did not include them. There was no right to sell, and consequently no sale of, the chattels. Indeed, the evidence shows that both the Public Trust and Ms Khan made attempts to have the Kumars remove the chattels, and that they remain available for collection. [43] I am equally satisfied that there was no "seizure" arising from any purported sale of the goodwill. There was no such sale, as the terms of the Khan agreement make plain. Counsel for the Kumars accepted as much by indicating that the underlying concern was less about the seizure of the goodwill than about the PublicTrust's failure to elect to proceed with the Protech agreement and its provision for goodwill. This issue has been traversed. No additional ground was advanced as to a distinct breach of the duty under s 176 in respect of the goodwill.Conclusion[44] The Kumars' opposition to the Public Trust's application essentially reduces to the complaint that the property was sold for a sum that did not reflect the conditional offer they negotiated privately with Protech. But there is no evidential foundation to show that this agreement had any realistic prospect of proceeding to settlement. In the absence of such evidence none of the grounds advanced give rise to an arguable defence.Result[45] I make an order by way of summary judgment in the sum of $217,503.79, being the sum owing under the loan agreement and the guarantee as at 1 December 2008 after setting off the net proceeds of the mortgagee sale. [46] With respect to interest and costs: a) The Public Trust is to file and serve within 5 working days a memorandum and supporting affidavit setting out the interest claimed and the costs it has incurred and claims as reasonable actual costs, together with the terms of the loan agreement or guarantee that allow that interest and those costs. b) The Kumars will have a further 5 working days to file and serve any documents in response. c) If either side so requests I will then allocate a brief chambers hearing, failing which I will deal with these remaining matters on the papers.___________________________Associate Judge Sargisson