BROWNING v JONES [2020] NZHC 2308

BROWNING v JONES [2020] NZHC 2308 [7 September 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2020-488-2[2020] NZHC 2308BETWEEN ROBERT BROWNINGPlaintiffAND SUSAN ANN JONESDefendantHearing: 7 September 2020 at 2:15pmAppearances: Katerina Wendt for the PlaintiffNo appearance for the DefendantJudgment: 7 September 2020ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELLSolicitors:Palmer Macauley (Rick Palmer), Kerikeri, for the PlaintiffCopy for:Katerina Wendt, Richmond Chambers, Auckland, for the plaintiffandSusan Jones, Waimate North (defendant)[1] Mr Browning and Ms Jones own a 1.5 hectare residential property at15 Waikuku Road, Waimate North, as tenants-in-common in unequal shares. Sheowns 60 per cent; he owns 40 per cent. He lent her the money to buy her share of theproperty. His loan is secured by a mortgage over the property.[2] Mr Browning sues Ms Jones on four causes of action:(a) In the first, he claims repayment of a loan to her, $394,800, defaultinterest under the loan, rent for her exclusive use of his interest in theproperty, her share of the legal costs on the purchase of the property,her share of the rates that he had paid for the property, and her share ofexpenses he incurred in repairing and maintaining the property.(b) In the second, he sues in quantum meruit for his work in rectifyingdefects and damage in the property.(c) In the third cause, he seeks the sale of the property under s 339 of theProperty Law Act 2007.(d) In the fourth, as an alternative to the third, he seeks specificperformance of an agreement made in 2016 under which the propertywas to be put on the market and sold.[3] Mr Browning has applied for summary judgment. He recognises that not allof his claims are suitable for summary judgment. He has applied for summaryjudgment only for some parts – repayment of the loan and interest on the loan, and theapplication under s 339 of the Property Law Act 2007 for the sale of the property.[4] He began this proceeding in January this year, but did not apply for summaryjudgment until June 2020. Associate Judge Smith gave leave to apply for summaryjudgment after the start of the proceeding.[5] At the outset, Ms Jones had legal representation. Later, her lawyers soughtleave to withdraw. Their application for leave to withdraw was served on her. She didnot oppose. I gather that she may not wish to actively defend the proceeding. She hasnot appeared today.[6] Mr Browning has also applied to strike out parts of Ms Jones' statement ofdefence. Those parts are affirmative defences to causes of action in which he seekssummary judgment. Accordingly, for this decision, it is more convenient to deal withthe summary judgment application and then see whether there are any residual strike-out issues which need addressing.Facts[7] Mr Browning is some 76 years of age. He is retired. Before retirement heworked in construction contracting and commercial and industrial building. He was acivil engineer and a registered general builder in Queensland. He owns a propertyWaikaramu Road, also in Waimate North.[8] Ms Jones is also retired, but her background is in real estate. She used to liveat Hahei, near Mangonui. In late 2006/2007 she was living in Mr Browning's propertyat Waikaramu Road. In early 2007, she made an agreement to buy the Waikuku Roadproperty for $633,000. Mr Browning says that the property is 1.5 hectares in area, itis a semi-rural lifestyle block with three buildings – a large two-storey four-bedroomhouse, garage, and a 40 square metre one-bedroom cottage. Ms Jones toldMr Browning that she had arranged second-tier lending of $200,000 on the basis thatshe would also contribute $250,000 toward the purchase price. She asked if she couldborrow $185,000 from Mr Browning. Mr Browning agreed to help but did so ondifferent terms. They agreed that he would also take an interest in the propertyhimself, a 40 per cent interest, and he would pay $253,200. Ms Jones would have a60 per cent interest and would pay $379,800. The 60/40 interest would be recordedon the title. He would lend her the money to pay the $379,800.[9] They made a mortgage agreement dated 8 March 2007. He is the mortgageeand she is the mortgagor. The principal sum under the mortgage agreement is$394,800. The extra $15,000 was other money he lent her. The interest payable was8 per cent per annum, with a default interest rate of 12 per cent per annum. Themortgage agreement is in registrable form and is subject to the general terms andconditions in mortgage form 2005/4179. The loan was to be repaid by 7 March 2008.The mortgage is in the form of a deed.[10] They also entered into another deed on 8 March 2007. This recordedarrangements between them, including his loan to her. They agreed to paycontributions on a 40/60 split, including legal expenses and disbursements on thepurchase of the property, rates and insurance premiums, the costs of maintaining theproperty and any valuation fees. They agreed to use the property residentially and forresidential tenancies only. The agreement also provided for Ms Jones to seek help forher hearing as she was having difficulties at that time. Under the deed, she was tomake mortgage payments to Mr Browning as required. She would be in default if shefailed to do so. She was to buy out his interest in the property by 7 March 2008 at anagreed current market value. She was to repay the loan at the same time.[11] The agreement also provided for unilateral termination. One party could givenotice to the other, requiring the other to buy them out on one month's notice. If thenon-terminating party did not buy them out, the terminating party had the option topurchase the interests of the other – again for another month. And if neither sideexercised the options, the property would be put on the market and sold, withMr Browning being repaid the mortgage out of his share of the proceeds. It is clearfrom the agreement that they had separate and independent legal advice before signing.[12] Ms Jones has lived in the property ever since. Mr Browning lived in hisproperty at Waikaramu Road, but he sold that in 2016 and moved into the cottage onthe Waikuku Road property.[13] From 2008 neither took any steps to buy out the other and the property was notput on the market for sale. They found that there were building defects in the housethat needed fixing. Another reason for not selling the property was that the globalfinancial crisis had struck and property values fell. They set to work fixing the defectsin the property. Mr Browning said that he had health problems which slowed hisprogress in doing the remedial work. Ms Jones had tenants living in the cottage, atleast up until when he moved in in October 2016. She also had boarders in the house.His evidence is that she has not paid him as required under the deed and under themortgage agreement. He says that she paid him $1,590.67 which was recorded in histax return for the year ending 31 March 2008, but he has not received any paymentsfrom her since. He also says that he paid the rates on the property and she did notcontribute to them. Whenever he approached her about payment, she always said thatshe did not have any money.[14] In 2016, he sold the Waikaramu Road property with a view to moving back toAustralia once the repairs were carried out in Waikuku Road and that property wassold. He moved into Waikuku Road because he thought that would incentivise him tocarry out the repairs more quickly and easily.[15] They made a new agreement in September 2016, which provided for him tomove into the property and for her to make the cottage vacant for him to live there.She would allow him reasonable access to carry out the repairs and renovations witha view to selling the property. Once the repairs had been carried out, the propertywould be put on the market for sale. The final repairs were completed in April 2018.There was then a six-month trial period to check that leaks would not recur. He thenstarted taking steps to have the property sold.[16] When he raised the matter of sale with Ms Jones, she provided him with a listof more matters requiring maintenance before the property would be in a good state tosell. She did identify an agent with a suitable background for selling the property. Hefound that she was not otherwise co-operative in having the property put on the marketfor a sale, so he put the matter in the hands of lawyers.[17] It appears from correspondence in evidence that the lawyers who acted forMs Jones accepted on her behalf that the loan of $379,800 is repayable. However,they did not accept the extra $15,000 was repayable.[18] In an updating affidavit, Mr Browning has put in evidence a report from localreputable registered valuers, giving the property an estimated current market value of$1,125,000 as at 24 August 2020. The valuer has not, however, sworn an affidavit.There is a wariness about accepting unsworn expert evidence without the proceduralrequirements for expert evidence being satisfied.1 Importantly, the valuer has qualifiedhis report by stating that as a result of the COVID-19 pandemic there is significantmarket uncertainty.The summary judgment application[19] The principles on which summary judgment applications are decided are well-established. The Court of Appeal re-stated them in Krukziener v Hanover FinanceLtd:2[67] 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 is nodefence, 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 normallyresolve material conflicts of evidence or assess the credibility of deponents.But it need not accept uncritically evidence that is inherently lacking incredibility, as, for example, where the evidence is inconsistent with undisputedcontemporary documents or other statements by the same deponent, or isinherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at341. 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.3[20] This means that to give a plaintiff summary judgment the court must besatisfied that judgment can be entered now, without the need for further interlocutorysteps such as discovery and interrogatories, or a full hearing with witnesses givingevidence in person and being cross-examined. In a typical summary judgmentapplication based on the common law, the court applies rules of law and considerswhether a defendant has an arguable defence when those rules are applied.1 Evidence Act 2006, s 26, and the High Court Rules 2016, r 9.43 and schedule 4.2 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].3 Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).Repayment of the principal amount of the loan[21] There is no challenge to the validity of the mortgage agreement of 8 March2007 and the deed made on the same date. Both documents meet the formalrequirements for a deed. The parties had independent legal advice when thesedocuments were made. The deed records the loan amount of $394,800. Ms Jones wasto repay Mr Browning by 7 March 2008. The cause of action for the repayment of theloan arose on 7 March 2008 for the money that had fallen due but had not been paid.I mention that to address a limitation question.[22] Limitation is governed by the Limitation Act 1950, which still applies tocauses of action that arose before 1 January 2011.4 Under s 4(3)of the Limitation Act1950:an action upon a deed shall not be brought after the expiration of 12 yearsfrom the date on which the cause of action accrued.In this case, the 12 years expired on 7 March 2020. Mr Browning began thisproceeding on 6 January 2020 and accordingly he is within time to sue on both deeds.[23] Ms Jones has pleaded an affirmative defence of waiver and estoppel but hasnot given any evidence in support of the defence. She says that Mr Browning waivedhis rights, and the waiver can be inferred from his conduct. Essentially, she relies onhis inactivity in not making demand for payment for nearly 12 years. She pleads thatMr Browning was sympathetic to her in her circumstances which included a loss ofhearing, the loss of a niece, and her loss of employment because of the deteriorationin her hearing. They had been friends and had at one stage been in an intimaterelationship. She did not find it odd that Mr Browning did not make any demands.He was a man of wealth, with no family. Registration of the mortgage was adequateprotection for him. Nowhere in her pleading does she allege that Mr Browning madeany positive assertions or representations to her that she need not worry about the loanbeing called up for payment or that he would not seek sale of the property.4 Limitation Act 2010, s 59.[24] Mr Browning has relied on provisions in the mortgage memorandum.Importantly, clause 20(b) says this:(b) Delay does not affect powers:The mortgagee's rights under this mortgage will not be affected by delay inexercising them (whether or not the mortgagee knows that they have becomeexercisable). The mortgagee may only be held to have acquiesced in orwaived any matter in relation to this clause if and to the extent that theacquiescence or waiver is expressed in writing.Mr Browning's point is that there is no evidence that he has given any waiver oracquiescence in writing. It was also submitted on his behalf that any silence on hispart cannot amount to a waiver.[25] The Court of Appeal's decision in Infinity Enterprises NZ Ltd v Kinara TrusteeLtd5 was cited for the proposition that while the law is in general reluctant to imposeliability in cases of silent acquiescence, sometimes the law does recognise that silencemay give rise to estoppel if it can be considered to amount to a genuine representation,or because the silent party was under a duty to speak. I am satisfied that this case doesnot have any of the circumstances which the Court of Appeal contemplated in InfinityEnterprises NZ Ltd v Kinara Trustee Ltd. I can see nothing in the case that wouldsuggest that the silence on Mr Browning's part could amount to a representation thathe would not exercise what he is entitled to. The circumstances point to patience onhis part and forbearance, but without giving away his rights. That is also supportedby the absence of any writing showing any waiver. He was not under any duty tospeak. I find that the waiver defence is not reasonably arguable.[26] Ms Jones does not have an arguable defence to the claim for repayment of theprincipal sum. There will accordingly be judgment for Mr Browning on the principalsum of $394,800.The claim for interest[27] Under the mortgage agreement, the interest rate is 8 per cent per annum but isincreased to 12 per cent on default. Mr Browning seeks interest at the default rate for5 Infinity Enterprises NZ Ltd v Kinara Trustee Ltd [2020] NZCA 309 at [99].six years. That amounts to $284,256. There is a limitation issue for the interest claim.Under s 20(4) of the Limitation Act 1950:No action to recover arrears of interest payable in respect of any sums securedby a mortgage or other charge shall be brought after the expiration of6 years from the date on which the interest became due: Asher J applied that in Debt Buyers Ltd v Hancox:6[43] It is clear therefore that the lender is entitled to recover the interestfalling due in the six year period prior to the issue of proceedings. This wasthe view of the English Court of Appeal again in relation to the provision ofthe same wording in the English Act in Scottish Equitable Plc v Thompson.7Mr Browning has claimed only six years' interest and is therefore not statute-barredfor that claim, as it is within s 20(4).[28] Ms Jones has raised a defence of re-opening under Part 5 of the CreditContracts and Consumer Finance Act 2003. For Mr Browning it was submitted thatthe Act does not apply because of the limitation under s 125 (1)(c):125 When reopening proceedings may be commenced(1) Proceedings seeking the reopening of a credit contract, consumerlease, or buy-back transaction may be commenced in the court by any partyto the contract, lease, or transaction, or any guarantor under a guaranteerelating to the credit contract, at any time earlier than, —(c) in any other case, 1 year after the due date for the performanceof the last obligation required to be performed under thecontract or lease.[29] It was submitted that the principal was repayable on 6 March 2008, andaccordingly the one year period had expired before this proceeding was started. TheCourt of Appeal's decision in Watherston v PGW Rural Capital Ltd was cited.8 In thatcase, the Court of Appeal held that a borrower could not begin a proceeding to reopena credit contract more than one year after the payments fell due under the creditcontract. But the court also referred to s 120 of the Act, which provides:6 Debt Buyers Ltd v Hancox [2015] NZHC 2484 at [43].7 Scottish Equitable Plc v Thompson [2003] EWCA 225 at [35].8 Watherston v PGW Rural Capital Ltd [2020] NZCA 329.120 Reopening of credit contracts, consumer leases, and buy-backtransactionsThe court may reopen a credit contract, a consumer lease, or a buy-backtransaction if, in any proceedings (whether or not brought under this Act), itconsiders that—(a) the contract, lease, or transaction is oppressive; or(b) a party has exercised, or intends to exercise, a right or power conferredby the contract, lease, or transaction in an oppressive manner; or(c) a party has induced another party to enter into the contract, lease, ortransaction by oppressive means.The Court of Appeal recognised that other cases have held that s 120 may be raised asa defence in any enforcement action by a creditor.9 Given that re-opening under s 120is available in any enforcement action by a creditor, the time limit under s 121 doesnot apply.[30] Ms Jones has pleaded reopening as a defence in a claim by the creditor but hasnot started a fresh proceeding. Her defence is not subject to a time bar. Instead, I willdeal with it on its merits.[31] Mr Jones pleads oppressiveness by Mr Browning because he did not exercisehis powers in a timely manner and allowed interest to accrue to almost triple theprincipal amount. It is oppressive now to seek 12 years of interest.[32] Her claim of oppressiveness has been addressed by the time bar under s 20(4)of the Limitation Act 1950. Mr Browning's claim for interest is limited to the sixyears' interest that accrued before the start of this proceeding and amounts to $284,256– not the triple amount alleged by Ms Jones. Once it is appreciated that Mr Browningis able to recover only six years' interest on the money he lent her in 2007, it cannotbe oppressive for him to recover that amount of interest for the entire period of theloan. The 12 per cent default rate is not objectionable. When she bought the property,Ms Jones's alternative was second-tier lending where the interest rate wouldundoubtedly have been much more than the default rate of 12 per cent per annum inthis case. That rate is commonly used in agreements for sale and purchase as a penalty9 Watherston v PGW Rural Capital Ltd [2020] NZCA 329 at [64].interest rate when a purchaser fails to settle. I see nothing oppressive in CreditContracts and Consumer Finance Act 2003 terms with an interest rate of 12 per cent.If anything, Ms Jones has benefited from the limitation period. I see no reasonablebasis for any oppressiveness issue under the Credit Contracts and Consumer FinanceAct 2003.Property Law Act 2007 s 339[33] In seeking summary judgment under s 339 of the Property Law Act 2007,Mr Browning seeks detailed orders: for the sale of the property, for the appointmentof a land agent for the marketing and sale of the property. He wants to be authorisedto sign any contracts to sell the property on behalf of them both and to sign alldocuments to transfer ownership on behalf of them both. His solicitors will beauthorised to act on the sale and on the conveyancing. He also proposes detailedorders for the distribution of the proceeds of sale.[34] I note a preliminary point that under s 341 of the Property Law Act 2007Ms Jones is the only person who needs to be served.[35] Section 339 of the Property Law Act 2007 says:339 Court may order division of property(1) A court may make, in respect of property owned by co-owners, anorder—(a) for the sale of the property and the division of the proceedsamong the co-owners; or(b) for the division of the property in kind among the co-owners;or(c) requiring one or more co-owners to purchase the share in theproperty of one or more other co-owners at a fair andreasonable price.[36] The considerations under s 342 are relevant:342 Relevant considerationsA court considering whether to make an order under section 339(1) (and anyrelated order under section 339(4)) must have regard to the following:(a) the extent of the share in the property of any co-owner by whom, orin respect of whose estate or interest, the application for the order ismade:(b) the nature and location of the property:(c) the number of other co-owners and the extent of their shares:(d) the hardship that would be caused to the applicant by the refusal ofthe order, in comparison with the hardship that would be caused toany other person by the making of the order:(e) the value of any contribution made by any co-owner to the cost ofimprovements to, or the maintenance of, the property:(f) any other matters the court considers relevant.[1] Care is required with summary judgment applications in proceedings unders 339 of the Property Law Act 2007. In Bayly v Hicks the Court of Appealrecognised that the court now has a broader discretion, and said:10 the summary judgment procedure is not so well suited to s 339applications.11[37] Because the court's powers to grant relief under s 339 require a range ofmatters to be considered, and because there is a range of potential outcomes, to grantsummary judgment the court has to be satisfied on the evidence in the summaryjudgment application that there can be only one possible outcome. If other outcomesare arguable, the court cannot grant summary judgment. So the plaintiff must negateall outcomes except that sought in the statement of claim.[38] In a proceeding under s 339, the court starts with general questions and thenmoves on to more particular matters. The first question is whether to make an orderunder s 339. If it decides that there should be an order, it must decide which ordershould be made, and then it will give further directions how any orders ought to beimplemented. As the court goes further into detail, invariably a range of possibilitiesare open and it is hard to say that any one possibility is the only right one. For anexample, see Carey-Venable v Carey.1210 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401.11 At [31].12 Carey-Venable v Carey [2016] NZHC 2646, [2016] 18 NZCPR 289.[39] The first question is whether the court ought to make an order under s 339.Mr Browning's case is that he and Ms Jones should be able to separate their interestsin the property and go their separate ways. He bought an interest in the property andadvanced funds to Ms Jones on the basis that he would be able to realise his interestand be repaid after a year. Ms Jones has pleaded (and again has not given evidence)that she also contributed numerous hours and money to the property over the yearsand she has an emotional attachment to the property. Selling the property would causeher significant emotional distress. She says that her contributions, improvements andmaintenance, have added value to the property. She is now retired and has limitedearning capacity, and would suffer if she were required to move out. In short, herproposition is that she should be entitled to carry on living in the property on anindefinite basis because of her emotional attachment to the property and because ofthe difficulties to her if she were required to move.[40] Mr Browning, on the other hand, does not say that he is in any financialdistress. His evidence shows that he lives in the cottage and he has health problems.He would rather have his funds released so that he can build a house elsewhere.[41] In my judgment, a strong factor requiring a separation of their interests is thatMr Browning funded the purchase of the property, with his loan to Ms Jones and bybuying a 40 per cent interest in the property. He has continued to make contributionsto the property including paying joint expenses and carrying out repairs andmaintenance. He has had very little benefit barring living on the property since 2016.That is to be compared with Ms Jones, who acquired the property without putting anyfunds of her own into it and has enjoyed the property for an extended period. The factthat Mr Browning did not insist on the sale of the property once his one year was updoes not make it unfair or unjust to have his interest realised now. The factorsfavouring a separation of interests far outweigh any hardship to Ms Jones.[42] The next question is what sort of order should be made. No one has suggestedthat there should be any subdivision of the property. To the extent that I can refer tothe valuers' report, I note that it does refer to subdivision standards. The property isin the Rural Production Zone. For a controlled activity subdivision there is a minimumlot size of 20 hectares. The report also refers to the standards for a restricteddiscretionary activity subdivision. Going by that description, it does not seem that asubdivision would be viable. Certainly a resource consent would be required. Theresource consent process is likely to be arduous. The valuers do not suggest that theproperty could be enhanced by subdivision. Partition in kind is not reasonablyarguable.[43] There is no evidence that Ms Jones has the means to buy out Mr Browning.Consistently, she has lacked funds. When Mr Browning has approached her forpayment she has always said that she was without funds. He assisted her into theproperty because she did not have funds in 2007. She has retired, and there is nothingto suggest that she now has the funds to buy him out. With partition and buy-outeliminated, sale is left. There should accordingly be an order for the sale of theproperty.[44] The parties agree on one aspect of the sale: the property should be listed withMr Baguley of the local branch of Bayleys Real Estate to market and sell the property.When there was discussion for the sale of the property, Ms Jones proposed him. Thereis nothing in the evidence to suggest that she has withdrawn her view that he is theappropriate person to market the property. On his side, Mr Browning has been contentto take up that suggestion. Accordingly, because the parties agree that Bayleys RealEstate should undertake the marketing and sale of the property, I direct that they beappointed. Ms Wendt said that a listing agreement had been provided. It has not beenput in evidence[45] There are other matters to decide on selling the property. It can be done bydifferent ways – by listing it with Bayleys Real Estate exclusively or not exclusively;by marketing it for sale by negotiation, by tender, or by auction. In the case of tenderand auction there is a question whether any reserves ought to be set. How the propertyshould be marketed needs to be sorted out. Means need to be found to work out howto deal with any offers and whether to make any counter-offers. These are matters onwhich I cannot give a summary judgment decision on the present evidence. In mostcases, once the court indicates a property should be sold, the parties are able tonegotiate sensible arrangements. I trust that the parties will be able to do so here.[46] I cannot give summary judgment as to the more detailed mechanisms for thesale of the property and the division of the proceeds. I cannot resolve those matters inthe absence of agreement. Those matters will need to be decided by a justice in aformal proof hearing, as I cannot deal with them in a summary judgment application.[47] By 21 September 2020 Mr Browning is to file and serve a document settingout proposed orders, accompanied by any submissions in support of those orders, plusevidence to show that the matters sought are appropriate in these circumstances.[48] Ms Jones will have until 12 October 2020 in which to file and serve anyresponse, which may include a memorandum setting out her counter-proposals andevidence supporting those counter-proposals.13[49] The matter should be set down for a short hearing in front of a justice. I expectthat no more than two hours would be required for the judge to give final directions.Hopefully that step will not be required and the parties will be able to agree.[50] I sum up:(a) Mr Browning has judgment against Ms Jones for the principal amountof the loan of $394,800;(b) he has judgment against her for $284,256 for interest;(c) I make an order under s 339 of the Property Law Act 2007 for the saleof the Waikuku Road property;(d) Bay of Islands Realty Limited is to be appointed to market the property,but other terms for the marketing and sale of the property and divisionof the proceeds of sale are to be decided later in accordance with mydirections above.13 In the hearing I said 5 October, but it has taken longer to send this written version of the judgment,so I have extended the time to give Ms Jones enough time to respond.[51] As I have given judgment, it is not necessary to deal with the strike outapplication.[52] For the rest of the case, the matters on which Mr Browning has not soughtsummary judgment, there will be a telephone case management conference onMonday 19 October 2020 at 12 noon.[53] I ask Ms Wendt to file her memorandum for the conference by Monday12 October 2020.[54] I direct Ms Jones to file any memorandum in response by Friday 16 October2020. In particular, I want to find out from Ms Jones whether she still wishes to defendthis proceeding. If she does not file any memorandum by 16 October 2020, I mayassume that she is no longer actively defending the case, and may give directions onthat assumption.[55] Leave is reserved to apply for further directions.[56] Mr Browning is entitled to costs on his summary judgment application.Associate Judge R M Bell