WARD v WARD; WISLANG v MAKINSON [2022] NZCA 428

WARD v WARD; WISLANG v MAKINSON [2022] NZCA 428 [9 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA160/2021[2022] NZCA 428BETWEEN RUSSELL STUART WARDAppellantAND CHRISTOPHER ALLAN WARD ANDDIANE LORRAINE JAMESRespondentsCA473/2021BETWEEN MILES ROGER WISLANGAppellantAND THOMAS BRENDAN MAKINSONRespondentHearing: 10 March 2022Court: Brown, Clifford and Courtney JJCounsel: Appellant in CA160/2021 in PersonAppellant in CA473/2021 in PersonA M Kalinowski for Respondents in CA160/2021D J More for Respondent in CA473/2021N M H Whittington as counsel assisting the CourtJudgment: 9 September 2022 at 10.30 amJUDGMENT OF THE COURTA In CA160/2021 the application for an extension of time to file the case onappeal and apply for a hearing date is declined. The appeal is struck out.B In CA473/2021 the appeal is struck out.C In both appeals the appellants must pay the respondents costs for aninterlocutory application on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] This decision concerns three interlocutory applications:(a) in CA160/2021, by the appellant Mr R Ward for an extension of timeto file the case on appeal and apply for a hearing date;(b) also in CA160/2021, by the respondents Mr C Ward and Ms James tostrike out the appeal; and(c) in CA473/2021, by the respondent Mr Makinson to strike outthe appeal.[2] The particular issue for decision is whether the Court has jurisdiction to strikeout an appeal which, by effluxion of time, is already to be treated as having beenabandoned.The relevant rules[3] The Court of Appeal (Civil) Rules 2005 (the Rules) contain various provisionswhich incentivise the timely prosecution of appeals by appellants. As relevant here:(a) Rule 35 requires an appellant to pay security for costs within20 working days of the filing of their appeal. Failure to do so entitlesthe Court, on its own initiative or on a respondent's interlocutoryapplication, to strike out an appeal under r 37(1).(b) Rule 43(1) provides that an appeal is to be "treated as having beenabandoned" if the appellant does not apply for the allocation of ahearing date and file the case on appeal within three months afterthe appeal is brought. An appellant may apply for a hearing date"at any time" (r 38(1)), but may not do so if in default of their obligationto pay security for costs (r 38(2)).(c) Rule 44A gives the Court a general power to strike out or stay an appealor cross-appeal. The grounds for doing so are specified in r 44A(1),which states:(1) In addition to any express power in these rules to strike out anappeal, the Court may, on an interlocutory application or onits own initiative, make an order striking out or staying anappeal in whole or in part if—(a) the appellant is in continuing default in complyingwith any of these rules or with any proceduraldirection or order made by a Judge; or(b) the appellant has failed to prosecute the appeal withdue diligence and dispatch; or(c) the appeal is frivolous, vexatious, or otherwise anabuse of the process of the Court.As can be seen, that general power supplements the more specificpower found in r 37(1).[4] The Court also has power to relieve an appellant as regards the requirementsof r 43. Rules 43(1B) and 43(2) provide respectively for the suspension of r 43 andthe extension of the stipulated period of three months. Under r 43(1B) the Registrarmay on an informal application suspend r 43(1) for successive periods of one monthif questions of legal aid, security for costs or the waiving of fees remain at large.Under r 43(2) the Court may on an interlocutory application extend, on one or moreoccasions, the stipulated period of three months provided the application is, as r 43(3)provides, made:(a) before the period or extended period ends; or(b) within three months after the period or extended period ends.[5] Rule 43(7) addresses the effect of the grant of such an extension:(7) An extension of time granted under this rule has the effect ofreinstating the appeal as at the date that it was treated as abandonedunder subclause (1).[6] Thus the combination of r 43(1), (2), (3)(b) and (7) provide for an appealdeemed abandoned by r 43(1) to be retrospectively reinstated. The issue here is thestatus of such an appeal and, more particularly, its susceptibility to being struck outafter the date of its deemed abandonment but before it is retrospectively reinstated.The applications before usWard v Ward: CA160/2021[7] On 22 March 2021 Mr R Ward filed a notice of appeal against a decision ofthe High Court of 15 March 2021 which ruled that, unless he paid $15,229 by30 March 2021, he would be adjudicated bankrupt.1[8] Mr Ward, the appellant, failed to pay security for costs in that appeal by therequired date of 27 April 2021. On 28 May 2021 Mr C Ward and Ms James,the respondents, filed an interlocutory application seeking an order striking outthe appeal under r 37(1) of the Rules. That is the order they now seek.[9] Mr Ward failed to file his case on appeal or apply for a hearing by 22 June 2021at which time the respondents' application remained unheard. On 1 July 2021 theregistry notified the parties that the appeal was treated as having been abandonedpursuant to r 43(1). Some days later, on 9 July 2021, Mr Ward filed an application foran order extending the time for compliance with r 43.[10] That is the order Mr Ward now seeks. The grant of that application wouldretrospectively reinstate Mr Ward's appeal as at the date of its deemed abandonment,that is 22 June 2021.1 Ward v Ward [2021] NZHC 510.[11] The issues in CA160/2021 are (a) whether we should grant Mr Ward'sapplication for an extension of time, (b) if we do not, do we now have jurisdiction tohear Mr C Ward and Ms James's application for strike out for failure to pay securityand, (c) if we do, should we grant it?Wislang v Makinson: CA473/2021[12] On 27 July 2021 Dr Wislang filed a notice of appeal against a judgment ofthe High Court, delivered on 30 June 2021, striking out his claim in defamation againstMr Makinson.2 On 13 August 2021 Mr Makinson filed an interlocutory application tostrike out the appeal under r 44A of the Rules, in reliance on s 101 of theInsolvency Act 2006.[13] While that application was pending Dr Wislang failed to pay security for costsby the required date of 24 August 2021. Subsequently he also failed to file the caseon appeal or apply for a hearing date by 27 October 2021. His appeal was treated bythe Registrar as having been abandoned under r 43(1) on 28 October 2021.Dr Wislang has not applied for reinstatement under r 43(2).[14] The issues in CA473/2021 are whether we have jurisdiction to considerMr Makinson's strike out application and, if we do, should we grant it?Management of the appeals[15] The applications in both appeals were to be determined on the papers in themonth of November 2021. However in a minute dated 30 November 2021 French Jidentified that the strike out applications raised an important jurisdictional issue,namely whether the Court has jurisdiction to strike out an appeal when the appeal hasalready been deemed to be abandoned under r 43. Her Honour posed the question:does the fact the appeal has been abandoned mean it no longer exists for the purposeof a strike out application?[16] Because the issue had not previously been the subject of a considered decisionof the Court, French J directed that the applications in the two appeals be heard2 Wislang v Makinson [2021] NZHC 1586.together at an oral hearing. As neither appellant had legal representation,Mr Whittington was appointed as independent legal counsel to assist the Court.SubmissionsAppellants[17] Mr Ward filed two documents on 27 January and 9 March 2022, neither ofwhich engaged specifically with the jurisdiction issue but focused rather on theInternational Covenant on Civil and Political Rights and the New Zealand Bill ofRights Act 1990. Dr Wislang did not file any submissions in support of his application.Respondents[18] For Mr Ward and Ms James, the respondents and strike out applicants inCA160/2021, Ms Kalinowski contended that in addition to the statutory strike outpowers in rr 37 and 44A the Court possesses an inherent power to strike out an appealin circumstances where it is treated as having been abandoned. She submitted thatsuch an inherent power is necessary for the efficacy of the Court, particularlyconsidering that an appeal deemed abandoned is not necessarily the end of the matteror the appeal. In this respect, Ms Kalinowski drew attention to the provision forreinstatement in r 43(7) and the ability to apply for an extension of time under r 29Ato bring a fresh appeal where the extended time frames under r 43 have expired.[19] Ms Kalinowski submitted that r 43 parallels and supports the Court's inherentpower to strike out an appeal already deemed abandoned. She submitted that it isextremely unlikely, if not practically impossible, to obtain a r 37 order striking out anappeal before the expiry of the r 43 three-month period. She contended that r 37 wouldbe moot in most if not all instances of a failure to pay security for costs if the Court isheld not to possess an inherent power to strike out an appeal deemed abandoned, whichcannot have been Parliament's intention.[20] Mr More, counsel for Mr Makinson, adopted a similar position, emphasisingthe need for finality in the resolution of civil disputes. Mr More submitted that wherea respondent has a positive argument for an appeal being struck out, as opposed tosimply relying on a deemed abandonment, the Court should be loath to determine ithas no jurisdiction to hear a strike out application. He argued that the fact of suchjurisdiction was supported by the first ground for strike out in r 44A, namely acontinuing default in complying with the Rules, reasoning that a continuing defaultwas likely to bring about an abandonment in any event. Drawing attention to the factthat this Court has held that it has an inherent jurisdiction to set aside a notice ofabandonment under r 44,3 Mr More submitted that setting aside a notice ofabandonment is the reverse side of the coin to striking out an appeal.Counsel assisting[21] The respondents' stances were not, however, supported by Mr Whittington.He contended that once an appeal is deemed abandoned, it is "terminated, no longerextant, or no longer on foot". Responding to the question in this Court's minute hesubmitted that the appeal no longer exists.[22] Mr Whittington analysed the text of rr 43, 44 and 44A, reviewed authoritieswhich have considered the implications of a r 44 abandonment and considered thepurpose of r 43 in the light of various authorities.4 Salient propositions included:(a) The heading "[t]ermination before hearing", under which rr 43, 44 and44A all fall, suggests these rules deal with the means of terminating, orbringing to an end, an appeal without it being heard and determined bythe Court.(b) Unlike r 44, r 43 has two distinct stages and states. After the expiry ofthe initial three-month period in r 43(1) and during the additionalthree-month period in r 44(3)(b), an appeal may sit "in some middle-ground, inchoate state, neither live, nor at an end".3 Humphries v Carr [2009] NZCA 608 at [17].4 Russell v Commissioner of Inland Revenue (2006) 22 NZTC 19,807 (CA); Sexton v Craig[2007] NZCA 200; Humphries v Carr, above n 3; Hart v ANZ Bank New Zealand Ltd[2013] NZCA 94; GLW Group Ltd (in liq) v Lepionka & Co Investments Ltd [2019] NZCA 24;and Hill v Māori Trustee [2020] NZCA 219.(c) After the expiry of the additional three-month period the Court has nojurisdiction to reinstate an appeal.(d) The fact that abandonment changes the state or status of an appeal isconfirmed by the use of "reinstated" in r 43(7), which suggests that anextension restores the otherwise abandoned appeal to its former state asa live appeal.[23] Mr Whittington reviewed the three Rabson v Transparency InternationalNew Zealand Inc decisions, in which this Court and the Supreme Court considered theinteraction between rr 37 and 43.5 In its leave decision the Supreme Court drewattention to the fact that Mr Rabson had made a timely r 43(2) application for anextension of time, which had not been finally determined. The Supreme Courtcommented:6On this basis, the application for an extension of time was still current inNovember 2015. In those circumstances, it is at least open to question whetherthe effect of r 43(1) was that the appeal was to be treated as abandoned so asto obviate the need for, or appropriateness of, an order striking it out.On that issue Mr Whittington submitted:There is nothing in r 43 which suggests that an application for an extension oftime under r 43(2) made after the expiry of the initial three-month period, butbefore expiry of the additional period, has the effect of somehow suspendingthe effect of r 43(1). For myself, I do not therefore share the view ofthe Supreme Court that the question is as open as it suggested. If the Rabsoncases could be ignored, I would argue that an appeal is deemed abandonedunder r 43(1) even after an application to extend time has been made and untilsuch time as an application is actually granted by the Court. That approach isconsistent with r 43(7). Regardless, an alternative, and possibly preferable,way to address a Rabson situation would be for the Court to determine theextant application for an extension of time under r 43(2) despite security forcosts not having been paid. Then, if declined, the Court could leave the appealto be deemed abandoned on the expiry of the additional period.[24] Mr Whittington did not consider that the existence of an inherent power tostrike out arose on the appeals. Even if, contrary to his analysis, an appeal continued5 Rabson v Transparency International New Zealand Inc [2015] NZCA 543 [First Rabson decision];Rabson v Transparency International New Zealand Inc [2016] NZSC 9 [Second Rabson decision];and Rabson v Transparency International New Zealand Inc [2016] NZCA 26 [Third Rabsondecision].6 Second Rabson decision, above n 5, at [3].to exist for the purpose of strike out, he considered there was still no need to resort toan inherent power since rr 37 and 44A adequately covered the necessary ground.DiscussionThe evolution of r 43 and its implications[25] The rationale of r 43 was addressed by this Court in Airwork (NZ) Ltd vVertical Flight Management Ltd7 when considering its predecessor, namely r 10 ofthe Court of Appeal (Civil) Rules 1997 which provided:10 Appeal abandoned if not pursued—(1) An appeal is to be treated as having been abandoned if the appellantdoes not, within 6 months after the appeal is brought, either—(a) Apply for a fixture and file the case on appeal; or(b) Apply for an extension of time for applying for a fixture andfiling the case on appeal.(2) On an application under subclause (1)(b), the Court may extend, bysuch period as it thinks fit, the time for applying for a fixture and filingthe case on appeal, and may from time to time further extend thatperiod while the proceeding is pending.[26] This Court explained:8The new rule implements the philosophy that once a matter has been thesubject of a determination in the High Court any party wishing to challengethat determination by an appeal to this Court must do so expeditiously orforfeit the right to pursue the appeal. It is thus required of appellants that theyshould have the case on appeal prepared and lodged within six months of thefiling of the appeal and an application for a fixture made to the Registrar ofthis Court within the same period.Recognising, however, that sometimes there may be good reason to give anappellant a longer period to prepare for the hearing of the appeal, the Court isempowered to extend the period on one or more occasions provided that theappellant continues to be willing to pursue the appeal speedily anddemonstrates that willingness by applying to the Court within the timeallowed for an extension. The appellant in so doing brings the further progressof the appeal within the control of the Court.7 Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 29 (CA).8 At 30–31.Where an appellant does not prior to the expiry of the six-month period bringsuch an application, the Court lacks any power to extend time under R 10 andthe appeal is deemed abandoned (see also in this context R 27). It may intheory be possible for such an appellant to begin again by bringing anotherappeal by special leave under R 5, but after a first appeal has been deemedabandoned under R 10, that power is unlikely to be exercised save inexceptional circumstances.On the other hand, where an application has been made under R 10(2) withinthe six-month period and the Court is satisfied that there is sound reason forallowing further time and that the appeal is not devoid of merit, the Court willgrant the indulgence of an extension of time as a matter of normal practice.The order granting the application will effectively operate as a timetable orderbut there will exist the continuing sanction of deemed abandonment if theappellant does not comply with the new time limit or make a furtherapplication within the extended period accompanied by a persuasiveexplanation of the need for another extension.[27] When the Court of Appeal (Civil) Rules 2005 were adopted, r 43 allowed aninitial six-month period in which to apply for a hearing date and file the case on appeal,along with an additional three-month period in which an application for an extensionof time could be made. Then, in 2013, the period for taking the requisite steps wasreduced to three months but the further three-month period for applications seekingextensions of time was retained. Because thereafter an appeal was to be treated ashaving been abandoned on the expiry of the initial three-month period, it wasnecessary to provide for reinstatement of an appeal where an extension applicationwas subsequently successful.9[28] The conceptual difficulties evident in these applications arise because ofthe Lazarus effect whereby, although pending the hearing of an extension applicationin the latter three-month period the appeal is treated as having been abandoned, thesubsequent grant of an extension has the seamless consequence of backdating thereinstatement to the date of abandonment. Thus the initial status of "treated"abandonment is retrospectively removed.[29] The benefit of knowledge of the outcome of an extension application willresolve the status of any individual appeal: it will either remain abandoned or, by dintof reinstatement, it will continue on foot as if not abandoned — that is, withretrospective effect. However once the initial three-month period expires, in the9 Court of Appeal (Civil) Rules 2005, r 43(7).context of a debate about jurisdiction the interval between the filing of an extensionapplication and its determination (during which the ultimate fate of the appeal isunknown) is problematic. As noted above, Mr Whittington argued that during thatinterval the appeal is deemed abandoned and hence no longer exists. It follows that,if the application is successful, then like Lazarus the appeal lives once more.The implications of suspensions and extensions on the time for compliance[30] For the purposes of analysis it will be convenient to focus simply on a scenarioof an initial (first) and a subsequent (second) three-month period. However, the realityis that the three-month period for compliance in r 43(1) will not infrequently beprolonged considerably as a consequence of suspensions of time occasioned bylegal aid applications, challenges to the requirement to pay security for costs orapplications for the waiver of a fee.[31] Concerning the former, in practice suspensions of time are granted bythe Registrar under r 43(1B) throughout the period of consideration of an applicationfor legal aid.10 Furthermore an appellant whose application for legal aid has not beendetermined at the time the appeal is brought is not required to pay security for costswhile the legal aid application is pending.11 Consequently r 37(1) will not come intoplay.[32] Within 20 working days of filing a notice of appeal an appellant may apply tothe Registrar for an order reducing the amount of, or dispensing with, securityfor costs.12 As with legal aid applications, suspensions of the r 43(1) period aregenerally granted where an application under r 35(6) in relation to security for costsor for a waiver of a fee has yet to be determined.13 Where the Registrar declines togrant an application for reduction or dispensation of security for costs, an appellantmay apply for a review of the Registrar's decision.14 If that review is unsuccessful,10 Rule 43(1B)(a).11 Rule 36(3).12 Rule 35(6) and (7).13 Rule 43(1B)(b).14 Rule 5A(3).the appellant may apply for leave to appeal to the Supreme Court. In both thosescenarios the Registrar may also suspend the application of r 43(1).15[33] Hence an unsuccessful legal aid application followed by a challenge to theobligation to pay security for costs can bring about a de facto extension for manymonths of the requirement for the appellant to file the case on appeal and apply for ahearing date. Furthermore, experience has shown that there is the potential for stillfurther delays associated with recall applications, interlocutory applications for stayof execution or for production of hearing transcripts, and reviews of decisions ofsingle judges of this Court. It is understandable therefore that respondents to appealswhich they consider are frivolous, vexatious or otherwise an abuse of the Court'sprocess might, as Mr Makinson has done, seek to have such appeals struck out underr 44A(1)(c).Three scenarios[34] In an ideal world a r 44A application would be heard prior to the expiry ofthe three-month period (including as suspended). In practice, however, that will bea rarity. As Ms Kalinowski emphasised, that simply may not be possible given thetime which will inevitably lapse by compliance with a submissions timetable and theorderly allocation of hearings of interlocutory applications.[35] That reality is reflected here, where the strike out applications were both filedduring the first three-month period but remained undetermined when that periodelapsed and the appeals were to be treated as abandoned. The difference between thetwo appeals (apart from the fact that the strike out applications were made underdifferent rules, namely rr 37 and 44A) is that in the Ward appeal an application for anextension of time was filed,16 albeit during the second three-month period in r 43(3)(b)after the appeal was to be treated as abandoned. Neither appeal poses the scenariowhere a strike out application is accepted for filing during the second three-monthperiod when the appeal is to be treated as abandoned.15 Rule 43(1B)(c) and (d).16 Dr Wislang never filed an application for an extension of time.[36] We proceed to consider the following three scenarios:17(a) Rule 43(2) and r 44A applications are both filed within the firstthree-month period.(b) A r 43(2) application is filed in the second three-month period.(c) A r 44A application is filed within the first three-month period but nor 43(2) application is filed at all.Rule 43(2) and 44A applications are both filed within the first three-month period[37] In the second Rabson decision the Supreme Court observed that where a timelyextension of time application under r 43(2) is still extant it is open to question whetherthe appeal is to be treated as abandoned.18 Mr Whittington's view notwithstanding,the Supreme Court's view is binding on this Court.19 We consider that where anextension application is filed before the first three-month period expires, the appealshould practically be viewed as resting in a dormant state until the extensionapplication is heard and determined. As r 43(7) makes clear, on a successfulapplication under r 43(2) the appeal will be reinstated with effect from the date it waspresumptively treated as having been abandoned.A r 43(2) application is filed in the second three-month period[38] Once the first three-month period expires, the appeal is to be treated asabandoned. Hence, subject to the qualification below, the Registry should not accepta r 44A application for filing after that time.[39] However, r 43(3)(b) permits an application for an extension to be filed duringthe second three-month period. Obviously the Court has jurisdiction to hear such anapplication even though its filing was not "timely". We regard this situation as17 Although for simplicity we refer only to r 44A the analysis is also relevant for strike outapplications under r 37(1).18 Second Rabson decision, above n 5, at [3].19 Third Rabson decision, above n 5, at [5].analogous to that addressed by the Supreme Court in Rabson, whereby the appeal isonly presumptively abandoned.[40] Given the desirability of r 43(2) and r 44A applications being heard at the sametime by the same panel we consider that, just as the Court has jurisdiction to determinethe r 43(2) application, it should also have jurisdiction to determine a latent orsubsequent r 44A application. Consequently we consider that when a r 43(2)application is filed during the second three-month period, a respondent may then filea r 44A application with a view to the two being heard together.A r 44A application is filed within the first three-month period but no r 43(2)application is filed at all[41] The more taxing issue is the scenario in the Wislang appeal: whether the Courtcontinues to have jurisdiction to determine a r 44A application which is filed but notyet determined before the first three-month period expires.[42] In our view the word "treated" in r 43(1) is a direction as to the way in whichan appeal is to be administered or engaged with. We consider that it directs boththe Registry and the opposing party that no steps need be taken and nothing more needbe done, at least in the interim period prior to any reinstatement. However, whilethe Court is also free to view the appeal as abandoned (for the time being) we considerthat more explicit terminology would be necessary in order to convey that the Courtwas deprived of jurisdiction to grant or dispose of an application that had validly comebefore it.[43] Jurisdiction concerns the Court's capacity to be seized of a matter, not the issuewhether, as a matter of discretion and for reasons of efficiency, the Court elects todecline to hear a matter.20 We do not consider that the Court's jurisdiction to determinean application simply evaporates on the date on which an appeal is to be treated asabandoned, but then re-crystallises if an extension application is filed during thesecond three-month period. In our view, the Court retains the jurisdiction to hear and20 Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521 at [66]–[67] per Lord Scott.determine an extant r 44A application after the first three-month period elapses.However it is not obligated to do so.[44] The Court may well consider that the application should be determined whereissues of abuse of process are raised or where a res judicata determination is justified,thereby avoiding the prospect of a subsequent r 29A application for an extension oftime to file a fresh appeal. As Young P observed in Humphries v Carr, in the contextof r 44, an abandonment is not tantamount to a dismissal of an appeal and thus doesnot give rise to a res judicata. It simply terminates the original appeal.21 Consequentlythe Court may, if it considers it appropriate, determine a validly filed r 44A applicationnotwithstanding that the first three-month period has expired.The present applications[45] The application in CA160/2021 for strike out under r 37(1) was a response toMr Ward's failure to pay security for costs. Security for costs remains unpaid.The effect of r 37(2) is that even now Mr Ward is not in a position to complywith r 43(1). Consequently in those circumstances there is simply no justification forgranting a r 43(2) extension. We consider that the respondents' application tostrike out the appeal under r 37(1) should be granted to avert the prospect of a pointlessr 29A application.[46] In CA473/2021 Dr Wislang did not apply for an extension of timeunder r 43(2). It appears from other judgments of this Court that Dr Wislang isnow bankrupt.22 However a claim in defamation is a personal claim for the purposesof s 101 of the Insolvency Act and hence not an asset or right which passes tothe Official Assignee upon adjudication.23[47] Consequently, although CA473/2021 is to be treated as abandoned, it is notbeyond the realm of possibility, given Dr Wislang's litigious history, that he mightapply under r 29A for leave to appeal afresh. In those circumstances we consider it is21 Humphries v Carr, above n 3, at [27]. Young P made this observation in his dissenting opinion.22 Wislang v White Island Tours Ltd [2022] NZCA 126.23 Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [24].appropriate and desirable to grant Mr Makinson's extant application to strike out theappeal under r 44A.Result[48] In CA160/2021 the application for an extension of time to file the case onappeal and apply for a hearing date is declined. The appeal is struck out.[49] In CA473/2021 the appeal is struck out.[50] In both appeals the appellants must pay the respondents costs for aninterlocutory application on a band A basis and usual disbursements.Solicitors:Smith and Partners, Auckland for Respondents in CA160/2021Downie Stewart Lawyers, Dunedin for Respondent in CA473/2021