SELF-REALIZATION MEDITATION & HEALING CENTRE CHARITABLE TRUST (NZ) v IAG NEW ZEALAND LTD [2019] NZHC 763

SELF-REALIZATION MEDITATION & HEALING CENTRE CHARITABLE TRUST (NZ) v IAG NEWZEALAND LTD [2019] NZHC 763 [10 April 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2016-409-000816[2019] NZHC 763BETWEEN SELF-REALIZATION MEDITATION ANDHEALING CENTRE CHARITABLE TRUST(NEW ZEALAND)PlaintiffAND IAG NEW ZEALAND LIMITEDDefendantAND H CONSTRUCTION NORTH ISLAND LIMITED(in receivership and in liquidation)First Third PartyAND ORANGE H MANAGEMENT LIMITED (inreceivership and in liquidation)Second Third PartyAND BRENCHLEY DEVELOPMENTS LIMITEDThird Third PartyAND BUILDING ONWARD LIMITED(Proposed) Fourth Third PartyAND HI TECH BUILDING SYSTEMS LIMITED(Proposed) Fifth Third PartyAND ORANGE H GROUP LIMITED(in receivership and liquidation)Sixth Third PartyHearing: 26 March 2019Appearances: No appearance for the PlaintiffN S Gedye QC for the DefendantS D McIntyre for (Proposed) Fourth Third PartyJudgment: 10 April 2019JUDGMENT OF NATION JIntroduction[1] The defendant (IAG) insured the plaintiff (Self-Realization) against earthquakedamage. IAG contracted through the first, second and sixth third parties (collectivelyand individually referred to in this judgment as Hawkins) to arrange for earthquakerepairs to be carried out. Three building companies were successively contracted bySelf-Realization to carry out repairs. Those contractors were the third third party(Brenchley), fourth third party (Onward) and fifth third party (Hi Tech).[2] In its pleadings, Self-Realization says certain earthquake damage, for which itwas insured by IAG, has never been repaired. It asks the Court to order IAG to do orpay more. This is an application for review of an Associate Judge's decision strikingout third party notices against Onward and Hi Tech. The issue is now whether one ofthose contractors (Onward) should have remained joined as a third party.Background[3] Self-Realization owned two buildings on adjoining properties at 100 HighstedRoad and 233A Sawyers Arms Road, Christchurch. They were insured with IAG.They were both damaged in the Christchurch earthquake sequence of 2010 and 2011.[4] Self-Realization filed these proceedings against IAG on 1 September 2016.[5] On 14 August 2017, IAG filed an application for leave to join defendants oralternatively to join third parties.[6] On 15 September 2017, Self-Realization filed a notice of opposition to IAG'sapplication. Counsel for Self-Realization and IAG filed a joint memorandumconsenting to joinder of third parties.[7] On 5 October 2017, IAG filed third party notices against Hawkins and the threecontractors as third parties.[8] On 21 May 2018, Onward and Hi Tech filed applications to set aside the thirdparty notices against each of them.[9] On 21 June 2018, IAG filed amended statements of claim against all thirdparties.[10] On 14 August 2018, Associate Judge Osborne (as he then was) struck out thethird party notices against Onward and Hi Tech.[11] On 11 October 2018, QBE Insurance (Australia) Ltd (QBE) signed a consentmemorandum agreeing to an order under s 9(4) Law Reform Act 1936 that it be joinedas a third party and for leave to be granted to IAG to issue a third party notice andclaim against QBE.[12] On 1 November 2018, IAG filed a second amended statement of claim againstthird parties in which QBE Insurance (International) Pty Ltd (QBE) was joined as athird party.[13] In that statement of claim, IAG summarises Self-Realization's claim againstIAG. IAG denies it has breached its policy with Self-Realization. However, IAGpleads, if it is held liable for any loss suffered by Self-Realization (which is denied),such loss was caused or materially contributed to by Hawkins and Hawkins wouldhave breached its contractual obligations to IAG.[14] As against QBE, IAG says Hawkins held a liability policy of insurance withQBE under which QBE had to indemnify Hawkins against any liability whichHawkins would have to IAG on Self-Realization's claims. IAG says the Hawkinscompanies are in liquidation so do not have the capacity to meet IAG's claims.[15] IAG claims as against QBE that, under s 9 Law Reform Act 1936, IAG areentitled to a charge on monies Hawkins would have been entitled to from QBE onthese claims.[16] The Hawkins companies were all in liquidation at the time Onward's and HiTech's applications to strike out third party notices were heard by Associate JudgeOsborne.[17] Since the Associate Judge gave his decision, Hi Tech has gone into liquidation.An affidavit has been filed confirming that Brenchley has not traded since 2017 andthe company's director died in late 2018. Brenchley is currently insolvent. It is likelyit will be placed into liquidation or be allowed to be removed from the CompaniesRegister.[18] Mr Gedye for IAG accepted that, of the originally joined third parties, theproceedings would continue only against Onward as a third party if, on review, thereis a change to the Associate Judge's decision. On this application for review, I thusneed deal only with the review of the decision as it concerns Onward.[19] In its amended statement of claim of 21 June 2018, IAG alleged Onwardentered into a building agreement with Self-Realization dated 7 April 2014 with anagreed scope of works to remedy defective repairs done by Brenchley and to repairother earthquake damage which had not been included in Brenchley's scope of works.[20] IAG pleaded that, under its policy, it did not indemnify Self-Realization fordefective building work. It pleaded that, if Self-Realization's allegations were correct(which was denied), then Onward would have been in breach of their agreement withSelf-Realization and would thereby have caused to Self-Realization the loss (or partthereof) as claimed by Self-Realization against IAG.[21] The relief claimed by IAG against Onward was a declaration under s 2 of theDeclaratory Judgments Act 1908 that Onward is liable to Self-Realization under theircontract for an amount to be particularised prior to trial.The Associate Judge's decision[22] The Judge noted Self-Realization, by its pleadings and by a letter from itssolicitors to Onward's solicitors of August 2018, was not making any allegation in itsclaim against IAG that repairs effected by the builders were substandard or defective.1He said Self-Realization was instead basing its claim on the obligation of IAG toreinstate the properties or pay indemnity value which it contended IAG had breached.1 Self-Realization Meditation and Healing Centre Charitable Trust (New Zealand) v IAG NewZealand Ltd [2018] NZHC 2077.He noted that Self-Realization was claiming that all earthquake damage it hadidentified in its claim remained to be reinstated.[23] The Associate Judge referred to IAG's denial that it had breached itsobligations under the policy, including its assertion that the policy did not indemnifythe plaintiff for defective building work. To the extent the claim was for such work,IAG would not be liable for the cost of remediating or rebuilding the same asundertaken by the plaintiff and/or its contractors. He said that, in short, IAG wasasserting that it had paid for scope repairs and any liability for defective repairs laywith others.[24] The Judge noted that, in respect of Self-Realization's claims as to its SawyersArms Road property, the third party claim could be against Onward only. Theevidence for IAG put the total cost to rectify all allegations of defective andsubstandard workmanship on that property at $5,882.52 (including GST). He said theamount of that claim could never justify the involvement of the builder in question asa third party in a claim pursued by the building owner against its insurer in the HighCourt proceedings of some complexity. Mr Gedye said there was no issue taken withhis conclusion in that regard.[25] The Associate Judge referred to the grounds on which Onward had applied toset aside the third party notices. He noted that Onward had expressly recognised thatany order setting aside the notices would be without prejudice to the right of IAG topursue a claim against the third party in an independent proceeding.[26] The Associate Judge referred to evidence in affidavits from Nicholas O'Neill,the sole director and shareholder of Onward, from Justin Kent, Hi Tech's contractmanager, and for IAG from a structural engineer Ruchika Kaur and a project managerMatthew Gorinski.[27] The Judge referred to r 4.16(3) which provided the jurisdiction for the Court toset aside a third party notice and the way in which courts had identified the functionof third party proceedings and the considerations which a Court should take intoaccount on an application for orders setting aside third party notices.2 He said theparties did not take issue over the principles to be applied but emphasised differentprinciples. IAG emphasised Gendall J's reference in Robin v IAG New Zealand Ltdto it being "in the interests of justice that the proposed defendants be present in orderto deal with all relevant issues, to represent their own interests and to avoid amultiplicity of hearings"3 , and to his saying that a particular factor (inconvenience tothe plaintiff in Robin) "does not outweigh the benefit of having all necessary partiesbefore the Court and preventing the need for a possible second trial later".4[28] The Associate Judge noted that counsel for Hi Tech and Onward put theiremphasis on the plaintiff's case as pleaded and the weighing of convenience to theparties, in particular, the Court's concern to avoid having a joined party "idly involvedin a trial" and the concern that a Court would have where the main allegations in thecase indicated that the third party's involvement would be peripheral.[29] He considered a significant feature of this earthquake litigation was that theplaintiff was choosing to sue only its insurer and thereby to enforce its rights under itscontracts of insurance, and had chosen not to sue for defects which had arisen in thecontext of building repairs undertaken pursuant to contracts between builders and theplaintiff. He noted that, while IAG's counsel had identified ways in which the reportsof the plaintiff's experts had indicated there may have been significant defects in workundertaken by one or more of the builders, Self-Realization did not seek damages forany such defects or omissions to complete contracted work.[30] The Associate Judge noted that, on the evidence of IAG's structural engineer,very few of the allegations, if any, of defective work were against Onward or Hi Techor both.[31] The Associate Judge concluded:[66] In the way the plaintiff has brought this proceeding, it is focused onthe contractual responsibilities of IAG as the insurer. IAG, through joiningthe Hawkins companies and Brenchley will have the opportunity through the2 Referring to his statement of principles in TSB Bank Ltd v Burgess [2013] NZHC 1228 at [38];also Robin v IAG New Zealand Ltd [2018] NZHC 1464.3 Robin v IAG New Zealand Ltd, above n 2, at [58].4 At [46].one proceeding to obtain any relevant findings and judgment that arise fromthe work undertaken by the entities which Ms Kaur's evidence suggests weremost centrally involved in any repair deficits. The Court recognises that anorder striking out the third party claims against Onward and Hi Tech willexpose IAG to a degree of the risk identified by Scrutton LJ in Barclays BankLtd v Tom.5 To be weighed against that risk, however, is the risk that twobuilders, whose role even on Mr Gorinski's figures appears to have beenmodest, will be drawn into all the interlocutory issues, briefing of experts andcosts of trial which are associated with earthquake claims which involve repairmethodology and the scoping and costing of remediation. This is a case wherethere is a grave risk to the third parties that they would sit idly by while theplaintiff's pleaded claim takes up the preponderance of preparation and trialtime.[67] This is not a case where a relevant limitations period looms as adifficulty for IAG. If, through the judgment in this proceeding[,] IAG is ofthe view that a claim remains as against Onward, Hi Tech or both, there willbe the opportunity to pursue that in a manner which is focused on allegedshortcomings of either builder. Mr Collette-Moxon, in his submissions,emphasised that IAG, in the event it makes payment of repair costs to theplaintiff, will acquire through subrogation the rights of the plaintiff as againstthe builders.[68] Some delay may ensue to IAG. But the Court of Appeal'sobservations in KPMG Peat Marwick v Cory Wright and Salmon Ltd (in Rec)are appropriately to be repeated:6The interests of justice between all parties must be paramount If there isdelay it will be regrettable but the attainment of justice by the most efficientmeans has to be the overriding consideration.Review principles[32] There was no disagreement as to these. As set out by counsel for IAG, theyare:i. Although revoked by section 183(a) Senior Courts Act 2016, s26PJudicature Act 1908 and HCR 2.3(4) continue to apply, as this proceedingwas filed prior to 1 March 2017.7ii. HCR 2.3(4) provides that the review shall proceed as a rehearing.iii. The applicant bears the burden of persuading the court that the AssociateJudge's decision was wrong.8iv. Where an Associate Judge's decision involves the exercise of a discretion,the applicant must show that the Judge acted on a wrong principle that hefailed to take into account a relevant matter or took into account someirrelevant matter, or was "plainly wrong".95 Barclays Bank Ltd v Tom [1923] 1 KB 221 (CA).6 KPMG Peat Marwick v Cory Wright and Salmon Ltd (in Rec) CA77/94, 20 May 1994 at 6.7 Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92.8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].9 Wilson v Neva Holdings Ltd [1994] 1 NZLR 481 (HC); Robin v IAG, above n 2.Submissions for Onward[33] Counsel for Onward, Mr McIntyre, submitted the Associate Judge did not errin his decision and submitted there were five key reasons why the Associate Judge'sdecision should not be overturned:a. The plaintiff's case does not plead defective repair and the plaintiff hasexpressly stated that it does not have an issue with Building Onward'swork;b. IAG's pleading is contingent on the plaintiff's claim. It does not raise anyindependent basis to allege Building Onward's work was defective.c. If Building Onward is joined as a third party, it will add considerableexpense and delay to the proceedings where it will likely sit idly by formost of a complex insurance trial. This will not secure a just, speedy andinexpensive determination of the proceeding;d. The High Court decision in Robin is distinguishable;e. Building Onward is the only remaining third party as the other parties havegone into liquidation or are likely to, so there is no justice having all"potentially responsible" parties before the Court, particularly whenBuilding Onward is not a responsible party.Submissions for IAG and discussion[34] Counsel for IAG submitted the Associate Judge had made a number of errorsin his decision. I now deal with those submitted errors and discuss them.The applications, originally by Onward and Hi Tech, in effect relied on both the merits(thus strike out principles) and inappropriateness of joinder (issues of convenienceand overall justice). Both Onward and Hi Tech filed substantial affidavits whichaddressed the substantive merits and sought to demonstrate there was no case on thefacts. The Associate Judge conflated the two bases and failed to apply proper strikeout principles when he went into the merits.The Associate Judge erroneously entered into an examination and assessment ofcontentious and lengthy evidence.[35] I do not consider the Associate Judge was in error in this way. He did not strikeout the third party claims on the basis that, on his consideration of the evidence beforethe Court, presented by way of affidavit, Self-Realization could not succeed as againstIAG or as against Onward or Hi Tech. He noted that, on the pleadings, Self-Realization was not making any claim that either Onward or Hi Tech were in breachof their contractual obligations to Self-Realization. He did not conclude, on anyassessment of the evidence, that IAG would not be able to seek a remedy as againstOnward and Hi Tech. The Judge acknowledged that striking out the third party claimsagainst Onward and Hi Tech would expose IAG to a degree of risk identified byScrunton LJ in Barclays Bank Ltd v Tom.10 In doing so, the Associate Judge recognisedthat it was possible that, if Self-Realization did obtain judgment against IAG, IAGmight pursue a claim against the third party builders. He did not determine that anysuch claim would have no prospect of success.[36] The Judge did refer to evidence. He also noted there appeared to be adifference over the extent to which various experts identified the extent to whichdefects for which Self-Realization was claiming could have resulted from defectiverepair work. He referred to the evidence from Mr Gorinski, a project manager, that heestimated the costs of rectifying Onward's defective and substandard workmanship at$66,529.02 including GST for Highsted Road. He did comment that Mr Gorinski'sanalysis had to be treated with care. Unlike another witness, Ms Kaur, Mr Gorinskihad not visited the site and inspected the work.[37] Although the Associate Judge did refer to the evidence, that was primarily toassess the extent to which the third parties would have an interest in both legal andevidential issues as between Self-Realization and IAG. It was on that basis the Judgeconcluded this was a case where there was "a grave risk to the third parties that theywould sit idly by while the plaintiff's pleaded claim takes up the preponderance ofpreparation and trial time".[38] It was appropriate for the Judge to make that assessment primarily on the basisof the pleadings but also on the basis of the evidence which IAG had put before theCourt. It was particularly appropriate where Self-Realization had made it clear it wasnot pursuing any claim for defective workmanship against Onward.10 Barclays Bank Ltd v Tom, above n 5. The risks identified there were:(a) differing results in different proceedings;(b) delay in resolving matters as between relevant parties; and(c) the expense of two trials and a potential exposure to a costs award.[39] IAG had filed an affidavit from Ms Kaur, sworn 8 August 2017, in support ofIAG's then application to join the six ultimate third parties as defendants. She was astructural engineer who had been instructed by IAG to inspect Self-Realization'sproperties. She had reviewed Self-Realization's claim, the building contracts andscope of works between Self-Realization and the three building companies. Shevisited the Sawyers Arms Road property on 24 March 2017 and the Highsted Roadproperty on 27 and 28 March 2017.[40] In his submissions for IAG, Mr Gedye referred to the affidavit of Ms Kaur asproviding: an adequate preliminary evidential foundation which demonstrated that theacts and omissions of the builders were inextricably linked with the matterswhich would be traversed at trial between plaintiff and defendant, regardlessof how the plaintiff had chosen to plead its case.[41] In a schedule attached to her affidavit, Ms Kaur identified 41 categories ofpotential defects at the Highsted Road property. On six of those categories, sheconsidered no repair was required. As to another five categories, she said the elementsshe observed were not earthquake related. On 21 of those categories, she identifiedthat the only relevant parties involved were Hawkins companies. On five of thecategories, she identified the parties involved as being Hawkins and Brenchley. Onfour other categories, she identified the parties involved as being Hawkins, Brenchleyand Onward.[42] In his affidavit, Mr Gorinski provided an estimate as to costs that could beincurred in rectifying defective work if the allegations of defective and substandardworkmanship against Onward in various reports were to be proved at trial. He did thatacknowledging "the extent of works apparently completed by [Onward] prior to itsexit from the project is unclear, particularly in relation to internal plaster and paintworks to 100 Highsted Road".[43] On Ms Kaur's evidence, the defects with which Onward might have beeninvolved, in association potentially with Hawkins and Brenchley, in a situation whereSelf-Realization had made it clear it was not alleging there was defective workmanshipon the part of Onward, related to:(a) minor ceiling separation from timber framing in the waiting room;(b) minor separation at column and wall in the waiting room;(c) separation of skirting in the waiting room; and(d) hairline cracks at corner of skylight frame in Mahasaya room.[44] On Ms Kaur's evidence, it was Onward's potential responsibility for thesematters which IAG says justified Onward being joined as a third party.[45] I have also had regard to the affidavit of Christine Seymour-East, an employeeof IAG, filed in support of the original application for orders joining the ultimate thirdparties as additional defendants. Mr Gorinski said in his affidavit he had alsoconsidered this affidavit. In her affidavit, Ms Seymour-East describes how Self-Realization elected to repair the properties with the assistance of Hawkins and,through Hawkins, contracted with Brenchley to carry out repairs at Highsted Road ata cost of $131,400 with a cash settlement from IAG in respect of certain other workof $22,499.75. There were complaints of defective workmanship against Brenchley.Through Hawkins, Self-Realization entered into a contract with Onward. The workrequired at Highsted Road, facilitated by Hawkins, was priced at $172,716.15.[46] In her affidavit, Ms Seymour-East said, on 11 September 2014, Onward gavenotice to Self-Realization under their building contract that it was not being allowedsufficient time to complete its work by Self-Realization's director. As a result, manyof the items in the second scope, work which Onward was to attend to, "were leftuncompleted". At the request of Self-Realization, Onward was then replaced with HiTech. Hi Tech provided a scope of works costed at $73,047.05.[47] In her affidavit, Ms Seymour-East said IAG had paid out $588,186.80 in totalin relation to Self-Realization's claims. $89,514.21 had been paid to Self-Realizationby way of cash settlement. She confirmed IAG had paid:• $113,173.50 to Hawkins;• $151,593.53 to Brenchley;• $45,844.05 to Onward; and• $96,355.89 to Hi Tech.[48] I infer from Ms Seymour-East's affidavit, the work done by Onward, for whichSelf-Realization was insured and for which IAG accepted liability under its policy,was for only a small portion of the total costs for which IAG agrees Self-Realizationwas entitled to under their policy.[49] I do not need to make any findings on evidence in dispute. On my assessmentof IAG's evidence, I am satisfied Onward would have only a limited interest in boththe legal and evidential issues which will have to be resolved as between Self-Realization and IAG, and now as between IAG and QBE.The Associate Judge failed to identify, or give effect to, Self-Realization's need toadduce evidence, and also test IAG's evidence, about the workmanship andperformance of both Onward and Hi Tech in order to make out its case at trial.The Associate Judge failed to identify and take into account the extent to which IAG'spleaded defence to the plaintiff's claim puts the third parties workmanship in issue,and requires comprehensive evidence at trial of the plaintiff's claim about the acts andomissions of the builders.[50] The particular pleaded defence counsel referred to was:The Policy does not indemnify the plaintiff for defective building work and tothe extent that the claim is for such work, the defendant is not liable for thecost of remediating or rebuilding same as undertaken by the plaintiff and/orits contractors.[51] I do not consider the Judge made any error in this regard. He referred to thefunctions of third party proceedings, as identified by Sutton LJ in Barclays Bank vTom.11 In that way, he recognised that, if there were separate proceedings against thethird parties, issues that might have to be addressed as between IAG and the buildersmight have to be dealt with in two separate trials. The Associate Judge referred to theprinciples which he had gathered together in his judgment in TSB Bank Ltd v Burgessto inform the exercise of the jurisdiction in this area. One of those principles was:1211 Barclays Bank Ltd v Tom, above n 5.12 TSB Bank v Burgess, above n 2, at [38].(e) Where the third party claim is based on the r 4.4(1)(b) ground that therelief claimed from the third party is connected with the subject matter ofthe proceeding and is substantially the same as that claimed by theplaintiff against the defendant, important considerations in determiningwhether the relief falls within such categories are:• the degree of factual overlap;• whether the joinder of the third party will determine the ultimateimposition of financial burden.13[52] On his consideration of the pleadings, it was his assessment, even on theevidence of Mr Gorinski, that the role of both Hi Tech and Onward in what is factuallyat issue in the proceedings appeared to have been modest. For the reasons discussedabove, that was an appropriate and reasonable assessment to make.[53] That factual issues may arise in a trial involving Self-Realization, IAG andQBE concerning work done by Onward, is not necessarily a sufficient reason forrequiring Onward to become a party to the proceedings as a third party.[54] Commonly, in earthquake list cases in Christchurch now, there are disputes asto whether the scope of works prepared to deal with earthquake damage for an insurerhas been sufficient to deal with alleged earthquake damage. There are also now anumber of cases where insured plaintiffs are claiming that the work done in repairingearthquake damage was either inadequate or defective. There has already been a caseof that latter sort, Bruce v IAG, where the Court has been able to resolve issues asbetween the plaintiff and the insurer without either contractors or subcontractors beinga party to the proceedings.14[55] In Bruce v IAG, the plaintiffs' claim against IAG alleged numerous defects inthe repair work. Some of the alleged defects were accepted by IAG. Some were indispute. As here, there were allegations that IAG and the contractor builder had notattempted to remedy or repair other aspects of earthquake damage. The plaintiffs hadentered into a building contract with one builder for $867,903. The plaintiffs and IAG13 Mammoet Shipping BV v Compter HC Whangarei CP13/86, 6 July 1987 at 10-11, adopting Myersv N & J Sherick Ltd [1974] 1 All ER 81 at 83 and Allison v Church of England Hospital Inc HCChristchurch A399/76, 25 August 1980.14 Bruce v IAG New Zealand Ltd [2018] NZHC 3444.were able to deal with all that was at issue without any contractors being joined, eitheras a further defendant or third party.15[56] IAG and Self-Realization already have the benefit of knowing in reasonabledetail what Onward's response would be to any suggestion that there were defects inthe work Onward carried out on their contract with Self-Realization. The sole directorand shareholder of Onward, Mr O'Neill, swore an affidavit in support of theapplication to set aside the third party notice. He says that, when Onward terminatedits contract with Self-Realization, there was a 90 day defect notification period. Inthat affidavit, he said Self-Realization had never raised any issue as to the level of theirworkmanship. It is his evidence that Onward did receive a defects list. That list wasdiscussed with Hawkins who were managing the work for the plaintiffs and IAG. Hesays Onward attended to defects it was responsible for. No further issues were raisedwith them as to the work that was done.[57] Self-Realization has made it clear in its pleadings and in correspondence fromcounsel that it is not claiming there were any defects in the work Onward did.[58] In an affidavit in support of Onward's application to strike out the third partynotice against Onward, there was a letter dated 6 August 2018 from the lawyers forSelf-Realization to Onward's solicitors stating:We can confirm that plaintiff's position is that the work carried out by theproposed fourth, fifth, and sixth defendants does not form the basis or any partof the claim by the plaintiff against the defendant.The basis of the plaintiff's claim against the defendant is that the work carriedout and paid for by the defendant does not meet the policy standard.We reiterate that the plaintiff is not pleading that the repairs were defective.[59] Self-Realization filed a notice of opposition to IAG's original application tojoin the third parties as defendants but indicated in that notice that it would consent tothe joinder of those parties as third parties. In that document, counsel for Self-Realization said the presence of the six ultimate third parties as defendants was notnecessary to adjudicate on or settle any of the questions in the proceeding. Counsel15 The Hawkins Companies and QBE were joined as third parties. The Hawkins Companies were inliquidation at the time of trial. It does not appear QBE played any part in the trial.contended the Hawkins-related proposed defendants were appointed by IAG toprovide project management services in respect of IAG's customers including Self-Realization and asserted "in doing so these proposed defendants [were] carrying out,on behalf of the first defendant, the first defendant's obligations under the policy".Self-Realization said in its notice of opposition that:The work carried out by the proposed fourth, fifth and sixth defendants doesnot form the basis or any part of the claim by the plaintiff against the firstdefendant.The basis of the plaintiff's claim against the defendant is that the work carriedout and paid for by the defendant does not meet the policy standard, not thatthe repairs were defective. That is an issue between the plaintiff and thedefendant, not the proposed defendants, none of whom owed any obligationsto the plaintiff pursuant to the policy.[60] In its statement of defence to Self-Realization's claim, IAG says it is not liableunder its policy for repairs that are required as a result of defective work on the partof the contractors. Self-Realization has alleged it is not making any claim based ondefective work. IAG says, nevertheless, Self-Realization's claim is based on a reportobtained by engineers which identifies certain defects in the Highsted Road buildingas resulting from the earthquake and which IAG would assert would have to be theresult of defective work in certain respects on the part of one or other of thecontractors.[61] IAG says that, despite the pleadings, there could be a dispute over defects inthe Highsted Road building and whether those defects were the result of poorworkmanship. IAG says, because of that potential, IAG should be able to bringOnward into the proceedings as a third party.[62] The Associate Judge did not discount the possibility that some of the defects atissue might have arisen out of work done by Onward or Hi Tech. If that turned out tobe the case, he did not discount the possibility that, in a trial of these proceedings, theCourt might make findings in this regard. What he did was have regard to thosepossibilities, weigh up risks associated with that in the context of their modestinvolvement in what was at issue against the justice of requiring two of the contractorsto be: drawn into all the interlocutory issues, briefing of experts and costs of trialwhich are associated with earthquake claims which involve repairmethodology and the scoping and costing of remediation.[63] The Judge did not make a finding that Onward would have no involvement inthe trial. What he determined was that Onward would not be involved with thepreponderance of preparation and trial time required in IAG's response to Self-Realization's claim.[64] I consider there was no error in that conclusion. At that time, he weighed upmatters on the basis Self-Realization would be continuing with a claim whereBrenchley, Onward and Hi Tech would all be actively involved as third parties.[65] QBE is now involved as a third party. The weighing now between Onward'spotential involvement as to issues in the case, as against the preponderance ofpreparation and trial time with which it would have no involvement, is now even moreheavily in Onward's favour.The Associate Judge failed to recognise and give effect to the defendant's contingentsubrogation rights.[66] IAG submits that, where a defendant insurer is entitled to seek a declarationwhich would be relevant to potential subrogation rights, the plaintiff's election not tosue the builders should be given no weight. The law recognises a right to seek such adeclaration by a party which may acquire subrogation rights.[67] I am satisfied the Associate Judge did consider the potential for IAG, bysubrogation, to enforce the plaintiff's entitlement to reimbursement of any excessivepayment to the builder. He referred to IAG's submissions as to this in his judgment.16[68] In this regard, IAG relied on Gendall J as to the relevance of IAG's contingentsubrogation rights, as discussed in his judgment in Robin v IAG.17 Gendall J was thereconcerned, on an application for review, whether an Associate Judge had been in errorin declining leave to IAG to join various contractors as defendants. Gendall J said:16 At [41] and [67].17 Robin v IAG New Zealand Ltd, above n 2.[23] IAG's key motivation in having the proposed defendants joined is toensure that, if IAG is found to be liable to Ms Robin, it would obtainsubrogation rights that would enable it to pursue her claim against thoseproposed defendants. It can only affect [sic] these rights if the liabilities ofthe proposed defendants to Ms Robin have been determined. Failing toaccommodate the possible subrogation rights now would result in IAG, iffound liable, having to initiate a subsequent trial dealing with essentially thesame matters. This is an outcome r 4.56 is designed to prevent.[24] Submissions were advanced for Ms Robin, however, noting that, norights of subrogation arise until or unless IAG is obliged to make paymentunder the policy. IAG maintained in response, however, that this should notbe an impediment to joinder. I agree. In my view, this case is no differentfrom a guarantee or indemnity case in that respect, so this does not preventjoinder.[69] In the circumstances of that case, Gendall J accepted that the insurer's rightsto subrogation would not arise until the insurer had made payment under the policy.He did not consider that should be an impediment to joinder of the defendants againstwhom potentially the insurer might have a claim by way of subrogation. It was notsuggested to me there was any error in that view.[70] The insurer must sue in the insured's name.18 Subrogation rights are, subjectto contract, exercisable only where the insurer has made full payment under the policy.Even if the insurer has satisfied its obligations under the policy, it has no right todemand control of the action until the insured has received a full indemnity.[71] The insurer is limited under a subrogation recovery to the amount of its ownpayment to the insured plus interest.19[72] I have considered whether IAG's potential right to bring a claim againstOnward through rights of subrogation provide a compelling reason for IAG to be ableto continue with its third party claim against Onward.[73] On the pleadings as they stand, Self-Realization elected not to sue Onward. Ithas made it clear, through correspondence and in its notice of opposition to IAG'soriginal application for leave to join contractors as third parties, that it does not allegein its pleadings that work carried out by Onward was defective. It does not allege in18 Central Insurance Co Ltd v Seacalf Shipping Corp [1983] 2 Lloyd's Rep 25.19 Yorkshire Insurance Co Ltd v Nisbet Shopping Co Ltd [1962] 2 QB 330.its pleadings that IAG must indemnify them for the costs of remedying defective workcarried out by Onward.[74] IAG pleads in its defence that, under the plaintiff's policy with IAG, IAGwould have no liability to the plaintiff for the costs of remedying defective work onthe part of Onward.[75] For IAG to have rights to recover from Onward, Self-Realization will have toestablish at trial that repair work done by Onward was defective, contrary to its ownpleadings and the basis on which it is bringing its claim. Contrary to IAG's pleadedassertion as to what the policy required of IAG, the Court would have to find thatIAG's policy required IAG to meet the costs of remedying those defects. IAG wouldthen have to accept the Court's judgment in that regard and make payment to Self-Realization accordingly.[76] It is also relevant that, on its third party claim, the relief which IAG was seekingwas a declaration under s 2 Declaratory Judgments Act that Onward is liable to Self-Realization under their contract for an amount to be particularised prior to trial.[77] IAG would also have to persuade a Court to exercise its discretion to makesuch a declaration purportedly for the benefit of Self-Realization on a basis whichSelf-Realization had disavowed. The Court would also have to consider whether itwas just to make such a declaration for the benefit of IAG on a basis which IAG haddenied throughout the course of the proceedings.[78] I am not going to predetermine whether the Court would make such adeclaration. This is not a case where, on the pleadings as they stand, it is clear that,even if Self-Realization were to succeed against IAG, IAG would be entitled to therelief it would seek if Onward were joined as a third party. That is also a matter Iweigh in the balance against joinder.The Associate Judge failed to give effect to the fundamental need to have all questionsdetermined in the one proceeding between all parties.[79] In support of this submission, Mr Gedye relied heavily on the approach takenby Gendall J in Robin v IAG.20[80] There can be no question that the Associate Judge had regard to the potentialvalue of having all relevant parties between the Court so that the Court coulddetermine all potential issues as between all parties.[81] The Associate Judge quoted the essential submission made for IAG in thematter before him as follows:21Similar factors were considered by the High Court in the recent interlocutorydecision Robin v IAG New Zealand Limited While in the context of anapplication to join further defendants, not third parties, it has persuasive valuefor the third party regime. It illustrates the lengths to which it may beappropriate for a court to go to ensure all necessary parties are joined into oneproceeding. With reference to "the wider interests of pragmatism", the Courtsaid "it is in the interests of justice that the proposed defendants be present todeal with all relevant issues, to represent their own interests and to avoid amultiplicity of hearings". A similar determination earlier in the judgementwas that a particular factor (inconvenience to the plaintiff in that case) "doesnot outweigh the benefit of having all necessary parties before the Court andpreventing the need for a possible second trial later".[82] The Associate Judge carefully considered what Gendall J had said in thatjudgment but distinguished Robin. He was right to do so.[83] In background facts in Robin, Gendall J referred to Ms Robin making a claimagainst IAG under an insurance policy for her property which required IAG to pay"the cost of restoring it to a condition as nearly as possible equal to its condition whennew". IAG appointed Hawkins to act on its behalf in assessing the scope of worksrequired to effect repairs and to monitor the repair work undertaken. Hawkinsappointed Canterbury Reconstructions Ltd (CRL) to carry out repairs to the house.Gendall J's judgment recites:[4] Ms Robin argues that the repairs to the house have not been carriedout to the standard required by the IAG policy. She seeks an order that IAG20 Robin v IAG New Zealand Ltd, above n 2.21 At [59]. Citations omitted.specifically perform its duties pursuant to the policy by paying the costs toremediate the defective repairs, or, alternatively, pay damages in the amountrequired to repair the house to a good standard of workmanship with allearthquake damage properly repaired.[5] Ms Robin also sues CRL (being the party appointed by Hawkins tocarry out and manage the house repairs) in the tort of negligence, contendingthat CRL breached the duty of care it owed to her to ensure that those repairswere carried out to a good standard of workmanship with all earthquakedamage properly repaired.[84] Later in his judgment, Gendall J referred to Ms Robin attempting to argue thatthe issue was not whether the work was deficient but solely whether IAG had restoredthe property to the policy standard. In line with that argument, he said she hadsuggested this did not depend on whether the repairs were carried out properly. Hesaid that submission: mischaracterises the proceeding and her pleadings. The quality of therepairs is in question. Ms Robin has sued CRL in tort for breaching its dutyof care to her to carry out the repairs to a reasonable standard.[85] In contrast, in this case, there is no pleading that repairs were carried out in away which was substandard and there is neither a pleading nor an intention on the partof Self-Realization to assert that, as a question of fact, there was such defective repairwork.[86] In Robin, the plaintiff had sued CRL as the second defendant in negligence.As Gendall J noted, she pleaded that CRL breached a duty of care owed to her toensure the repairs to the house were carried out to a good standard of workmanship sothat all earthquake damage was properly repaired. Gendall J noted that CRL was thecompany appointed by Hawkins to carry out and manage the house repairs. He heldit must follow that the subcontractors or co-contractors, which IAG wished to join asdefendants, must arguably have breached the duty which the plaintiffs say was owedto them by CRL. Gendall J said "they were the parties that actually carried out thework to the house, while CRL managed the project".[87] In this instance, for reasons already discussed, both Onward and Hi Techtogether had been responsible for only a modest portion of the total repair workrequired. The proportion of repair work for which Onward was responsible was evenless.[88] Just as with the situation the Associate Judge dealt with, Gendall J did considerwhere the balance of convenience lay with regard to the joinder of the proposeddefendants. He referred to the difficulties the plaintiff would face through having hadno contractual relationship with them and her having no knowledge of the work theywere contracted to perform, her argument that she would have to rely on IAG to pleadher case, and that hearing evidence and issues in relation to the proposed defendantswould prolong the proceeding and cause her additional costs.[89] Gendall J acknowledged that the joining of the proposed defendants wouldinevitably cause some adverse effects to the plaintiff but decided that this did not "out-weigh the benefit of having all necessary parties before the Court and preventing theneed for a possible second trial later". In that regard, he noted the majority of theevidence Ms Robin would require to prove a breach of a duty of care by the proposedco-defendant contractors would be the same as that required for her present claimagainst CRL. It would have been the same as that required for her alternative claimas pleaded against IAG. It was on that basis he did not consider the potentialinconvenience and adverse effects to the plaintiff should prevent joinder of the twonew defendants.[90] Mr Gedye argued that, as it turned out, Robin was on all fours with the presentcase because, when Gendall J had to consider the Associate Judge's decision onreview, the second defendant in that case, CRL, was insolvent. It was thus unlikelythat CRL would be able to pass on any liability it might have to the plaintiffs throughto subcontractors in the way the Associate Judge had contemplated when he initiallydeclined leave to IAG to join the further contractors as defendants.[91] That development did not mean that the circumstances in Robin were on allfours with this case. As Gendall J recorded at the outset of his judgment, the plaintiffin Robin had sought an order that IAG specifically perform its duties pursuant to thepolicy by paying the costs to remediate the defective repairs or, alternatively, paydamages in the amount required to repair the house to a good standard of workmanshipwith all earthquake damaged properly repaired. In this case, there is no such pleadingby Self-Realization against the insurer. In Robin, in contrast to this case, the co-contractors and proposed further defendants had done all the repair work.[92] I did note that, in Robin, Gendall J said that, had he considered it was notappropriate to join the two subcontractors, it would have been appropriate for them tobe joined as third parties and there would have been no real opposition to that.Bringing them in that way would have avoided some of the potential unfairness whichcould arise out of the plaintiff being forced to sue, as a defendant, a party with whomthe plaintiff had no contractual arrangement and whose work had been carried outunder the oversight of other parties. Allowing an insurer to join contractors orsubcontractors as third parties, essentially for the benefit of an insurer who might havea liability to the party, would leave the insurer responsible for making the running inthe proceedings against those contractors with the cost consequences and risks thatwould flow from that.[93] I recognise in Robin Gendall J considered it in the interests of justice that theproposed defendants be present in order to deal with all relevant issues, to representtheir own interests and to avoid a multiplicity of hearings. That ultimate conclusionwas reached in a situation where, both on the pleadings and on the facts as alleged,Robin was significantly different to this case.[94] Consistent however with the decision which both the Associate Judge and nowon review I must make, Gendall J considered it appropriate to have regard to the"wider interests of pragmatism" and ultimately "the interests of justice".[95] Robin is not authority for the proposition that, in any situation where a personwhose work may be the subject of investigation or dispute in an earthquake damagecase and who could have a liability to an existing party to the proceedings, it will beappropriate for that person to be joined either as a defendant or as a third party.[96] Mr Gedye also sought support for IAG's position in a statement of Cooke J (ashe then was) in Turpin v Direct Transport Ltd.22 Cooke J allowed a defendant to amenda claim against a third party. In doing so, he observed:23It would be extremely inconvenient if the action were fought out on the basisof the present pleadings and the plaintiff recovered from the second defendantbut the second defendant failed against the third party on those pleadings.22 Turpin v Direct Transport Ltd [1975] 2 NZLR 172 (SC).23 At 175.Then, if the second defendant wished to pursue the implied warrantyallegation against the third party, a separate action would be necessary. It isjust such a complexity and multiplicity of procedure that the third party rulesare designed to prevent.[97] Those comments were however made in a case where the third party wasalready involved in the proceedings. The issue was simply whether a seconddefendant should be permitted to add a cause of action to its claim against the thirdparty.[98] The last of the principles which Associate Judge Osborne collated in TSB BankLtd v Burgess was:24[38](m) When all the circumstances of a proposed third party joinder havebeen taken into account, the overriding consideration is the interestsof justice. In KPMG Peat Marwick v Cory-Wright & Salmon Ltd (inRec) the Court of Appeal said:25The interests of justice between all parties must be paramount ifthere is delay it will be regrettable but the attainment of justiceby the most efficient means has to be the overriding consideration.[99] This is also reflected in McGechan on Procedure on what was the relevant ruleas to the setting aside of a third party notice:26The Court will have regard to the criteria set out under r 4.4(1) : Green v SG Harvey Ltd (1991) 3 PRNZ 139 (HC). Rule 4.16 confers a wide jurisdictionunder which third party notices may be set aside, even if they satisfy therequirements of r 4.4: Turner v First Fifteen Holdings Ltd (1991) 3 PRNZ145 (HC). This will be particularly so if the third party's involvement issomewhat peripheral to the main allegations against the defendant.[100] In BNZ v Equiticorp Industries Group Ltd, the Court of Appeal said:27Joinder of third parties against whom a defendant has a claim coming withinthe permissible scope of third-party procedure cannot be insisted upon as ofright. Under the current High Court Rules, by R 75 leave is required to issuea third-party notice if, as in this case, more than 14 days has elapsed after thetime for filing the statement of defence. Even when the notice has been issuedand served within time, R 160 gives the third party the right to apply to theCourt to set aside the notice. On a leave application under R 75 or anapplication to set aside under R 160 the Court has a wide discretion. The24 TSB Bank Ltd v Burgess, above n 2.25 KPMG Peat Marwick v Cory Wright and Salmon Ltd (in Rec), above n 6.26 McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR4.16.01].27 Bank of New Zealand v Equiticorp Industries Group Ltd (in statutory management) [1994] 3NZLR 548 (CA) at 552.desirability of comprehensive dealing with complicated commercial cases isan important consideration, but it may have to yield to others such asunreasonable delay.[101] In considering the overall interests of justice, it is appropriate and necessary toconsider the extent to which an intended third party would be associated with what isat issue in the proceedings, primarily on the basis of the pleadings but also with regardto affidavit evidence, which is not contentious.[102] The importance of this was illustrated by McGechan J's judgment in MammoetShipping BV v Compter.28[103] McGechan J there referred to the very important policy underlying thepromotion of the third party procedure as being the desirability of ensuring that thecourts do not reach separate and conflicting findings upon the one issue. But, as tothat, he said "the consideration is only one of a number, and is to be kept inproportion".[104] As to convenience, McGechan J said:Another aspect favouring use of the third party procedure is the convenienceto parties, counsel, witnesses, and the Court in having only one hearing, albeitsomewhat more protracted, as opposed to two or more. Once again howeverthis factor must be kept in proportion. One hearing can in the end gain little,if the third party joined must sit idly through issues as between plaintiff anddefendants in which it is little involved, and vice versa, as regards the plaintiff,even allowing for directions under R 438(4)(e).The Associate Judge was in error in finding Onward and Hi Tech would be sitting idlyby at trial for much of the case. The preponderance of trial evidence would concernthe physical state of the property and what the builders did or omitted to do. TheJudge's finding did not take account of the efficiencies that could be achieved througheffective case management.[105] As already discussed, on the basis of IAG's own evidence filed in support ofits original application, Onward would not have been concerned with, by far, themajority of defects in the building which IAG's own witness, Ms Kaur, identified asnot being connected with any builder and for which, on her analysis, the way in whichthose defects were dealt with lay with Hawkins.28 Mammoet Shipping BV v Compter, above n 13.[106] The Associate Judge was ideally placed to consider what might be achievedthrough case management in earthquake list cases. Onward is a company with a soleshareholder/director. Its involvement in all the work that was done in remedyingearthquake damage was modest. Self-Realization's claim is, on the pleadings, notabout the work that was done but about work which was not done and, on the plaintiff'spleadings, not required of any of the contractors. None of the other contractors arenow involved with these proceedings.[107] These proceedings primarily involve issues, both as to the evidence and thelaw, as between Self-Realization and IAG, and now also between IAG and QBE. IfOnward is joined as a third party, it will have the burden of being involved incontentious proceedings in the High Court that are unlikely to go to a hearing for atleast 12 months. It will have the cost of legal representation throughout thecontinuation of the proceedings with those solicitors having to be involved in casemanagement conferences, potential issues of discovery, at least a watching brief as faras further interlocutory skirmishes between other parties, including now IAG and QBEare concerned.[108] Onward's involvement in the proceedings will result in costs for the company.It will be involved in High Court litigation involving two major insurers. The insurershave all the resources, experience and financial resources to cope with such litigation.Onward will not be in that position. Its involvement as a third party in the proceedingswill be a significant distraction for it in attempting to carry on its normal business.[109] The well recognised risks, costs and burdens of litigation are often a majorinducement to settle proceedings such as these. Joining Onward as a third party wouldcreate a risk that, through the costs and burden of being a party to the proceedings,Onward could be unfairly pressured to contribute to a settlement of a dispute which,in essence, is between Self-Realization and IAG, and now between IAG and QBE.The potential for the joinder of a third party to cause unfair pressure to be put on aparty to resolve its part in proceedings in a way that might be unjust was a factor whichMcGechan J took into account in declining leave to allow a third party claim inMammoet.29The Associate Judge failed to identify and take properly into account the inconsistencybetween having one builder (Brenchley) before the Court by consent of the plaintiff attrial as third party, with two other builders released.[110] Whatever the position was before the Associate Judge, there is now noinconsistency. It is apparent from an affidavit recently filed in the proceedings thatBrenchley would never have been actively involved in these proceedings. Brenchleyhad not traded since 2017. IAG's third party notice to Brenchley was filed in the HighCourt on 5 October 2017. Brenchley took no steps in response to that notice. Its onlydirector died in late 2018. It seems likely that its way of coping with joinder, with theburden of being a third party in High Court proceedings, was simply to have ignoredit.The Associate Judge was in error in noting that the plaintiff had elected to sue only itsinsurer and had chosen not to sue for defects which had arisen in the context ofbuilding repairs.[111] I do not consider the Judge was in error in this regard. It was relevant but notdeterminative that Self-Realization had chosen to sue only the insurer. It was relevantthat the plaintiff was not claiming there were defects in the repair work, just as it wasrelevant that IAG was contending that, if there were defects in the building work, IAGwould not have to indemnify Self-Realization for the cost of remedying those defects.[112] In submissions, IAG referred to "the plaintiff's defective pleading" as causingthe Judge to treat the case "as a narrowly confined insurance policy case".[113] I do not consider there was any apparent error in this regard. On the plaintiff'sclaim as pleaded, there was clearly going to be an issue as to whether the defects inthe building, which the plaintiff identified in its claim, had been remedied in the workrequired of the various contractors who were engaged to work on the building. TheJudge considered the extent to which the contractors might have been involved inearthquake damage repair work. It was appropriate for the Judge to consider whether29 Mammoet Shipping BV v Compter, above n 13.the third party notices should be set aside on the basis of Self-Realization's case aspleaded. That was especially so when there was no intention on the part of Self-Realization to amend its pleadings or to rely on claimed defects in building workcontrary to the way its case was pleaded.[114] Mr Gedye referred to the judgment of Thomas J in Telesis Corporation Ltd vReed as an instance where the High Court had recognised that it was wrong in principleto have extended reference to the evidence before the Court on an issue over joinder.30That judgment also illustrates how commonality of allegations as against defendantsand proposed third parties, in conjunction with the prospect that, if those pleadedallegations are proved, they could give rise to the defendant having a valid claim forcontribution from the proposed third parties, were of importance in deciding thedefendant should be able to join the proposed third parties to the proceedings.Conclusion[115] There was no error in the way the Associate Judge reached his decision strikingout the third party notice against Onward. I do not consider the Associate Judge failedto take account of any relevant consideration or had regard to an irrelevantconsideration. He was not plainly wrong in the conclusion he reached.[116] I have also dealt with this application for the review on a rehearing basis. Thereis some limited prospect that, if Onward is not joined as a third party to theproceedings, through rights of subrogation, IAG might have to pursue a claim againstOnward in separate proceedings with the delay and costs that could be associated withthat. Weighed against that would however be the cost and burden to Onward of havingto remain as a party to proceedings in respect of which its exposure and its connectionboth with evidential and legal issues would be modest, and largely peripheral.[117] The interests of justice between all parties are paramount. My assessment isthat, in the particular circumstances of this case, it was not just for Onward to remainas a third party to the current proceedings.30 Telesis Corporation Ltd v Reed HC Auckland CP36/91, 4 November 1991.[118] Accordingly, I decline IAG's application to review the Associate Judge'sdecision and confirm his judgment striking out the third party notice against Onward.[119] Costs must follow the event. I note that Hi Tech was awarded costs as fixedfollowing the Associate Judge's earlier judgment but on the basis they would not bepayable until after the outcome of the review application was known. The AssociateJudge accordingly directed that the costs would not be payable "until further order ofthe Court". Hi Tech is now in liquidation so cannot ask for an order that the costsawarded to it previously be paid. Although I have not had to deal with the applicationfor review with respect to Hi Tech's position, I do not consider that, in all thecircumstances of this case, it would be appropriate for IAG to refuse to pay the costsas previously ordered against it to the liquidator of Hi Tech.[120] As far as the costs on the application for review are concerned, if the partiesare unable to reach agreement, the following directions are to apply:(a) costs memoranda are to be limited to four pages;(b) Onward is to file and serve its memorandum within four weeks;(c) IAG is to file and serve its memorandum in response within two weeks ofreceiving Onward's memorandum; and(d) the Court will then determine the costs application on the papers.Solicitors:NS Gedye QC, Barrister, AucklandDuncan Cotterill, ChristchurchRhodes & Co., Christchurch.