Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd

Supreme Court of NSW|2019-08-06|Before: Rees J, Mr P

Solicitors: Aqua Law (Plaintiff) Bennett & Philp Lawyers (Defendant) File Number(s): 2019/125996

Judgment

HER HONOUR: This is an application to set aside a statutory demand under section 459G of the Corporations Act 2001 (Cth) on the basis that there is a genuine dispute as to the existence of the debt. The plaintiff is Invigor Group Limited. The defendant is Raus Capital Fund Limited. One of Invigor Group's directors is Gary Cohen. He is also a director of Marcel Equity Pty Limited. Patrick Hunt is a director of Raus Capital.
In June 2017, Invigor Group entered into a Loan and Convertible Note Agreement with Raus Capital (Loan Agreement), under which, essentially, Raus Capital lent $500,000 to Invigor Group and was issued with 41,666,667 Convertible Notes. A convertible note is sometimes referred to as a "hybrid" security as it has features of both debt and equity. The noteholder - in this case Raus Capital - can convert the note into a specified number of shares in the issuing company - in this case Invigor Group - or cash of equal value. The attractions of a convertible note to both the noteholder and issuer are explained by the Australian Securities Exchange in "Understanding hybrid securities" (2016) at page 9: Securities that are convertible by the holder are attractive to investors because they typically offer downside risk protection while having a potential 'equity-kicker' on the upside. They are attractive to issuers because they can usually be issued at a lower interest rate than a standard bond, due to the value of that potential equity-kicker. This makes them less costly for the issuer to service. These bonds also allow the issuer to raise capital without having to immediately add a large number of shares to their pool of ordinary shares. If the company issues shares rather than convertible notes, the sudden addition of more new shares would result in a dilution of its equity. This can be unsettling for investors who see their 'piece of the pie' shrinking.

The Marcel Sale Agreement also contained an entire agreement clause (clause 10), and required that any variation of any term of the agreement be in writing signed by all of the parties (clause 14).

Annexed to the Marcel Sale Agreement and headed "Annexure 1 - Standard Transfer Form" was a transfer by Raus Capital of the Convertible Notes to Marcel Equity for a consideration of $500,000. Although clause 5 of the Marcel Sale Agreement referred to Raus Capital delivering "an executed but undated note transfer form" to Marcel Equity, the transfer in evidence is executed and dated. As Clause 5 also made plain, Raus Capital was obliged to deliver this form "at Completion", as that term was defined in Clause 6. There is no evidence or suggestion that the transfer form was provided by Raus Capital to Marcel Equity in any form other than as Annexure 1 to the Marcel Sale Agreement.
Mr Cohen deposed that Invigor's obligations under the Loan Agreement were "satisfied" on entry into the Marcel Sale Agreement. On the face of the agreement, however, mere entry into the agreement did not discharge Invigor Group's obligations under the Loan Agreement but, rather, it anticipated that it would achieve this result on satisfaction of the conditions in clause 6 of the Marcel Sale Agreement, including payment of $500,000 to Raus Capital.
Under the second Convertible Note Sale Agreement, entered into by Invigor Group, Marcel Equity and Karoo Investment Group Pty Limited (the Karoo Sale Agreement), clause 2 provided: Subject to the satisfaction of the Condition (as defined below), [Marcel Equity] will be the registered holder of 41,666,667 Convertible Notes in [Invigor Group] on Completion (as defined below) (the Notes).
The provisions of the Karoo Sale Agreement were thereafter relevantly the same as the Marcel Sale Agreement: Marcel Equity agreed to sell the Notes to Karoo Investment for $500,000; at Completion, Marcel Equity was obliged to deliver an executed, undated share transfer attached as Annexure 1. Clause 6(a) provided, in like terms to the Marcel Sale Agreement, that Completion of the Karoo Sale Agreement was conditional upon completion of the Marcel Sale Agreement. Annexure 1 was a standard transfer form from Marcel Equity to Karoo Investment of the Convertible Notes in consideration for $500,000. Again, unlike the description of the transfer in Clause 5 as undated, the transfer form in evidence is executed and dated.
On the face of these documents, therefore, there were back-to-back agreements under which it was envisaged that Karoo Investment would pay $500,000 to Marcel Equity, which would pay it onto Raus Capital, which would hand over its Convertible Notes in Invigor Group to Marcel Equity, which would hand over the Convertible Notes to Karoo Investment. Completion of the two agreements would be simultaneous and the executed transfers annexed to the agreements would be handed over at Completion. Completion was to take place within 7 days, that is, by 21 December 2018.

Share transfers are utilised

On 14 December 2018, that is, the same day that the two Convertible Note Sale Agreements were executed, Jane Gregs, Financial Controller of Invigor Group received: 1. the executed share transfer forms which had been annexed to the Convertible Note Sale Agreements; and 2. a Convertible Note Conversion Notice dated 14 December 2018 issued by Karoo Investment to Invigor Group converting the Convertible Notes to 125 million ordinary shares in Invigor Group. On or about 14 December 2018, the company secretary of Invigor Group issued 125 million ordinary shares in Invigor Group, presumably to Karoo Investment. There is no evidence to suggest that Raus Capital authorised the transfer forms being used in this manner, or knew that it had happened.

Attempts to negotiate another deal

On 18 December 2018, Mr Cohen of Invigor Group wrote to Mr Hunt of Raus Capital advising: Further to my call I would like to propose the following variation to the purchase of the Raus CN's 1. ME will pay Raus by 21 Dec $250,000 as part payment of the CN"S [sic] 2. ME will pay the balance of $250,000 to Raus by 31 January 2019. 3. ME will procure Invigor to issue to Raus 125M IVO shares as security for the balance of the $250,000. The security proffered for Marcel Equity's second instalment of $250,000 was, it would appear, the 125 million ordinary shares in Invigor Group already issued at the request of Karoo Investment by utilising the executed transfer forms annexed to the two Convertible Note Sale Agreements. This was not made plain by Mr Cohen's email, nor is there any evidence to suggest that Raus Capital was otherwise aware of it. Raus Capital did not respond.
On 19 December 2018, Mr Cohen sent a second email to Mr Hunt, attaching a proposed Convertible Note Settlement Agreement between Raus Capital, Marcel Equity and Invigor Group (Proposed Sale Agreement) which provided (clause 2): [Raus Capital] is the registered holder of 41,666,667 Convertible Notes in [Invigor Group] (the Notes). According to Ms Gregs, this was, in fact, not the case. The Convertible Notes had been transferred to Marcel Equity and onto Karoo Investment and been converted into ordinary shares in Invigor Group.
The Proposed Sale Agreement repeated that the consideration for the acquisition of the Convertible Notes was $500,000 and continued (clause 5): [Raus Capital] has delivered to [Invigor Group] an executed but undated note transfer form transferring the Notes from [Raus Capital] to [Invigor Group]. This is consistent with clause 5 of the Marcel Sale Agreement and Karoo Sale Agreement, that is, the annexures to those agreements were also described as undated.
The Proposed Sale Agreement continued: The Buyer will pay $250,000 to the Seller by 21 December 2018. Upon receipt of the payment:
Completion (i) the Seller must deliver to the Buyer the Transfer Documents along with any note certificates; and (ii) title to and risk in the Notes pass to Buyer.
Deferred Payment The Balance of the Consideration, $250,000 together with interest at 10%PA must be paid to the Seller by 31 January 2019.
Security The Buyer will procure to issue in the name of the Seller the 125 million shares in the Company which will be issued on conversion of the Notes (the Shares). The Shares will be held by the Seller as security for the payment of the balance of the Consideration. Upon payment of the balance of the Consideration the Seller will transfer the Shares to the Buyer or its nominee. In the event that the Buyer does not pay the balance of the Consideration together with interest by 31 January 2019 then the Seller elect to retain the Shares for its absolute benefit and the Buyer agrees to waive any rights it has and not make any claim it has against the Seller or the Shares in respect of this Agreement.

It was thus apprehended by the Proposed Sale Agreement that, on payment by Marcel Equity of the first instalment of $250,000, Raus Capital would deliver the executed but undated note transfer form, which Marcel Group would use to procure the issue of 125 million shares in Invigor Group to secure the second instalment of $250,000. Of course, according to Ms Gregs, the note transfer form had already been used for that purpose.

Raus Capital did not reply.
On 20 December 2018, Mr Cohen sent a third email to Mr Hunt attaching an executed version of the Proposed Sale Agreement, advising that the first tranche of funds was due to be settled the next day and "the shares will be issued tomorrow as well to your account". According to Ms Gregs, the shares had already been issued, although presumably not to Raus Capital's account. Mr Hunt was asked to execute the Proposed Sale Agreement and return it. Mr Hunt did not reply.
On 21 December 2018, Mr Cohen sent a fourth email to Mr Hunt noting he had not heard from Raus Capital and was preparing for settlement that today. Mr Hunt replied: Vlad feels that he need security like a 6month option at 0.003 for 83mil shares to make the deal palatable.
Mr Cohen replied, perhaps ungraciously: Well then don't take it and we will pay you as planned by end of Jan-there is no other deal he can get his money back or not
Mr Hunt replied promptly: As planned is today. You requested an extension on half the funds. All deals have been in your favour since initial acquisition. It is reasonable to request compensation for you defaulting on the agreement. Otherwise pay the $500,000 as agreed, today. That is, Mr Hunt made plain that Completion under the Marcel Sale Agreement and Karoo Sale Agreement was to take place on 21 December 2018.
It would appear that Mr Cohen now had a problem: he did not have the $500,000; the note transfer forms annexed to the Marcel Sale Agreement and Karoo Sale Agreement had already been utilised contrary to the terms of those agreements; and, Raul Capital had not agreed to allow the note transfer forms to be utilised to procure the issue of 125 million ordinary shares before payment of the $500,000. Mr Cohen replied: We will pay half now and if you want you can sue Marcel for the balance - which will be paid by 31 Jan - either way you will not get what you have sought Raus Capital did not reply. Marcel Equity did not pay the $250,000.
On 27 December 2018, Mr Cohen sent a further email to Raus Capital saying that he would like to resolve the matter amicably and asked for a time when he could call. Raus Capital did not reply.
On 27 December 2018, 125 million ordinary shares in Invigor Group were registered in the name of Raus Capital. Mr Cohen says that these shares are held by Raus Capital "on trust for Karoo" pending completion of the Marcel Sale Agreement. A more accurate description may be that these shares are held by Karoo Investment on resulting or constructive trust for Raus Capital. There is no evidence that Raus Capital asked for this security to be provided or knew that it would be provided. Nor was provision of such security in the absence of Marcel Equity's payment of the first instalment of $250,000 part of the proposal put forward by Mr Cohen. It simply appears to have been an attempt by Mr Cohen to offer some security, without also telling Raus Capital that the security was effectively being provided by Raus Capital itself.
On 5 January 2019, Mr Cohen sent two emails to Raus Capital attaching: 1. the Karoo Sale Agreement; 2. the Convertible Note Conversion Notice dated 14 December 2018 issued by Karoo Investment to Invigor Group; and 3. Convertible Note Certificate No 2018-7 dated 14 December 2018 certifying that Karoo Investment held 125 million convertible notes [sic] in Invigor Group.
On 8 January 2019, "Vlad" of Raus Capital replied, expressing some concerns but without, it appears from the email, necessarily appreciating what had happened. Vlad noted: I would like to highlight that proposed sale of the note was done in good faith in order to not put strain [on] IVO cash liquidity position. … I understand that IVO did not have sufficient cash balance to redeem the note. Thus in good faith and in order not to disturb IVO's business rather than to request "Redemption" (i.e. repayment of the loan amount) by Invigor an agreement was reached whereby Raus would sell the convertible notes for $500,000 to Marcel Equity Pty Ltd (Marcel) which would then on-sell them to Karoo Investment Group Pty Ltd (Karoo). Raus Capital noted that, as it had not received the $500,000 and the seven-day deadline for Completion had passed, both Convertible Note Sales Agreements had failed "so the status quo remains as though these sale agreements had never been entered into. This means that Raus is still the holder of all the convertible notes under the principal agreement and that neither of the sales agreements is of any effect".
On 10 January 2019, Mr Cohen replied that Marcel Equity would pay $250,000 immediately with the remaining $250,000 by 31 January plus interest and "on satisfaction of payment of amounts above Raus will retransfer shares to Marcel nominees". Further emails passed between Mr Cohen and Raus Capital on 15 January 2019 in which Mr Cohen said "I am now looking to get this agreement in place over the next couple of days". On 1 February 2019, the solicitors for Invigor Group emailed Raus Capital as follows: We refer to the funds settlement between Raus Capital Funds and Invigor. Karoo Investment Group are completing the internal processes subject to this an amount up to $500,000 will be made available. We understand that Marcel Equity is also willing and able to transfer the amount in interest today. Karoo Investment Group simply require an undertaking from Raus Capital Fund that upon the receipt of $506,575.34 (which is comprised of $500,000 from Karoo Investment Group Pty Ltd and $6,575.34 from Marcel Equity Pty Ltd), Raus Capital Fund undertake to execute and return the attached share transfer with seven (7) days. Upon receipt of said undertaking please also provide the nominated account details for Raus Capital Funds so we can arrange for the transfers. Mr Hunt replied promptly, attaching an executed standard transfer form, transferring 125 million ordinary shares in Invigor Group to Karoo Investment. Obviously, the execution of the share transfer must be read by reference to the email from Invigor Group's solicitors requesting it.
On 5 February 2019, transfer of the payment was said to have been prevented by "minor technical difficulties" about which Mr Cohen expressed surprise and gave an assurance that he would investigate and offered, on 8 and 9 February 2019, to call. Nothing came of this.
On 22 February 2019, Raus Capital issued a letter of demand. Invigor Group replied by its solicitor that the Loan Agreement "is no longer valid or enforceable" as a consequence of the Marcel Sale Agreement. How this was so was not laid bare. On 18 March 2019, Raus Capital issued a statutory demand. Invigor Group seeks to have it set aside on the basis that it owes no debt at all to Raus Capital.

GENUINE DISPUTE

In Britten-Norman Pty Ltd v Analysis & Technology Australia Pty Ltd (2013) 85 NSWLR 601; [2013] NSWCA 344 at [31], the Court of Appeal approved McLelland CJ in Eq's consideration of a "genuine dispute" in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787 as involving a plausible contention requiring investigation, raising much the same sort of considerations as the "serious question to be tried" criterion that applies in the case of an interlocutory injunction. As McLelland CJ in Eq stated at 787: This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit "however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be" not having "sufficient prima facie plausibility to merit further investigation as to [its] truth", or "a patently feeble legal argument or an assertion of facts unsupported by evidence".
The Court, at [48], also approved the following statement of Thomas J in Re Morris Catering (Australia) Pty Ltd (1993) 11 ACSR 601 at 605: There is little doubt that Div 3 … prescribes a formula that requires the court to assess the position between the parties, and preserve demands where it can be seen that there is no genuine dispute and no sufficient genuine offsetting claim. That is not to say that the court will examine the merits or settle the dispute. The specified limits of the court's examination are the ascertainment of whether there is a 'genuine dispute' and whether there is a 'genuine claim'. It is often possible to discern the spurious, and to identify mere bluster or assertion. But beyond a perception of genuineness (or the lack of it) the court has no function. It is not helpful to perceive that one party is more likely than the other to succeed, or that the eventual state of the account between the parties is more likely to be one result than another. The essential task is relatively simple - to identify the genuine level of a claim (not the likely result of it) and to identify the genuine level of an offsetting claim (not the likely result of it).
The characteristics of a "genuine dispute" were described in similar terms by the Victorian Court of Appeal in TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd (2008) 66 ACSR 67; [2008] VSCA 70, by Dodds-Streeton JA (with whom Neave and Kellam JJA agreed), at [71]: The dispute … should have a sufficient objective existence and prima facie plausibility to distinguish it from a merely spurious claim, bluster or assertion, and sufficient factual particularity to exclude the merely fanciful or futile. … Something "between mere assertion and the proof that would be necessary in a court of law" may suffice.

CONSIDERATION

Invigor Group, in its submissions, raised a contention that Raus Capital was not entitled to redeem the Convertible Notes for failure to comply with clause 9.5 of the Loan Agreement, which relates to delivery up of the Note Certificates. Objection was taken to advancing this contention at trial as no reference was made to this matter in the affidavit of Mr Cohen in support of the Originating Process and thus offended the "Graywinter" principle (see Graywinter Properties Pty Ltd v Gas & Fuel Corp Superannuation Fund (1996) 70 FCR 452; (1996) 21 ACSR 581 and the cases which follow it). Invigor Group did not press this contention at trial.
Invigor Group framed its claim in relatively narrow terms: that its debt under the Loan Agreement was satisfied or discharged by the Marcel Sale Agreement because Raus Capital signed and delivered an executed note transfer form and Invigor Group "acted upon that duly signed and delivered note transfer form". Invigor Group says that Raus Capital's right to recover the money is now against Marcel Equity, and this is said to be supported by Marcel Equity's subsequent remarks in the emails from Mr Cohen of 18 December 2018, 21 December 2018, 10 January 2019 and 1 February 2019 to which I have already referred, and by Mr Hunt's execution of the transfer on 1 February 2019.
These communications, when set out in their context, do not support the submission made. So far as the evidence reveals, Raus Capital delivered an executed note transfer form as Annexure 1 to the Marcel Sale Agreement only - not as a stand-alone document - to be dealt with in accordance with the terms of the Marcel Sale Agreement and not otherwise. Mr Cohen's emails were a series of attempts to negotiate an extension or variation of the Marcel Sale Agreement. Raus Capital did not accept any of these proposed extensions or variations. Mr Hunt's execution of the transfer form on 1 February 2019 was at Invigor Group's request in circumstances where Raus Capital was, apparently, about to be paid the $500,000. On such payment, it would have been necessary to transfer the 125 million ordinary shares in Invigor Group which Karoo Investment had procured and Mr Cohen had registered to Raus Capital's account in the circumstances which I have described, that is, without the knowledge, request or consent of Raus Capital.
More importantly, there is no evidence that, when Invigor Group "acted upon that duly signed and delivered note transfer form", it did so: 1. in accordance with the Marcel Sale Agreement; 2. in accordance with any amendment of the Marcel Sale Agreement; or 3. in reliance on any representation or inducement by Raus Capital that it could or should do so. Mr Cohen's affidavit in support of the originating process does not contain such evidence, nor does the Marcel Sale Agreement, nor do any of the contemporaneous documents.
Invigor Group's submission was thus: To express a submission rhetorically, why would [Raus Capital] sign and submit a share transfer form, if it did not hold those shares and why would it hold those shares if there was not some agreement or understanding to do so? The facts do not support the existence of an agreement or understanding between Invigor Group and Raus Capital. It is astonishing that Invigor Group should seek to rely upon the deployment of the executed note transfer forms in a manner not contemplated by the Marcel Sale Agreement as somehow discharging the obligation of Marcel Equity to pay $500,000 for convertible notes which it had already dealt with, or in the absence of payment by Marcel Equity, to discharge Invigor Group's obligation to repay its loan under the Loan Agreement.
In the alternative, Invigor Group submitted that Raus Capital was estopped from denying that the Loan Agreement was satisfied or discharged by the Marcel Sale Agreement, or alternatively, is estopped "from denying" the Marcel Sale Agreement. As I understand it, Raus Capital does not "deny" the Marcel Sale Agreement but simply says that it has not been performed and thus ceases to operate at all.
Invigor Group relies on EK Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172 at [221] as a concise statement of the relevant principles of estoppel: This directs attention to the basis upon which the lessee in Waltons Stores [(Interstate) Ltd v Maher (1988) 164 CLR 387] succeeded in the view of Mason CJ, Wilson J and Brennan J. Mason CJ and Wilson J referred with approval to authorities that treated promissory estoppel and proprietary estoppel, or estoppel by acquiescence, as facets of the same general principle. Their Honours said (at 404): One may therefore discern in the cases a common thread which links them together, namely, the principle that equity will come to the relief of a plaintiff who has acted to his detriment on the basis of a basic assumption in relation to which the other party to the transaction has 'played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it': per Dixon J. in Grundt [v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641] (68); see also Thompson [v Palmer (1933) 49 CLR 507)] (69). Equity comes to the relief of such a plaintiff on the footing that it would be unconscionable conduct on the part of the other party to ignore the assumption.
A further paragraph of White J's judgment at [223] also bears repetition: Likewise, Brennan J enunciated principles of equitable estoppel in general terms. After distinguishing (at 415-416) an estoppel in pais, which compels adherence to an assumption of fact which the opposite party has been induced to adopt but which does not itself create rights, from an equitable estoppel, which is itself the source of rights and obligations, his Honour said (at 428-429): In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.
Invigor Capital submitted that there was a plausible contention of promissory estoppel, but it could point to no promise by Raus Capital, only silence. Invigor Group's counsel submitted that the representation arose because "They should not have handed [the executed forms] over". I do not accept this submission. Countless transactions proceed on the basis that parties hand over executed documents in anticipation of completion, not to be utilised until completion takes place. That this was one such transaction was abundantly clear from the terms of the Marcel Sale Agreement and Karoo Sale Agreement.
Invigor Group then submitted that, in the events that have unfolded, "by amending the Karoo [Sale Agreement] and extending the terms for the payment of the $500,000 (relying in part upon the 125 million shares), there has not been any, and cannot be any, reliance by [Raus Capital] on the seven-day period as basis to terminate the [Marcel Sale] Agreement". I am not confident that I have understood this submission, but there is no evidence that Raus Capital agreed to amend the Marcel Sale Agreement or Karoo Sale Agreement nor that it accepted any of Mr Cohen's proposals to vary the terms of those agreements.
Invigor Capital submitted that it acted to its detriment by issuing the 125 million ordinary shares to Karoo Investment. I have again failed, I fear, to grasp the full import of this submission as it is entirely unclear to me how Invigor Capital, in utilising the executed transfer forms in a manner not contemplated by the Marcel Sale Agreement or Karoo Sale Agreement, has suffered a detriment. It would appear, rather, that Invigor Capital, Marcel Equity or Karoo Investments have "jumped the gun" by obtaining the Convertible Notes without paying for them.
The Court does not need to accept uncritically the proposition that Invigor Group's debt under the Loan Agreement was satisfied or discharged by the Marcel Sale Agreement, or that Raus Capital is estopped from contending otherwise, as giving rise to a genuine dispute in circumstances where it is wholly at odds with the contracts and contemporaneous documents and in the absence of any other evidence from Mr Cohen to support these contentions. There does not seem to me to be an issue deserving of a hearing. Rather it seems to me that the asserted dispute put forward by Invigor Group is not genuine but falls into the category of "mere bluster and assertion", to say the very least.

ORDERS

For these reasons, I made the following orders: 1. The Originating Process filed on 23 April 2019 is dismissed. 2. Plaintiff to pay the defendant's costs of the proceedings. 3. Grant liberty to the defendant to apply, by 21 August 2019, for a variation to Order 2 to seek indemnity costs and/or a lump sum costs order, such application to be made by sending any affidavit evidence, along with submissions limited to four pages, by email to the chambers of Rees J, copied to the plaintiff's legal representatives. 4. In the event that the liberty in Order 3 is exercised, direct the plaintiff send by email to the chambers of Rees J, copied to the defendant's legal representatives, any affidavit evidence in reply, along with submissions limited to four pages, by 4 September 2019.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2019

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