Council of the City of Wollongong v Vero Insurance Limited

CASES CITED : McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579

PARTIES : Council of the City of Wollongong (Plaintiff) Vero Insurance Limited (Defendant)

COUNSEL : N A Cotman SC / R I Goodridge (Plaintiff) S R Donaldson SC / G A Donnellan (Defendant)

SOLICITORS : Fisher Cartwright Berriman Pty Limited (Plaintiff) Wotton & Kearney (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

55095/07 COUNCIL OF THE CITY OF WOLLONGONG v VERO INSURANCE LIMITED JUDGMENT 1 HIS HONOUR: On 20 August 2006, a building known as the "NES Hall", which was owned by the plaintiff (the council), was destroyed by fire. The council had the benefit of an industrial special risks policy of insurance (the policy) issued by the defendant (Vero). Vero accepts that it is liable to indemnify the council for the loss of the NES Hall, according to the terms of the policy. The council and Vero are in dispute as to the basis on which the council should be indemnified.

The basic issue 2 The basic issue between the parties is whether Vero is obliged to indemnify the council for: (1) The value of the NES Hall as stated in a record of the council, together with certain costs for demolition and securing the site; or (2) The full cost of reinstatement; or (3) The indemnity value of the NES Hall at the relevant time.

The agreed facts 3 The hearing proceeded on the basis of a statement of agreed facts. I set out those facts (omitting references to the court book, and with some very minor stylistic changes): 1. When seeking insurance from Vero the council provided a schedule to Vero entitled "Building & Contents Asset Schedule as at February 2006" which stated that the "reinstatement as new value" of the NES Hall as $322,000.00.

2. Vero insured the council pursuant to the industrial special risks insurance policy no. ISA010236185 current for the period 31 May 2006 to 31 May 2007.

3. On 20 August 2006 the NES Hall (a community hall owned by council) was destroyed by fire.

4. The destruction of the NES Hall was a total loss for the purpose of the policy;

5. Vero granted indemnity to the council pursuant to the terms of the policy with respect to the losses which the Council suffered as a consequence of the fire;

Vero has paid $31,900 to Affective Services (Aust) Pty Ltd for debris removed from the site of the NES Hall;

The council has informed Vero that it will not rebuild the NES Hall on the site of the fire.

The council has made a claim for an amount equivalent to the full cost to reinstate the NES Hall plus other costs outlined at paragraph 14 of its Technology and Commercial List Statement.

On 12 August 2008 Vero forwarded a cheque to the council in the amount of $302,000.00;

The value of the NES Hall for the purpose of insurance was stated in the Schedule referred to in paragraph 1 as being $322,000.00 at the inception of the policy and at the time of the fire;

The cost to reinstate the NES Hall if reinstatement had been undertaken would be $758,365 and was comprised of the following values excluding GST: 12.1 Cost to rebuild the NES Hall in a condition equal to, but not better or more extensive than its condition when new - $594,990; 12.2 Extra costs to reinstate the NES Hall in order to comply with the requirements of any Act or Parliament or Regulation made there under any By-Law or Regulation of any Municipal or other Statutory Authority - $163,375.00; and 12.3 Total Replacement Cost and Extra Reinstatement Costs - $758,365

The council has incurred the following additional costs: 13.1 $37,568 for removal of debris including decontamination; 13.2 $1,176 for temporary protection and safety expenses; 13.3 $2,990 for quality surveyors expenses; and 13.4 $2,888 for consulting engineers expenses (see the invoice which can be found at page 110 of the Court Book).

The agreed indemnity value of the NES Hall is $475,920

On or about 10 February 2009 Vero forwarded a cheque to the council in the amount of $17,000 in full and final satisfaction of the council's claim for the contents of the NES Hall destroyed in the fire. The questions for decision 4 The parties agreed on some fourteen questions for decision. It seems that the council or its legal representatives were under some misapprehension as to what was required to be proved in relation to some of those questions. I do not understand the problem, but it need not be pursued, because the parties have agreed that I should deal with some only of the fourteen questions. 5 The fourteen questions are as follows:

Was the recording of the sum of $322,000 in relation to the NES Hall an entry into the accounting or other records of the council as being the value of the property insured for the purposes of insurance within the meaning of the endorsements to the policy section 1?

Was $322,000 in relation to the NES Hall an incorrect declaration of value within the meaning of the extended condition 1 of the policy?

If "yes" to 1, was the entry into the accounting or other records of the council of the said sum of $322,000 as the insured value of the NES Hall an unintended and/or inadvertent error, or misdescription within the meaning of the extended condition 1 of the policy?

If 2 or 3 is answered "yes", is the council prejudiced by the entry of the said value in the accounting or other records of the council within the meaning of the extended condition 1 of the policy in the events that have happened?

If 2 or 3 is answered "yes", did the council inform the insurer as soon as practicable?

If 2 or 3 and 4 and 5 are answered "yes", is the council only entitled to $302,000 ($322,000-$20,000) under the Policy?

Does "Reinstatement" within the meaning of the Policy (Memorandum Section 1) include rebuilding on a different site (subject to the liability of the insurer not being thereby increased)?

Has the council elected to reinstate the NES Hall?

Is the council entitled to be paid the reinstatement value of the NES Hall under the Memoranda to section 1 as the Basis of Settlement?

Is the council entitled to be paid the indemnity value of the NES Hall under section 1 as the Basis of Settlement?

Is the council entitled to the extra costs of reinstatement described in paragraph 13.2 of the Statement of Agreed Facts under either Basis of Settlement?

Do "Claim Preparation Costs" as defined in the policy include the council's legal costs?

Do "Claim Preparation Costs" as defined in the policy include the costs and expenses incurred in the preparation for and prosecution of the Supreme Court proceedings 55095 of 2007 which the council commenced against Vero Insurance Limited on 12 December 2007?

Is the council entitled to indemnity for the following additional claims:

14.1 $37,568 for removal of debris including decontamination;

14.2 $1,176 for temporary protection and safety costs;

14.4 $2,888 for consulting engineers expenses? 6 The parties agreed that questions 1, 14.1 and 14.2 should be answered "yes"; and that questions 14.3 and 14.4 should be answered "no". 7 The parties agreed further that, because of the misapprehension to which I have referred, I should not deal with questions 7 to 13. 8 I shall deal with questions 1 to 6 and 14 under UCPR Rule 28.2. Background to the issue of the policy 9 In about February 2003, council retained Mr Scott Fullarton, a valuer, to prepare a valuation of council's assets (real and personal) for insurance purposes. He was provided with a schedule of some sort, presumably listing the items of property to be valued. 10 Mr Fullarton prepared his own schedule setting out, among other things, his valuations, on stated bases, of a number of buildings and their contents. That valuation was used for the renewal of the insurance in 2003. 11 Mr Fullarton prepared an updated valuation in 2005, which was used for that year's renewal. 12 Mr Fullarton prepared another updated valuation in 2006. That valuation, in the form of an Excel spreadsheet, was submitted to Vero for the renewal of the insurance in 2006. It recorded the following information (among other items of information) in respect of the NES Hall:

(1) "Reinstatement with new value": $322,000. (2) "Demolition and removal of debris": $19,000. (3) "Lead time and reconstruction allowance": $24,000. (4) "Estimated limit of liability": $365,000. (5) "Contents insurance value": $17,000. 13 It is common ground that the spreadsheet in question is an accounting or other record of the council, and that it records (or purports to record) the value of the NES Hall, and its contents, for the purposes of insurance. 14 The proposal for renewal stated that the "declared values" for section 1 of the policy (which dealt with material loss or damage) totalled $542,063,480. That figure was derived from Mr Fullarton's spreadsheet, which, as I have said, formed part of the material provided on the application for renewal. The actual cost of reinstatement 15 The council procured reports from a structural engineer, Mr Knox, and a quantity surveyor, Mr Newman. In a report dated 23 October 2006, Mr Newman estimated the replacement cost of the NES Hall as follows: Replacement cost - reinstate as existing: $594,990. Extra over costs for BCA/statutory upgrading: $163,375. Replacement cost to WCC specification: $762,580. 16 I am not sure whether Mr Newman's third figure is (as it appears to be) something other than the sum of the two preceding figures, but nothing turns on this. 17 Mr Newman's figures (which were all exclusive of GST) form the basis of paragraph 12 of the statement of agreed facts. 18 The council contended that the total of $758,365 was the real or true value of the NES Hall. Alternatively, it contended, the indemnity value of the NES Hall was the cost of rebuilding "as is": $594,990. 19 Thus, the council contended, the figure of $322,000 submitted through Mr Fullarton's valuation was an incorrect description of the value of the NES Hall. The policy 20 The policy was dated 30 June 2006. It stated the period of insurance as from 31 May 2006 to 31 May 2007. It set out "declared values (in accordance with the basis of settlement)" totalling $523,580,460.00 for section 1 and in other amounts for section 2. It provided a deductible of, for present purposes, $20,000. 21 I turn to those parts of the policy that are of present relevance. 22 The insuring clause for section 1 is headed "The Indemnity". So far as it is relevant (having regard to the agreed answers to question 14 ) it reads as follows: In the event of any physical loss, destruction or damage (hereinafter in Section 1 referred to as "damage" with "damaged" having a corresponding meaning) not otherwise excluded happening at the Situation to the Property Insured described in Section 1 the Insurer(s) will, subject to the provisions of this Policy including the limitation on the Insurer(s) liability, indemnify the Insured in accordance with the applicable Basis of Settlement. 23 It is not necessary to set out the definition of "the property insured" since it is common ground that the NES Hall was insured. 24 The "basis of settlement" clause provided, by paragraph (a): (a) On buildings, machinery, plant and all other property and contents (other than those specified below); the cost of reinstatement, replacement or repair in accordance with the provisions of the Reinstatement and Replacement and Extra Cost of Reinstatement Memoranda as set out herein. 25 That basis of settlement was amended by endorsement, including the following: Partial Loss - Total Loss In the case of damage to Property Insured which is covered under Section 1, the Basis of Settlement shall in respect of all Property Insured, be determined in accordance wit the definitions of Reinstatement and Extra Costs of Reinstatement contained in the Memorandum to this Section 1, except that in respect of: (a) any Property, Insured where values have been assigned thereto in the Insured's accounting or other records as being the value of that Property Insured for the purpose of insurance, then (i) in the case of partial loss due to damage which can be repaired, the Basis of Settlement shall be the cost of repairs necessary to restore the relevant Property Insured, as far as practicable, to the condition in which it existed immediately before the occurrence of the damage or (ii) in the case of total loss of the relevant Property Insured the Basis of Settlement shall be the value so stated in the books of account or other records of the Insured. 26 The memoranda to section 1 included the following: DECLARED VALUES The Schedule of Declared Values at each situation (in accordance with the applicable Basis of Settlement) attaches to and forms part of this Policy for the purpose of the application of Co-Insurance. 27 The memoranda also provided for adjustment of premium as follows: Adjustment of premium (a) The Premium shown is provisional and is calculated on the Declared Values of:-

(i) Property Insured, (ii) Gross Profit and Insured Pay-Roll, on the day of commencement of each Period of Insurance.

(b) The Insured undertakes to declare to the Insurer(s) within a reasonable time after the day of expiry of the Period of Insurance. (i) the value of Property Insured on the day of expiry of the Period of Insurance. For the purpose of this declaration, stock-in-trade and/or merchandise shall be taken at its average value during the Period of Insurance. (i) the amount of the Gross Profit earned and Pay-Roll paid, in accordance with the cover afforded in the respective items of Section 2, in the course of the Business during the accounting period of 12 months most nearly concurrent with the Period of Insurance.

(c) The provisional premium shall be adjusted by payment to the Insurer(s) of an additional premium or by allowance to the Insured of a return premium, as the case may be, calculated at the agreed rate of:- (i) Fifty per cent (50%) of the difference between property declared in accordance with clauses (a)(i) and (b)(i). (ii) The full agreed a rate hereunder on the difference between the amounts declared under clauses (a)(ii) and (b)(ii).

(d) It is agreed to make allowance for any abnormal fluctuation in values and to charge a premium commensurate with the risk, such premium to be agreed between the parties to this agreement.

(e) The Declaration of Values at the expiry of the Period of Insurance declared in accordance with this memorandum shall not be reduced as the result of loss, destruction or damage in respect of which a claim has been paid or is payable under this Policy. 28 The policy contained a number of exclusions. Vero did not rely on any of them. 29 Conditions 1 and 2 to the policy, as originally framed, read as follows: 1. MISREPRESENTATION AND NON-DISCLOUSE If the Insured - (i) failed to disclose any matter which the Insured was under a duty to disclose to the Insurer(s); or

(ii) made a misrepresentation to the Insurer(s) before this Policy was entered into and if the Insurer(s) would not have entered into this Policy for the same premium and on the same terms and Conditions expressed in this Policy but for the failure to disclose or the misrepresentation.

then - (a) the liability of the Insurer(s) in respect to any claim will be reduced to an amount to place the Insurer(s) in the same position in which the Insurer(s) would have been placed if such non-disclosure had not occurred or such misrepresentation had not been made; or (b) if the non-disclosure or misrepresentation was fraudulent, the Insurer(s) may avoid this Policy. 2. ALTERATION The Insurer(s) shall not be liable for loss, destruction of or damage to any property insured hereunder caused or contributed to by any alteration after the commencement of this Policy - (a) by removal of such property from the Premises other than as provided under the terms of Property Exclusion 1. (b) in the trade or processes of manufacture carried on at the Premises or whereby the nature of the occupation or other circumstances affecting the Premises and/or the Insured's property therein contained shall by changed in such a way as to increase the risk of loss, destruction or damage; (c) whereby any premises containing any property insured hereunder shall become unoccupied, and so remain for a period of more than thirty days; or (d) whereby the Insured's interest ceases except by will or the operation of law, Provided that any such alteration, upon coming to the knowledge of the Insured's officer responsible for insurance, shall be immediately notified to the Insurer(s) and, if agreed to by the Insurer(s) in writing, an appropriate additional premium paid if required. 30 Condition 2 was deleted and replaced, by endorsement, to read as follows: The Insurance by the Policy shall not be prejudiced by: (a) any act or omission unknown to or beyond the control of the Insured on the part of any tenant occupying or using the premises (b) structural alteration and/or repairs, limited to buildings, machinery and plant (c) any alteration of occupancy (d) any permanent removal of the property Insured from the premises Provided that any such acts, omissions or alterations upon coming to the knowledge of the Insured's officer responsible for insurance shall be immediately notified to the Insurer(s) and any appropriate additional premium paid if required. 31 In terms, condition 1 was varied, by endorsement, so that further words were added to it: Notwithstanding the provisions of Conditions 1 and 2, the Insured shall not be prejudiced by any unintended and/or inadvertent error, omission or misdescription of the risk, interest or property insured under the policy, incorrect declaration of value, failure to advise the Insurer(s) of any change of risk, interest or property insured or failure to comply with any statutory requirement, provided that the Insured's officer responsible for insurance shall, upon becoming aware of any such unintended and/or inadvertent act error or omission, inform the Insurer(s) as soon as reasonably practicable and the Insured shall, upon request, pay any reasonable extra premium to the Insurer(s) from the date of the increase in risk. 32 It is those words, which for convenience I will call the extending paragraph, that gave rise to the substance of the dispute with which I am concerned. First question: entry in accounting or other records of the council? 33 As I have noted, it is common ground that this question should be answered "yes". Second question: incorrect declaration of value? 34 This question concerns the proper construction and application of condition 1, including, of course, the extending paragraph. The parties' submissions 35 Mr NA Cotman of Senior Counsel, who appeared with Mr RI Goodridge of counsel for the council, submitted that:

(1) The fundamental intention of the parties, as revealed by the words of the policy considered against the relevant factual matrix, was that the council would be indemnified, in the event of destruction of its insured property, for the full reinstatement value of that property.

(2) The extending paragraph was not intended merely to ameliorate, in the events to which it applied, the operation of condition 1 or condition 2. It was intended to apply whenever there occurred an event of the kind described in it where, by that event, the council might be prejudiced.

(3) If the council's entitlement to indemnity were limited to the sum of $302,000 (net of the deductible) plus the agreed amounts for demolition et cetera, the council would be prejudiced in at least two ways: (a) It would not receive the full replacement or indemnity value of the NES Hall; but (b) at the same time, it might be obliged to pay an additional premium on the full replacement or indemnity value of the NES Hall.

(4) The construction for which the council contended would do no wrong to Vero, because Vero could demand, and the council would be obliged to pay, an appropriate extra premium.

(5) The construction for which Vero contended could lead to absurd consequences. That would be so, for example, if the damage to the NES Hall fell short of "destruction", but the cost of repair of that damage exceeded the amount of $322,000 payable on destruction.

(6) If the operation of the extending paragraph were as Vero contended, it would have no work to do in the event of an under-declaration of value, because the contractual right engendered by the operation of condition 1 would lead to the same result as the partial loss-total loss basis of settlement.

(7) It was not necessary that the incorrect declaration of value be "unintended and/or inadvertent". But if it were, that condition was satisfied in this case. 36 Mr SR Donaldson of Senior Counsel, who appeared with Mr GA Donnellan of counsel for Vero, submitted that:

(1) The parties' purpose, evident in the mechanism of the policy, was to provide certainty as regards their entitlements and obligations. They were prepared to accept the risk of misstatement in the council's accounting and other records in exchange for simplicity and certainty.

(2) The function of declarations of value was not to fix the entitlement to indemnity, but to provide a mechanism for fixing and adjusting premium.

(3) The extending paragraph was in terms an express extension of condition 1, and should be so read. It dealt with the defined events (including breaches of duty of disclosure, and misrepresentation) and fixed the consequences of some such events.

(4) The function of the extending paragraph was to qualify Vero's rights in the circumstances to which the paragraph applied. It did not go further. Specifically, it did not override the "partial loss-total loss" basis of settlement.

(5) Under-declarations of value could be of greater significance than Mr Cotman had suggested. For example, the "true" declared value might affect Vero's decision, whether to take the risk and if so on what terms, not merely by reference to premium, but also by reference to considerations such as treaty limits and geographical spread of risk.

(6) In this case, the position in which the council found itself was not a result of something to which condition 1, unamended by the extending paragraph, might have applied. It was the result of the relevant basis of settlement (ie, the partial loss-total loss clause) coupled with the relevant entry in the council's records. Thus, the statement or declaration of that value to Vero was not productive of prejudice; Vero did not rely on that statement or declaration as the basis for its decision.

The approach to construction 37 In McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, Gleeson CJ said at 589 [22] that "[a] policy of insurance ... is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure". (I have omitted citations.) Kirby J expressed a similar view at 600-601 [74]. 38 Mr Donaldson submitted that the approach to be taken was that described by their Honours. Mr Cotman did not demur. Decision 39 The starting point must be the language of the extending paragraph. The introductory words to that paragraph ("Condition 1 of the policy is extended to include the following paragraph") make it plain that the paragraph is to be read as part of (an enlarged) condition 1. 40 Likewise, the introductory words of the paragraph ("Notwithstanding the provisions of conditions 1 and 2") make it plain that the paragraph is intended to qualify the operation of at least condition 1. They also, although perhaps somewhat anomalously, make it plain that the paragraph is intended to qualify the operation of condition 2. 41 The subject matter of condition 1 is, as its heading indicates, misrepresentation and non-disclosure. Unqualified by the extending paragraph, condition 1 gave certain rights to Vero on the occurrence of those events if their effect was as described. 42 The subject matter of (the unamended) condition 2 is "alteration" - that is, as I understand it, material alteration in any insured risk. It too gave rights to Vero on the occurrence of the described events; but it provided the council with an opportunity to avert the consequences of those events by disclosure and payment of any additional premium. 43 The effect of the replacement of condition 2 is to restrict Vero's rights but to impose a duty of disclosure open the council as the price of that restriction. It is unclear how the extending paragraph in fact could ameliorate, in favour of the council, the operation of the amended condition 2. The extending paragraph would only bear on the amended condition 2 if the council had complied with the duty of disclosure that the amended condition imposed. Thus, the condition of amelioration that the extending paragraph prescribes for condition 2 is already a part of the amended condition. Whatever the answer to this anomaly may be (if there is one) nothing in the wording of the extending paragraphs suggests that, in relation to condition 2 its intent or effect is otherwise than to protect the council, and qualify Vero's rights, in the circumstances to which the extending paragraph applies. 44 The last point applies equally to the impact of the extending paragraph on condition 1. In terms, the extending paragraph, so far as it deals with condition 1, operates to protect the council, and to qualify Vero's rights, in the circumstances to which it applies. Those circumstances are to be understood by reference back to condition 1. They are non-disclosure and misrepresentation - the subject of subparagraphs (i) and (ii) respectively in condition 1. Where there are such matters, and where they are unintended or inadvertent, Vero may not exercise the rights given to it by condition 1, provided that the council makes disclosure of the relevant matter as soon as it becomes aware of it. 45 It is implicit in what I have said, but I should make it explicit, that I regard the words "unintended and/or inadvertent" as qualifying each of the matters that follow them, including misdescription of the risk and incorrect declaration of value. The parties intended to protect the council against mistakes, not against the consequences of deliberate (even if "wrong") decisions. 46 So construed, the extending paragraph works as a qualification of the rights given to Vero by condition 1 (and, perhaps, by condition 2 as amended). As a matter of drafting, that appears to be the full extent of its ambition. Why then should it be construed to operate in a wider context? Specifically, why should it be construed to operate as a generally dispensing provision for all mistakes, even those that do not engender any right in Vero (as do those specified in the unamended conditions 1 and 2)? Mr Cotman's submissions did not furnish any satisfactory answer to these questions. 47 The basis of settlement introduced by the partial loss - total loss clause is itself an amendment, effected by endorsement, to the policy. It is an amendment that, in the circumstances to which it applies, specifies the basis of settlement not as the cost of reinstatement, replacement or repair, but as the value specified in a relevant record. The parties must have been aware of the process undertaken by the council each year to have up-to-date valuations prepared by Mr Fullarton, provided to the council and, through council's brokers, provided to Vero. Presumably, the parties were prepared to accept that valuations of property derived through this process, updated from year to year, could be taken as the basis of settlement for the total loss of property so valued and recorded. The effect of Mr Cotman's submissions is to take a provision that in terms is limited to dealing with conditions 1 and 2 only, and to use it to rewrite entirely this aspect of the parties' bargain. 48 By contrast, the construction for which Vero contends fits neatly into the contractual scheme. It recognises the basis of settlement, and protects Vero in the event of any misrepresentation of value. It would apply as much to over-valuation as to under-valuation. Indeed, it would apply to an innocent but totally wrong valuation: for example, one proceeding from a transposition error. 49 It may be, as Mr Cotman submitted, that some anomalies might follow from the operation of the policy for which Vero contended. But the possibility of an anomaly does not seem to me to justify the rewriting of the bargain in the way for which, in effect, the council contends. 50 In circumstances where the ordinary meaning of the language of the extending paragraph gives it work to do, and fits logically in the overall scheme of the policy, I do not think that the paragraph should be construed to operate beyond the apparent limits of its words. 51 I add two things. The first is that I do not agree with the proposition that the alleged incorrect declaration of value has prejudiced the council in any relevant way. The prejudice with which the extending paragraph is concerned is prejudice that would flow from the exercise of rights under condition 1 or condition 2. It is not the impact, on the quantum of indemnity, of the alleged mistake. 52 The second point is that I do not accept the proposition that the council may be exposed to an obligation to pay a higher premium. As between the parties, and in the events that have occurred, the value of the NES Hall is settled at $322,000. Vero contends for that as the value for the purposes of indemnity. It could not, consistent with the stance it has taken in these proceedings, contend for another, higher, value for the purposes of recalculation of premium. 53 The second question should be answered "no". Third question: error or misdescription? 54 Neither party submitted that this question should be answered in any different way to the second question. Indeed, their submissions addressed both questions alike and without differentiation. For the reasons that I have given in relation to the second question, the third question should be answered "no".

Fourth, fifth and sixth questions: consequences 55 Each of these questions is posited on an affirmative answer to one or other of the second and third questions. Given my negative answers to those questions, each of the fourth, fifth and sixth questions should be answered: "Does not arise". Fourteenth question: additional claims 56 As I have indicated, it is common ground that questions 14.1 to 14.4 should be answered respectively "yes", "yes", "no" and "no". Conclusion and orders 57 It follows that the council is entitled to succeed in the sum of $6,844 ($37,568 minus $31,900 plus $1,176), presumably with some interest. 58 I make the following orders: (1) Order pursuant to UCPR Rule 28.2 that questions 1 to 6 and 14 set out at [5] above be determined separately from and before the determination of any other question in the proceedings. (2) Direct that the answers to those questions be recorded. (3) Stand the proceedings over to 9.30am on 26 May 2009 for final orders. (4) Direct the parties to bring in short minutes of order to give effect to these reasons; a draft (or competing drafts) to be submitted to my associate by 4pm on 22 May 2009.

I will deal with any disagreement, including as to costs, on 26 May 2009. **********

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