CFI Rentals Pty Ltd v Roussos & Anor [2018] QDC 127

DISTRICT COURT OF QUEENSLAND CITATION: CFI Rentals Pty Ltd v Roussos & Anor [2018] QDC 127 PARTIES: CFI Rentals Pty Ltd ACN 166603578 (Applicant) v Michael Ivon Roussos (First Respondent) Julia Catherine Gardiner (Second Respondent) FILE NO/S: BD4837/16 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 29 June 2018 DELIVERED AT: Brisbane HEARING DATE: 5 April 2018 JUDGE: Andrews SC DCJ ORDER: Orders as per paragraphs 1 to 10 of the draft. Liberty to apply in respect of costs. CATCHWORDS: Uniform Civil Procedure Rules 1999 r 11; CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308; Ex Parte Eimbart Pty Ltd (1982) Qd R 398; Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256; COUNSEL: Keane for the applicant P O’Brien for the first and second respondents SOLICITORS: SLF Lawyers for the applicant Shand Taylor Lawyers for the first and second respondents -- 1 of 11 -- 2 Background 1. The applicant (CFI) seeks: 1. A declaration that it holds an equitable charge over the interest of the first respondent (Mr Roussos) in land and improvements at Westlake and at Surfers Paradise pursuant to a Secured Guarantee (the guarantee) between the applicant and Mr Roussos dated 13 May 2016; and 2. Orders for the appointment of statutory trustees under the Property Law Act 1974 (Qld) and ancillary orders. 2. Mr Roussos and the second respondent (Ms Gardiner) are the registered owners as joint tenants of the land and improvements at Westlake and as tenants in common of the land and improvements at Surfers Paradise. Mr Roussos’s guarantee was given concerning the obligations of Zetland Fitness Management Pty Ltd (Zetland) under a loan agreement with CFI and an associated agreement for the lease of gym equipment from CFI. The history of the proceeding at first instance 3. The proceeding commenced on 9 December 2016 by originating application. 4. CFI was at liberty to commence by originating application if “the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely”.1 The originating application contained an estimate that 30 minutes be allocated to the hearing. There is no claim. There are no pleadings. There has been no occasion for Mr Roussos or Ms Gardiner to file a notice of intention to defend and no occasion for the plaintiff to apply pursuant to UCPR rule 292 for summary judgment. 5. CFI followed up the filing of the originating application with three supporting affidavits over the following five months until the proceeding came before a judge hearing applications on 8 May 2017. The originating application was amended in an immaterial way that day and the amended originating application was heard in applications on 8 May 2017. 6. The primary judge found that: 1. Upon the proper construction of the guarantee, no amount could be due and owing by the first respondent to CFI until it had been demanded from the first respondent; 2. No demand by CFI had been established on the evidence; 3. CFI had not established an entitlement to either a declaration that it had an equitable charge or for the appointment of trustees for sale. 7. The primary judge dismissed the amended originating application on those bases. The appeal to the Court of Appeal 8. CFI appealed. The Court of Appeal allowed the appeal2 and on 15 December 2017 remitted the proceedings to the District Court “for the District Court to manage and determine the proceeding consistently with these reasons for judgment”.3 1 UCPR rule 11(a). 2 CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308. 3 CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308 at [16]. -- 2 of 11 -- 3 9. On the hearing of the appeal, Mr Roussos and Ms Gardiner accepted that the primary judge had erred in construing the guarantee as requiring that a demand be made before an equitable charge was created pursuant to cl 7 of the guarantee. 10. The Court of Appeal did not give to CFI the two species of final relief it sought. The Court of Appeal observed4 that “it is not sufficiently clear from the evidence which was before the primary judge, that there was an actual indebtedness of the debtor (Zetland), and therefore an indebtedness of the first respondent, as at the date of the hearing. Relevant to that question would be a consideration of what had happened to the equipment, the subject of the lease agreement, which, by then, had been repossessed by the appellant (applicant)”. I infer that it was an issue concerned with clause 11.1 of Lease Terms & Conditions and whether any debt remained owing to to CFI to justify CFI’s use of the charge to secure the debt’s repayment. 11. It follows that when the Court of Appeal gave its reasons on 15 December 2017, only one final issue between the parties was apparent to the Court: had CFI sold the repossessed gym equipment and recovered sufficient net proceeds so that there was no debt owing by Zetland to CFI? Issues now 12. It is not disputed that Mr Roussos, by the guarantee at clause 7, created an equitable charge. This was accepted before the Court of Appeal at [7]. Clause 7(c) of the guarantee operated to grant a fixed charge over Mr Roussos’s beneficial interest in the two parcels of land. 13. The primary factual issue for me is the same final issue between the parties when the proceeding was before the Court of Appeal: whether there remains any debt owing by Zetland to CFI. So long as there is an amount payable by Zetland to CFI under any lease, rental or other transaction under which CFI provides goods, services or any other financial accommodation or credit to Zetland,5 CFI is entitled to a declaration of charge. 14. For Mr Roussos and Ms Gardiner, the respondents, further issues are now raised: 1. Whether Zetland was in default when CFI purported to terminate the lease of gym equipment on 12 December 2016; (The respondents have not raised an issue fit to be tried.) 2. The status of the termination notice dated 12 December 2016 in circumstances where the applicant elected to continue with the contract by accepting further payments under the contract in December 2017 and January 2017; (There is a serious question that CFI waived the default by the actions of its agent in the days after 12 December 2016.) 3. Whether CFI gave Zetland a notice dated 15 February 2017 of termination of lease in accordance with the terms of the lease; 4. Whether CFI’s notice dated 15 February 2017 of termination was given to Zetland “where there is real concern as to the authenticity of the recently provided notice”; 5. Whether Zetland terminated the lease on 5 May 2017; 6. Whether CFI has received payments for the use of the gym equipment since repossession of it and failed to account for those payments; 4 CFI Rentals Pty Ltd v Roussos & Anor [2017] QCA 308 at [9]. 5 Guarantee clauses 1.1 and 9. -- 3 of 11 -- 4 7. Whether CFI retains some unsold equipment for which it has failed to account; 8. Whether CFI has failed to properly account pursuant to clause 11.3 of the lease for the proceeds of sale of repossessed gym equipment. 15. It is easy to lose sight of the fact that these various new issues are each relevant for the purpose of determining whether any debt is owing by Zetland to CFI. 16. I am satisfied that Zetland’s debt to CFI need not be quantified for Mr Rousso’s liability to arise and for the charge to become enforceable.6 Counsel for the respondents submitted that Filmana and the decision of the Court of Appeal in this proceeding each support the proposition that the quantum of Zetland’s indebtedness must be established before Mr Roussos is liable and the charge is enforceable.7 I read the decisions differently and reject that submission. 17. Counsel for the respondents emphasises that under the Uniform Civil Procedure Rules r 11, the applicant had liberty to start the proceeding by originating application only if “a substantial dispute of fact is unlikely” and submits that substantial disputes of fact exist and need to be determined at trial. 18. Argument lasted four hours. The affidavits are long and numerous. Disputes of fact exist. It does not necessarily follow that a substantial dispute of fact exists, particularly on the issue of whether Zetland is indebted to CFI.8 Facts relevant to the issues now. 19. At material times since 7 March 2016 the registered office of Zetland was unit 1602, 129 Harrington Street, The Rocks, NSW. 20. On 18 May 2016 CFI, Zetland, Rebecca Roussos (Ms Roussos) and Mr Roussos entered into a written agreement (Agreement) comprised of: 1. A Lease Schedule Tax Invoice, (Lease Schedule) which forms part of the lease;9 2. A Direct Debit Request Authority and Direct Debit Request Service Agreement; and 3. Lease Terms & Conditions relating to gym equipment which forms part of the lease.10 21. The Lease Terms & Conditions provided, so far as seems relevant: … 3 RENTAL INSTALLMENTS … 3.1 Throughout the Term you will pay to CFI the rental instalments in the manner specified in the Lease Schedule; … 3.3 The Rental Installments must be paid by direct debit or in such manner as CFI may from time to time direct you in writing … 9 ESSENTIAL TERMS 9.1 The following terms are fundamental and essential terms: (a) That you pay all Rental Instalments on time (clause 3); … 6 Filmana Pty Ltd & Ors v Tynan & Anor [2013] QCA 256 7 T1 pp 35-36. 8 On the basis of a Transaction as defined in the Guarantee at cl 9. 9 Lease Terms & Conditions cl 34.1. 10 Document 2 par 7. -- 4 of 11 -- 5 9.2 You will be taken to have repudiated this Agreement if you breach any of the essential terms referred to in clause 9.1. 11 TERMINATION BY CFI 11.1 CFI may give you notice terminating this Agreement if: (a) There is a breach of any essential terms specified in clause 9.1… 11.1 If CFI terminates this Agreement under clause 11.1 (a)…you must immediately: (a) Return the Goods to CFI … at a place specified by CFI; … (d) Pay to CFI as liquidated damages the Termination Value; … 11.2 If you do not return the Goods as you are required to, CFI may enter any premises…and retake possession of the Goods… 11.5 CFI will apply any monies received by us under this clause in payment of the moneys owing to CFI by you in the order and manner CFI thinks fit in our absolute discretion. … 14 COSTS, DUTIES, CHARGES AND COMMISSIONS 14.1 You must pay or reimburse CFI for: … (b) Any expenses which CFI may reasonably incur in retaking or attempting to retake possession of the Goods; … 25 WAIVER 25.1 No waiver by CFI of any default, breach or repudiation by you will effect CFI’s rights in respect of any further or continuing default, breach or repudiation. … 28 NOTICES 28.1 Any notice to be given must be addressed to the relevant party at the address set out in the Lease Schedule to this Agreement or at the address last notified by each party to the other in writing. … 30 CERTIFICATES 30.1 The certificate of an officer of CFI will (in the absence of manifest error) be prima facie evidence of the matters stated in that certificate. … 34 DEFINITIONS AND INTERPRETATION … Goods means the equipment described in the Lease Schedule… Lease Schedule means the schedule entitled Lease Schedule Tax Invoice which forms part of this Agreement. … Termination Value means the aggregate of: (a) The present value of future Rental Instalments payable for the balance of the Term calculated by applying the Discount Rate to each instalment; and (b) The present value of the Residual Value calculated by applying the Discount Rate to the Residual Value; Plus any applicable GST (to the extent not already included). … 22. The Lease Schedule specified that Rental Instalments are to be paid weekly by direct debit to Cashflow Its nominated bank account. 23. On 13 May 2016, Mr Roussos entered into the guarantee with CFI which named Zetland as the Debtor. It provided, so far as seems relevant; 1. Guarantee -- 5 of 11 -- 6 1.1 The Guarantor … guarantees to Cashflow It that the Debtor will pay to Cashflow It all amounts payable by the Debtor to Cashflow It and the due and punctual performance by the Debtor of all its obligations to Cashflow It under the Transactions. 1.2 The liability of the Guarantor is a principal liability. … 3. Cash flow It’s rights are protected 3.1 Rights given to Cash flow It under this Guarantee, and the Guarantor’s liabilities under it, are not affected by any act or omission by Cash flow It or by anything else that might otherwise affect them under law or otherwise, including: (a) The granting of time, other indulgence or concession to the Debtor; (b) Any…compromise, settlement…release…waiver, variation…of any of Cash flow It’s rights against the Debtor or by any neglect or omission to enforce such rights … 7. UNDERTAKINGS The Guarantor: … (c) As beneficial owner, charges in favour of [CFI] by way of fixed charge all real and personal property at any time held by the Guarantor with the payment of the amounts referred to in clause 7(a); … 7.2 Any precondition to the exercise of any power of sale, except for default, is excluded. … 9. Meaning of words In this Guarantee; … Transactions includes any lease, rental… bailment or loan… and any other transaction under which Cashflow It provides goods, services or any other financial accommodation or credit to the Debtor. 24. On 16 May 2016 Ms Roussos authorised CFI to arrange for funds to be debited weekly from a bank account. She did this by direct debit request in respect of the weekly sum of $1,024.48. 25. Ms Gardiner is not a party to the equipment lease or the guarantee of that lease. Her legal interest in the proceeding arises only from her co-ownership of land with Mr Roussos. 26. On 9 November 2016 Zetland failed to pay to CFI $50.48, being the balance of the sum of $1,024.48 which was due on 9 November 2016.11 On 16 November 2016 Zetland failed to pay to CFI $1,024.48.12 On 23 November 2016 Zetland failed to pay to CFI $1,024.48.13 The respondents’ counsel accepted that there is no evidence that the three amounts are incorrect. 27. On 12 December 2016 CFI sent a letter by prepaid ordinary post to Zetland at 54 O’Dea Street, Zetland NSW 2015, which was the appropriate address under the Lease Schedule a default notice: 1. That $2,099.44 was 19 days overdue; 2. That Zetland was in default; 3. That CFI was exercising its right to terminate the contract; 4. That the total amount owing under the contract was $133,233.50; 5. That it was then due and payable; and 6. That Zetland must contact CFI immediately to arrange payment. 11 Doc 2 par 12. 12 Doc 2 par 12. 13 Doc 2 par 12. -- 6 of 11 -- 7 28. On 12 December 2016 CFI sent a letter by prepaid ordinary post to Mr Roussos and another to Ms Roussos each addressed to 54 O’Dea Street, Zetland in NSW notifying them of the overdue payment. 29. After CFI first exercised its right to terminate the Contract on 12 December 2016, Ms Roussos continued to liaise by email with Ms Graham, the agent for CFI and continued to make payments. On about 12 December, Ms Roussos changed the bank account from which payments on account of Zetland were to be made to CFI. 30. On 13 December 2016 Ms Graham wrote to Ms Roussos “we need to ensure that our instalments are received weekly…a simple way to ensure that you don’t have to hear from Collections is to ensure that the contract instalments are made each week. Also with a good history in our system if you require further equipment in the future you would be able to obtain this… attached is a blank direct debit form, please complete as soon as possible… The instalments again are $1,024.48 that are direct debit each Wednesday, the next instalment is due tomorrow.” 31. Ms Roussos replied on 14 December 2016 that “the amount of $3,129.60 will be paid manually by COB this afternoon”. I regard that as an admission that Zetland was in default. 32. On 15 December 2016 Mrs Graham emailed Ms Roussos “we received on the bank statement today $1,024.00 which is paying one instalment on the contract. There is still an amount overdue of $2,086.88 that you informed in the below emails would also be paid yesterday. Please confirm that this overdue amount will be transferred today.” 33. I am satisfied that Zetland was in default on 14 December 2016 and had been in default 2 days before. If payments of $1,024.48 were due weekly, arrears of more than that sum lead to the probability of default. 34. For the respondents it is submitted, in effect, that an issue has arisen as to whether the dealing between Ms Graham and Ms Roussos and the acceptance of further rent after 12 December 2016 had the consequence that CFI affirmed the Agreement and lost its right to terminate.14 It was submitted to be an election to continue with the contract despite the notice of termination. 35. I reject the submission on the basis that CFI’s conduct is not an unequivocal election to affirm the contract. Accepting payment of amounts in arrears is not evidence of an unequivocal intention to affirm the contract. The act of accepting what is already owed is consistent with terminating the agreement. However, it is unclear whether Zetland brought its account back into order in December and whether CFI, thereafter, continued to accept payments. For this reason, I regard an issue to exist as to whether CFI elected to affirm the Agreement at some time after 15 December 2016. That hypothetical election cannot amount to a waiver in respect of any further default.15 36. On 25 January 2017 Ms Graham emailed Ms Roussos that the contract was again overdue in the sum of $2,200.28 with the next payment due on 27 January. On 31 January 2017 Ms Graham again emailed Ms Roussos to say the contract was 3 14 T1-47. 15 Lease Terms & Conditions cl 25.1 -- 7 of 11 -- 8 instalments overdue in an amount of $3,224.76. Ms Roussos did not dispute the assertions then, or in her affidavit evidence. 37. Throughout 2016 Ms Roussos was arranging for the payment of instalments due by Zetland to CFI. Ms Roussos deposed that over $30,000.00 in payments were made to CFI between May 2016 and February 2017. She did not specifically dispute that Zetland was in default.16 A sum of $30,000.00 would not be sufficient to cover weekly payments of $1,024.48 for the period whether it be ten, nine or only eight months. Counsel for CFI conceded that Zetland had paid about $35,000.00 in the period between May 2016 and February 2017. His concession was not evidence that Zetland’s arrears had been paid. Ms Roussos further deposed at paragraph 17 that she disputed the total amount owing “as I do not know how that amount had been calculated” but she did not assert that Zetland was not in default. Mr Scurr’s certificate17 and its attached excel spreadsheet of calculation show the last payment to have been received was the payment due on 15 February 2017. Mr Keane’s submissions were to the effect that the last payment received from Zetland was in February 2017. 38. Ms Roussos was a Director of Zetland from 21 March 2016 until 2 February 2017, if not longer. At that date, prima facie evidence from an ASIC search is that Kon Prin was appointed as sole director of Zetland. 39. Ms Roussos swore an affidavit on 4 April 2018. At that date she was, according to ASIC’s record, no longer a Director of Zetland. She deposed to being a Human Resources Manager and to being the daughter of Mr Roussos. She did not depose to being the director and secretary of Zetland. At paragraph 29(e) of her affidavit, Ms Roussos deposed: I deny that I ceased to be a Director of Zetland… as suggested in paragraph 5 of Yam’s Second Affidavit.18 I was sole Director at that time and sole Director and Shareholder of a 25 per cent shareholder, EVOD Industries Pty Ltd. … I did not resign as Director and I am not aware of any meeting being held to remove me as Director or appoint any other Directors… Any change to the ASIC records of the company were done without my knowledge, consent or authority”. 40. It follows that there is a dispute of fact about whether Ms Roussos was a director after 2 February 2017. I will continue on the premise that there is an issue fit to be tried that she was a director after 2 February. It is not obvious how that affects the issue of whether Zetland remains indebted to CFI. 41. On 15 February 2017, Ms Graham as CFI’s agent, alleges that she sent a letter to Zetland at 38 Mitchell Road, Alexandria, NSW. That address was not the appropriate address under the Lease Schedule for notices to Zetland, but was the appropriate address for notices to Ms Roussos. Service at that address would be sufficient, but service is disputed. The notice advised: 1. That $6,298.20 was 42 days overdue; 2. That Zetland was in default under the Contract; 3. That CFI was exercising its right to terminate the Contract; 16 Affidavit IA Roussos filed by leave 5 April 2018 par 12. 17 Court Doc 18, Affid J Scurr par 15 and exhibit G. 18 In that affidavit filed by leave Mr Yam deposed at paragraph 5 that the ASIC current and historical organisation extract of Zetland showed that Ms Roussos ceased to be the sole Director of Zetland on 2 February 2017. -- 8 of 11 -- 9 4. The total amount owing under the contract was $125,138.44. That sum was a mistake. The amount then owing is alleged by Ms Graham to have been $95,770.01; 5. $125,138.44 was then due and payable and interest would accrue if it is unpaid; 6. That Zetland must contact CFI immediately to arrange payment; and 7. Unless we agree with you otherwise, you must immediately return the Goods and if you do not we intend to exercise our right to repossess. 42. I accept that an anomaly appears in the date format of the letter upon which CFI relies. Even though Ms Graham was not required for cross-examination, there arises an issue as to whether Zetland received Ms Graham’s letter of advice that CFI was exercising its right to terminate. It follows that there is an issue whether CFI terminated the Agreement on 15 February and whether it was then entitled to a Termination Payment. That issue about termination and the right in February to receive liquidated damages does not mean that CFI was not entitled to receive arrears of rent and continuing rental payments. 43. It is not deposed for the respondents that Zetland paid any sums due from February to May 2017. There is no issue fit to be tried that Zetland paid amounts due under the Agreement after 15 February 2017. Such a failure to pay was a repudiation by Zetland of the Agreement by reason of clause 9.2 and 9.1(a) of the Lease Terms. But that is not the significant matter. The important finding, is my satisfaction that there are arrears due under the Agreement for rent payable between February and May 2017. 44. On 4 May 2017 CFI’s agent entered the premises at 54 O’Dea Street, Zetland in NSW and retook possession of goods that were there. Zetland purported to terminate on 5 May 2017. 45. In May 2017 Ms Roussos returned to the gym in which the leased equipment had been housed. She saw equipment there that she regarded as not discernibly different from the leased equipment. When she later read what had been in a list of items sold by Slattery Auctions, Ms Roussos concluded that a large volume of the leased equipment did not appear on the Slattery invoice. She set out a table of items in her affidavit which do not appear to her to have been part of the items sold by Slattery Auctions. An issue arises as to whether all equipment leased was sold. 46. On 16 March 2018 James Scurr, Managing Director of CFI certified the amount outstanding to CFI as $93,211.60 and it is prima facie evidence of the matters stated in the certificate. That figure took into account: Less proceeds of the sale of the Goods (as defined in clause 34 of the Agreement) (Copy of Consign Account Sales/Tax Invoice number 20851 dated 8 June 2017 from Slattery Auctions Sydney to Thorn Equipment Finance attached) $8,033.66. 47. The certificate’s reference to “the Goods as (defined in clause 34 of the Agreement)” is a reference to the goods described in the Lease Schedule in a two and a half page schedule. It appears as part of Exhibit A to the affidavit of Nicholas Tollas.19 By the certificate, Mr Scurr has essentially certified that all of the Goods leased were sold. Counsel for CFI clarified in submissions that CFI had sold only those goods which CFI had repossessed.20 19 Filed by leave 5 April 2018. 20 T1-5. -- 9 of 11 -- 10 48. 49. A Slattery Auctions Invoice21 lists 42 items repossessed by CFI and sold on about 4 July 2017 for a net $8,033.66. Neither side attempted to compare that list with the Goods described in the Lease Schedule. It follows that, for the purpose of this application, I must proceed as if it is possible that some of the leased Goods have not been sold, being any that may not have been repossessed. 50. There is an issue fit to be tried that some equipment was unsold. 51. I accept that the hypothesis that some leased goods were unsold is irrelevant to CFI’s right against Mr Roussos to enforce the Guarantee. Had CFI repossessed some goods and retained them unsold, CFI would have a right against Zetland and against Mr Roussos to payment of the debt outstanding after accounting for the $8,033.66 received from Slattery Auctions. CFI’s rights against Zetland and Mr Roussos would exist notwithstanding CFI’s obligation to account to Zetland if it later sold further goods. 52. I am satisfied that there is a factual issue about whether the leased equipment which remained in the gym during March 2017, was being used by an entity other than Zetland and whether that the entity was in negotiation with CFI about costs to pay out Zetland’s agreement with CFI and about reassignment of contracts.22 I have been asked to infer that there is an issue fit to be tried that CFI received rent from the entity using the equipment and has failed to account for it. I do not. Both issues would be based upon pure speculation. Conclusion with respect to the declaration 53. I am satisfied that there is no serious issue fit for trial about Zetland’s having an indebtedness to CFI for rental payments from 16 February 2017 to 4 May 2017. CFI is entitled to its declaration. Appointment of Statutory Trustees for Sale 54. As an encumbrancee of Mr Roussos’s interest in the properties, CFI is a co-owner for the purposes of s 38 of the Property Law Act. 55. The power to order the vesting of the property in statutory trustees is framed as discretionary in the Act. However, the general position is that the word “may” does not confer an open ended discretion to the Court on whether or not to order the sale of property. There is a prima facie right for the co-owner to have this remedy. In Ex Parte Eimbart Pty Ltd (1982) Qd R 398 at 402 McPherson J said of the discretion: In such cases (where co-ownership of land subsists in law), where there is no trust or perhaps other fiduciary obligation, it is difficult to conceive of circumstances in which the discretion, if any, conferred by the word ‘may’ in s 38(1) of the Property Law Act or its New South Wales equivalent would ever by exercised against the appointment of statutory trustees. As was said by Kearney J in Hayward v Skinner (1981) 1 NSWLR 590, the right to partition, and now sale, is an incident of the property of a co-owner. And because of this it is also difficult to imagine that the existence of a mere contract or agreement to the contrary would ordinarily constitute a bar to the Court’s discretion to appoint statutory trustees in the case of co-owners at law. 21 Affidavit J Scurr court doc 18 p 21. 22 Court doc 11 affidavit Mr Roussos p 30. -- 10 of 11 -- 11 56. I am not satisfied that the consequences that quantum is not ascertained or that Ms Gardiner will be affected by the sale are sufficient reasons to decline to make the order for the appointment of statutory trustees for sale. 57. CFI is entitled to orders for the appointment of trustees for sale. Orders 58. Counsel for CFI submitted a draft. Counsel for the respondents did not submit that it was inappropriate if the issues were decided against the respondents. Except in respect of costs, I will make an order as per draft. 59. The parties should have liberty to apply in respect of costs. -- 11 of 11 --