Anaconda Operations Pty Ltd & Ors v Fluor Daniel Pty Ltd [1999] VSCA 214

5. The case is yet another example of an attempt by a contractor or supplier under a building or engineering contract to prevent the enforcement of a bond or the application of its proceeds by the owner. Here the sum of money is uncommonly large. But so is the contract price - more than $900 million as adjusted - and almost all of that price has been paid. The bonds were intended to, and do in fact, represent five per cent of the contract price. That price was to be paid for the design and construction by the respondent of a nickel and cobalt extraction plant in an area known as Murrin Murrin, which lies some 300 kilometres to the northwest of Kalgoorlie. The contract, which took effect from 21 August 1997, was made between the respondent as contractor and Anaconda Operations Pty Ltd (formerly known as Murrin Murrin Operations Pty Ltd) as owner, the latter company contracting as agent for the two companies which are joint venturers in respect of the project. The three companies just mentioned are the appellants. I shall call the first of them "Anaconda". In some respects the provisions of the contract are unusually simple and, I think, unusually clear.

8. One of the more notable features of the plant is what is known as "Area 3200 - ore acid leach". It consists of four pressure acid leach autoclave trains or circuits. Here, ore slurry is preheated and pumped into four giant pressure cookers - the autoclaves. Each is a steel vessel lined with titanium plate, about 33 metres long, with a weir system. Sulphuric acid is pumped in and the nickel and cobalt are dissolved or leached out of the ore. In each train the slurry is discharged from the autoclave through three flash tanks, which cool the slurry and reduce the pressure. It is the design and performance of the flash tanks, and in particular their diffuser caps, that may perhaps be said to lie at the bottom of this litigation.

11. The slurry, moving at startling speed, enters each tank at its bottom and discharges vertically through a blast tube. To stop it destroying the roof lining, and ultimately the roof itself, of the tank, a diffuser cap at the top of the blast tube is intended, when hit by the rapidly ascending slurry, to deflect it downwards into a pool of slurry at the bottom of the tank. The respondents say that the design of the tank is flawed, that the caps repeatedly failed after only a few hours' service, that attempts to modify the caps and also to replace them with a "T" piece have been protracted and unsuccessful, that conversion of the tanks from bottom entry to top entry is the appropriate means of correcting the design error, that unless the design defect is modified the plant will not meet the performance criteria in the contract, and that the rectification work will cost about $53 million.

14. I have said something about this particular matter because it does, as I have said, seem to underline this litigation, but in general I shall say very little by way of describing the circumstances in which this dispute about the bonds arises. The appeal has been heard by a specially constituted court in the last week of term as a matter of urgency. In view of the urgency and the fact that the parties have succeeded in bringing the appeal on for hearing at extremely short notice, and with five volumes of appeal books, just before the end of term, I must dispense with the fairly detailed history I would ordinarily give of the contractual arrangements and the disputes, including a summary of the numerous other technical questions which have arisen in relation to the design and construction of parts of the plant. I shall concentrate on what seem to me to be the critical terms of the contract, the critical principles of law and the critical facts, which have united in leading me to the clear conclusion that the order under appeal should not have been made. If these reasons are in some respects too diffuse and in others too brief, this is the result of the unfortunate way in which this appeal has been brought on for hearing at the last minute.

17. The two bonds in this case took the form of the usual unconditional undertaking to pay on demand any sum or sums which might from time to time be demanded to the maximum aggregate sum specified. They stipulated in the usual way that payment would be made forthwith on demand without reference to the respondent and notwithstanding any notice by it to the bank not to pay. The object of bonds of this kind has, on a number of occasions, been dealt with by this Court and I need not repeat what has already been said.

20. By the time the matter first came before the judge, Anaconda had already, on the previous day, made a demand on the Westpac Bank under the bonds, received a bank cheque in response and deposited that cheque in its account with the ANZ Bank. But the respondent has always not only raised contentions about what should be done with the $45.15 million proceeds, but also challenged Anaconda's right to make a call under the bonds. One of its contentions has been that Anaconda was not entitled to make the call. See, for example, paras. 19, 20, 52 and 53 of the affidavit of its secretary, Mr McDonald, sworn 22 September 1999, which complains of the making of the demand and resulting conversion of the security into cash as well as the contemplated application of the cash by Anaconda. In Fletcher Construction Australia Ltd v. Varnsdorf Pty Ltd. [1998] 3 VR 812, Callaway, J.A. emphasised the distinction between making a successful call under a bond, so as to convert the security into cash, and appropriating that cash. Here the respondent has challenged the making of the call as well as the proposed use of the proceeds. The distinction has, however, not been kept clear in this case.

23. Now it is, of course, plain that while, in the absence of fraud known to a bank, and possibly some other very special circumstances, a bank which has given a bond in terms like the present ones must pay on demand and is not concerned with the underlying contract between contractor and owner, yet the terms of that contract may be such as to make it wrongful, as between the parties to it, for the owner to make a demand on the bank, and that if this is so, the contractor may seek an injunction to prevent the owner from making the demand. The efficacy of such a contractual restriction is undoubted_: Bachmann Pty Ltd v. BHP Power New Zealand Ltd_ [1998] VSCA 40; [1999] 1 VR 420 at 429-30 and cases there cited. Bachmann itself concerned an undoubted express, albeit qualified, negative stipulation which prohibited the conversion of a security into cash. As is pointed out in Bachmann, usually the prohibition or restriction is not in express negative terms, but is sought to be derived from a stipulation which is in form enabling and may be held as a matter of construction to prohibit conversion of the security into cash except in the event specified. But the present contract - which is unusual and appears not to be based on any of the standard forms - not only contains no express negative stipulation, but also contains no enabling stipulation which can be put forward as having a negative effect by prohibiting conversion in all circumstances other than those specified. Indeed, it goes further, as will be seen. Most of the clause concerned must be set out:

The Contractor must provide in lieu of a cash retention on progress payments, security to the Owner in respect of the Contractor's obligations under this Contract in the form set out in Schedule 3 prior to each payment pursuant to Clause 12 and as a condition precedent to the Owner's obligations to make such payment in an amount of 10% of such progress payment until the total value of all such security held by the Owner is equal to 5% of the Contract price.

The Owner must reduce the Approved Security provided under Clause 4.1 to the Contractor as follows:

(a) within 14 days of the Date of Mechanical Completion of all Separable Portions, the Owner will reduce the retention held or the Approved Security by 40%; and

(b) within 14 days after the end of the Defects Liability Period of all Separable Portions (not including any extension as contemplated by Clause 9.8) the Owner will return the retention held or the Approved Security except for a percentage of the retention or Approved Security which corresponds to that proportion of the Contract Price represented by the items subject to an extension of the Defects Liability Period; and

(c) the retention held or the Approved Security will be reduced proportionally as the items subject to an extension of the Defects Liability Period reduces; and

(d) the balance of the retention held or the Approved Security will be returned to the Contractor when the last of the following occurs:

(i) the last Defects Liability Period has expired; and

(ii) the Contractor has complied with all its obligations under the Contract.

(a) The Owner is not obliged to pay the Contractor interest on the Approved Security.

(b) The Owner does not hold any Approved Security or the proceeds of any Approved Security on trust for the Contractor.

(c) The Contractor accepts that the Owner may call upon the Approved Security at any time and the Contractor shall not seek an injunction against either the Owner or the issuer of the Approved Security preventing a demand on payment under such security.

(d) If the Owner makes a call upon the Approved Security and obtains cash as a consequence, the Owner shall be obliged to pay interest on the amount of any cash payments in excess of the sum to which the Owner is entitled at the time of such call. The sum attracting interest will be further reduced by any unsatisfied amounts which subsequently become payable by the Contractor to the Owner, at the time such amounts became payable."

46. The form of security required by cl. 4.1 is set out in Schedule 3. That is to the same general effect as the security actually procured, but by no means identical with it. The contract particulars fix a rate of interest for the purposes of cl. 12.11, but not cl. 4.3(d).

49. Unlike many contracts, this one does not give the contractor the option of providing security in lieu of submitting to the deduction of retention moneys from progress payments: it simply requires provision of the security in lieu of a cash retention. When paragraphs (a) to (d) of cl. 4.2 speak of "the retention held or the Approved Security" they use the phrase "the retention held" to describe the proceeds of the conversion of the security into cash in the event that it has been converted.

52. The first question is what restriction, if any, the contract places on the right of the owner to make a call upon the security. It has not been pleaded, and has never been argued, that there is some implied term of the contract imposing a restriction in the sense of the kind of term considered in BP Refinery (Westernport) Pty. Ltd. V. Shire of Hastings (1977) 180 CLR 266. The question is whether the contract expressly or implicitly prohibits the owner from calling upon the security except in certain circumstances.

55. I have earlier mentioned that the respondent has always challenged the owner's right to call up the securities. Paragraphs 19 and 20 and 52 and 53 of the affidavit of McDonald already mentioned complained by implication of the calling up as well as the proposed use of the resulting cash. It is essential to keep separate the two questions in asking what restrictions, if any, the contract expressly or implicitly places upon the owner. Unfortunately, the distinction has not been maintained in this case.

58. The judge took the unusual course of giving two sets of reasons for decision - one in granting the interlocutory injunction (described as "short indicative reasons" and comprising 12 paragraphs) and the other 15 days later (the "formal reasons", about five times the length of the earlier ones). While it may be helpful to the parties if a judge, wishing to make an order, but not being in a position to give reasons for decision at once, indicates the basis on which the order is made, as by stating that it is based on the claim in contract and not the claim under a statute, I am doubtful of the wisdom of giving "indicative reasons" which are intended to state, at some length, the reasons for the order about to be made. One danger in particular is that there may in a given case be some suggested discrepancy or change in emphasis between the indicative and the formal reasons. Are "formal reasons" intended to replace or to be read in conjunction with "indicative reasons"?

61. In the formal reasons her Honour said, "The first defendant has called up the security and the plaintiff disputes the first defendant's entitlement to the same. Consequently, the plaintiff sought an injunction restraining use of the security sum pending the trial." Later the judge said that "the proper construction of the contract itself, in particular Clause 4 on its face supports the position urged on behalf of the plaintiff, namely, that the defendants were only entitled to call upon the approved security with respect to matters arising under or within the contract." Later again her Honour mentioned the defendants' counsel's contention that cl.4 did not prohibit the conversion of the security into cash. Elsewhere the reasons make it clear that the respondent contends that the cash is not to be applied for certain purposes, but the distinction between attacking the calling up of the bonds and attacking the proposed use of the proceeds is never made clear either by the respondent itself or in the reasons for decision.

64. It has not been suggested that a prohibition or restriction, either on the calling up of the security or on the application of the proceeds, is to be found anywhere in the contract except in cl.4, itself. There is no express prohibition or restriction on the calling up of the security. In Fletcher, at 826, Callaway, J.A. suggested that it would be difficult to establish an implied one. But the present case is entirely clear. For cl.4.3(c) is an express provision negativing any prohibition or restriction: the contractor accepts that the owner may call upon the security at any time and agrees not to seek an injunction to prevent a demand for payment. It matters not that it may be argued that the latter part of this provision is bad as ousting the jurisdiction of the courts. The important thing is that both parts of it show an intention that the owner is to be at liberty to call on the security at any time. It is difficult to imagine a more clearly expressed intention. And so the present contract not only fails to displace, but clearly reinforces what might be called the prima facie position.

67. This leaves for consideration two questions. The first is that of the effect, in the events which have happened, of cl.4.2(a), dealing with the consequences of mechanical completion of all Separable Portions. The second is that of the effect of cl.4, in a more general way on what is to be done with the cash received by the owner as the result of calling up the security.

70. I consider first cl.4.2(a). Clause 1.1 and the "contract particulars" in Schedule 1 divide the facility into Separable Portion 1, the mixed sulphides plant, and Separable Portion 2, the refinery. Clause 1.1 and the contract particulars fix a defects liability period for each Separable Portion of 12 months after the date of mechanical completion of that part of the works, subject to extension under cl.9.8. "mechanical completion" is defined in cl.1.1:

"The stage when, in respect of a Separable Portion:

(a) the Separable Portion is complete except for minor Defects:

(i) which do not prevent the Separable Portion from being reasonably capable of being used for the intended purpose of the Separable Portion;

(ii) in relation to which the Project Manager determines that the Contractor has reasonable grounds for not promptly correcting them;

(iii) correction of which will not prejudice the convenient or lawful use of the Separable Portion; and

* sequence starting, running/testing of logical groups of equipment;

(b) the Contractor has done everything which the Contract requires it to do before Mechanical Completion including those things identified in Schedule 2; and

(c) in respect of Separable Portion 2 only, it is agreed that while the work to be performed by the Special Contractors is not part of the Project Works, such works must be completed prior to Mechanical Completion being granted."

86. Schedule 2 also deals with mechanical completion; by it, that happy state will not be achieved until the plant is capable of taking feed, making relevant products and disposing of residue materials. It incorporates a flow chart showing that at mechanical completion the plant is ready to receive ore or mixed sulphides and that commissioning is to follow mechanical completion. A note states that mechanical completion of the mixed sulphides plant is based on two of the four autoclaves circuits being ready to receive ore. Clause 1.1 defines "date of mechanical completion" and "final date for mechanic completion". The contract particulars give, as the date for mechanical completion, 30 September 1998 as regards Separable Portion 1, and 31 December 1998 as regards Separable Portion 2.

89. Clause 13 is a long and important provision dealing with how mechanical completion is to be achieved and its consequences. Rather than set it out, I briefly summarise it: The contractor must give the project manager (Lohman of Anaconda) written notice of mechanical completion of a Separable Portion; within seven days, he must, if satisfied that mechanical completion has been achieved, issue a notice of mechanical completion and, if not so satisfied, issue a notice to that effect, whereupon the contractor must proceed to bring the Separable Portion to mechanical completion and the notification procedure is to be gone through again; unless the owner notifies the contractor within seven days why mechanical completion has not been achieved, it shall be deemed to have been achieved; upon mechanical completion the contractor will hand over the Separable Portion to the owner and the owner shall assume care, custody and control of it; liquidated damages must be paid by the contractor for failure to reach mechanical completion of a Separable Portion by its date for mechanical completion; a bonus is payable for early completion.

92. It was common ground that in February 1998 agreement was reached between the owner and contractor that a co-operative attempt should be made to have parts of the facility handed over before the date for mechanical completion of the Separable Portion concerned, and a document setting out "principles agreed in conference" came into existence. There is a dispute about whether a further document prepared by the contractor and headed "Handover Conditions" sets out terms agreed upon by the parties. The judge does not deal with this question. The project manager, Lohman, who shows himself to have personally conducted the negotiations, swears that Anaconda did not accept the terms set out in the "Handover Conditions" and there does not seem to be any satisfactory evidence to the contrary, the statement of the respondent's secretary, McDonald, being said to be based only on "my review of the plaintiff's files project". McDonald's affidavit asserts that, as a result of the handover of all the parts making up the facility, the owner has care and custody of and responsibility for the entire facility and there has been mechanical completion of Separable Portions 1 and 2. Her Honour considered that there was a serious questioned to be tried as to whether mechanical completion had occurred. This question seems to have been debated before Her Honour as bearing to the respondent's contention that it was not in breach, or serious breach, of its contract, and not as bearing on whether, mechanical completion of both Separable Portions having been achieved, the owner was obliged to reduce the retention held by 40 per cent by virtue of para. (a) of cl.4.2.

95. It seems to me that the contractor's contention that mechanical completion of Separable Portions 1 and 2 had been achieved is very difficult to accept. Principles numbered 2, 3 and 5 of the "Handover Principles" show that mechanical completion of each Separable Portion must still be achieved. Lohman's evidence, he having entered into the arrangement on Anaconda's behalf, was that it was made for the express purpose of enabling parts of the facility to be commissioned before mechanical completion was achieved and that it was never suggested that the contract was being varied with regard to the means whereby mechanical completion would be achieved. His evidence on this point is not contradicted, notwithstanding the filing of additional material by the respondent. Moreover, the respondent throughout acted as if it was required to achieve mechanical completion by the procedure laid down by cl.13. This is indisputable. It is shown by McDonald's affidavit of 22 September and that of Lohman. The last stages in the process were the giving by the respondent of notice to Lohman, by letter dated 15 September 1999, under cl.13.1 that mechanical completion of Separable Portion 1 had been achieved and the giving of notice in response, on 21 September 1999, that mechanical completion had not been achieved, the latter notice specifying a number of alleged major defects, including the inoperability of the flash tanks.

98. Having regard to the interlocutory nature of the application from which this appeal arises, none of the views expressed in these reasons on the respondent's prospects of success at the trial should be viewed as final, notwithstanding the language in which they may be expressed. It seems to me that the respondent's contention that mechanical completion of Separable Portion 1 had been achieved is extremely difficult to uphold, to say the least. It is common ground that on 3 June 1999 Lohman gave notice under cl.13 that mechanical completion of Separable Portion 2 had been achieved. It follows that, in my view, it would be very difficult to conclude that paragraph (a) of cl.4.2 had come into operation so as to require 40 per cent of the proceeds of the conversion of the bonds to be paid to the contractor.

101. As earlier mentioned, the matter of mechanical completion has a wider significance - wider that is, than relating only to the 40 per cent reduction required by cl.4.2(a), in that the respondent relies on its contention that mechanical completion of the whole facility has been achieved in dealing with what should be the consequences of the acceptance of its proposition about how the owner may deal with the proceeds of the call made on the bonds. This proposition concerns what I earlier described as the second remaining question - that of the effect of cl.4 on what is to be done with the cash once it is received.

104. The respondent's submission was and is that, once the security is called up and cash received, the cash does not become "the owner's money": it may be used by the owner only for a particular purpose. But it is not easy to say what the available particular purpose is according to the respondent's submission. McDonald's affidavit of 22 September asserts by implication that the owner is not entitled to "appropriate the proceeds ... in its absolute discretion" and asserts that it may apply the proceeds only "in accordance with the contract" but does not show what, in the respondent's submission, the contract requires or permits. Paragraph 15 of the endorsement on the writ, both before and after its amendment, implicitly asserted that the proceeds might be used only to make payments to secure performance of the respondent's obligations under the contract. The respondent's outline of argument for the purposes of the appeal maintained the submission as recorded by the judge, namely, that the owner was not entitled to apply the approved security moneys to meet any costs or liabilities arising outside the contract. This position was maintained in oral argument on appeal.

107. I shall not summarise the respondent's contentions in support of the view that the claims, or most of the claims, made by the appellants for amounts totalling about $143 million are not for costs or liabilities arising under the contract. They are sufficiently recorded in the written material. Nor do I find it necessary to deal with any of those contentions, beyond saying that I would, as at present advised, have difficulty in accepting those contentions in anything approaching their entirety. For the short answer to the respondent's contentions is the primary argument that is and always has been put on behalf of the appellants, namely, that the proceeds of a successful call upon the security become part of the assets of the appellants, although obligations in contract exist in consequence of the receipt of the proceeds. The judge said that whether the defendants were entitled to treat the proceeds as "their moneys" turned on the proper construction of cl.4, and this is, with respect, plainly so. Her Honour further said that a serious question arose with regard to the construction of cl.4 and in particular para. (c) of cl.4.3. The reasons for decision do not set out, even very briefly, a fairly arguable view that cl.4, or para. (c) of cl.4.3 in particular, on its proper construction imposes a trust upon the proceeds or in some other way (not identified before us in argument) prevents them becoming part of the beneficially owned assets of the proprietor. The particular paragraph mentioned by the judge, para. (c) of cl.4.3, is directly concerned, not with the status or application of the proceeds of a call, but with the making of a call. By far the most important part of cl.4 for present purposes is not para. (c), but para. (b) of cl.4.3:

"The owner does not hold any Approved Security or the proceeds of any Approved Security on trust for the Contractor."

111. In the face of this provision it is, to say the very least, extremely difficult to avoid the conclusion that the proceeds of conversion do become part of the general funds of the owner. No doubt, as cl.4.1, itself records, the object of the provision of the bonds is to give the owner security in respect of the contractor's obligations under the contract, but a proprietor may be secured by augmenting its funds, there being a contractual obligation on its part to make a "refund" - but not in specie - in certain events. It is not a necessary or even natural implication from the statement of purpose or function of the security in cl.4.1 that the proceeds of a converted security are to be impressed with a trust, and para. (b) of cl.4.3 lies like a giant tree fallen athwart the path, a most formidable obstacle to the implication of a trust. The obligations cast upon the owner by cl.4 in respect of the proceeds of a call made under the security are merely contractual. The owner receives the proceeds and may apply them as it wishes. It is under a contractual obligation to pay the contractor an amount equal to 40 per cent of the proceeds within 14 days of mechanical completion of both Separable Parts: cl.4.2(a). Within 14 days after the end of the defects liability period of both Separable Parts it must make a payment calculated in accordance with cl.4.2(b). It must make further payments as required by cl.4.2(c) and (d). It must pay interest as required by cl.4.3(d). The notion that a trustee should be required to pay interest on a trust fund to a beneficiary is a strange one.

114. The respondent founded itself upon reference to the contractor's obligations under the contract in cl.4.1 and relied on things said by the High Court in Australasian Conference Association Ltd. v. Mainline Constructions Pty Ltd (in liquidation) [1978] HCA 45; (1978) 141 CLR 335, where the contract described the retention fund in lieu of which the security was to be effective as "security that the builder shall carry out his obligations under this contract". But that contract was in very different terms from the present, as we observed in the course of argument. It provided that a trust should arise.

117. Clause 4 of the present contract may be contrasted with provisions often found, and so to be seen in a number of reported and unreported cases, whereby a trust is expressly created of retention moneys or of the proceeds of the conversion of a security given in lieu of retention moneys. At times a standard form of contract provides for the creation of a trust in respect of retention moneys or cash. See, for example, AS 2124-1992, cl.5.9, JCC-F 1994, cl.10.23 and SWB-2, cl.10.14.3. Many standard forms are conveniently collected in Dorter and Sharkey, Building and Construction Contracts in Australia, 2nd ed., vol 2. A summary of a number of provisions in standard forms of contract dealing with the matter of trust in relation to retention and securities will be found in Bailey, Construction Law in Australia, 2nd ed., pages 239-43. The imposition of trusts on retention sums is discussed in Hudson's Building and Engineering Contracts, 11th ed., paragraphs 8-076 to 8-086 and 13-130. The present contract is, as I have said, in some respects unusually simple. Under it, the proceeds of a bond which is converted into cash provide security for the performance of the contractor's obligations under the contract in a practical way, by augmenting the owner's assets. The same protection was given to proprietors in a practical way by the unsophisticated contracts of old, which provided for progress payments of a stated percentage of the value of the work done, before elaborate provision came to be made about what was to be done with retention sums. As Hudson says (para. 8-076), with the early contracts, "[t]he intention simply was to provide for partial payment during the construction period, so as to confer a degree of commercial security on the owner against possible breaches or failures of the contractor."

120. Most of the questions which her Honour regarded as serious questions to be tried would not arise unless the respondent succeeded in establishing a trust.

123. In my view it should not have been held in the presence case that there was a serious question to be tried. This view makes it unnecessary to consider the appellants' submission that there was error in other respects, although I will say that if it had become necessary to deal with the balance of convenience, I should have wished to consider closely the correctness of the adverse findings made about the financial reliability of the joint venturers.

126. The appeal should be allowed and an inquiry as to damages ordered.

142. In all the circumstances of this case, notwithstanding what has been said by Mr Shaw, we do not think that we should grant a stay pending the determination of an application for special leave to the High Court. Notwithstanding that it might be thought undesirable to grant a very short stay - I say undesirable having regard to the position of the members of the High Court - we will grant a stay of our own order until 4.15 p.m. This Friday.

146. Again, notwithstanding what Mr Shaw has urged against the adoption of that course, we think that the inquiry as to damages which we are minded to order should be ordered.

149. Subject to anything which counsel may say, we will make an order in accordance with these minutes:

2. Orders contained in paragraphs 1 and 7 - I interpolate that is the injunction and costs order - of the order made by Warren, J. on 5 October 1999 and paragraphs 1 and 2 of the order made by Warren, J. on 6 October 1999 be set aside.

(a) the application made by summons dated 22 September 1999, as amended by document filed 30 September 1999 be dismissed;

(b) the plaintiff pay the defendants' costs of the application, including reserved costs.

4. That the respondent pay to the appellants the costs of the appeal.

5. An inquiry whether the defendants or any of them have suffered any and what damages by reason of the injunctions granted by the said orders, namely the orders made on 5 and 6 October 1999, as well as by the injunction granted by Warren, J. on 22 September 1999 as extended by the order made the same day by the said judge extending the said injunction, which the plaintiff ought to pay according to the undertakings given to Warren, J. and set out in the said orders, such inquiry to be conducted by a judge of the Trial Division on a day to be fixed.

159. I add that we are not aware of any reserved costs in the appeal.

163. Mr Nettle's application for solicitor/client costs below is refused.

166. This will not be part of the order, but will appear in the "other matters". A certificate will be granted to the respondent under s.4 of the Appeal Costs Act 1998.