2739/05 - BUSINESS & PROFESSIONAL LEASING PTY LTD v DANNIWI
3137/05 - BPL (NSW) PTY LTD v BLUE ROBE PETROLEUM PTY LTD
3260/05 - BPL (NSW) PTY LTD v MACAROUNAS
JUDGMENT
1 HIS HONOUR: These three matters which were heard together raise common questions of fact and law.
2 Basically, the defendants operate small retail grocery businesses or convenience stores, in the case of Mr Macarounas a store attached to a petrol service station.
3 Each of the defendants was persuaded by an entrepreneur linked with businesses called The Original Poppa's Pizza and Ribs (Poppa's Pizza) or The Original Mama's Pizza and Ribs Pty Ltd (Mama's Pizza) that he or it should install a pizza heating oven and associated equipment. Each thought that the oven was on six months' trial.
4 The oven was said to be a failure and none of the defendants wished to retain it.
5 However, the way these entrepreneurs had dealt with the matter was to sign up each of the defendants to a finance agreement with the plaintiff under which each defendant leased a "pizza system". In the case of Mr Macarounas, this was shown as a lease of equipment worth $25,300 for 60 months at an interest rate of 21% with a total of $43,103.-40. The finance company paid the entrepreneur $23,000 and brokerage to a Mr Stupar.
6 The entrepreneur advanced to each of the defendants the first six months' payments so that there was in fact a six month free trial.
7 At the end of the "trial period", the defendants had no interest in proceeding with the deal. Apart from anything else, the supply of the pizzas to be heated in the oven was unsatisfactory and, when the oven was used, it failed to heat the pizzas properly.
8 The plaintiff finance company took the view that those problems had nothing to do with it and sued the defendants. Although the title to these proceedings would give the impression that there are two plaintiffs, the company Business & Professional Leasing Pty Ltd changed its name to BPL (NSW) Pty Ltd about 19 December 2003 so that there is only one plaintiff (BPL).
9 Having set out the basic scenario, I should now detail the pleadings and vital facts in each of the three cases before me.
10 In 2739/05, the plaintiff finance company filed a statement of liquidated claim in the District Court at Parramatta claiming $44,648.45 plus interest. The claim was that the defendant Samir Dannawi had leased from the plaintiff a new Pyros pizza system and a slurpy machine by contract of 20 December 2002. The contract was said now to have been terminated for breach and that the moneys claimed were owing plus interest of $2,911.32 and continuing interest under cl 19(b) of the contract at the rate of 20% per annum or $24.46 per day.
11 The defence was that: (a) when signed, the agreement was for 6 months, not 60 months; (b) non est factum; (c) the plaintiff had failed to mitigate its loss; (d) the agreement was brought about by the misrepresentations of the entrepreneurs as the plaintiff's agents; (e) the plaintiff was a linked credit provider to the entrepreneurs and the defendant relied on s 73 of the Trade Practices Act 1974 (Cth); (f) the leased goods were not as described nor were they of merchantable quality as impliedly warranted by statute; (g) as the agreement had been terminated, there was no liability under it save for accrued liabilities; (h) the agreement was unconscionable and ought not to be enforced; (i) part of the claim was bad as claiming a penalty; and (j) there was a cross-claim that the agreement had been rescinded or should be rescinded for misrepresentation.
12 The reply traversed these defences.
13 In 3137/05, the plaintiff sued in the Sydney District Court on an agreement of 20 December 2002 for the leasing of two Pyros pizza systems. It claimed that it had purchased the goods for $42,900 and that, with leasing charges for a 60 month period, it was owed a total of $63,342.76 plus interest accruing at 20%. It alleged that the agreement had been determined for breach on 23 September 2003.
14 The defences were similar to those in 2739/05.
15 In 3260/05, an ordinary statement of claim was issued out of the Local Court at Sydney based on a rental agreement made 28 March 2003 in respect of a Wisco pizza system. The agreement was terminated for default on 13 April 2004 and it was claimed the defendant owed $37,356.28 plus continuing interest at 20%.
16 In 2739/05, there was a cross-claim filed by the defendant against the plaintiff (first cross-defendant), Brett Hilder (also known as George Terence Hilder) (second cross-defendant), Maxine Tareha (misnamed "Tarema") (third cross-defendant) and The Original Mama's Pizza and Ribs Pty Ltd (Mama's Pizza) (fourth cross-defendant).
17 In 3137/05, there was a cross-claim against the same people save that Milan Mrkodic was sued in lieu of Ms Tareha.
18 In 3260/05, there was a cross-claim against the same people save that Yvette Baron replaced Ms Tareha.
19 Later the cross-claims were amended to add Michael Stupar as a fifth cross-defendant and Business Acceptance Corporation Pty Ltd as a sixth cross-defendant.
20 The gravamen of the cross-claims were that there had been false and misleading conduct under the Trade Practices Act.
21 The third cross-defendants were not served and the fourth cross-defendant was wound up. The second-cross defendant was present and was called as a witness, but did not formally appear. The other cross-defendants appeared.
22 In due course, all matters were removed into this Court and were heard together, the evidence in one being evidence in all.
23 The matters were heard on 21, 22 amd 23 May 2008. Mr J Stoljar and Ms J K Taylor of counsel appearing for the plaintiff, Mr J Fernon SC and Mr D J Williams appearing for the defendants and Mr M Stupar, a broker and the fifth cross-defendant, appearing in person.
24 I might note at the outset that the defence based on the allegation that the contracts were signed for 6 months not 60 months soon fell away.
25 The defence was not abandoned and some evidence was led, but the allegation was contrary to the expert handwriting evidence as well as to other evidence. The cross-examination of the defendants showed that at the very least they were naïve in signing the documents. Mr Macarounas, indeed, noticed the reference to 60 months and asked about it.
26 It seemed to me that the allegations came about from confusion stemming from the evidence of the six month trial period and there was no alteration of the documents after they were signed so far as the term of lease was concerned.
27 However, as will appear hereafter, the rental agreements were signed on reliance of representations that after a six month trial, the agreement could be terminated without any ongoing liability.
28 Again the non est factum defence could not run. The evidence clearly showed that Mr Dannawi and Mr Nader (the principal of Blue Robe Petroleum Pty Ltd) did not even read the documents they signed before they were sent to the finance company. Mr Dannawi said that his skills in English were not too wonderful at the time. However, none of the principals of the defendants were unable to read English and each had had some experience in business, albeit as a small trader.
29 The defence of unconscionability was withdrawn on the first day of hearing.
30 I should note that there is in evidence as DX 207, proceedings in the Federal Court brought by the Australian Competition & Consumer Commission (ACCC) against the entrepreneurs and others. Those proceedings, inter alia, examined the case of Mr Macarounas.
31 The result was a hearing on 12-20 March 2007, reasons for judgment on 18 March 2008 and an order entered on 19 May 2008 in which the entrepreneurs were disqualified from selling ovens or heating devices to convenience stores for seven years.
32 The Federal Court (Madgwick J) made findings as against the entrepreneurs with respect to Mr Macarounas. Mr Macarounas was not a party to those proceedings. DX 207 was, however, tendered without objection and so may well be evidence of the facts found by the learned judge. Indeed, Mr Stoljar relied on one aspect of the Federal Court's findings.
33 In para 176 of Madgwick J's judgment, the learned judge said:
"… it may bear examination that financiers should be able to profit from transactions induced by unlawful conduct such as the respondents engaged in here when in fact, whatever the legal position may be, the perpetrators of the unlawful conduct constitute the means and bridge, in non-technical language: the agency, by which the financiers acquire their borrowers."
34 While that statement resonates with me, with respect, it is of little value to know that a judge in a disqualification of unfair traders case expressed the view that, whatever the legal position, it was inappropriate for the financiers to benefit from the situation of unlawful conduct of the persons from whom they purchased goods at an inflated price, in order to resell them to innocent hard working unsophisticated Australian businessmen.
35 I am trying a case at common law. Any unethical or unscrupulous behaviour of the financiers is almost irrelevant. Although one would have expected the Trade Practices Act to have dealt with shady financiers in the same way as the criminal law has dealt with receivers (stop the fence and you stop the offence!), as will appear hereunder, that Act not only has not dealt with the problem in any comprehensive way, but, as was noted in the Federal Court proceedings referred to above, there is now a division of authority to control these people between the ACCC on the one hand and ASIC under the Australian Securities and Investments Act 2001 (Cth) on the other hand.
36 Realistically, whilst there are cross-claims against the entrepreneurs and the broker, the former have spent the money they were paid by the finance company and one has even been wound up. The focus of the litigation is thus on whether the defendants should pay the plaintiff in accordance with their agreements, or whether the plaintiff, despite having paid out large sums of money to the entrepreneurs is unable to collect because of the operation of some statutory or common law provision.
37 However, if the defence under s 73 of the Trade Practices Act is made out, it may be necessary to examine closely the liability of the supplier as it is claimed (but denied) that the plaintiff will have a joint and several liability with the supplier for misrepresentations and breach of warranty. I will carry out this exercise after dealing with the defendants' defences and cross-claims against the plaintiff.
38 I now turn to the facts in detail.
39 It was not disputed and indeed was found by Madgwick J to be the case, that it is customary for suppliers of soft drinks and pies etc to supply small retailers with the free loan of a refrigerated display cabinet (in the case of cold beverages) or a pie warmer so long as the retailer resells their product.
40 Each of the defendants gave evidence, which I basically accept, that they considered the present transaction was of the same type, that is, a free oven on loan as part of a deal whereby they sold the supplier's product. However, each signed a series of papers showing that they knew that a finance company was involved. At least one of them passed the papers he signed on to his accountant who claimed deductions for the rental payments made.
41 In 2002, Mr Hilder, one of the entrepreneurs cold called at various small convenience stores in an endeavour to interest the proprietors in installing his pizza oven.
42 In the case of Mr Dannawi, another of the entrepreneurs, one Maxine Tareha, an associate of Mr Hilder called on Mr Dannawi and asked whether she could demonstrate a pizza oven. Mr Dannawi indicated interest and three days later Ms Tareha returned with an oven and two pizzas.
43 She said that her company, Mama's Pizza, will supply the pizzas, an oven, a table to put the oven on and a fridge as well as $500 worth of free stock to begin with.
44 Mr Dannawi made it plain that for religious reasons he would not stock nor sell anything with bacon or ham on it.
45 Ms Tareha successfully cooked the pizzas and Mr Dannawi agreed to meet Mr Hilder.
46 At a subsequent meeting between Mr Dannawi, Ms Tareha and Mr Hilder, Mr Hilder repeated: "We will give you an oven and $500 worth of free stock which will include pizza, ribs and garlic bread." He then said, "We will give you the oven. You are going to rent the oven from us for a six month trial and you should deposit this cheque into your account and the rental payments will be direct debited every month … . We will supply you with the pizza, you can try the oven for 6 months but if you are unhappy with the oven after the 6 months then we will take it back from you and it will not cost you anything."
47 Mr Hilder then said that if Mr Dannawi was not happy with the oven after 6 months Mr Hilder could arrange for the whole thing to be taken away. He produced a piece of paper which had a heading "Deed of Assignment" and said: "This is a normal Deed of Assignment. If you like you can show it to any solicitor who will tell you that if you sign it then you can get rid of the oven after 6 months if you are not happy with it."
48 The text of this "Deed of Assignment" read:
"I hereby authorize Mama's Pizza & Ribs to sell the equipment supplied to me by Poppa's Pizza and Ribs on the ( )_______, in line with the undertaking made by Poppa's Pizza and Ribs prior to executing the rental agreement entered into on the above date.
I understand the equipment will be sold for an amount equal to the full amount owing and that this will cease any obligation held by myself with my Financier."
49 As everyone except the defendants realised, this document was a farce as the equipment was owned by the finance company, there was no market for it and it meant that the defendants continued to pay the finance company without any real recourse after the six months had expired. Mr Dannawi, however, signed the deed on 16 June 2003 and this was after receiving some legal advice.
50 Later, Ms Tareha and Mr Hilder called again on Mr Dannawi and had him sign "the paperwork". This paperwork, of course, included the agreement to lease the oven and the associated products for 60 months at an exorbitant price.
51 Mr Dannawi had one of the documents endorsed with a statement that as a Muslim he could not be a party to any loan. No one took any notice of this.
52 The "paperwork" included an invoice from The Original Poppa's Pizza and Ribs to Business & Professional Leasing Pty Ltd for one new pizza system (model: PYROS, Serial No: 8638) for $19,500 + GST and one new slurpy machine for $6,490 + GST, together a total of $28,530.
53 In early January 2003, Mr Dannawi says he received documents through the post from the plaintiff which he did not read, but put them in a safe place.
54 There were a host of "terms and conditions" attached to the rental agreement, clause 19 of which read as follows:
"19. DELINQUENT PAYMENTS (a) Service Charge. Since it would be impractical or extremely difficult to fix Owner's damages for collecting and accounting for a late payment, if any payment to Owner required herein is not paid on or before the due date, Renter shall pay to Owner an amount equal to five per cent (5%) of any such late payment (but not less than three dollars ($3) or more than one hundred dollars ($100). (b) Interest. Renter shall also pay interest on any such late payment from the due date thereof until the date paid at twenty per cent (20%) per annum."
55 Clause 20 gave the plaintiff the right on default to terminate the agreement.
56 Clause 27 provided, inter alia:
"This instrument constitutes the entire agreement between Owner and Renter … Renter represents that the Equipment is being rented hereunder for business purposes and agrees that under no circumstances shall this Agreement be construed as a consumer contract … . The Renter acknowledges that no representations and warranties have been given by the Owner other than as appear in the Agreement … ."
57 Those terms and conditions were part of the agreement made with each of the defendants.
58 Mr Dannawi became concerned about a number of aspects of the transaction including the failure by Mama's Pizza to deliver a supply of pizza products. He then consulted a solicitor. In February 2003, he called at the plaintiff's office with a friend and discussed the matter with two men, one of whom was introduced to him as a director of the plaintiff and the other as its accountant.
59 Mr Dannawi says that he told the men that he was surprised that, although he had agreed to a 6 month deal, BPL had sent papers relating to 60 months.
60 The director said: "You signed for 60 months and you have to pay us the monthly payments until the agreement finishes. You are the second person who has complained to us about the agreement being for 6 months not 60 months. We have more than fifty agreements like yours … . We have already paid Brett for the oven and slurpy machine $28,000 and you signed and agreed to pay us rental for this equipment."
61 Mr Dannawi said: "How can you pay him $28,000 for equipment that is not worth over $5,000?" The director replied: "We don't see the equipment, once you sign and you are happy, we just pay Brett." "Brett" is one of the names used by Mr Hilder.
62 Mr Nader, the managing director of Blue Robe Petroleum Pty Ltd (Blue Robe) swore that a man called Milan rang him at his Summer Hill store, which his company operates in connection with its service station, and introduced him to the possibility of vending Mama's Pizza.
63 Mr Nader says that he already had entered into agreements with pie and soft drink suppliers for the installation of warmers and refrigerators in connection with the sale of their products.
64 Shortly afterwards, Milan called at the store and demonstrated the oven. Mr Nader indicated that he was happy to give it a six month trial.
65 About a week later, Brett Hilder called and introduced himself as the owner of Mama's Pizza. Mr Hilder said that to supply pizza and signage would cost about $600 per month, Mr Nader could try the product for six months and if it didn't go well, "we will take back everything at no cost to you".
66 Mr Nader said that at no time did Mr Hilder inform him that he would be signing up for a lease with the plaintiff.
67 A couple of days later, Mr Hilder returned and said that he would be signing Blue Robe up to a rental agreement for a six month trial and handed him a cheque for the first six months' payments.
68 There were delays in supplying the pizza product and constant apologies from Mr Hilder. Eventually when he rang Mr Hilder's number, there was no answer.
69 After the six months had expired, Mr Nader found that monthly payments were still being debited from Blue Robe's account. He complained to Mr Hilder who said he would fix the problem. He never did.
70 The documents signed by Mr Nader included a rental agreement under which Blue Robe agreed to lease two PYROS pizza systems (Nos 4095 and 4096) for 60 months at 60 payments of $1218.13, making a total of $73,087.80.
71 Mr Macarounas swore that he operates a mini supermarket at Alexandria known as "Mr Mac's Food Store". He says that prior to the present transaction, he had received from Mrs Mac's Pies, the free loan of a pie warmer so that he could sell hot pies and a free loan of a machine which heated hot dogs.
72 He says that in March 2003, an Yvette Baron called at his store and introduced him to Mama's Pizza. She said that she would supply an oven on 6 months' free trial and that if the store was not happy after the trial, they would take the oven back. They would also supply free advertising.
73 A few days later, Mr Macarounas told Ms Baron that he was happy to give the oven a trial.
74 About two weeks later, Mr Macarounas received documents from the plaintiff. He was concerned about them and telephoned Ms Baron. She told him that the documents were standard and that they had to be completed for the transaction to go ahead.
75 Ms Barron attended the next day and assisted Mr Macarounas in completing the forms.
76 About a week later, Ms Baron introduced Mr Hilder (as George Hilder). He repeated a lot of what Yvette Baron had said and also proffered the Deed of Assignment saying: " If you are not happy with the product all you have to do is call me or Yvette after six months and sign this document and then I will make arrangements for the oven to be collected from your shop and your obligations to B & P Leasing will cease."
77 Mr Macarounas noticed that the documents referred to 60 months. He said that Mr der told him that that was merely procedural and the Deed of Assignment confirmed that the obligations would cease if Mr Macarounas was not satisfied.
78 Mr Macarounas became dissatisfied with the product soon after the oven was installed. After a few months, he rang Ms Baron who told him she was no longer working for the company.
79 Mr Macarounas had trouble in contacting Mr Hilder and, at the end of the six month trial found that the oven was not removed and that the finance company continued to take or press for payment.
80 Mr Michael Stupar, the fifth cross-defendant swore two affidavits and was cross-examined.
81 He swore that he was a finance broker and had in the period 21 June 2000 to around October 2003 conducted a finance broking business through a company, Business Acceptance Corporation Pty Ltd.
82 He says that in around October 2002, The Original Mama's Pizza and Ribs Pty Ltd began referring customers wishing to lease equipment to be supplied by that company.
83 He says that in December 2002, he received a draft rental agreement signed by Mr Dannawi and considered that the plaintiff was the appropriate financier. He had the appropriate documents prepared and handed them to Mr Hilder. Mr Hilder returned the completed documents a few days later and Mr Stupar gave them to a member of the plaintiff's staff. Mr Stupar received a brokerage fee of $1,560 from the plaintiff for his part in the transaction.
84 Mr Stupar swore also that in late 2002, Mr Hilder gave him a copy of the Deed of Assignment. Mr Hilder said: "BPL have been knocking back quite a few of my deals lately. I wanted to give you something to give them comfort that they will be protected if any of the renters default." Mr Stupar said that he told Mr Hilder the document did not make sense and was worthless. He later showed it to Mr Joseph, a senior officer of the plaintiff, who also said that the document doesn't make sense.
85 Annexure A to Mr Hilder's affidavit of 4 April 2008 is a letter on the letterhead of The Original Mama's Pizza and Ribs Pty Ltd dated 22 November 2002 addressed to "Mr Michael Stupar, Business & Professional Leasing Pty Ltd, LEICHHARDT NSW" in which Mr Hilder advised that for an "administration fee" of $1,000 he gave an irrevocable undertaking to on-sell any equipment leased by the plaintiff to ensure no losses occur.
86 The defendants contended that Mr Stupar was more than just an independent financial consultant who steered business the plaintiff's way for a commission.
87 Exhibit AX 278 is a letter of appointment by the plaintiff of Mr Stupar as a consulting broker. Mr Stupar used a business card, to the knowledge of the plaintiff which prominently displayed the logo "B & P Finance", described him as consultant broker and gave the plaintiff's address and phone number as his address and phone number as well as an email address which was the same as that of the plaintiff.
88 The evidence was that Mr Stupar had an office in the plaintiff's building and indeed he prepared cheque requisitions for payments to be effected by the plaintiff as a result of its purchasing goods so that it could enter into the rental agreements. It is clear that Mr Stupar was functioning as an integral part of the plaintiff's organisation.
89 However, he consistently maintained that although he put a considerable amount of business the plaintiff's way, he was independent of it and put business (including some of Mr Hilder's business) to other financiers. This factor would not diminish what I have just said.
90 However, Mr Stupar also had another role. He would put the larger business that came through his hands to other financiers and receive a commission which he would share with the plaintiff.
91 He admitted that he acted as agent for the plaintiff. This admission does not go very far as one needs to find out what sort of agent a person is to be of any real use.
92 There is no doubt that Mr Stupar did discuss the business of Mama's Pizza with the highest officers of the plaintiff, Mr Holden, the then managing director and Dr Wenkart who is apparently the owner of the majority of its shares.
93 Furthermore, on one occasion (the date is none too clear, but was probably in April 2003), Mr Stupar and another officer of the plaintiff called at a service station at Rozelle, close to their office and sampled a pizza produced by the oven they were selling. They found the product horrible and inedible.
94 Mr Stupar gave evidence that he had a role in bringing about the rental agreements in all three cases. Mr Dannawi, Mr Nader and Mr Macarounas all swore that they had never met Michael Stupar or dealt with any Business Acceptance Corporation Pty Ltd. Mr Stupar agreed that he had never met any of those gentlemen.
95 Mr Stupar admitted that Mr Hilder would frequently turn up at his office in the plaintiff's building and bring with him completed rental agreements on which Mr Hilder had witnessed the renter's signature. Mr Stupar said that he never enquired about the execution: he just accepted them from Mr Hilder.
96 Mr Joseph gave evidence for the plaintiff. He said that he is currently a director of the plaintiff and had been such for the previous three or four years. Prior to that he was the plaintiff's internal accountant.
97 He was cross-examined as to Mr Stupar's relationship with the plaintiff.
98 He was asked about the letter of 22 November 2002 referred to above. He agreed that he and Mr Stupar had spoken about the irrevocable undertaking and had reached the consensus that it did not make sense.
99 Mr Joseph agreed that he saw Mr Stupar at the plaintiff's offices on a day to day basis and that Mr Stupar was there every working day.
100 It was put to Mr Joseph that Mr Stupar was regarded by persons dealing with the plaintiff as its representative. He said he did not know that that was true and denied that Mr Stupar represented the plaintiff in its dealings with Mr Hilder. However, he acknowledged that: "he was helping - he was passing documents to us, but I can't exactly define in what capacity he was acting for us."
101 Mr Joseph's attention was directed to the plaintiff's letter to Mr Dannawi of 10 January 2003. This letter, which enclosed a copy of the rental agreement, was on the plaintiff's letterhead and was said to be signed by Mr Stupar although it was actually signed on his behalf by another employee, Tracey Low. He saw nothing unusual in this.
102 Mr Joseph said he did not know whether the information in the various rental agreements for Mr Hilder's deals was put together in consultation between Mr Hilder and Mr Stupar.
103 However, he noted that it was not the plaintiff's practise to examine the goods or to enquire as to their worth: that was a matter for the hirer.
104 It is clear from the evidence that the plaintiff not only financed the three transactions the subject of the present litigation, but many others as well. The plaintiff answered an enquiry made of it by the ACCC by listing many transactions involving Mr Hilder's deals. The defendants say that there were 55 such transactions.
105 Mr Hilder gave evidence. His evidence was not that satisfactory and it appeared that there were significant differences between the final version of his evidence and earlier written versions of it.
106 Where Mr Hilder gave evidence contrary to that of the defendants, I preferred the defendants. Their evidence was consistent with the material before Madgwick J. Mr Hilder was without corroboration.
107 Mr Hilder gave evidence of a meeting between himself and Dr Wenkart and Mr Joseph in probably May 2003 in which he denied that there was any six month trial period or that he had paid the renters the first six months' payments. However, he admitted paying the renters "promotional expenses". I do not accept the truth of those statements.
108 Generally as to the facts, I accept all the evidence given, save that of Mr Hilder. However, I would discount the evidence of the defendants to some degree because, as I have said, there was confusion in their minds as to what Mr Hilder had represented and what was in the documentation.
109 Both sets of counsel provided written outlines of their submissions.
110 The plaintiff's case seems to be established by the signed documents subject to one of the defences succeeding. Accordingly, it is necessary to focus on the defences.
111 However, Mr Fernon's submissions put that the evidence did not establish that Mr Macarounas actually signed his document or that, if he did, it was materially altered after signature.
112 I do not accept these propositions. The defendants may have completed the documents carelessly and Mr Hilder and his assistants may have played too great a role in their completion, but they were processed by the finance company in the ordinary way and copies were returned to the defendants and there was no protest about the documents for months afterwards. It seems to me that the allegations about alteration of the documents come about because the transaction as painted by Mr Hilder stuck in the defendants' minds rather than the transaction as documented.
113 I noted the defences earlier in these reasons and that three of them need not be further considered. It seems to me that the most efficient way of making a decision in these cases is to consider the remaining defences in logical order in the light of the above facts.
114 These defences are: