Cuzeno Pty Ltd v Powercell Pty Ltd

COUNSEL : Appellant - T.G.R. Parker Respondent - C. Harris SOLICITORS : Appellant - Michie, Shehadie & Co Respondent - Willis Bowring CATCHWORDS : Contract for sale of land in association with contract to build; Rescission; New agreement for contract to build ACTS CITED : Conveyancing Act s 54A District Court Act s 134 Coulton v Holcombe (1986) 162 CLR CASES CITED: O'Rourke v Hoeven [1974] 1 NSWLR 622 Regent v Millett (1976) 133 CLR 679 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 DECISION : Appeal by Cuzeno dismissed with costs.; Application for leave for Powercell to file cross appeal dismissed, no order for costs.

CUZENO PTY LTD v POWERCELL PTY LTD CONTRACT FOR SALE OF LAND IN ASSOCIATION WITH CONTRACT TO BUILD - RESCISSION - NEW AGREEMENT FOR CONTRACT TO BUILD - SECTION 54A CONVEYANCING ACT.

A builder and a developer agreed the builder would build a block of units on the developer's land and that the builder would be paid by a transfer of half the units. The builder entered into contracts to sell each of his units to individual purchasers. Then he and the developer agreed to rescind the agreement to transfer the units to him; instead he would receive an agreed sum for building the units. The trial judge found that the developer had agreed to " take over as vendor " the contracts entered into by the builder. Later the developer refused to do this and sold the units to different purchasers.

One purchaser obtained judgment against the builder for breach of contract. The builder cross claimed against the developer. The trial judge ordered the developer to pay damages. On appeal, the developer:

1. challenged the trial judge's findings of fact;
2. submitted the new agreement was an unsuccessful novation;
3. submitted s 54A of the Conveyancing Act applied;
4. challenged the amount of damages. The court held, as to 1, that the trial judge's factual findings should not be disturbed, as to 2, that novation was not involved in the agreement found by the judge, as to 3, (i) that part performance, in the manner litigated at the trial, answered any s 54A claims, (ii) that points raised about the availability of part performance at common law could not be raised in the appeal in view of the way the issue was joined and fought at the trial, and as to 4, that the judge's findings of damage were correct.

Conveyancing Act s 54A. District Court Act s 134

Coulton v Holcombe (1986) 162 CLR O'Rourke v Hoeven [1974] 1 NSWLR 622 Regent v Millett (1976) 133 CLR 679 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

ORDERS 1. Appeal by Cuzeno dismissed with costs. 2. Application for leave for Powercell to file cross appeal dismissed; no order for costs; dismissal is without prejudice to any rights Powercell might otherwise have to litigate the cause of action asserted in the proposed cross appeal. 3. Order 2 is to become effective fourteen days after Orders 1 and 2 are pronounced: Order 1 takes effect as from its pronouncement. 4. Cuzeno has liberty within fourteen days to make submissions to the court regarding the cross appeal, if it wishes and to approach the Registrar of the Court of Appeal with a view to having the matter listed for the making of such further directions, if any, as may be appropriate.

1 PRIESTLEY JA: On 27 July 1998 proceedings in the District Court by Powercell Pty Ltd (Powercell) against Cuzeno Pty Ltd (Cuzeno), in which Powercell claimed damages from Cuzeno for breach of contract, were decided by his Honour Judge Williams in favour of Powercell. He ordered that Powercell recover $73,059 on its claim against Cuzeno. Powercell had also made a claim against Mr G. Jabbour, the person in charge of Cuzeno. This claim was dismissed by Williams DCJ. He ordered that Cuzeno pay all the costs of the proceedings. Cuzeno obtained leave to appeal against this judgment and then filed a notice of appeal. Powercell filed a notice of contention. 2 When the appeal came on for hearing, Powercell applied for leave to amend its notice of contention and for leave to file a notice of cross appeal against the trial judge's dismissal of its claim against Mr Jabbour. These applications were opposed. It looked as if they might take some time to argue and would raise a number of the matters which would in any event be argued in the course of the appeal. The court told the parties that argument would be heard on the applications and on the appeal together and that a decision would be made on all matters in light of that comprehensive argument. It will be easier to deal with Powercell's applications after its claim against Cuzeno has been examined, and I therefore come immediately to a consideration of that claim. 3 The dispute between the parties arose in the following way. Powercell, which was run by Mr S. Ward, entered into a contract on 27 March 1996 to buy from Cuzeno an undivided half share in land at Cairo Street, Rockdale (the land contract). On the same day Powercell executed a contract with Cuzeno that it would build eighteen two-bedroomed units on the land (the building contract). The building contract provided that on completion of the land contract, Cuzeno would become the owner of nine of the units and Powercell the owner of the other nine. In the event that Powercell completed the building works in accordance with both the building and the land contracts, that completion would be treated as payment of the purchase price by Powercell under the land contract. Powercell was to be responsible for arranging the financing of the construction of the building. 4 A firm of real estate agents (which I will call Savelles for short) had been instrumental in bringing together Mr Jabbour and Mr Ward. Mr Savelle of Savelles had regularly acted for Mr Jabbour or his companies in the past. Mr Sarraf, also of Savelles, acted for Powercell in regard to its nine future units and succeeded in obtaining buyers for all of them. These buyers signed contracts and gave deposits between 18 April 1996 and 2 May 1996. One who signed a contract dated 18 April 1996 was Mr R. Grasso. 5 Practical problems were encountered by Mr Ward in arranging finance for Powercell's building obligations. A bank agreed to provide the necessary funds on suitable terms, but produced documentation for the Powercell interest and the Cuzeno interest to sign which went more widely than the agreed terms of lending and involved the Cuzeno interest in greater potential obligation than had been agreed between Cuzeno and Powercell. The complications with the bank caused delay, which appears to have been one of the reasons for the parties deciding to change their original arrangement. There was dispute in the District Court and also some argument in this appeal about the precise reasons for the rearrangement. Like the trial judge, I do not think it is particularly fruitful to come to firm conclusions about why the rearrangement was agreed to. The only point in examining that matter in detail would be for the light it might throw upon the credibility of the parties' accounts of the terms of the rearrangement, but matters appear to me to be clear enough without the need to look for help from consideration of that issue. 6 Mr Ward and Mr Jabbour were the main witnesses on the question of the terms of the new arrangement. Their accounts were quite different on several matters of importance in deciding just what was agreed between them. The trial judge accepted Mr Ward's version of events. 7 On either side's version of the arrangement between the parties, a new building agreement was signed on 19 July 1996. This provided that Powercell would build for the sum of $1,420,000 the same building it had previously contracted to build in exchange for a half interest in the land and building when completed. The new arrangement necessarily effected a rescission of the land contract. 8 The judge made the following finding about the making of the new arrangement: " ... when it became apparent in July 1996 that, for one reason or another the parties were unable to agree on the financial situation, that in consideration for revoking the contract for the sale of the Cairo Street property on 29 March, 1996, and the loan documentation from the Bank of both 28 March, 1996 and 18 June, 1996 and in effect terminating the joint venture, Powercell would build the building for an agreed price which was the price set out in the agreement signed on 19 July, 1996 and that Cuzeno would take over as vendor on any contract entered into by Powercell in regard to the nine units it had purported to sell where the purchaser insisted on the contract being performed ." 9 This agreement could be carried out in various ways. On Mr Ward's account of what was discussed at the time the agreement was made, the following method evolved. First, Mr Tosolini, of Messrs Willis & Bowring, Powercell's solicitors, prepared replacement back pages for each of the nine contracts showing Cuzeno as the vendor instead of Powercell. These were presented to Mr Jabbour by Mr Ward and Mr Jabbour executed them on behalf of Cuzeno and gave them back to Mr Ward. However, later the same day (19 July 1996) Mr Jabbour regained possession of these nine back pages from Mr Ward, saying "apparently we have to rescind the contracts first, we can exchange any time". Later again on the same day, on Mr Tosolini's advice, Mr Ward returned to Mr Jabbour's office in order to get the nine back pages. Mr Savelle was present. There was some discussion about how many of the nine purchasers might insist on going on with their contracts. Mr Sarraf was consulted by telephone. He advised that it was likely that only four of them might insist on going on. Mr Jabbour handed four back pages to Mr Savelle. In light of his Honour's findings about credibility, the context makes it very clear that the four back pages were handed to Mr Savelle for him to substitute in four of the existing contracts if it became necessary to do so. 10 These events having taken place on 19 July 1996, Powercell began building under the new building agreement on Monday, 22 July. 11 On 1 August Mr Tosolini wrote to the firm known as Nescis Solicitors which acted for several of the purchasers, including Mr Grasso, referring to the contracts saying that Powercell would not be acquiring the previously agreed half share of the land on which the units were to be built, consequently would not be able to transfer title to the contracted lots, and that Powercell therefore wished to rescind the agreements. 12 Mr Grasso became one of five (as the court was informed) not four (as had been predicted) purchasers who eventually would not agree to their contracts being brought to an end and began District Court actions against Powercell. Nescis Solicitors wrote by letter dated 14 August 1996 to Savelles, attention Mr Sarraf, enclosing Mr Toselini's letter of 1 August 1996, as follows: " We refer to our recent telephone conversation with your Mr Sarraf and confirm that as the Vendor has rescinded the Contract for Sale you are not to release the deposit to the Vendor. We enclose herewith letter from Messrs Willis & Bowring dated 1 August 1996 for your attention and await confirmation in writing that the deposit will be held by your office pending the issue of a fresh Contract for Sale. We thank you for your assistance and await the new Contract in due course. " 13 Mr Ward's evidence was that after 19 July 1996 he spoke to Mr Savelle at least twice a week, every week, asking him to please go and exchange those four contracts. Mr Savelle on almost every occasion said he would look after it, and to stop worrying. 14 Mr Toselini also gave evidence about this, similar to that of Mr Ward, namely, that he had a number of discussions with Mr Savelle about when something would be done about exchanging the four contracts. He said "The standard reply, or assurance, that I was given was 'Don't worry, it will be taken care of, I'll sort it out'". 15 This stalling went on for some time. Mr Ward did not want to bring matters concerning these contracts to a head until Powercell had completed its building contract. 16 It appears that not all the relevant correspondence was tendered in evidence, but, from what was put in evidence, the position seems relatively clear. A letter from Cuzeno's solicitors dated 9 October 1996 to Willis & Bowring referred to various correspondence and went on to state that firm's understanding of the matter. The writer must either have misunderstood instructions from Mr Jabbour or not have been very accurately instructed by him, even as to his own version of events. The writer stated his understanding of the situation as being that " ... the contract between Cuzeno Pty Ltd and Powercell Pty Ltd will be rescinded and the various contracts entered into by Powercell with certain prospective buyers of units will also be rescinded and our client will make a decision as to whether or not he wishes to enter into contracts with those purchasers. " 17 Despite its shortcomings this letter is useful for showing that there was an agreement between Cuzeno and Powercell replacing the original arrangement and that it was to some extent along the lines of the new agreement alleged by Powercell. The main difference was in the assertion that it was for Cuzeno to decide whether or not it wished to enter into contracts with original purchasers from Powercell. This of course became the principal issue before the trial judge, which he decided in favour of Powercell, that is, that Mr Jabbour had agreed on behalf of Cuzeno that Cuzeno would enter into contracts with original purchasers not willing to accept the termination of their contracts. 18 Eventually, by letter dated 25 November 1996 Nescis Solicitors wrote to Messrs Willis & Bowring saying that despite repeated attempts to obtain an exchange of contracts with the new vendor Cuzeno, no contract had been forthcoming and that accordingly they were instructed to commence proceedings on behalf of their client against Powercell for breach of contract. Cuzeno still did not enter into a new contract with Mr Grasso. He commenced District Court proceedings against Powercell. In those proceedings Powercell filed a cross claim against Cuzeno and Mr Jabbour. Mr Grasso's case against Powercell was heard separately from and before Powercell's cross claim. Mr Grasso obtained judgment against Powercell. The claims of the other four purchasers against Powercell have not yet been heard. 19 In the appeal the argument for Cuzeno was put under four heads. Of these, the one most conveniently first dealt with is the submission that this court should alter the factual findings made by the trial judge and accept Mr Jabbour's version of the new arrangement undoubtedly made by him and Mr Ward to supersede their original arrangement. 20 The only particular matter advanced to support this argument was that in regard to the signing by Mr Jabbour of the back sheets of the contracts on 19 July 1996, Mr Ward had been emphatic in his oral evidence that as well as the signing by Mr Jabbour, Cuzeno's seal had been affixed. This turned out not to be the fact and the judge held that despite Mr Ward's strongly asserted evidence about the use of the seal, he had been mistaken about it. It was submitted that this should have been taken into account by the judge as seriously affecting Mr Ward's credibility. However, the judge considered this aspect of Mr Ward's evidence, said he thought the mistake was not a deliberate one, and that he was satisfied with the remainder of Mr Ward's evidence about the relevant conversations. This is a perfectly legitimate approach for a trial judge to take, if satisfactorily persuaded of a witness's general credibility. 21 More general arguments were put in support of the submission attacking the judge's fact finding, but none of them seems to me to have any weight. In fact, all the material evidence in the case which does not depend upon oral evidence of Mr Ward and Mr Jabbour seems to me to afford strong support for Mr Ward's version of the events and to make Mr Jabbour's version quite unlikely in regard to the central issue. The ground of appeal against the judge's factual findings therefore fails. 22 The other three heads of argument for Cuzeno all assumed that the trial judge's factual findings would not be disturbed. On this footing the first submission was that what Cuzeno and Powercell were intending to do was to effect a novation of the Powercell/Grasso contract so that it became a Cuzeno/Grasso contract and that for such a novation to be achieved the agreement of Mr Grasso was necessary. It was submitted that in the absence of his participation in the agreement, the agreement was of no legal effect. 23 I do not think this argument is correct. I do not think there is any rule of contract law which prevented Cuzeno from agreeing with Powercell to take over Powercell's contract with Mr Grasso. Such an agreement would bind Cuzeno to take over, that is become the vendor in, the contract with Mr Grasso, and to take all necessary steps to bring that about. If Cuzeno should prove to be unable to achieve the result it had agreed with Powercell, that would mean it would be in breach of its contract with Powercell. In other words, by such an agreement, Cuzeno was assuming the risk that Mr Grasso might not agree to contract with it on the same terms as those in the contract with Powercell and leaving itself open to the consequences if he did not. 24 There is a further reason in the facts of the present case which makes the submission even less arguable. The facts show that Mr Grasso's solicitors were pressing Cuzeno to enter into the contract with Mr Grasso on the same terms as those in the Powercell contract. Cuzeno chose not to enter into such a contract. It could have done so. Thus, in fact, it was possible for the arrangement made between Powercell and Cuzeno to be carried out in full. Powercell and Cuzeno had agreed to do something which it was lawful for them to agree upon and which could have been done had Cuzeno not chosen itself not to carry out its contracted arrangement. 25 The next head of Cuzeno's argument concerned s 54A of the Conveyancing Act. It had been submitted to the trial judge that that section applied to the agreement made between Cuzeno and Powercell. The judge did not think that the section was applicable, but further held that if it were, then the doctrine of part performance would in any event defeat Cuzeno's reliance upon the section. In this court Cuzeno submitted the trial judge was wrong in both respects. 26 It seems to me likely that s 54A was applicable to the arrangement found by the trial judge and I will assume in Cuzeno's favour, without deciding, that that was so. That brings me to the submission that the judge was wrong in holding there had been part performance. 27 The first point taken on Cuzeno's behalf on this aspect of the case was that Powercell's claim was for damages at law but the doctrine of part performance was only available in equity and could not support an action for damages at law. O'Rourke v Hoeven [1974] 1 NSWLR 622 was relied on. This point was not taken at the trial and in the appeal Powercell argued that Cuzeno should not be allowed to rely on it. 28 It seems clear that had the point been taken at the trial Powercell's conduct of its claim would have been very different. In accordance with what was said in O'Rourke v Hoeven by Glass JA, with whom Reynolds and Hutley JJA agreed (at 625 and 626) the only proper way for Powercell to have relied on the doctrine of part performance would have been to claim specific performance of its agreement with Cuzeno and damages in lieu of specific performance. To do this, Powercell may have needed to seek to have its claim transferred to the Supreme Court, because s 134 of the District Court Act as it stood at relevant times may not have conferred sufficient jurisdiction in equity upon the District Court to deal with such a claim. Pleadings would have had to be amended; it would have been prudent also for Powercell to consider whether it could claim that Cuzeno was estopped by its conduct from relying on s 54A, and whether such an estoppel should be classified as a common law or equitable estoppel, or whether it should rely on equitable fraud as preventing Cuzeno from relying on s 54A, and if it were to seek to rely on either of the latter two doctrines whether only the Supreme Court would be a proper venue. 29 The questions for Powercell to consider would have been serious and difficult. Cuzeno, by not raising the point, left the trial judge to resolve what would still have been an ultimate issue, even had the technical difficulties explained in O'Rourke v Hoeven been raised. That is, Cuzeno left it to the judge to decide the substantive question whether the facts before him justified the conclusion that there had been part performance, within the meaning of the doctrine of part performance, without the complications that would have followed from raising the O'Rourke v Hoeven point. In these circumstances it seems to me that the rule stated in a long line of authoritative cases, prominent among which are Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 and Coulton v Holcombe (1986) 162 CLR 1, should be applied and this court should not allow Cuzeno to raise the point in this court. 30 To guard against the eventuality that the court did allow the point to be argued, Powercell sought leave to rely on equitable fraud. There may have been difficulties with that application, but it is unnecessary to consider them in view of the conclusion I have come to concerning the unavailability to Cuzeno in this court of the O'Rouke v Hoeven point. 31 The other point taken for Cuzeno in regard to the part performance argument was that the acts of part performance relied upon by the judge as making the doctrine applicable were not "unequivocally and in their nature referable to some such contract as alleged". The quotation was taken from par [2038] of Meagher, Gummow and Lehane: Equity Doctrines and Remedies, 3rd ed 1992. Counsel said in argument that he had referred the court to that text because it mentioned the relevant cases and discussed them in detail, and agreed with the court's observation in response that there was not much point in going through the decisions which revealed a variety of different factual circumstances, some in which the doctrine had been held to apply and some in which it had not. The court then indicated it would have to make up its mind on a reading of the cases. 32 One of the cases, which, as it happens is only briefly referred to in Meagher, Gummow and Lehane, but which seems to me to be quite helpful in this area of the law, is Regent v Millett (1976) 133 CLR 679, an ex tempore decision of the High Court (Gibbs, Stephen, Mason, Jacobs and Murphy JJ) delivered by Gibbs J. In his reasons the following passage appeared: " The principle upon which the doctrine of part performance rests was stated by Lord Cranworth, Lord Chancellor in Caton v Caton (1866) LR 1 Ch App 137 at 148 in words which appear to have a direct application to the present case. He said: ' ... when one of two contracting parties has been induced, or allowed by the other, to alter his position on the faith of the contract, as for instance by taking possession of land, and expending money in building or other like acts, there it would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced, or allowed, the person contracting with him to act, and expend his money. ' The books are full of cases in which it has been held that the entry into possession alone, or the taking of possession coupled with the expenditure of money by one party on the improvement of property, with the cognizance of the other party to the contract, may amount to part performance (see the cases cited in Halsbury's Laws of England , 3rd ed, vol 36, par 416). The argument advanced on behalf of the appellants, when reduced to its essentials, depends upon two propositions. First, it was said that the acts relied on were not unequivocally referable to some such contract as that alleged by the respondents. Indeed, it was submitted that a narrower test should be adopted and that it was necessary to establish ' such a performance as must necessarily imply the existence of the contract ' - to use the words of Lord O'Hagan in Maddison v Alderson (1888) 8 App Cas 467 at 483. However, the test suggested by the Earl of Selborne LC in that case (at 479), that the acts relied upon as part performance ' must be unequivocally, and in their own nature, referable to some such agreement as that alleged ', has been consistently accepted as a correct statement of the law. It is enough that the acts are unequivocally and in their own nature referable to some contract of the general nature of that alleged (see McBride v Sandland (1918) 25 CLR 69 at 78. " (at 682-3) 33 In my opinion, in the present case, the bringing to an end on 19 July 1996 of the land and building contracts of 27 March 1996, the entry on 19 July 1996 into the new building contract and the subsequent letters by Powercell's solicitor to its purchasers of 1 August 1996 were all acts which fall within the description of being "unequivocally and in their own nature referable to some contract of the general nature of" as that found by the judge to have been made on 19 July 1996. Accordingly, in my opinion the judge did not err in deciding, in regard to the question the parties have left for his decision, that as a matter of substantive law there had been part performance by Powercell of its agreement with Cuzeno, and Cuzeno should not be allowed to rely upon s 54A of the Conveyancing Act. 34 Cuzeno's remaining head of argument concerned the question whether Cuzeno's breach of contract had caused the damage which the judge had quantified against Cuzeno. Two submissions were made. The first submission was that Powercell's damage was incurred when it terminated its contract with Mr Grasso and that as this preceded the breach by Cuzeno of its agreement with Powercell, Cuzeno could not be responsible for the damage. 35 This submission does not give sufficient account to the facts of the case as this court must treat them in light of the trial judge's findings. As appears from the letter of Nescis Solicitors dated 25 November 1996 referred to earlier, Mr Grasso was prepared to enter into a contract with Cuzeno on the same terms as its contract with Powercell until at least 25 November 1996. It was Cuzeno's failure to enter into such a contract with Mr Grasso after that date that led to his treating his contract with Powercell at an end and claiming damages from Powercell. On this basis, Cuzeno was directly responsible for the damage suffered by Powercell, by reason of its breach of its agreement with Powercell. This submission therefore fails. 36 The other submission was that Powercell had been in a position to mitigate its damage and had failed to do so. It was said that it was likely, as at August 1996, that in due course a clause in the contract between Powercell and Mr Grasso which entitled either party to rescind if the building development was not complete by April 1997, should have been availed of by Powercell. This submission overlooks the fact that the action taken by Powercell in writing to purchasers in terms of the letter of 1 August 1996 was a way suggested by Mr Jabbour to Mr Ward of carrying out their new agreement. In such circumstances, the duty to mitigate suggested on behalf of Cuzeno simply did not arise. 37 A final submission made for Cuzeno drew attention to special condition 20 in Powercell's contract of sale with Mr Grasso. This provided that Mr Ward and his wife guaranteed the due and punctual performance by Powercell of its obligations to refund the deposit paid by the purchaser to the vendor in any circumstances where the purchaser was entitled to have the deposit refunded to it. It was submitted that the agreement by Cuzeno to take over Powercell's contract with Mr Grasso made no provision for what should happen about this clause. The result was said to be that the new agreement between Powercell and Cuzeno was incomplete and unenforceable. 38 I do not think this conclusion follows from the fact that the parties did not refer to special condition 20 in making their new agreement. No attention appears to have been given to this point in the evidence before the trial judge. On the evidence as it was left, it seems to me that the parties envisaged that their agreement would be carried out by the substitution of Cuzeno as the vendor for Powercell in Powercell's contract with Mr Grasso and that, in the absence of any agreement about an alteration to special condition 20 the guarantee of Mr and Mrs Ward would have remained in the new agreement which Cuzeno was undertaking to make with Mr Grasso. I do not think this point avails Cuzeno in the appeal. 39 The result is that in my opinion Cuzeno's appeal should be dismissed. In light of the way the appeal was argued, I have the impression that this conclusion disposes of the proceedings. However, I mentioned at the beginning of these reasons that Powercell applied for leave to amend its notice of contention and for leave to file notice of a cross appeal against the trial judge's dismissal of its claim against Mr Jabbour. The amendment that was sought to the notice of contention was intended to deal with what I have called earlier the O'Rourke v Hoeven point. In view of the conclusion I have reached that Cuzeno should not be allowed to argue that point in the appeal, the necessity for the amendment to the notice of contention disappears. 40 Had the O'Rourke v Hoeven point been allowed to be argued then it would have been appropriate in my opinion to grant leave for the notice of contention to be amended in the manner sought. 41 I am not so clear about what should be done in regard to the application for leave to file the notice of cross appeal. After the making of the application at the beginning of the hearing it was not referred to again in the oral argument. It may well be that Powercell would only wish to pursue the cross appeal if Cuzeno were to succeed in its own appeal; that is, my present understanding is that the cross appeal was in the nature of a defensive move which would not be followed up if Cuzeno's appeal should be dismissed. On that understanding, I would think the appropriate step to take would be to refuse leave for the filing of the cross appeal with no order for costs, and to note that the refusal is without prejudice to Powercell's entitlement to renew its application concerning the cross appeal should that ever become necessary. 42 On this basis the orders I propose are that the appeal by Cuzeno be dismissed with costs, and that the application for leave to file a cross appeal be dismissed with no order as to costs and that it be noted that that dismissal is without prejudice to any rights Powercell might otherwise have to litigate the cause of action asserted in the cross appeal. 43 In case I have misunderstood the position about the cross appeal, I would postpone the coming into effect of the orders concerning it for fourteen days after the delivery of these reasons; the other orders are to have immediate operation in the ordinary way. Cuzeno should have liberty within that fourteen days, if it wishes to make submissions to the court for some different outcome regarding the cross appeal, to approach the Registrar of the Court of Appeal with a view to having the matter listed for the making of such further directions, if any, as may be appropriate. 44 STEIN JA: I agree with Priestley JA. 45 DAVIES AJA: I agree with Priestley JA. **********

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