DONUT KING AUSTRALIA PTY LIMITED v WAYNE GARDNER RACING PTY LIMITED

Court of Appeal (NSW)|2001-08-10|Before: Priestley JA, Meagher JA, Sheller JA, Jordan CJ

CITATION : DONUT KING AUSTRALIA PTY LIMITED v WAYNE GARDNER RACING PTY LIMITED [2001] NSWCA 275 FILE NUMBER(S) : CA 40906/00 HEARING DATE(S) : 10 August 2001 JUDGMENT DATE : 28 August 2001

PARTIES : Donut King Australia Pty Limited - Appellant Wayne Gardner Racing Pty Limited - Respondent JUDGMENT OF : Priestley JA at 1; Meagher JA at 2; Sheller JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 3524/99 FILE NUMBER(S) : LOWER COURT Boyd-Boland ADCJ JUDICIAL OFFICER :

COUNSEL : BAJ Coles QC/C J Bevan - Appellant P LeG Brereton SC - Respondent SOLICITORS : Beilby Poulden Costello - Appellant A R Yates & Co - Respondent CATCHWORDS : CONTRACT - breach - whether essential term - whether intermediate term - sponsorship agreement - logo to be displayed on racing car shown in incorrect colours LEGISLATION CITED : N/A Tramways Advertising Pty Limited v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 CASES CITED: Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 Shevill v Builders Licensing Board (1982) 149 CLR 620 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40906/00 DC 3524/99 PRIESTLEY JA MEAGHER JA SHELLER JA

DONUT KING AUSTRALIA PTY LIMITED v WAYNE GARDNER RACING PTY LIMITED

The appellant and respondent were parties to a contract for sponsorship. In return for payment, the respondent agreed to provide a number of benefits to the appellant. In particular, the respondent displayed a "Donut King" logo on the bonnet of its racing vehicles. The agreement specified that these words were to be written in pink on a white background. A written agreement reflecting this arrangement was entered into in July 1997, and a further agreement was entered into in October 1997.

In 1999 the respondent obtained a new racing car, and sought to discuss the colour of the bonnet with employees of the appellant. There were various delays. Initially, two of the appellant's employees each suggested the other should deal with the issue. Then one of these employees informed the respondent that they would approve he change once they received photos of the car. In the meantime, the respondent had had the bonnet painted red, with "Donut King" written in white. The respondent participated in the Melbourne Grand Prix with this form of logo. Shortly afterwards, the appellant communicated to the respondent its displeasure at the colour of the logo, and advised that they considered the sponsorship arrangement to be at an immediate end.

The respondent began proceedings in the District Court alleging that the appellant had repudiated the contract or was in breach of it. The trial Judge found that the specification of the logo colour was not an essential term of the agreement and the breach of this term did not entitle the appellant to terminate the agreement. The appellant challenged this decision on a number of grounds.

Held: (per Sheller JA, Priestley and Meagher JJA agreeing) (1) The trial Judge was correct to find that the term specifying the logo colour was not an essential one as described by Jordan CJ in Tramway Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-2. (2) When the parties intended to make strict and literal performance of a promise essential they expressly provided for it. This is demonstrated by another clause of the agreement, which provided that a failure by the appellant to pay the sponsorship amount should, at the election of the respondent, result in immediate forfeiture of all the sponsor benefits. There was no such express provision in relation to the term in question. (3) The non-essential nature of the term concerning logo colour was also indicated by the fact that Donut King had indicated that the pantech design could feature white lettering on a red background. (4) The appellant's leisurely response to the respondent's suggestion that the logo colour be altered indicated that the breach was not of such gravity as to give rise to a right to terminate, assuming that the term was an intermediate one.

The trial Judge was correct to find that this response also indicated that the breach was not of such gravity as to give rise to a right to terminate, assuming that the term was an immediate one. ORDER Appeal dismissed with costs.

JUDGMENT

1 PRIESTLEY JA: I agree with Sheller JA. 2 MEAGHER JA: I agree with Sheller JA. 3 SHELLER JA: Introduction

On 20 October 2000 in proceedings brought by Wayne Gardner Racing Pty Limited (WGR) against Donut King Australia Pty Limited (Donut King) Acting Judge Boyd-Boland gave judgment for WGR in a total amount of $106,634.46 together with interest. Donut King has appealed. 4 The relevant facts can be stated shortly. Wayne Gardner is a highly respected and well-known professional racing car driver and the manager of WGR. In the language of the trial Judge "he ran the show". On 17 July 1997 WGR and Donut King entered into a written agreement (the July 1997 agreement) which recited that WGR competed in the Shell Australian Touring Car Championship and in the V8 Touring Car Endurance Events, that Mr Gardner would be the principal driver for WGR and that Donut King wished to sponsor WGR with Mr Gardner as the principal driver in three races; the Shell Australian Touring Car Championship race at Oran Park NSW in August 1997, the V8 Car Endurance Event at Sandown Park VIC in September 1997 and the V8 Touring Car Endurance Event at Bathurst in October 1997, referred to in the agreement as the "Events". In return for such sponsorship, Donut King would receive certain "Sponsor Benefits". The relevant parts of the July 1997 agreement were as follows: "1. Donut King agrees to sponsor W.G.R. in the Events and Wayne Gardner accepts the sponsorship of Donut King. 2. W.R.G. will provide to Donut King the rights and benefits set out in the First Schedule hereto ('the Sponsor benefits'). 3. In consideration of W.G.R. agreeing to provide the Sponsor Benefits, W.G.R. will be paid the sum of One Hundred and Fifty Thousand Dollars $150,000.00 ('Sponsorship Amount') this amount will be paid in the following manner: 3.1 Sixty Thousand Dollars $60,000.00 forthwith upon the signing of this Agreement. 3.2 Fifty Two Thousand Dollars $52,000.00 on or before the 31st day of August 1997. 3.3 Thirty Eight Thousand Dollars $38,000.00 on or before the 30th day of September 1997. 3A. It is acknowledged that the Sponsorship Amount will be contributed to W.G.R. in the following amounts: (i) Donut King the sum of $37,500.00 (ii) Coca Cola Amatil Limited the sum of $37,500.00 (iii) Coca Cola Amatil Limited via Donut King Promotional Fund in the sum of $75,000.00. 4. Payment of the amounts referred to in Clause 3 of this Agreement shall be made by cheque made payable to W.G.R. and sent to Unit 116 Newton Road, Wetherill Park NSW 2164. 5. Without prejudice to the rights of W.G.R. any breach of this Agreement, failure to pay the Sponsorship Amount or any part thereof shall, at the election of W.G.R. result in an immediate forfeiture of all the Sponsor Benefits granted. W.G.R. shall, immediately upon such election, be at liberty to offer the Sponsor Benefits (as applicable) to any other potential sponsor. …. 7. No right under this Agreement shall be deemed to be waived except by notice in writing signed by both parties. A waiver by either party pursuant to this clause will not prejudice its rights in respect of any subsequent breach of this Agreement by the other party. Subject as aforesaid any failure by a party to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by one party, to the other party, will not be constructed [sic] as a waiver of the former party's rights under this Agreement." 5 The First Schedule which was headed "The Sponsor Benefits" provided, relevantly, as follows: " Donut King Bonnet Signage (1400mm x 770mm) on the racing and display vehicles (3 in total). Artwork and decal costs at the expense of Donut King. Donut King logo on the main display fascia (left and right) of the W.G.R. team pantech."

"Decal" describes the process of transferring designs from paper to metal. The July 1997 agreement was duly performed by the parties. There was no complaint about their performance. 6 In the course of the negotiation leading up to the July 1997 agreement between Mr Gardner and Kevin Cook, who was then Donut King's Marketing Director, Mr Gardner told Mr Cook that the base colour of his race car was red and the bonnet already white from a previous logo. He asked whether Donut King was prepared to modify its logo from white lettering on a pink background to pink lettering on a white background. Mr Cook agreed, acknowledging that a pink bonnet would clash badly with the base red colour of the vehicle. That would not do the Donut King logo justice. 7 In a letter dated 16 June 1997 Peter Darnell, described as the Senior Brand Manager of Donut King, wrote to Lyn Elliot, a signwriter employed by WGR, with copies to Mr Gardner as follows: " Re Donut King Please find enclosed specifications for our Donut King logo to go on the bonnet of the Wayne Gardner Racing Commodores. Please note that while the specifications for the Donut King pink lettering is 100% process magenta, we want that lettering to be a definite pink and not red as magenta can sometimes appear when printed on certain surfaces. If you have a vinyl that is more vibrant pink than magenta then we should use this. We definitely do not want our logo to appear as if it is red." 8 The accompanying "Wayne Gardner Bonnet Specification Sheet" under the heading Pantone Process Colours said: · Bonnet Colour White · ……… · Donutking Pink Lettering 100% Process Magenta

9 In the events nominated in the July 1997 agreement Mr Gardner's car participated in that livery. Donut King submitted that these colour specifications were part of the agreement. 10 Mr Coles QC, who appeared for Donut King on the appeal, drew the Court's attention to a facsimile transmission dated 24 June 1997 from Belynda Clapin, then employed by WGR as Team Manager, to Ian Edgely, whom he described as Mr Gardner's Manager, and an attached document to that facsimile headed "Donut King Identification" which he submitted indicated what the parties had in mind. The first part of the identification document was as follows: "SIGNAGE Racing and display vehicles (3 in total) Bonnet Donut King Logo Colour lettering on white background 1400mm x 770mm Panteck Main Display fascia left and right Donut King logo White lettering on red background or Logo colours encased in white border 11 As the result of negotiations between September and November 1997, between Mr Gardner and Mr Cook, WGR and Donut King entered into a further agreement. There was debate at the hearing about the terms of that agreement and the extent to which, if at all, it incorporated the terms of the July 1997 agreement. Two documents were said to evidence the new agreement. The first was a letter from Donut King to WGR dated 21 October 1997, signed on behalf of Donut King by Mr Cook. The text of that letter was as follows: "Having now received confirmation from Coca Cola with regard to the sponsorship of Wayne Gardner Racing, we likewise will commit to a three year sponsorship deal of $200,000 per year subject to Coca Cola renewing for that third year. We are obviously very keen to see this happen. The further details of the sponsorship will be documented when you come to Queensland. This will be along the lines of our previous discussions with regard to signage, store visits, etc., worked out to our mutual benefit. Wayne thanks again for your assistance and your commitment to furthering our brand. I look forward to seeing you in the beginning of November." 12 The second document was an email sent by Mr Cook to Mr Gardner in November 1997 headed "Re Points discussed with Wayne Gardner re promotions for next year" (the Points Document). The Points Document began "The basis of our deal with Wayne is that he will run 4 events for an amount of $200,000." Four events, the Formula One race on 6, 7 and 8 March 1998, the Sandown race on 13 September 1998, the Indy race on 18 October 1998 and the Bathurst race on 15 November 1998 were listed. The document continued: "The details of our Sponsorship will have the logo on the bonnet as per last year. The patches worn by Wayne and his crew will be as per last year and Wayne will also wear the patches as detailed on the chest and the arm throughout the world no matter where he is racing or with whichever team. The logo should also go on the dash of the car for the in car camera to see. Wayne also mentioned that we can use the back rear panel (behind the rear wheel) to include the sponsors of the promotion."

There could be little doubt that the parties agreed that the background colour and colour of the logo on the bonnet of the car would be the same as agreed and placed on the car in accordance with the July 1997 agreement. 13 Whatever may have been the exact terms of the later agreement WGR with Mr Gardner driving took part in the four 1998 events and was paid $200,000. The bonnet of the car used by WGR in the events nominated in the July 1997 agreement and in the four 1998 events listed in the Points Document was white and bore Donut King's logo namely the words "DONUT KING [with a crown above the O in "DONUT"] - The Greatest Tasting Donuts in the World". The crown was coloured yellow, the words "DONUT KING" what appears to be a deep pink and the other words blue. No one suggested that this did not comply with the requirements of the two agreements. 14 In 1998 Mr Gardner ordered a new car for the 1999 season. Larry Perkins Engineering Pty Limited agreed to build and supply the car at a cost of $240,000. On 20 January 1999 Mr Perkins insisted to Mr Gardner that he be advised before 26 January of the colour the car was to be painted. On 22 January Mr Gardner telephoned Mr Cook to discuss the colour and left a message for him to call. When he heard nothing he telephoned Donut King's office and was advised Mr Cook was in the United States. On the same day he told Mr Perkins he was still waiting confirmation as to the final design of the logo. 15 On 25 January, after receiving the final design from Coco Cola Amatil (CCA) for their section of the car, Mr Gardner sent a facsimile to Mr Perkins requesting that the car be supplied, inter alia, with the bonnet red. On the same day he telephoned Mr Perkins and said that there might be a need to change the bonnet to white if Donut King insisted on keeping the logo as it was. 16 On 5 February 1999 Mr Gardner received a telephone call from Mr Darnell asking him to sign some posters. In the course of that conversation he raised with Mr Darnell the fact that he had tried to contact Mr Cook regarding presentation of the logo and needed a decision on the bonnet colour. Mr Darnell said that was not his decision. Mr Gardner must speak with Mr Cook. In fact in August 1998 Mr Cook had resigned as Donut King's sales and marketing manager and marketing director and taken up a position as a non-executive director. From August 1998 his role was to attend monthly board meetings. 17 Having heard nothing Mr Gardner arranged for the decaling of the bonnet with the Donut King logo on the night before a test drive of the car on 16 February 1999. He decided to proceed with a red bonnet for the test for aesthetic reasons. He intended to change it to white if so ordered by Mr Cook. On the day of the test drive, 16 February, Mr Cook telephoned Mr Gardner at the Winton circuit. Mr Gardner told Mr Cook the vehicle had been prepared with the altered logo in white writing on a red bonnet which he said "looks fantastic". He also told Mr Cook he had spoken with Mr Darnell who had not made a decision. Mr Cook responded "Yeah all that sounds OK but Peter Darnell should be handling that decision" to which Mr Gardner responded that Mr Darnell "handballed" the decision back to Mr Cook. Mr Cook responded "Oh did he? Well I don't work there on a daily basis any more but I still sit on the board as a director and all communications should go through Peter Darnell." According to Mr Gardner Mr Cook then added "Look that all sounds OK and shouldn't be a problem. Send some photos of the car up to Peter Darnell and we will sign off on it." 18 The trial Judge was not satisfied on the evidence that what was said amounted to a consent by Mr Cook to vary the agreement. On the basis of what Mr Cook said Mr Gardner proceeded with the plans to keep the colour of the car as it was and organised for photographs to be taken. He said that if Mr Cook or anyone on behalf of Donut King had told him that the red bonnet with white lettering was unacceptable, he would have immediately taken steps to have the bonnet changed to white and the lettering of "DONUT KING" altered to pink. 19 Photographs of the vehicle were taken on 16 February and proofs were delivered on 19 February to WGR's office in Wollongong. Ms Clapin was instructed to send Mr Darnell the photographs, when received. Mr Gardner said that Ms Clapin placed the photographs in a folder, the arrival of which was somewhat delayed and they were posted by overnight express post to Donut King on 1 March. Mr Gardner was at that time in Melbourne to compete in two events associated with the Melbourne Grand Prix. He took part in practice and preliminaries on Friday 5 and Saturday 6 March and competed on Sunday 7 March. He used the vehicle with the Donut King logo in white lettering on a red background. 20 On 8 March Mr Gardner learnt that Mr Darnell had left a message on Ms Clapin's mobile telephone message bank saying he had opened the package addressed to Mr Cook, who no longer worked for Donut King, and "they were not very happy with the treatment of the logo". Mr Darnell had said "I realise that there is not a lot that can be done now as you are at the race meeting but I wanted to state our disapproval of the bonnet. Could either yourself or Wayne give me a call". 21 On 8 March Mr Gardner attempted to telephone Mr Darnell who was not available. Later on that day Mr Darnell returned his call and expressed dissatisfaction to which Mr Gardner responded by saying he had not been able to get a decision out of anybody before it was too late. He had spoken with Mr Darnell and had been told to speak to Mr Cook. When he did that Mr Cook said it would be OK and the photos should be sent to Mr Darnell. Mr Gardner said he was happy to change it back to white if that was what was wanted. Mr Darnell responded by saying there was not a lot that could be done for Adelaide but they were not prepared to proceed with the sponsorship after that. Mr Darnell said: "We have been looking for a reason to get out. The franchisees think it is too male dominated. We wanted to target women and children in the shopping centres so we find this is a good reason." 22 Mr Gardner responded with a facsimile to Mr Darnell on 10 March 1999 reciting the history of the matter and demanded payment of $100,000 said to be then still owed by Donut King to WGR as the first sponsorship instalment. On 22 March he received a three page facsimile letter from Mr Darnell under the letterhead of Retail Food Group (Australia) (RFG), the trade name of RFGA Management Pty Limited, which managed the Donut King business in Australia under licence from the owner of the trademark. Mr Darnell said: "I have also spoken to Peter Trives of Coca Cola Amatil subsequent to receiving your facsimile on the 10th March. He has advised me that, whilst Coca Cola had indicated to you that their preference was to have the bonnet of your car painted in Coca Cola red, neither he nor anyone else at Coca Cola had insisted on this or instructed you to do so. He went on to say that all paint work and signage on the car was undertaken by contractors to Wayne Gardner Racing and that, had the bonnet been painted as per the design in previous years, Coca Cola would have had no objection." 23 Mr Darnell said after a review of all of the matters set out in the facsimile letter with the managing director of RFG he had been instructed to inform Mr Gardner, amongst other things, that RFG would not make any payment to WGR in relation to the Australian Grand Prix event "due to the unacceptable presentation of the Donut King logo on your car which was undertaken by Wayne Gardner Racing without approval from Retail Food Group". 24 The facsimile letter concluded: "Given the above, Retail Food Group (Australia) considers the present sponsorship arrangement to be at an immediate end and formally advise you of this fact. We would be grateful if you would remove our logo from the bonnet of your car and anywhere else that it is presented."

District Court Proceedings 25 On 1 May 1999 WGR began these proceedings in the District Court alleging that Donut King had repudiated the sponsorship agreement or alternatively was in breach of it and claiming damages. In its amended notice of grounds of defence Donut King claimed that, in breach of the agreement, WGR had materially altered the colours depicting Donut King's brand name and image without its consent and promoted Donut King's brand name in colours other than those of Donut King at venues other than those agreed to by Donut King in writing or otherwise. Donut King alleged that the breaches by WGR of the terms and conditions of the agreement entitled Donut King to terminate it. 26 The significant findings made by the trial Judge were that the relevant agreement between the parties was to be found in the letter of 21 October 1997 and the Points Document and, in particular, did not incorporate the terms of the July 1997 agreement though some terms of the later agreement might be inferred from the July 1997 agreement. In particular, clause 7 of the July 1997 agreement was not part of the later agreement. His Honour held that the specification of the logo colouring and presentation was not a fundamental or essential term of the agreement and the breach of the term did not entitle Donut King to terminate the agreement. Donut King remained liable to WGR as a consequence of its breach of the requirements of the later agreement which it had not validly terminated. However, his Honour took into account in assessing damages his finding that Donut King had not approved the change of the bonnet colour.

Appeal 27 Donut King appealed from the decision on ten grounds which can be summarised as follows from its written submissions: · that the trial Judge should have characterised the bonnet logo requirement as an essential term of the agreement entitling Donut King to terminate it (grounds 1 and 2); · that the trial Judge erred in failing to conclude that Donut King validly terminated the agreement on 22 March 1999 (grounds 3 and 4); · that the trial Judge should have held that the agreement made in November 1997 was merely an extension of the 17 July 1997 agreement comprising the express terms of that agreement except in so far as these were varied by the letter of 21 October 1997 and the terms of discussion set out in the Points Document (grounds 5 and 6); · that the trial Judge applied the wrong test to determine what the terms of the agreement were by referring to events and the conduct of the parties at the date of its breach rather than at the date of its formation (grounds 7 and 8); · that the trial Judge gave undue weight to Donut King's commercial motivation for exercising its contractual right of termination on 22 March 1999 (grounds 9 and 10). 28 Central to the appeal was Donut King's contention that the change of logo to white lettering on a red background was the breach of a promise of such importance to Donut King that it would not have entered into the agreement unless it had been assured of a strict or substantial performance of the promise. This ought to have been apparent to WGR, with the consequence that Donut King might treat itself as discharged upon the breach of this promise, even of it were regarded as only slight; see per Jordan CJ in Tramways Advertising Pty Limited v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-2; approved by the High Court in Associated Newspapers Limited v Bancks (1951) 83 CLR 322 at 337 and in Shevill v Builders Licensing Board (1982) 149 CLR 620 at 627 and 636. 29 The trial Judge did not accept this contention. Donut King attacked his reasons for this and particularly the weight he gave to the reaction of Donut King's officers and employees to the possibility that the promise would be broken. His Honour said: "If the presentation of the Defendant's logo, in particular colours, was such an essential term of the contract, then, as the Plaintiff says, one would expect that when its presentation in another form was mooted by Gardner, the issue would be treated significantly differently to what ultimately transpired." 30 Whether the logo specification should be classified as a term requiring strict or substantial compliance, breach of which would give rise to a right to terminate was one of the main issues in the appeal; see generally Carter & Harland, Contract Law in Australia, 3rd ed, paras 731-2. As Mr Brereton SC, who appeared for WGR, put it the question was whether any departure from the colour scheme of the logo justified termination, however slight that departure was. Alternatively, if the term was an intermediate term and only substantial breach gave rise to the right to terminate, the question was whether the breach was of such gravity that Donut King was entitled to terminate. 31 As to the alternative, assertions were made that the breach caused incalculable damage to Donut King. This can be dismissed for reason that there was no evidence at all to support the assertion. Donut King referred to none. The assertion does not sit easily with Donut King's leisurely reaction to the news that the bonnet logo presentation was to be or had been changed. There was evidence, which the trial Judge accepted, that Donut King wanted to get out of the agreement with WGR for marketing reasons which had nothing to do with the bonnet logo presentation. 32 Donut King submitted that the integrity of each sponsor's logo was fundamental to its relationship with race car operators who were being sponsored for intellectual property reasons. The logo as a symbol may, like a trademark, have the important functions of distinguishing or differentiating the owner's product, of indicating the product's origin or source and its quality and, relevantly to the present case, of advertising the product. The logo's integrity must therefore be protected. But how the owner of the logo seeks to exploit it is a matter for it. General considerations of the sort I have mentioned do not much assist in answering the questions raised by this appeal. 33 Clause 5 of the July 1997 agreement provided that failure by Donut King to pay the sponsorship amount or any part of it should at the election of WGR result in an immediate forfeiture of all the sponsor benefits granted. By contrast neither the July 1997 agreement nor the later agreement contained any provision that failure by WGR to display the Donut King logo on the bonnet in accordance with the specification resulted in a forfeiture of its entitlements under the agreement. When the parties intended to make strict and literal performance of a promise essential they expressly provided for it. Clearly enough the text of the agreements suggested that the parties did not attach a requirement for strict and literal performance to WGR's promise to provide to Donut King the rights and benefits set out in the first schedule, relevantly, the Donut King Bonnet Signage in accordance with specification under penalty of forfeiture. 34 Mr Brereton pointed out that the first schedule provided for the Donut King logo to be placed on the main display fascia (left and right) of the WGR team pantech (pantechnicon). However, while the Donut King Identification document attached to the facsimile transmission of 24 June 1997 provided for "Donut King Logo Colour Lettering on white background 1400mm x 770mm" on racing and display vehicles, it provided "main display fascia left and right Donut King logo white lettering on red background or logo colours encased in white border" for the pantech. Mr Brereton submitted, and I agree, that this demonstrated conclusively that white lettering on a red background was not universally unacceptable. Consistently with this, it could not be claimed that the requirement that the logo be in pink or magenta lettering on a white background was of a significance that made performance of the promise that it would take this form on the racing cars so essential that Donut King would not have entered into the agreement unless it had been assured of a strict or substantial performance of the promise. 35 For these reasons, in my opinion, the trial Judge rightly concluded that the promise to put a logo of pink lettering on a white background was not essential and that the breach that occurred of the term did not enable Donut King to terminate the agreement. It followed that Donut King by wrongfully purporting to terminate the agreement repudiated it and was liable in damages for doing so. Donut King did not challenge the assessment of damages that followed. This conclusion means that it is unnecessary for the Court to pass upon the other grounds of appeal.

Conclusion 36 The appeal should be dismissed with costs. *****

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