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[2003] QCA 232
General information, not legal advice.
Court of Appeal (Qld)
2003-06-06
McPherson, JA, White and Wilson JJ, Separate reasons for judgment of each member of the Court
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Emaaas P/L v Mobil Oil Aust Ltd [2003] QCA 232
PARTIES: EMAAAS PTY LTD / ACN 010 766 104 / (plaintiff/appellant) / v / MOBIL OIL AUSTRALIA LIMITED / ACN 004 052 984 / (respondent/defendant)
FILE NO/S: Appeal No 9055 of 2002 / SC No 6016 of 1999
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 6 June 2003
DELIVERED AT: Brisbane
HEARING DATE: 26 May 2003
JUDGES: McPherson JA, White and Wilson JJ / Separate reasons for judgment of each member of the Court
ORDER: Appeal dismissed with costs
CATCHWORDS: CONTRACTS -- GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – whether definition of “economic disadvantage” is confined to loss of profit or includes loss of revenue – whether economic disadvantage must have already occurred before lease may be terminated / EVIDENCE – COURSE OF EVIDENCE AND ADDRESSES – COURSE OF EVIDENCE – RE-OPENING CASE AND RECALLING WITNESSES – BY PARTIES - leave refused to reopen case to tender further evidence – whether evidence was relevant and should have been admitted / Baker v Palm Bay Island Resort Pty Ltd (No 1) [1970] QWN 25, applied / Bank Line Ltd v Capel & Co [1919] AC 435, referred to / Court Line Ltd v Dant & Russell Inc [1939] 3 All ER 314, considered / Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462, applied / Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, considered / Fox v Perey [2002] HCA 22, distinguished / Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, referred to / Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768, considered / Re Padstow Total Loss Assurance Association (1882) 20 Ch D 137, applied
COUNSEL: H Fraser QC, with P Hackett, for the appellant / A Morris QC for the respondent
SOLICITORS: H Drakos & Co for the appellant / Porter Davies for the respondent
McPHERSON JA: In September 1996 the appellant Emaaas Pty Ltd leased to Mobil Oil Australia Ltd land at Manly West for a term of 15 years with two five year options to renew the lease, permitting its use for a service station and associated purposes. Clause 6(1)(b) of the lease conferred on Mobil an election by notice of not less than 90 days to terminate the lease “if … the streets giving access to … the demised premises are … significantly altered …”. In earlier proceedings on appeal, this Court declared that a termination under cl 6(1)(b) was valid only if Manly Road has been altered in the immediate vicinity of the site “in such a way as to cause significant economic disadvantage to the lessee”. The result is that cl 6(1)(b) is to be read as if those words were expressly incorporated in it.
The formula used in cl 6(1)(b) is plainly wide enough to cover not only economic disadvantages produced by the road alterations when completed, but also the obstruction or disruption of access involved in carrying them out, which are inevitable incidents of or concomitant of the alterations in access to the service station on the leased land.
At least two primary issues were involved in the question decided by the learned judge at first instance. The first is whether there was a significant alteration in the streets or roads giving access to the demised premises; the second whether the alteration was such as to cause significant economic disadvantage to the lessee Mobil. The first question was not really in dispute at the hearing; but, for an understanding of the appeal, it is necessary to say something about it. Before the alterations were effected, the leased land on which the service station is located bordered on a traffic roundabout at the centre of the convergence of four outbound roads coming from opposite points of the compass. Manly Road West entered from the west and exited on the opposite side of the roundabout as Whites Road. At approximately a right angle to it, Green Camp Road converged on the roundabout from the south and exited on the other side as Manly Road East. The effect of the alterations is to eliminate Whites Road altogether as an exit point from the roundabout, and to direct Manly Road West into Green Camp Road by means of a curve passing to the south or south east of the roundabout.
In the court below, his Honour, who had the advantage of two personal inspections of the site, considered that the changes to Manly Street West would reduce the forward field of vision of the service station of a motorist travelling outbound, thus diminishing the opportunity to observe the service station as it was approached. The learned judge considered this would reduce, although perhaps not markedly, “visitations” to the service station by outbound motorists, and that accessibility was also affected. It was, however, the impact on inbound motorists that would be most severe. As to this, his Honour found that:
“Pre-roadworks customers travelling inbound on Manly Road typically departed by the southern driveway, turned left to negotiate the roundabout, and drove towards the City. Since completion of the roadworks, these motorists need to exit from the northern driveway, retrace their steps to Amberjack Street, execute a U-turn in the often busy Manly Road, drive back to the Green Camp Road intersection and, when the traffic lights permit, turn right into Manly Road. This is a time-consuming, unattractive undertaking that distinctly prejudices patronage.”
After extensive analysis of the evidence including expert evidence adduced on both sides, his Honour concluded that the service station business on the leased land would be expected to sustain a patronage loss of about 20% as a result of the roadworks or road alternations; that it would take some 4½ years to return to pre-roadworks figures; and that in terms of reduced payments for fuels sold through the site, Mobil’s direct loss would be of the order of $60,000. In the result, his Honour found that there was both economic disadvantage to Mobil as lessee, and that it was “significant” within the meaning of cl 6(1)(b) of the lease as interpreted by the Court of Appeal.
The grounds of appeal are as follows:
1.The learned trial judge erred in concluding that the respondent had sustained substantial economic disadvantage because of the alterations to Manly Road in the immediate vicinity of the site and that the disadvantage was significant.
2.The learned trial judge erred in concluding that the second notice determined the lease.
3.The learned trial judge erred in failing to find that the alterations made to Manly Road in the immediate vicinity of the site were not such as to cause significant economic disadvantage to the respondent as lessee as at 22 November 1999 to justify the giving of the second notice to determine the lease.
I have set these grounds out in full because they must be contrasted with the appellant’s written outlines of arguments in this Court. Superficially, they are 14 pages in length (which exceeds the permitted limit under the Practice Direction); but they are also accompanied by a further 12 pages of annexures in which detailed challenges are mounted to his Honour’s findings concerning both facts and credibility, and in which reasons are projected for adopting parts of the evidence of other witnesses as well as “reworked” schedules of figures of sales, losses and the like for various periods.
None of these matters is the subject of any of the three grounds of appeal. On the contrary, they fall well outside it. In short, what is sought to be done in the written outlines is to extend the grounds of appeal out of time by the expedient of incorporating detailed and distinct additional complaints in the written outlines that are not covered by the notice of appeal, and to do so without seeking leave to amend that notice. If amendment had been sought, it might well have been proper to refuse it not only on the basis that it would greatly extend the time fixed for hearing this appeal; but also because the trial judge made and carefully explained his reasons for preferring one set of witnesses over another, and the process of choosing between competing experts in matters like this is, in the ordinary way, properly regarded as a matter of judgment rather than detailed explanation. See Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 381; Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462, 484. This case is not, like Fox v Perey [2002] HCA 22, one in which the trial judge inexplicably ignored uncontradicted evidence of obvious significance. What Emaaas would be looking for on this appeal would involve nothing less than a complete retrial of all the issues, which is another remedy that has not been sought by it as appellant.
As it happened, however, on the hearing of the appeal these additional matters were not pursued by Mr H Fraser QC, who now appears for the appellant. In summary, his submissions on appeal can be reduced to the following matters. First, it was said that significant economic disadvantage to the lessee was something that should be judged by making a comparison between the profitability to Mobil of the site before and after the roadwork had altered the streets giving access to the service station site. There being no evidence about profits or any diminution in them following the road alterations (the second stage of which was completed in early October 1999), Mobil had it was said failed to establish any significant economic disadvantage in terms of cl 6(1)(b) of the lease as interpreted by the Court of Appeal.
In my respectful opinion this approach to the application of cl 6(1)(b) is not sustainable. The phrase “economic disadvantage” is not confined to loss of profit. To construe it in that restrictive way would mean that, if Mobil was in fact making no profit from the site at the time road access was altered, it would not be entitled to claim the benefit of cl 6(1)(b). That cannot have been the intention of the parties to the lease in incorporating that provision. If it had been, it would have been easy enough to say so. Of course, it was the Court of Appeal declaration that interpreted cl 6(1)(b) in that way in order to give effect to the intention of the parties; and that being so, those words are imputed to the parties themselves as if they had in fact used them. In any event, economic disadvantage is an expression broad enough to include loss of sales resulting to Mobil from the cause in question, whether or not it operated to reduce a trading profit, or to transform it into a loss, or to increase trading losses that were already being incurred by Mobil at the site. In (1882) 20 Ch D 137, acquisition of gain was held to include the avoidance of loss, and on any view of it, losses are economically disadvantageous.
[22] I would dismiss the appeal with costs.
[23] WHITE J: I have read the reasons for judgment of McPherson JA and agree with his Honour that this appeal should be dismissed for the reasons which he gives. I mention my agreement particularly with respect to two aspects of the appeal – the complaint that in the absence of detailed “profit and loss” evidence, the learned trial judge ought not to have been satisfied that Mobil had discharged its onus of proof; and the refusal of the learned trial judge to allow Emaaas to reopen its case to adduce further evidence.
[24] The apparent substitution by Emaaas of the notion of “reduced profitability of trading” for “economic disadvantage” as an aspect of the entitlement to terminate the lease disregards the terms of the lease as declared by the Court of Appeal in EmaaasPtyLtd v Mobil Oil Australia Ltd [2000] QCA 513. Thus the complaint that Mobil failed to put in evidence of the details of its financial arrangements with Mr Leamon, the sub-lessee of the service station, might have been apt were Mobil seeking damages for breach of contract or on some other basis, Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768, per Hayne J at 774. But profitability of trading was not a necessary aspect of proving that the road was altered “in such a way as to cause significant economic disadvantage to [Mobil]”. As McPherson JA has noted, the expression is broader in its reach than loss of profit arising from the alteration.
[25] Emaaas was aggrieved that it was not permitted by the learned trial judge to reopen its case to advance evidence that after Mobil had vacated the premises it entered into possession and was able to sell a considerably greater volume of fuel than Mobil’s witnesses had said that they anticipated would be sold in the future.
[26] The evidence at the trial was heard on 20 and 21 September 1999 and resumed on 22 until 26 November 1999. On 22 November Mobil gave its second notice of termination of the lease (there had been an earlier one on 15 May 1999). His Honour, as requested by the parties, determined the construction of the lease as a preliminary issue and, on the construction adopted by his Honour it was unnecessary to hear submissions or make findings on the effect on the business of the alteration of the road. His Honour held that the notice of termination of 22 November was validly given in accordance with his construction of cl 6(1)(b) of the lease. Emaaas appealed his Honour’s ruling and the Court of Appeal, on 15 December 2000 made the declaration about the proper construction of cl 6(1)(b) as set out in McPherson JA’s reasons.
[27] Emaaas commenced operations at the service station on 23 February 2000, two days after Mobil vacated the premises. In December 2000 before the Court of Appeal handed down its decision Emaaas sought leave to give evidence about the volume of fuel sales which was refused by the learned trial judge. It can be accepted that a court should receive whatever evidence will assist it to resolve the dispute between the parties provided that there is no unacceptable prejudice to the other side or other appropriate reason for not doing so. Here, however, the point is not that the evidence was late, but that it was not relevant to the matter in issue which his Honour needed to decide. What was material was whether there was evidence to justify Mobil terminating the lease in accordance with cl 6(1)(b) at the time when it did, namely 22 November 1999. As McPherson JA has noted, it can hardly have been within the contemplation of the parties when agreeing to cl 6(1)(b) that Mobil would have to wait until it had experienced significant economic disadvantage before it could terminate. There would be no value to a lessee in a clause of that nature.
[28] I agree with the orders proposed by his Honour.
[29] WILSON J: I agree with the reasons for judgment of McPherson JA and with the orders he proposes.
Emaaas P/L
Mobil Oil Aust Ltd [2003] QCA 232
(2003) 77 ALJR 768
To establish economic disadvantage in terms of cl 6(1)(b), Mobil relied on evidence of a fall in the volume of sales of motor fuels at the site consequent upon the roadwork alterations being undertaken. On appeal, Emaaas challenged this approach to that issue on various bases. One was that it failed to take account of savings to Mobil that would be effected in costs of production and transportation by selling less fuel at the site. Carried to its logical conclusion, this would mean that Mobil would effect the greatest saving of costs, and so avoid economic disadvantage altogether, by refraining from selling any fuel at the site. Mobil, however, is in the business of refining fuels in order to sell them, and it is a compelling inference that it does so not out of motives of charity towards motorists, but with a view to profit. If it were otherwise, it would long since have become insolvent and gone out of business. In practice as well as theory, the more of its products that are sold, the greater the profit that is earned; and, although in the context of a world‑wide business, the contribution made by the subject site may be small, it is one of many places at which, it may be readily inferred, it aims to sell more rather than less or none of its products. Reduction in the quantities sold at the subject site can only have had an adverse or disadvantageous economic effect on Mobil as lessee within the meaning of cl 6(1)(b) of the lease notwithstanding that some savings in transportation and other costs might have been effected if smaller quantities of fuel were being sold there.
The same may be said of another proposition advanced by the appellant, which is that Mobil might in fact have succeeded in selling elsewhere the unused quantity of the products it would otherwise have sold at the site. There is, however, no suggestion that at any relevant time only limited supplies of Mobil fuels were available for sale in Queensland; and, in any event, the provisions of cl 6(1)(b) are clearly focussed on the site in question. The criterion it prescribes is economic disadvantage to the lessee Mobil if the roads giving access to the demised premises are altered in the immediate vicinity of the site. What impact there might be on the economic or trading position of Mobil elsewhere, whether in Brisbane, or Queensland, or Australia, or in other parts of the world is plainly not what the parties had in mind when they included cl 6(1)(b) in the lease. The question is, it may be repeated, whether there was such alteration in the access roads in the immediate vicinity of the site as to cause economic disadvantage to Mobil as lessee of that site.
It therefore follows that the judge was correct in adopting a before-and-after volumes sales approach to the question of economic disadvantage. On appeal, Mr Fraser QC sought to refine the appellant’s submission by saying that the court was entitled to be provided with the best evidence of economic disadvantage and that this comprised evidence of the impact, if any, on the profitability of trading at the site. The inspiration for this revised form of the submission is derived at least in part from the recently reported reasons for judgment in Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768, 774. There Hayne J said that a plaintiff claiming damages for breach of contract had to prove its loss “with as much precision as the subject matter reasonably permitted”, distinguishing between a case where the plaintiff is unable to adduce precise evidence of a loss, and one where, although apparently able to do so, the plaintiff fails to adduce such evidence. There is, however, nothing in cl 6(1)(b) of the lease to suggest that Mobil was or ought to be required to prove a loss of profit, or to do so with precision. Mobil was and is not claiming damages, but exercising an option to terminate the lease conferred by cl 6(1)(b), which does not require it to prove its loss as a condition precedent to doing so. The formula “significant economic disadvantage” appears to have been adopted with the deliberate intention of prescribing a broad, rather than a narrow or precise, criterion to be fulfilled for exercising the option to discharge the lease. The purpose of the Court of Appeal in adopting that test evidently was to exclude any suggestion that an alteration in road access that was economically advantageous to Mobil triggered the right to give notice under cl 6(1)(b).
From this I turn to a further but related submission by Emaaas on the appeal. It is that, in reaching the conclusion that Mobil was entitled to the benefit of cl 6(1)(b), the learned judge illegitimately took account of another element of economic disadvantage that would flow to Mobil from the road alterations. At all relevant times Mobil was not conducting the service station itself, but had licensed a Mr Leamon to operate it. They share a margin, which was about 6 cents per litre, on fuels sold. The licence or lease, if that is what it was, was not put in evidence at the hearing; but in his oral evidence at the trial Mr Leamon said it was for a yearly period, in return for an annual fee payable at monthly intervals of $150,000, which at the time he gave evidence had recently been renewed. In the course of cross-examination of Mr Leamon, it emerged that Mobil “supported” him at times when service station revenue was not sufficient to sustain payment of a fee of that amount. It did so by “discounting” or reducing the fee he had to pay as licensee when sales of fuel fell below a certain level. He had been operating with Mobil for 24 years and was confident that Mobil would discount the fee to a figure below $150,000 if, as he predicted, monthly sales of fuel fell below 300,000 litres.
Once again, the precise extent of the reduction in money terms or otherwise was not established in evidence; but his Honour took it into account as representing an additional form of economic disadvantage that was likely to be sustained by Mobil as a result of the road alterations. It was submitted that the learned judge had treated it as a decisive factor; but that conclusion is not borne out by a fair reading of his Honour’s reasons. Rather it was, as I have said, the case that the prospect of discounting the rent or fee of $150,000 was simply another factor tending to confirm that economic disadvantage would be sustained by Mobil in consequence of the road alterations. In that context, it is convenient to mention here that at the service station site there was also a motor repair facility, which was let by Mr Leamon to a mechanic who traded on his own behalf, while Mr Leamon himself conducted a convenience store on the site. Reduction in “visitations” by motorists to purchase fuel, as well as by others intending only to patronise the convenience store was, for reasons already given, an inevitable outcome of the road alterations in the vicinity of the leased premises, even if, once again, the precise extent of the economic impact on Mobil was not quantified at the trial. No doubt, however, the matter was one that would be likely to influence Mobil in arriving at the discount which Mr Leamon was confident would be allowed to him if the volume of sales fell below the 300,000 litre mark.
The final submission to be considered is that, in finding that there was economic disadvantage to Mobil, the learned judge took into account the impact of the road alterations after as well as before notice of termination under cl 6(1)(b) of the lease had been given by Mobil. Emaaas submitted that this was incorrect and that the disadvantage to be considered was confined to that which had accrued at the date when the second notice was given on 22 November 1999. His Honour’s findings that the impact of the road alterations would last for a period of some 4½ years and would cost Mobil some $60,000 in lost revenue was, it was submitted, therefore erroneous or irrelevant to the decision whether or not there was significant economic disadvantage in terms of cl 6(1)(b).
The question is, again, one that falls to be determined on the proper interpretation of cl 6(1)(b). That provision is available to Mobil as a means to terminate the lease if the streets giving access to the demised premise are significantly altered “in such a way as to cause significant economic disadvantage to the lessee”. The part of the formula that is quoted (which was incorporated by the Court of Appeal decision) is, as Mr Morris QC for Mobil pointed out, not expressed in the form “to have caused” economic disadvantage, which is what one would expect if it had been intended to restrict it to disadvantage already accrued at the date of the notice. The language is to my mind proleptic, or at least readily capable of being so regarded. To view it in any other way would deprive the clause of most of its utility to the lessee. It would oblige Mobil to wait until significant economic disadvantage had in fact been sustained before advantage could be taken of the power to terminate. As such, it would largely defeat the purpose of the provision, which is evidently designed to enable Mobil to avoid continuing loss by discharging the lease once it became foreseeable that road alterations were likely to produce significant economic disadvantage in future. Any other interpretation would defer the exercise of the power and compel Mobil to incur losses and continue rental payments for lengthy periods while waiting to confirm that the power was validly exercisable.
This leads on to the only other point of substance advanced on behalf of Emaaas on the hearing of the appeal, although it too did not find a place in the notice of appeal. After the evidence at trial had been taken, Emaaas sought, but was refused, leave to reopen its case to tender further evidence at the trial. The evidence sought to be tendered consisted of an affidavit from Mr Stavrianos, a director of Emaaas, recording that Mobil had vacated the service station on 21 February 2000 and that Emaaas had entered and commenced to conduct the service station itself on and from 23 February 2000. Neither of those matters is contested. What is in dispute is the volume level of sales that was achieved after the appellant re‑entered and itself began trading. The sales volumes in ex B to the affidavit are considerably higher than those predicted by witnesses called by Mobil at the hearing, and are in marked contrast to those achieved by Mr Leamon in the period before Mobil’s second notice was given on 22 November 1999.
The result, if effect were to be given to Mr Stavrianos’s figures at their face value, would tend to undermine the reliability of the predictions on which his Honour acted in arriving at his judgment. Mobil’s response is contained in an affidavit from Mr O'Keefe, Retail Manager (Fuels Marketing) in Queensland of the respondent Mobil, to the effect that Emaaas had been selling fuel at significantly discounted prices ever since it re-entered the site on 23 February 2000. That would have been a matter for cross‑examination and further evidence if Emaaas had been permitted to reopen its case to tender either the affidavit of Mr Stavrianos or oral evidence to the effect of that contained in it. Essentially, what Emaaas was seeking was an order that would permit it belatedly to present an entirely new case at the trial.
The question whether a party should be permitted to re-open its case to adduce further evidence is essentially one for the discretion of the trial judge (Baker v Palm Bay Island Resort Pty Ltd (No 1) [1970] QWN 25), and is therefore not a matter on which his or her decision will lightly be overturned on appeal. The authorities and the considerations relevant to the exercise of that discretion are reviewed in Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12. Here there was some apparent justification for not having adduced the evidence earlier, which is to be found in the fact that it came into existence only after Emaaas had re‑entered and commenced trading when Mobil vacated the premises in February 2000. The application to re-open was made on 8 December 2000, which was during the pendency of the appeal to this Court in which the declaration was made, and only a few days before the decision on that appeal was delivered on 15 December 2000. Unless there was some good reason for excluding it, this might be considered a ground on which the evidence of Mr Stavrianos might have been admitted. If the evidence was relevant at all, it is true to say it was not available to Emaaas until after Mobil vacated the premises on 21 February 2000, which was some time after the trial had taken place.
I have, however, come to the conclusion that the evidence in question was and is not relevant. The issue whether Mobil was justified in terminating the lease by giving notice as it did on 22 November 1999 fell to be determined in the light of conditions prevailing at that date and not of events that took place thereafter. In Court Line v Dant & Russell Inc [1939] 3 All ER 314, a ship on a time charter for nine months was directed to carry part of a cargo to Wu-hu some 750 miles up the Yangtse River in China. While discharging at Wu-hu, Chinese military forces placed a boom across the river preventing the vessel from sailing downriver to Shanghai to offload the balance of her cargo. That had the consequence, as the probabilities appeared at that time, that the ship would be detained in the Yangtse River for an indefinite period. Branson J held that the result in law was to frustrate the time charter notwithstanding that, as events turned out, Japanese forces quite unexpectedly arrived and broke a passage through the boom only a few days later. His Lordship held that the significance of the frustrating event must be considered from the standpoint of the foreseeability of the parties at the time it took place and not in the light of later events that were not then foreseeable by them. In arriving at that conclusion, Branson J applied Bank Line Ltd v Capel & Co [1919] AC 435, 454, where Lord Summer said that the question had to be considered at the trial “as it had to be considered by the parties, when they came to know of the cause and the probabilities of the delay and had to decide what to do”. It was “not the certainty arrived at after the event” that mattered.
The analogy between the present case and those referred to is admittedly not complete. There the contracts were discharged by frustration, although at that time the doctrine was regarded as resting on an implied term in the contract. Here the discharge rests on the express power under cl 6(1)(b) of Mobil to terminate the lease in an event that has happened; namely, if streets giving access to the demised premises are significantly altered in such a way as to cause significant economic disadvantage to the lessee. In my opinion, however, a conclusion whether or not that state of affairs had arisen must be arrived at on the material available at the time when Mobil gave the notice under cl 6(1)(b) on which it relied in this case, and not on events or circumstances arising at times up to twelve months after the notice had been given in November 1999. This conclusion is consistent with the view I have already taken that the operation of cl 6(1)(b) and the power to give a notice under it is to be judged at the time when the notice under that provision is given, and not by means of hindsight at some indeterminate later date when the economic disadvantage has accrued. It is also consistent with the view of the learned trial judge, which was that the parties had conducted the trial on the footing that the impact of the road alterations was to be determined on the basis of predictions about its effect. The trial had concluded in November 1999, and it was no doubt only the pendency of the appeal that prevented judgment from being given before the application to reopen the evidence was made on 8 December 2000. In my view the learned judge correctly exercised his discretion when he refused leave to re-open the appellant’s case at the trial.