160 When the final hearing commenced in December 2001, there were many issues between the parties with respect to the payment of royalties. HBL sought declarations that Global was not entitled to re-enter the land or terminate the old lease or the new lease agreement on grounds of any alleged failure by it to pay royalties to Global under the leases. HBL also contended that it had overpaid royalties by a substantial amount. On the other hand Global sought declarations that HBL had breached the lease from 1 December 1996 to date, both by failing to keep proper records in certain respects, and by failing to pay $1 million for royalties payable under the lease. Global also contended that it was an implied term of the lease that HBL was liable to Global for any Minerals removed from the land but not accurately weighed at the weighbridge. It sought declarations that HBL unlawfully removed Minerals from the land without its consent and that this conduct constituted a repudiation of the lease. A focus of attention in the latter respect was the clay sold by HBL to Wingecarribee Shire Council in 2000 and 2001.
161 Allegations about the "clay" issue and other claimed discrepancies in weighbridge dockets led eventually to my appointment of a court expert under Part 39 of the Supreme Court Rules. The expert, Dr Ferrier, reported in December 2002. His task was to provide his opinion on a list of matters with respect to the period from 10 November 1995 to 30 April 2002, relating to tonnage of material extracted and passing over the weighbridge and the average sale prices of that material, the amounts charged by HBL, and royalty payments by HBL. Dr Ferrier reported on these matters to the extent that he was able to do so, and on stated assumptions, he expressed his opinion as to the annual underpayment or overpayment of royalties for that period.
162 He found that the overall underpayment or overpayment depended upon the resolution of four matters, which he understood to be in dispute between the parties, which he expressed as follows:
(a) whether royalties were payable in respect of sand that had been imported from the Joannou Quarry and resold from the Penrose Quarry;
(b) whether royalties were payable on the sale of clay or fill;
(c) whether further royalties became payable after 250,000 tonnes or 350,000 tonnes for the 34-month period 12 January 1998 to 13 November 2000 (the "holiday tonnes" issue); and
(d) whether further royalties were payable at the rate of 11% or 12.5% from 20 September 1999.
163 Noting that there were 16 possible combinations of these four variables, he prepared a "royalty model" summarising his opinion of the overpayment or underpayment for each possible combination of the four variables. Scenario 1 assumed that no royalty was payable in respect of sand imported from the Joannou Quarry or in respect of clay, that "holiday tonnes" should be allowed to HBL, and that the royalty rate from 20 September 1999 should be reduced to 11%. On those assumptions, there was in Dr Ferrier's opinion an overpayment of $295,778.73 by HBL during the period from 10 November 1995 to 30 April 2002. Dr Ferrier then worked through the remaining 15 scenarios, finishing with scenario 16, in which royalties were payable on the Joannou sand and clay, no holiday tonnage was allowed, and there was no reduction in the 12.5% royalty rate. That produced a net underpayment for the period of $121,472.61. I should note that the first 10 scenarios produced overpayments of royalties for the period, though each subsequent scenario produced a figure less than scenario 1, and the last six scenarios produced underpayments, the highest being in scenario 16.
164 Dr Ferrier's royalty model was prepared on the assumption, reflecting the questions put to him by the Court as settled between the parties to the proceeding, that amounts owing by or to the lessor could be netted off over the whole of the period from November 1995 to April 2002, notwithstanding the change in the identity of the registered proprietor on 2 May 2000.
165 As to whether material extracted from the Penrose Quarry might not have passed over the weighbridge, Dr Ferrier reported that it was apparent during his review of the internal controls in place at the Penrose Quarry that it would be quite possible for material to be taken without going over the weighbridge. However, he said, during the course of his review he did not become aware of any information that would confirm that any material was sold or given away by HBL that did not pass over the weighbridge.
166 When the final component of the hearing began, in light of Dr Ferrier's report, counsel for HBL handed me some full and detailed written submissions, prepared on the assumption that all issues between the parties about the payment of royalties were still in play. However, in his final submissions, on the last hearing day, counsel for Global abandoned many of the contentions that had been made by his client at earlier stages of the hearing. On the question of HBL's alleged failure to pay royalties, Global abandoned its contention about the Joannou sand, but maintained its position with respect to the "clay" issue, the "holiday tonnes" issue and the question whether the royalty payment rate had been reduced to 11% as from 20 September 1999. It added the contention that HBL was not entitled to net off the positions of Global and AMES as if they were one entity.
167 In summary, the only remaining royalty issues are:
(a) Was there an arrangement, binding on Global, that royalties would not be payable on the clay sold to Wingecarribee Shire Council?
(b) Was there an arrangement, binding on Global, that the Standard Quantity of Minerals, after which Further Royalties would be payable, was increased from 250,000 tonnes to 350,000 tonnes in the period of 34 months from 13 January 1998 to 13 November 2000?
(c) Did the agreement to alter the Further Royalty rate, payable under clause 3.04(b), from 12.5% to 11% take effect on 20 September 1999 or only in the renewed lease from 10 November 2000?
(d) Was HBL entitled to deduct from payments due to Global the amount of overpayments to AMES?
Royalties on "clay"
168 Global contended that the material removed from the quarry and sold to Wingecarribee Shire Council, often referred to in evidence as "clay", was a Mineral for the purposes of the definition in clause 1.06 of the lease. Wayne Stafford gave evidence on behalf of Global that the material was in fact decomposed basalt (basalt being expressly mentioned in the definition). Mr Rankin gave evidence on behalf of HBL that royalties were not paid on the material because it was not a "Mineral" under the lease. Then in final submissions HBL accepted that the clay was a Mineral for the purpose of the lease. In the last analysis, the issue whether the "clay" was a Mineral as defined does not matter, because I am satisfied on the balance of probabilities that there was an agreement between AMES and Global, respectively, and HBL, under which HBL was at liberty to sell this material to the Council without paying royalties under the lease.
169 HBL relied on the evidence of Brenda Egan, Keith Dunbier and Narlissa Briggs, as well as documentary evidence.
170 Ms Egan was the group credit manager of HBL. She gave evidence that early in 2000, she received a telephone call from Wayne Stafford in which he made a number of complaints about rates, something that was not uncommon for him to do. She went to Mr Breeze, then the managing director of HBL, and they both spoke to Mr Stafford on a conference call (although she said in cross-examination that she was not in the room for the whole conversation). During the conversation, Mr Stafford said:
"We've got a new job with the Council to cap one of its tips. This is great because we can get rid of the clay to get to the basalt and I'll get commission on it."
171 Ms Egan said that the question of royalties on the clay was raised, and although she could not recall whether it was Mr Breeze or Mr Stafford who spoke, she recalled that the words spoken were to the effect, "royalty will not be paid on this job." She recalled that there was no disagreement with this statement.
172 Mr Dunbier was manager of the Penrose Quarry for HBL until August 2000. He dealt extensively with Wayne Stafford, whom he regarded as having the day-to-day control of the quarry. He gave evidence that in about March 2000 he put forward a spreadsheet proposal for the extraction of the clay and its supply to the Council, with the assistance of Mr Stafford. The proposal involved purchase of an excavator and payment of a royalty of $1 to the lessor. Mr Breeze rejected the proposal, and then subsequently the extraction of the clay went ahead, using one of the quarry's existing machines. Mr Dunbier expressed the opinion that Wayne Stafford was aware at all times that the clay was being excavated and sold to the Council.
173 He said that on the morning of 22 April 2002, he received a telephone call from Mr Stafford, and they had a conversation to the following effect:
Mr Stafford: "Do you remember that material we sold to the Council in 2000?"
Mr Dunbier: "Yeah, didn't you agree to waive your rights to royalty on that?"
Mr Stafford: "I agreed to no such thing."
174 Ms Briggs was employed by HBL as a trainee manager at the Penrose Quarry from 2000 to March 2001. Early in 2000 Wayne Stafford trained her in management matters. She was involved in the delivery of clay to the Council, and she identified various documents created in connection with that work. The documents included a purchase order from the Council dated 2 March 2000 for the supply and delivery of "clay"; a job master form which she created on 13 September 2000 for internal processing by HBL; a report she prepared for Mr Stafford analysing the Penrose Quarry product sold in the calendar year 2000, including an entry for "clay"; a weekly production report for Mr Stafford which summarised tonnes sold and hours worked; and a daily tonnage summary, prepared on a weekly basis for Mr Breeze, copied to Mr Stafford, identifying tonnage of clay. Some of these reports were prepared and given to Mr Stafford after 2 May 2000, when Global became registered proprietor of the quarry.
175 Wayne Stafford gave evidence denying that there was any arrangement under which royalties would not be paid on material sold to the Council. He said he thought royalties were being paid on that material, which he said was always referred to as "decomposed basalt".
176 In my opinion the evidence of HBL's witnesses is to be preferred to the evidence given by Wayne Stafford, to the extent of the inconsistencies. His evidence that the material was always referred to as "decomposed basalt" was specifically contradicted by Ms Briggs, who took instructions directly from him, and was inconsistent with the documents identified by Ms Briggs, including reports provided to Mr Stafford. Eventually Mr Stafford accepted under cross-examination that the material was referred to as "clay" in HBL's records as well as in documents prepared by Mr Stafford himself.
177 Mr Stafford's evidence that he thought royalties were being paid on clay was contradicted by other evidence. First, it was contradicted by Ms Egan's evidence of the telephone conference of Mr Breeze, Wayne Stafford and herself early in 2000. Global attacked Ms Egan's evidence because it was evidence of only part of a conversation. In my opinion Ms Egan gave clear and truthful evidence, to which she adhered consistently in cross-examination. The fact that she was not able to recall the whole of the conversation did not, in my view, undermine the evidence she gave about the parts she remembered. Her evidence was to the effect that during the telephone conference, it came to be understood between Mr Breeze (who is no longer the managing director of HBL)and Mr Stafford that there would be no royalty paid on the material supplied to the Council. I do not regard the absence of evidence directly from Mr Breeze as an impediment to my finding that the conversation took place as deposed to by Ms Egan, given the strength of her evidence.
178 Secondly, Mr Stafford's evidence was contradicted by Mr Dunbier's evidence of his telephone conversation with Mr Stafford on the morning of 22 April 2002, from which it appears that, at least by 22 April 2002, Mr Stafford was aware of HBL's position with respect to the clay. Mr Stafford denied Mr Dunbier's version of that conversation, but I prefer Mr Dunbier's evidence because of the weaknesses in Mr Stafford's evidence.
179 Thirdly, it was contradicted by Mr Dunbier's evidence that he prepared the spreadsheet proposal early in 2000 with assistance from Mr Stafford, to the extent that Mr Dunbier's evidence suggests that Mr Stafford was involved in the process of negotiation with the Council.
180 Fourthly, it was contradicted by an e-mail dated 21 November 2000 from Mr Rankin to Mr Stafford. In that e-mail, Mr Rankin provided Mr Stafford with tonnage figures to challenge Mr Stafford's claim to payment of additional royalties. The figures provided by Mr Rankin included figures for clay. Mr Stafford conceded in cross-examination that the difference between his calculation and the figures in the e-mail could be explained by the absence of royalties on materials supplied to the Council.
181 My conclusion is that an agreement was reached between Mr Breeze on behalf of HBL and Mr Stafford early in 2000, according to which royalties would not be charged on the material supplied to the Council. Mr Stafford was at that time in a position to bind AMES, still the registered proprietor of the quarry, because he was a director and was actively involved in the management of AMES. In my opinion the agreement made in early 2000 was intended to be, and was, binding upon AMES.
182 Mr Stafford also had day-to-day management of the business of Global, and was in a position to bind it to the agreement. Global was at that time the unregistered transferee of the land. In my opinion, when Mr Stafford agreed with Mr Breeze on the telephone that royalties would not be charged on materials supplied to the Council, he did so on behalf of both the registered proprietor and transferor of the land, and on behalf of the unregistered transferee. Any doubt about whether Global was bound by the arrangement is removed by consideration of the documentary evidence, from which it was clear that Mr Stafford, in his position of manager of the business of Global, received reports after 2 May 2000 which made it clear that HBL was continuing to extract and supply clay to the Council. Having made the arrangement with Mr Breeze early in the year 2000, Mr Stafford must have realised that if clay was still being supplied to the Council, the extraction was occurring on the same basis.
183 My conclusion is that neither AMES nor Global is entitled to royalties in respect of the clay extracted from the quarry and sold to the Council.
Increase in the Standard Quantity to 350,000 tonnes ("holiday tonnes")
184 The lease provided that HBL was to pay royalties comprising the Minimum Royalty and the Further Royalty. The Minimum Royalty was payable in respect of amounts of Minerals up to the Standard Quantity. The lease defined the Standard Quantity as 250,000 tonnes.
185 On 29 May 1998 AMES wrote to HBL, expressing its willingness "to help HBL with a goodwill gesture to help finance the Penrose upgrade". The letter set out an agreement under which HBL would go ahead with the proposed upgrade, and:
"Provide [sic] that HBL continues to pay all Royalties due and payable in accordance with clause 3.1 of the lease of 13th November 1995, then AMES will for a period of 34 months, or up to 13 November 2000, not require HBL to pay excess royalties to the amount of 350,000 tonnes. Any tonnes above 350,000 tonnes will be treated as excess royalty and be paid in accordance with the lease."
186 The letter set out some conditions, which are no longer relevant. It was signed by Wayne and Garry Stafford as directors of AMES, and countersigned by Max Dunbier and Terry Fordham as directors of HBL.
187 On 8 July 1998 Mr Breeze on behalf of HBL wrote to Mr Kekatos confirming that the "renegotiated royalty arrangement dated 29 May 1998" had been tabled at an HBL board meeting, the minutes of which recorded the changes in the royalty arrangement between 250,000 and 350,000 tonnes. On 18 July 1998 Mr Kekatos wrote to Mr Breeze confirming that the agreement set out in the letters of 29 May and 8 July 1998 was not conditional as stated in the letter of 29 May, and consequently "the agreement may be treated in all respects as a variation of the terms of the royalty agreement being registered number 0691505 and therefore in all respects the royalty agreement as now varied represents the basis of your companies [sic] use and occupation of the Penrose Quarry". On 31 August 1998 Mr Breeze wrote to AMES on behalf of HBL stating that the details set out in the letter of 18 July were acceptable to HBL. There was no registered variation of the old lease.
188 Global submitted that these arrangements constituted an agreement between HBL and AMES, which was operative for the period of 34 months from 13 January 1998 to 13 November 2000; but on 2 May 2000 Global became the registered proprietor of the land and was not subject to the contractual variation contained in the letter. According to Global's submission, it was entitled to disregard the holiday tonnes arrangement and seek payment of the Further Royalty for Minerals extracted in excess of 250,000 tonnes.
189 In my opinion Global's submission fails for two reasons, earlier discussed: namely, the contractual obligation by AMES not to seek payment of the Further Royalty up to 350,000 tonnes is enforceable by HBL against Global under s 118; and there is an estoppel by convention operating against Global to prevent it from relying on the terms of the original lease that were varied by the agreement.
Commencing date for increased Further Royalty rate
190 The first mention in correspondence of the agreement to alter the percentage royalty rate from 12.5% to 11% was in HBL's letter to AMES dated 20 September 1999. That letter confirmed the details of an agreement in two parts. The first part was the agreement to waive clause 8.01 to permit early notice of exercise of the first option. The second part was the agreement to alter the percentage royalty rate.
191 Global submitted that the terms of HBL's letter suggested an intention that the amended rate would take effect in the renewed lease. I disagree. Although HBL's letter does not stipulate that the alteration of the percentage royalty rate was to commence immediately, that is a natural construction of the letter, given that the other part of the agreement commenced on that day. There is nothing commercially irrational in such an arrangement. HBL was agreeing to give early notice of exercise of the option at the specific request of AMES and to suit AMES' circumstances, and in such a case it would not be surprising that the party agreeing to the concession would expect to receive an immediate benefit in return.
192 In my opinion, the matter is put beyond doubt by the terms of the letter of confirmation written by Mr Kekatos on behalf of AMES to Mr Breeze of HBL on the same day, 20 September 1999. The letter confirmed that AMES agreed to the amendment of clause 3.04(b) by replacement of 12.5% with 11% "effective from this date forth". The quoted words are crystal clear. They have the effect that at the next Review Date (apparently 10 November 1999), when the percentage rate was to be employed, the rate to be used was 11% rather than 12.5%. Once again there was no registered variation of the old lease.
193 In its submissions Global drew attention to some additional words of the AMES letter, namely the words "provided that your company continues to observe all the terms and conditions of the lease from the date hereof including the continuing obligation to pay the royalty reserved in accordance with the lease". Global submitted that this proviso could not apply to a single act (namely the amendment of the current lease) that was to take effect immediately. Again, I disagree. The proviso, if effective, may have allowed AMES to insist upon the greater percentage rate as a kind of penalty rate in the event of non-compliance by HBL with the terms of the lease, but there is nothing in the proviso that would render it inconsistent with the new percentage royalty rate becoming operative forthwith.
194 Global also reiterated, in this context, its submissions that the higher rate of 12.5% should apply as from registration of the transfer in its favour on 2 May 2000, because on that date it took the land subject to the registered lease but not subject to any contractual variation of it. Once again, I disagree with that submission on the grounds relating to s 118 and estoppel by convention.
Overpayments to AMES
195 Global submitted that it was entitled, after it became registered proprietor on 2 May 2000, to royalties on all Minerals in respect of which payments accrued after that date, without any deduction or set-off of royalties (if any) overpaid by HBL to AMES. It drew attention to clause 4.01.1 of the lease, according to which HBL covenanted to "pay the Royalties on the days and in the manner aforesaid clear of all deductions except such as by the law the Lessee is compelled to make notwithstanding agreement to the contrary."
196 Global submitted that the words "clear of all deductions" operate to prevent HBL from deducting or setting off any overpayments to AMES. It referred to Batiste v Lenin [2002] NSWSC 233, where Bryson J construed the words "without deductions" literally, and submitted that the words "clear of all deductions" should be construed in the same fashion. An appeal from Bryson J's judgment was unanimously dismissed by the Court of Appeal: [2002] NSWCA 316.
197 In developing this submission, Global made the following points:
(i) overpayments are not rent, since "rent is a sum issuing out of the land demised payable by the lessee to the lessor for the right to occupy that land and all that went with it and use it for the purpose for which it was demised" ( Junghenn v Wood (1958) 58 SR(NSW) 327, at 330);
(ii) at common law overpayments of rent cannot be set off against arrears of rent ( Fuller v Happy Shopper Markets Ltd [2001] 1 WLR 1681, at 1689 and 1691);
(iii) overpaid rent does not run with the lease but is a personal claim by a tenant against the former landlord ( Ory & Ory v Betamore (1993) 60 SASR 393, at 405-406).
198 As I understood his submissions, counsel for HBL conceded this point. He said:
"In relation to the question of principle, we accept that in order to recover over-payments of rent from Global, we have to identify over-payments made to Global because we are not suing upon any covenant. It is, in effect, a restitutionary claim."
199 As he was instructed to do, Dr Ferrier made calculations for the whole period from 10 November 1995 to 30 April 2002 as if the lessor were a single entity. In light of HBL's concession, it will be necessary to separate the calculations for scenario 1 so as to identify that part of the total figure representing overpayments to Global.
Is Global entitled to re-enter the land and determine HBL's interest in the agreement, and to claim damages?
200 Global submitted that HBL is in occupation of the Penrose Quarry as a tenant at will under s 127 of the Conveyancing Act, on the terms of the expired lease, apart from the terms relating to duration of the lease and others unsuitable to an implied holding over tenancy (citing Redfern & Cassidy, Australian Tenancy Practice & Precedents, vol 1, [3065]). It submitted that a right of re-entry (for example, for non-payment of rent) is unsuited to a tenancy at will determinable on a month's notice, and a term giving such a right would not be implied into such a tenancy: Bigazzi v Brandigo Pty Ltd (1981) 2 BPR 9341. Accordingly, Global submitted, it is in a position to terminate the tenancy at will without needing to have recourse to a right of re-entry, simply by giving the one month's notice required under s 127. The question whether HBL is entitled to relief against forfeiture does not arise, according to Global's analysis.
201 I agree that if one were to consider only the strict position at law, disregarding the agreement for a new lease, HBL would be in occupation of Quarry as a tenant at will, determinable under s 127 of the Conveyancing Act on one month's notice. My view, however, is that Global is under an equitable obligation, reinforced by s 118, to perform the agreement for a new lease entered into between HBL and AMES on 20 September 1999. HBL is in occupation under the agreement for a new lease, and is to be treated as if it had the tenancy that would be conferred upon it by performance of the agreement, under the rule in Walsh v Lonsdale. Global should be ordered to perform the agreement and should be restrained from exercising its legal right to determine the tenancy.
202 The evidence does not establish any entitlement on the part of Global to resist specific performance of the agreement on the ground that HBL is in breach of any of the obligations that the new lease would impose on it. In final submissions, Global did not contend for any breach of the terms of the old lease or the new agreement for lease, or of any other tenancy, except by non-payment of the full amount of royalties alleged to be due to it. I have decided against each of the submissions made by Global on this subject. Therefore there is no breach available to Global.
If so, is HBL entitled to relief against forfeiture?
203 The issue of relief against forfeiture was addressed comprehensively by HBL in written submissions, before the extent of Global's concessions on allegations of breach I came evident. I was taken in some detail to the principles governing relief against forfeiture, set out in such cases as Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562; Platt v Ong [1972] VR 197; Stieper v Deviot Pty Ltd (1977) 2 BPR 9602; and Hayes v Gunbola Pty Ltd (1986) 4 BPR 9247.
204 In view of Global's concessions with respect to breaches and my decision under the last heading, the question of relief against forfeiture does not now arise. In final submissions counsel for Global, after submitting that the issue of relief against forfeiture did not arise, said:
"I will make this express concession that if your Honour were against us as to the nature of the tenancy and held that it was a tenancy in respect of which forfeiture were appropriate, then there is nothing in the facts of this case which would provide your Honour with a basis for refusing to exercise your discretion in favour of granting relief against forfeiture."
205 Nevertheless, it is appropriate to observe, in case the matter goes further, that if Global had succeeded in establishing that it was entitled to recover additional payments from HBL because of the "clay" issue, or its ability to escape the arrangements made by AMES with respect to holiday tonnes and the reduced percentage royalty rate, or because it could resist any deduction of overpayments to AMES, HBL's breach would not be of a kind that would lead the Court to deny relief against forfeiture, assuming HBL were to tender the amount found to be owing to Global. Specifically, the evidence would not support any finding that any such breaches were wilful. Although, as Hope J remarked in the Pioneer Quarries case (at 9572), a lessee is not entitled to relief against forfeiture as of right, and the Court has a discretion in the matter, re-entry is regarded as security for the payment of rent, and if the landlord is able to obtain payment of his rent, relief to the tenant is refused only in very special circumstances.
Is HBL entitled to recover from Global the sum of $295,778.73 [as revised in June 2003]?
206 My opinion is that HBL is entitled to recover from Global whatever amount is established as the overpayment of royalties made by HBL to Global (as opposed to AMES), according to the principles that I have adopted. My findings, coupled with concessions by Global, mean that scenario 1 of Dr Ferrier's royalty model applies and there is a net overpayment, but the amount will be less than the figure of $295,778.73, because that includes overpayments to AMES. HBL has made out its case for judgment in its favour for whatever amount is properly calculated. I shall give directions for HBL to calculate the overpayment to Global.
207 My provisional view is that overpayments made after 16 December 1999 should be treated as overpayments to Global. That was the date upon which AMES notified HBL that the quarry had been transferred to Global. But I am prepared to receive submissions at or before the next directions hearing should either party contend for a different date.
Conclusions
208 HBL has made out its entitlement to declaratory orders as to the existence of the new agreement for the lease of the quarry, and that Global holds its interest as registered proprietor subject to that agreement. It is entitled to an order that Global specifically perform the agreement by granting it a new lease of the Quarry for further term of 11 years, otherwise subject to the terms and conditions of the previous lease (including the option to renew for two further terms of 11 years each), subject to the modifications that were agreed between HBL and AMES according to my findings, to the extent that they are relevant to the renewed term. Global is also entitled to the declarations it has sought to the effect that it is not in breach of any obligations under the old lease or the agreement for the new lease with respect to stated matters, and that Global is not entitled to re-enter the land or terminate the agreement for the new lease or its equitable interest as lessee under that agreement. There is no occasion to make any order by way of relief against forfeiture, but an order should be made restraining Global from terminating HBL's tenancy or occupation of the quarry pending the grant of the new lease.
209 Global's cross-claim has failed, except on the technical point that there was no valid exercise of the option to renew the lease, there being instead a valid new agreement for lease. The appropriate course is for the cross-claim to be dismissed.
210 HBL has succeeded in establishing an entitlement to recover overpayments from Global, but the amount of the overpayments is still to be quantified. I shall direct HBL to prepare and submit to Global and my associate a document setting out the amount for which it claims to be entitled to enter judgment against Global in respect of overpayment of royalties, and I shall stand the proceedings over for subsequent directions. I shall direct HBL to bring in short minutes of the other orders for consideration on that later occasion. I shall also hear the submissions of the parties with respect to costs. I shall consider, at the directions hearing, whether it will be necessary to find another hearing day to deal with these various matters.