Koutsopoulos v Pintusen

Judgment 1CAMPBELL JA : I agree with Young JA and with the additional observations of Macfarlan JA. 2MACFARLAN JA : I agree with Young JA and add the following observations. 3The appellants' "broad election" argument to which Young JA refers fails because the respondent purchaser's conduct would not have indicated to reasonable people in the position of the appellant vendors that the purchaser was choosing not to exercise her right to rescind the contract for want of finance approval. 4As the contract was made conditional upon the grant of development approval (for the benefit of the purchaser), the vendors must, if they had turned their minds to the question, have realised that there was at least a strong prospect that the purchaser would not be granted finance approval before development approval was obtained. In these circumstances, the purchaser's acts of alleged affirmation that were undertaken prior to the grant of development approval were consistent with the purchaser keeping the contract on foot until she ascertained, after the grant of development approval, whether her bank was prepared to grant finance approval. 5Prior to development approval being granted there was no need for the purchaser to choose between rescinding the contract and keeping it on foot. Until she was confronted with the need to make this choice, she was entitled, without losing her right of rescission, to engage in activities that did not unequivocally indicate that she had decided not to exercise that right (see Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; (1993) 182 CLR 26). 6YOUNG JA: This is an appeal from a decision in a vendor and purchaser dispute decided by Bryson AJ ([2010] NSWSC 577). 7The appellants are the vendors and the respondent is the purchaser under a contract for sale of land in the standard form made on 4 April 2008. Under that contract, the vendors were to sell a property on New Line Road in Dural, on which they had previously conducted a licensed restaurant, to the purchaser for $1,300,000. 8The purchaser became interested in the property in 2007. She wished to operate a restaurant on the premises. She retained a company specialising in surveying and town planning to advise her and to draw up plans. 9On 3 March 2008, she obtained in principle approval for three loans from her bank. The first was for the purchase price, the second for reconstruction of the premises and the third for fittings and equipment. 10However, as the bank made clear, in accordance with usual procedure, the in principle approval was not binding on the bank, which would make its final decision after verification to the bank's satisfaction of a number of circumstances relating to valuations, costings of the proposed building work and other matters. One of the matters which the bank said it was to be satisfied of, if a formal offer was to be provided, was as follows: Complete break-up of costings to build proposed property to include Council approved plans and specifications, detailed fixed builder's contract and other associated costs, such as demolition costs and road works, etc to be provided & funding by way of progress payment on authorisation by bank approved external property consultant's/quality surveyor. 11The contract for sale of land contained many special conditions. It is only necessary to set out Special Conditions 42 and 43 and part of 44. 42 CONTRACT CONDITIONAL UPON DEVELOPMENT APPLICATION 42.1 This Contract is conditional upon the Purchaser at its expense obtaining from Council on or before 31 July 2008 consent pursuant to the Environmental Planning and Assessment Act, 1979 to a development application for use of the Property as a restaurant. (The Development Application). 42.2 The Purchaser must within 6 weeks of the date of this Contract lodge with the Council the Development Application and will use its best endeavours to secure the consent. The Vendor will, when requested, sign all authorities which may be reasonably necessary to enable the Purchaser to lodge the Development Application. 42.3 Within 7 days of the Purchaser receiving written notification from the Council either that the Development Application has been refused or that it has been consented to, the Purchaser must give written notice advising the Vendor. 42.4 If the Council consents to the Development Application on or before the 31 July 2008, the Purchaser must complete this contract within 28 days after the date the Purchaser receives notification of the consent. 42.5 If the Council refuses consent to the Development Application the Purchaser has the right to rescind this contract by written notice to the Vendor given no later than 7 days after the date the Purchaser receives notification of the refusal (time being of the essence) and the provisions of clause 19 will apply. 42.6 If the Council fails to make a determination by the 31 July 2008, the Purchaser has the right to rescind this contract by written notice to the Vendor given no later than 7 days after the 31 July 2008 (time being of the essence) and the provisions of clause 19 will apply. 42.7 If the Purchaser fails to exercise the right to rescind in clause 42.5 or 42.6 then the Purchaser must complete this Contract no later than 28 days after the 31 July 2008. 42.8 The Vendor retains the copyright in the Development Application if this Contract is not completed for any reason. 42.9 The provisions of clause 19 will apply to a rescission under this clause. 43. CONTRACT CONDITIONAL UPON FINANCE 43.1 This Contract is conditional upon the Purchaser at its expense obtaining unconditional formal approval of finance to purchase the Property in writing on or before the 30 June 2008 ("Finance Approval"). 43.2 The Purchaser will promptly, at the Purchaser's expense: (i) apply for finance; (ii) make and pursue the finance application, pay all fees, supply all particulars, certificates and valuations, and do all other things as may reasonably be required for the purpose of the application; (iii) inform the Vendor regarding the progress of the finance application whenever reasonably requested to do so by or on behalf of the Vendor; and (iv) notify the Vendor in writing after receipt of written approval or refusal from the Lender. 43.3 This Special Condition is for the benefit of the Purchaser who may, prior to rescission of this Contract, waive the benefit of it. 43.4 If without default on the part of the purchaser, the finance approval in writing has not been obtained by the 30 June 2008, either party will be entitled by notice served upon the other to rescind this Contract, provided that if the Purchaser has obtained the finance approval in writing prior to service of such notice of rescission by either party , neither party will thereafter be entitled to rescind this Contract for want of such approval. 43.5 Upon rescission pursuant to Special Condition 43.3, the provisions of clause 19 will apply except that the Vendor will be entitled to the sum of $ 500.00 (which may, at the option of the Vendor, be paid from the deposit) towards the Vendor's legal costs and disbursements. 12Special Condition 44 provided that 14 days notice to complete would be reasonable. Special Condition 44.2 was as follows: Liquidated Damages Without prejudice to the rights, powers and remedies otherwise available to the Vendor, and notwithstanding any other provision of this contract, if for any reason not attributable to the Vendor, the balance of the purchase price is not paid by the Purchaser to the Vendor by the completion date the Purchaser will, on completion of this contract, pay to the Vendor as liquidated damages and in addition to all other moneys payable hereunder, an amount calculated at the rate of ten percent (10%) per annum on a daily basis on the balance of the purchase price from the completion date until the date of actual completion. The Vendor will not be obliged to complete this contract unless payment of such liquidated damages is made on completion. 13By an arrangement made on 31 July 2008, the parties agreed to alter Special Condition 42 and Special Condition 44.2. No alteration was agreed to the provisions of Special Condition 43; there was no discussion about an alteration to Special Condition 43. The altered Special Conditions 42 and 44.2 were: 42 CONTRACT CONDITIONAL UPON DEVELOPMENT APPLICATION 42.1 This Contract is conditional upon the Purchaser at its expense obtaining from Council on or before the completion date consent pursuant to the Environmental Planning and Assessment Act, 1979 to a development application for use of the Property as a restaurant. (The Development Application). 42.2 The Purchaser must within 6 weeks of the date of this Contract lodge with the Council the Development Application and will use its best endeavours to secure the consent. The Vendor will, when requested, sign all authorities which may be reasonably necessary to enable the Purchaser to lodge the Development Application. 42.3 Within twenty four (24) hours of the Purchaser receiving written notification from the Council either that the Development Application has been refused or that it has been consented to, the Purchaser must give written notice advising the Vendor. 42.4 If the Council consents to the Development Application at any time prior to the completion date, the Purchaser must complete this contract on or before the completion date. 42.5 If the Council fails to make a determination by the completion date, the Vendor agrees that it will refrain from exercising its right to serve a notice to complete in accordance with Special Condition 44 of the Contract for an additional thirty (30) days, or such other time as may be agreed in writing between the parties from time to time. In consideration the Purchaser acknowledges and agrees that it will pay the Vendor interest in accordance with Special Condition 44.2. 42.6 If the Council refuses consent to the Development Application the Purchaser has the right to rescind this contract by written notice to the Vendor given no later than 7 days after the date the Purchaser receives notification of the refusal (time being of the essence) and the provisions of clause 19 will apply. 42.7 If the Purchaser fails to exercise the right to rescind in clause 42.6 then the Purchaser must complete this Contract within fourteen (14) days from the date the Purchaser's right of rescission has expired. 42.8 The Vendor retains the copyright in the Development Application if this Contract is not completed for any reason. The provisions of clause 19 will apply to a rescission under this clause. 44.2 Liquidated Damages Without prejudice to the rights, powers and remedies otherwise available to the Vendor, and notwithstanding any other provision of this contract, if for any reason not attributable to the Vendor, the balance of the purchase price is not paid by the Purchaser to the Vendor by the completion date the Purchaser will, pay to the Vendor as liquidated damages and in addition to all other moneys payable hereunder, an amount calculated at the rate of ten percent (10%) per annum on a daily basis on the balance of the purchase price payable monthly in advance from the completion date until the date of actual completion, the first payment being due on 1 September 2008.. Upon actual completion an adjustment will be made in favour of the Purchaser in the event that completion occurs during the period in which interest has been paid. 14The purchaser's town planner lodged her application for development consent with Hornsby Shire Council on 15 May 2008. The Council granted development consent on 12 September 2008. The purchaser's solicitors received the development consent that day and informed the vendors' solicitors of it on the same day. The purchaser received quotations for building work on 25 September 2008. These documents were passed to the bank. 15It is quite understandable that the process of obtaining final approval of the purchaser's finance could not progress until after development consent was obtained. However, after that time, there were delays. The bank only sent its message to the purchaser's solicitors on 29 October refusing the application for finance. 16The vendors, as they were entitled to do, gave the purchaser a notice to complete. After some extensions, this notice required completion by 5pm on 31 October 2008. 17The primary judge carefully noted the events of 31 October. At 2:26pm, the purchaser's solicitors sent notice of rescission. The vendors' solicitors rejected the validity of this rescission and indicated that they expected completion by 5pm that day. When that did not occur, the vendors gave notice at 5:22pm purporting to terminate the contract and forfeit the deposit. 18The purchaser filed a summons on 2 April 2009 seeking a declaration that she had rescinded the contract and seeking recovery of the deposit less the agreed $500. The vendors filed a cross claim for a declaration that they had properly terminated the contract, that they had validly forfeited the deposit and for damages. 19The primary judge found for the purchaser and the vendors have appealed on three principal issues which can be summarised: A. The purchaser had elected against rescission by her solicitors' letter of 31 July 2008 (the Narrow election issue); B. The purchaser had affirmed the contract after her right to rescind had arisen (the Broad election issue]; C. The pre-condition of the right to rescind under Special Condition 43 had not been established. 20The appeal was heard on 5 May 2011, Mr M Christie SC and Ms L Young appearing for the appellants and Mr G C Lindsay SC and Mr A Hill appearing for the respondent. 21Before dealing with the submissions, I should note some significant factual matters. 22On 30 June 2011, the purchaser's solicitors wrote to the vendors' solicitors a letter noting that the purchaser was still awaiting approval of her development application and that if the approval was not received by 31 July, the purchaser had a right to rescind. The letter sought an extension of the deadlines in Special Condition 42. 23Correspondence flowed back and forth during July, all of which concerned Special Conditions 42 and 44. 24The vendors' solicitors showed that they were prepared to amend the date for the development approval. 25The purchaser's solicitors replied by letter of 31 July 2008 which, omitting formal parts, was as follows: We refer to your fax of even date and confirm that our client has elected not to exercise her right to rescind the Contract herein in consideration of the amendments to special condition 42 as set out in that fax. Our client also agrees to the terms of (revised) special condition 44.2 in relation to liquidated damages. For the purposes of certainty, we return herewith copies of the agreed special conditions 42 and 44.2 signed by the writer. 26As will appear subsequently in these reasons, it is this letter which forms the factual basis for the appeal on the Narrow election issue. 27On 19 September 2008, the purchaser's solicitors sent the vendors' solicitors an application form for liquor licence transfer. However, it would seem that, at least as of 21 October, the vendors did not action this request. 28On 29 September 2008, the vendors' solicitors by letter, requested that part of the deposit moneys be released to the vendors so that they could fulfil their obligations under a contract to purchase a house at Castle Hill which they had entered into. The purchaser's solicitors replied on 30 September 2008 and said that they were instructed to agree to this so long as the deposit was released to a particular estate agent. The vendors' solicitors, who were the stakeholders, acted accordingly and released $110,000, leaving $20,000 of the deposit in their own hands. 29At about the same time, t he purchaser's solicitors also sought a concession with respect to interest. The vendors' solicitors by letter of 2 October 2008 stated a concession relating to interest, reducing the interest which would be accepted in respect of the period 30 September to 14 October 2008, after which interest was to run at 10% on the balance of the purchase price as earlier agreed. 30I now turn to the grounds of appeal. 31As to A, the appellants submit that the purchaser's solicitors' letter of 31 July, quoted above, was an election against rescission including rescission due to inability to obtain finance (cl 43). 32The key part of the submission is that as at 31 July, the only right of rescission that had arisen was under cl 43. Even if cl 42 had remained unamended, any right to rescind based on non receipt of development approval would only have come into being on 1 August. 33The appellants say that the statement in the letter of 31 July was clear and unambiguous and must just be applied in accordance with its natural meaning. 34One must always be wary of statements like these. As Viscount Simonds said in AG v Prince Ernest Augustus of Hanover [1957] AC 436, 463 (albeit in connection with statutes, but the same is true of contracts): "...it must often be difficult to say that any terms are clear and unambiguous until they have been studied in their context...the elementary rule must be observed that no one should profess to understand any part of a statute or any other document until he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous." 35From what Viscount Simonds said at 461, his use of the word "context" in the case of contracts would embrace the factual matrix. 36The primary judge gave short shrift to the appellants' submission. He said, at [22], that the letter was part of a series of letters exchanged during July. He then said at [23]: "On any rational understanding of this letter, in the context of the terms of the contract unaltered and as proposed to be altered, and in particular of the terms of Special Condition 42, the reference to an election not to exercise a right to rescind could mean and could mean only the right to rescind with which Special Condition 42 deals, which was the right that was to arise, and was to be exercised in seven days, if Council failed to make a determination by 31 July 2008. The relevant correspondence opened by the purchaser's solicitors on 30 June 2008 dealt only with Special Conditions 42 and 44.2, did not refer to Special Condition 43, and did not refer to the subjects with which Special Condition 43 dealt. The letter could not rationally have been understood by the person to whom it was directed to refer to anything other than the exercise of the right to rescind in Special Condition 42. A strongly confirming circumstance is the fact that no alteration to Special Condition 43 was discussed or considered, there was no reference in the correspondence to Special Condition 43 at all, although the right of rescission in it had already existed since 30 June and was a right of each party. If anyone thought that Special Condition 43 was involved, it is difficult to suppose that there would not have been some expression reserving or foregoing rights under it. Until late developments in October there were no expressions in communications between the parties' solicitors of the concept that Special Condition 43 and its right of rescission might have been involved in the arrangements made in July. I am satisfied that it was nobody's thought that they were, but if anybody did think that, they did not have a rational basis for so thinking." 37I respectfully agree. 38One must construe a document in its factual matrix. That exercise sometimes shows that what might be thought to be "plain English words" were in fact terms used by the parties in their own special sense: they had their own dictionary. That sort of principle was rightly applied by the primary judge in this case. 39The correspondence between the parties' solicitors in the month of July clearly shows that the solicitors had in mind the right to rescind under Special Condition 42 and only that right. 40B. Both here and below, the vendors' counsel contended that the purchaser had elected not to exercise the right of rescission in special condition 43.4 by a number of steps later than 31 July 2008. Counsel referred to an extensive array of facts including the negotiations for further alterations and steps taken after receipt of development consent; the notifying of development consent, seeking execution of an application for liquor licence transferral, obtaining quotations for restaurant construction, communicating with the Commonwealth Bank, agreeing to partial release of the deposit, negotiating for a concession on interest and other negotiations directed to extending the dates for completion and contract alterations. Counsel referred to the whole array of facts and in particular to the two later negotiated alterations of special condition 42 as unequivocal conduct, communicated to the vendors, affirming the continued existence of the contract. 41The primary judge ruled against that submission in [47]: "There were many acts by the purchaser consistent with the continuing existence of the contract and impliedly affirming it, but the conduct and affirmation can only have related to the whole contract and all the purchaser's rights in it, in the absence of any expression of an intention to forego some part of it. To keep the contract on foot was not inconsistent with continuing to have the right of rescission which the contract conferred. It is correct that the purchaser continued to act as if the contract was still on foot until her notice of rescission was delivered; and so she should have, as it undoubtedly was still on foot until that event. None of her conduct was inconsistent with the continued existence of her entitlement to rescind which had accrued with the expiry of 30 June 2008." 42The appellants agree with the first part of the first sentence. They say that authority shows that the sort of acts mentioned are the classic acts which courts have held to be acts affirming the contract by a person who has the inconsistent rights either to rescind (or terminate) or affirm the contract. 43The appellants gave examples from the cases of the sort of conduct which has been held to be an affirmation. Thus, in Turner v Labafox International Pty Ltd [1974] HCA 41; 131 CLR 660, it was the act of seeking specific performance, in MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 , it was communications designed to achieve satisfaction of conditions precedent, in Petrie v Dwyer [1954] HCA 75; 91 CLR 99, it was negotiation on the terms of the contract, in ACI Operations Pty Ltd v Manawaii Development Co No 7 Pty Ltd (1971) 25 LGRA 235, it was varying the contract and in Byers v Dorotea Pty Ltd (1986) 69 ALR 715 , it was seeking an extension of time for completion. 44The appellants put that, in the instant case, the purchaser involved herself in each of these activities. It must follow, it is submitted, that there has been affirmation. 45With respect, this is too simplistic an approach to the problem. 46In Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26, 41, the plurality said: "The true nature of election is brought out in this sentence from the seminal work of Spencer Bower and Turner, The Law Relating to Estoppel by Representation (3 rd ed (1977) p 313): 'It is of the essence of election that the party electing shall be 'confronted' with two mutually exclusive courses of action between which he must, in fairness to the other party, make his choice' ". 47Unfortunately, that passage has disappeared from the 4 th (2004) edition which does not even refer to the Immer case, the authors' proffered excuse for the latter omission being recorded in their preface that they were ignorant of Australian decisions and did not have the time to cure their ignorance. 48The example given at p 314 in the 3 rd edition of the work of a case in election failing because of lack of confrontation is Kammins Ballroom Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850. In that case, the legislation made it mandatory that a tenant could only make an application for a fresh lease after Day X. It made the application before Day X. The landlord, initially, did not take the point. Even though what the landlord did may have amounted to affirmation, because it had no choice (the time limit being mandatory) nothing it did could have affected the other party. Other examples appear in the 4 th edition of the work at XIII.3.13. 49In paragraph XIII.3.13 (p 426), the authors say: "In all cases to which the doctrine of election applies the electing party has the choice of two rights, either of which he is at liberty to exercise, but not both. The rights between which he has a choice must be mutually exclusive." 50Where in the instant case, it must be asked, was the purchaser electing between two mutually inconsistent rights? At all times, at least up until 23 October 2008, she was in the position where she had an approval in principle from her bank for finance, she spent (so she claims) $100,000 on plans and legal and town planners' fees in preparation for completion, she had no warning that her finance would be refused and even when it was refused at the last minute, she indicated that she wanted to complete but that her resources would not permit her to complete unless the purchase price was reduced by $250,000. 51The vendors refused to reduce the price and took the gamble of purporting to terminate, a decision which has cost them a six figure sum. 52When one looks at the conduct of the purchaser as a whole, it is consistent with her wishing to complete, but keeping in reserve, her right to rely on Special Condition 43. Indeed, the correspondence from 16 October onwards specifically indicates that that is her position. 53In essence, this is what the primary judge said in [47] of his reasons. 54The case is analogous in some respects to Finagrain SA Geneva v Kruse [1976] 2 LL Rep 508 (CA) . In that case, the buyer accepted sub-standard goods for the instalment delivered in June, but that did not amount to a waiver of its right to have goods of the required standard for the remainder of the instalments. The buyer had a number of distinct rights and waiver re one did not affect the others. 55The same complications arise in the instant case where, as Mr Lindsay kept reminding us, there was difficulty created by the contract investing the purchaser with two distinct rights to rescind. 56Again, when one analyses the cases on affirmation amounting to election, one must be careful to distinguish between two situations. Case A is where: (1) there has been a breach of contract; or (2) there has been the happening of an event either of which entitles John Doe to choose to termination or rescind on the one hand or to affirm the contract. A classic example is Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 where the purchaser was given a right to rescind if a certificate was not annexed to the contract. It was as clear as day that, where the contract did not have the certificate attached, the purchaser had the right to rescind. 57Case B is where the right to rescind is contingent on some event which may or may not occur in the future. Up until the time the contingency becomes actual, the purchaser is not in a position where she has two or more inconsistent courses from which she must choose. Up to the time of the contingency becoming an actuality, she has but one course open and that is to proceed with the contract. 58The fact situation in the Immer case where the conduct of the parties was affected by a mistake is an analogous situation to Case B. 59The appellants also submit that the primary judge fell into error in [47] in that he referred to intention. They submit that it is irrelevant to refer to the purchaser's intention. One must look to her external acts and these were, on the authorities, sufficient to amount to an affirmation of the contract, the purchaser being fully aware of her right to rescind. 60I do not consider that the primary judge's use of the word "intention" has the effect of which the appellants complain. 61Accordingly, I would affirm the primary judge's decision on the wider election issue. 62C. It is questionable as to whether this third issue was before the primary judge. Certainly, the primary judge gave no ruling on the issue. 63There has been debate about this point and we have been handed up a sheaf of documents by the appellants in an attempt to show that it was before the primary judge. 64This alone illustrates the wisdom of what this Court has said more than once recently that, if a party considers that the trial judge has overlooked deciding a point, resort in the first instance must be made to the trial judge to remedy the matter. The trial judge is in a much better position than this court to determine whether an issue was fairly raised at the trial. 65Furthermore, in the present case, there is a very real problem as to on whom the onus of proof falls (both evidentiary and final) where a vendors' pleaded cross claim to a purchaser's unpleaded summons alleges a condition precedent to rescission has not occurred. 66We dealt with some of these issues in the reasons delivered ex tempore on 5 May for rejecting the allegedly fresh evidence which the appellants wished to tender to us: Koutsopoulos v Pintusen [2011] NSWCA 120. 67It seems more satisfactory just to deal with this issue on its merits as, when one does so, it is clear that the point fails. 68The contention is that the purchaser had not established that she had complied with the precondition to rescission in Special Condition 43.2 which required her to: (i) apply for finance; and (ii) make and pursue the finance application, pay all fees, supply all particulars, certificates and valuations, and do all other things as may reasonably be required for the purpose of the application. 69The appellants say that the purchaser only made one application for finance and that she should have made more. Further, her one application was for: (a) finance for purchase of the land; (b) finance to reconstruct the buildings on the land; and (c) finance for equipment for her proposed restaurant. Such an application was not an application for finance for the purchase of the land. 70There was, on the evidence before the primary judge, some ambiguity as to whether the purchaser made one combined application for finance for the three purposes noted above or whether she made three conjoined but separate applications. 71The only substantial evidence before the primary judge on this issue was contained in the purchaser's affidavit, which was not the subject of cross examination. 72The affidavit said (para 7) that: "I made an application for finance to the Commonwealth Bank ('CBA') at Dubbo, NSW, where I was a customer". Then in para 20: "I had not sought finance for the purchase from any other lending institution as I had been dealing with the CBA, and I presumed that if I met the requirements contained in the CBA's 'approval in principle' then I would have obtained the finance for the purchase of the property." 73The primary judge, when laying the background in [1] of his reasons, actually said that the purchaser applied for funding for the purchase. 74In the light of this evidence and the statement by the primary judge and in the absence of any other evidence, the appellants cannot succeed in this third attack on the decision below. 75There is one more matter to consider before concluding. 76On 31 March 2011, the appellants filed a notice of motion seeking to read fresh evidence on the appeal. They abandoned this motion on the day of the appeal, but, as recorded in our judgment of 5 May, the point sought to be agitated under the motion arose later in the day and was decided against the appellants. 77There is no issue but that that motion must be dismissed with costs. However, the respondent seeks indemnity costs. 78In my view indemnity costs should not be awarded. The motion was arguable, there was no question of a further brief fee and the proper costs of preparing to answer the motion should be adequately covered by the ordinary order for costs. 79Accordingly, in my view the appeal must be dismissed with costs.