REASONS FOR JUDGMENT
1 This cross-claim is the remaining matter to be resolved from the issues of a larger dispute which has already been resolved by a final order of a full court. The original matter was a claim brought by the cross-respondents as applicants against the cross-claimant as respondent in which (inter alia) contraventions of s 52 of the Trade Practices Act 1974 were alleged in relation to the inducement of the company Oraka Pty Limited (0raka) to enter into a lease of a shop at a new shopping centre, and in relation to the inducement of Mr Johnson to give a guarantee in respect of that lease. At the time the action was instituted, proceedings were pending in a local court in which the cross-claimant was claiming rent. Those proceedings were transferred to this court, but the course taken was to pursue the matter of the claim for rent, together with other claims, by way of cross-claim. At the hearing of the proceeding, that is, of both the principal action and the cross-claim, I took the view that the applicants should succeed; I awarded Oraka a sum of damages; I varied the agreement for lease, and also the lease, both which had been entered into on 11 February 1994, so as to eliminate certain obligations in respect of rent and other payments; I set aside the guarantees given by Mr Johnson; I made an order requiring Leda Holdings Pty Limited (Leda) to indemnify the applicants in certain respects; I dismissed the cross-claim; and I ordered Leda to pay the costs of Oraka and Mr Johnson of the claim and cross-claim. On appeal, the majority of the Full Court took the view that a particular misrepresentation, which I had held proved, had not been shown to have been relied upon so as to ground the claims made by Oraka and Mr Johnson. Accordingly, the following orders were made, as appears from the report of the Full Court's decision (Leda Holdings Pty Limited v Oraka Pty Limited (1998) ATPR 40,501 at 40,518):
"The Court orders that:
The appeal be allowed.
2. The orders below be set aside and, in lieu thereof, there be orders that the application be dismissed and that Oraka Pty Limited and Mr Johnson pay Leda Holdings Pty Ltd's costs of the application.
3. The cross-claim be remitted to the trial judge for consideration.
The respondents pay the appellant's cost of the appeal."
2 The matter now comes before me again pursuant to the third of the orders made by the Full Court. Because of the way in which the cross-claimant's argument was presented to me, it is necessary to emphasize that I have no jurisdiction to vary the orders of the Full Court. Those orders have finally disposed of the action, including any question as to the appropriate orders to be made in respect of the costs of that action, both at first instance and upon appeal. The Full Court did not remit to me any question concerning the appropriate costs order to be made in the action. The costs orders that have already been made by the Full Court are in the normal form, having the effect of requiring Oraka and Mr Johnson to pay, jointly and severally, Leda's costs as between party and party. What remains is to consider the orders that are appropriate in respect of the cross-claim.
3 The cross-claim, which was filed on 19 October 1995, pleads an "agreement" for lease (I shall continue to call it that, although it is expressed to be a deed) dated 11 February 1994 between the cross-claimant as lessor, Oraka as lessee and Mr Johnson as guarantor. It then pleads a lease of the same date by Leda to Oraka. The first claim made under this pleading is made under the heading "Rent claim", but it actually includes much more than rent. It alleges an obligation that Oraka pay "all costs, charges and expenses of the Cross claimant in connection with the Fit Out [that is, certain shopfitting work required]; that Oraka was obliged to pay "for a promotions fund"; that Oraka was to pay rent in certain amounts; that Oraka was to pay a percentage of "the Outgoings in equal monthly instalments on the first day of every calendar month commencing on 1 December 1993"; that Oraka was to pay "a Marketing Levy", also in monthly instalments; and that Oraka had in fact paid one amount of $4,245.86 on 7 January 1994, but no other payments. The pleading then continued with a number of further allegations. It was pleaded by paragraph 10 that Oraka was required to pay interest on any monies payable which were not paid on the due date. It was pleaded that Leda had sold the land by contract dated 30 March 1994, completed on 13 May 1994, but had obtained an assignment from the purchaser of "its rights to claim from the Applicants [Oraka and Mr Johnson] any monies in the nature of rent and interest on rent due or to become due by the Cross respondents under the Lease or the Agreement for Lease between 14 May 1994 and 13 May 1996 inclusive". It is then alleged that no monies have been paid to the purchaser by the cross-respondents, and that the cross-claimant is entitled to the amounts set out in a table totalling $41,240.87, together with interest totalling a further $4,895.91. The details shown in the table all appear to relate to the claims I have summarized.
4 From paragraph 17, the pleading makes further allegations. It alleges a term of the agreement for lease that Mr Johnson would pay "all monies due or to become due and owing, or contingently owing or which remain unpaid by the first Cross respondent under the Lease or the Agreement for Lease". It alleges a further term "that the Second cross respondent agreed to guarantee the obligations of the First cross respondent under the Lease," and it refers to the default of the first cross respondent already pleaded. It then alleges a demand has been made upon Mr Johnson, and that he "has failed to pay to the Cross claimant the amount payable by the First cross respondent".
5 There is then a claim upon certain "Rrepresentations" alleged to have been made by Oraka and to have been embodied in a warranty given by it by clause 9 of the agreement for lease. That clause will be found set out in the dissenting judgment of Beaumont J in Leda Holdings Pty Limited v Oraka Pty Limited at 40,506, and it is unnecessary to repeat it here. It is a clause of a type that is familiar, but drafted in a way going beyond what is usual in such clauses. By clause 9.1, Oraka "represents and warrants" that it was not induced to enter into the agreement by representations of various sorts; that it relied on its own enquiries; and that it had obtained independent advice. By clause 9.2, Oraka acknowledges that Leda entered into the agreement on the basis that these representations and warranties were true and not misleading, and by clause 9.3 Oraka indemnifies Leda against liability for loss arising from, and costs charges and expenses incurred in connection with, "any breach of [these] representations and warranties …. including, without limitation, legal expenses on a full indemnity basis or solicitor and own client basis whichever is the higher".
6 It will be apparent that the pleading of clause 9 in the cross-claim was the raising of a shield against the claim made by Oraka and Mr Johnson. If they had succeeded in showing an inducement and reliance contrary to clause 9, they would at the same time have shown that the representation contained in it was a misrepresentation, and that the state of affairs it warranted to exist did not exist. On that basis, the indemnity referred to in clause 9.3 would have been applicable, if valid. It seems to me clause 9.3 could never have been valid, for reasons which are explained in numerous authorities, many of which I collected in my recent decision in Burg Design Pty Ltd v Wolki [1999] FCA 388. To borrow from the language of the law of mortgages, the clause would have been a clog on the remedy provided by s 52 of the Trade Practices Act. But whether that be so or not, once the majority of the Full Court held (relying in part on the making of this very representation) that the representation was true and the warranty was satisfied, no claim under the cross-claim could survive which depended upon the representation being untrue and the warranty not being satisfied. No submission to the contrary was made to me at any stage of this matter.
7 By paragraph 26 of the pleading, there is then pleaded an indemnity given by Mr Johnson to Leda against loss arising from Leda's inability to recover from Oraka moneys owing under the agreement for lease or the lease.
8 It is then alleged by clause 27 that Mr Johnson had agreed "not to raise any counter-claim or set off against the Cross claimant while moneys were outstanding under the Agreement for Lease or the Lease". I did not understand it to be argued to me that I should award damages under this claim on the footing that Mr Johnson had relied on the protective provision made by the statute in s 52. Indeed, it is not clear what claim is intended to be made by paragraph 27, which seems to me to be grounded on a provision of the guarantee intended simply to prevent the raising of certain defences by the guarantor in an action brought upon the guarantee.
9 It is then pleaded by paragraph 28 that, by the allegations of misrepresentation made in the statement of claim, Oraka "has breached the warranties in the Agreement for Lease" contained in clause 9.2, that is, warranties that the representations set out in clause 9.1 "are true and not misleading". As I have already made clear, I think this part of the pleading manifests a confusion of thought. The mere making of allegations could not render a warranty of the truth of a fact untrue, and therefore could not constitute a breach of a warranty in this form. Only proof of the allegations, which the Full Court held not proved, could do that. Clause 9.2 does not warrant that no claim will be made under s 52 of the Trade Practices Act, and if it did, it would quite certainly be in collision with the policy of the Act, and void.
10 Paragraph 29 is repetitious of paragraph 28.
11 Paragraph 30 alleges that the representations asserted were made by Oraka "in trade and commerce".
12 Paragraph 31 is framed on the supposition that the application might succeed, and in that event, alleges an entitlement to an indemnity from the cross-respondents.
13 Paragraphs 32, 33, 34 and 35 all appear to be reformulations of the claim that the cross-claimant's liability in the principal action would involve misrepresentation or breach of warranty under clause 9, and the cross-respondents' failure in that proceeding would appear to involve that these paragraphs are no longer relevant.
14 Finally, by paragraph 36, the cross-claimant returns to the earlier paragraph 17 by which it was alleged that Mr Johnson agreed to pay "all moneys due or to become due and owing, or contingently owing or which remain unpaid by the First cross respondent under the Lease or the Agreement for Lease."
15 It is apparent that, under this cross-claim, Oraka is entitled to seek orders in respect of rent, fit-out, outgoings, marketing levy and interest. There was no debate about these matters. The cross-respondents having failed in the principal action, the various sums proved to be due must be paid. No question was raised in respect of the assignment. The parties were able to agree that Leda should have judgment against the cross-respondents in the sum of $83,896.51 with interest from 31 May 1998. But the cross-claimant sought, in addition to this, an order that the cross-respondents pay to it "an amount equal to that which Leda has expended in defending the Application and pursuing its cross-claim". This is said to be, not the seeking of an order for costs on an indemnity basis, but the seeking of contractual damages. In terms of the cross-claim, it is said to have been claimed under paragraph 35, which reads:
"Further or in the alternative to a full indemnity as claimed in paragraph 32 above, and to the remedies claimed in paragraph 35 above [sic], the Cross claimant claims damages for breach of contract, such damages amounting to the total of any verdict gained by the First and Second Cross respondents, together with all amounts expended in costs in relation to the Claim and the Cross-claim on an indemnity basis."
Counsel for the cross-claimant relied on certain clauses of the agreement for lease and of the lease. None of these clauses is pleaded in the cross-claim which, so far as the principal claim under the Trade Practices Act is concerned, pleads in some detail its reliance on clause 9, as against Oraka, and pleads against Mr Johnson his agreements to indemnify, but does not plead against either a basis for including in an order for damages indemnity costs in respect of the claim under the Trade Practices Act. Nor was the present argument adverted to by the Full Court which made, as I have indicated, orders for party and party costs.
16 At the hearing, counsel for the cross-claimant placed his reliance on clause 8.6 of the agreement for lease and clauses 18.6 and 23.1(b) of the lease. It is necessary to set out those provisions. Clause 8.6 of the agreement for lease reads:
"The Tenant [Oraka]:
(a) indemnifies the Landlord against any liability or loss arising from, and any costs, charges and expenses incurred in connection with:
(i) an Event of Default; or
(ii) the Tenant's non-compliance with its obligations under a Transaction Document; or
(iii) any payment required to be made under a Transaction Document not being made on its due date,
including, without limitation, liability, loss, costs, charges and expenses on account of funds borrowed, contracted for or used to fund any amount payable under any Transaction Document and including in each case, without limitation, legal costs and expenses on a full indemnity basis or solicitor and own client basis, whichever is the higher …" (the balance of the clause is not said to be relevant).
Clause 18.6 of the lease reads:
"The Tenant indemnifies the Landlord against any liability or loss arising from, and any costs, charges and expenses incurred by Landlord or any employee, officer, agent or contractor of the Landlord in connection with an Event of Default including, without limitation, legal costs and expenses."
Clause 23.1(b) reads:
"The Tenant must pay or reimburse the Landlord on demand for:
…
(b) the costs, charges and expenses of the Landlord in connection with any consent, approval, exercise or non-exercise of rights, waiver, variation, release, surrender or discharge in connection with any Transaction Document (including, without limitation, those payable to any independent person appointed to evaluate any matter of concern); and
…
including in each case, without limitation, legal costs and expenses on a full indemnity basis or solicitor and own client basis, whichever is the higher."
17 In clause 1 of the agreement for lease, there is a definition of "Transaction Documents". This expression "means this deed [the document is headed both as "Agreement for Lease" and "Deed of Agreement for Lease"], the Lease, any consent given by the Landlord under this deed or the Lease and any other instrument connected with any of them." There is a lengthy definition of "Event of Default" in clause 8.2 of the agreement for lease, under which such an event occurs if "the Tenant repudiates its obligations under [the] deed", or "does not comply with an essential term of [the] Ddeed", or in various other events. There is a corresponding definition of "Event of Default" in clause 18.2 of the lease, substituting the word "lease" for the word "deed". A definition of "Transaction Documents" is to be found in clause 1.1 of the Sschedule to the lease. The expression means "this lease, any document giving rise to this lease, any guarantee or guarantee and indemnity given in connection with this lease, any consent given by the Landlord under this lease, any assignment or transfer of this lease, any instrument which the Tenant acknowledges to be a Transaction Document and any other instrument connected with any of them."
18 There is, at the outset, a problem of construction as to whether the agreement for lease has relevantly merged in the lease. The cross-claimant relied on closely similar provisions of both documents. It is a curious position if both apply. However, it is convenient to consider the matter on the footing that all of the clauses to which counsel pointed are relevant to the present problem. On that basis, I start with clause 8.6(a)(ii), where counsel started. By this clause, Oraka indemnifies Leda against loss arising from costs, charges and expenses incurred in connection with Oraka's non-compliance with its obligations under the lease, including indemnity or solicitor and client costs. But the question is whether costs incurred by reason of the bringing of an action alleging contraventions to have occurred at a time before there was a lease, being contraventions of the protective provision made by Parliament in s 52 of the Trade Practices Act, fall within the ambit of this clause. Of course, provided clause 9, to which reference was made earlier, is to be construed as involving an obligation binding Oraka not to make any claim under the Trade Practices Act, then, indeed, clause 8.6(a)(ii) could apply on the basis of Oraka's "non-compliance with its obligations", not under the lease, but under the agreement for lease. However, as I have made clear, that would be to give clause 9 a construction ensuring its invalidity. If, then, the non-compliance in question is simply Oraka's failure to pay rent, clause 8.6 may be applicable to the cross-claim itself, but its language is inapt to refer to the costs incurred in connection, not with the recovery of unpaid rent, but with the defence of a claim that, before the lease came into existence, there had been contraventions of s 52.
19 When the matter is looked at in this way, it is relevant to bear in mind that, even in the special context of mortgagor and mortgagee, except where the case falls within a category recognised as involving a right in the mortgagee to indemnitfy costs, "the mortgagee will be limited to party and party costs unless the mortgage contract plainly and unambiguously provides for taxation on some other basis (see Gomba Holdings (U.K.) Ltd v Minories Finance Ltd [1993] Ch 171 at 186 and 191; Jamieson v Gosigil Pty Ltd [1983] 2 Qd R 117 at 121)": Citibank Savings Ltd v Nicholson and Pirrotta (Full Court of Supreme Court of South Australia (Williams, Cox and Mullighan JJ), unreported, 1 April 1998), per Williams J, with whom Cox and Mullighan JJ agreed. This proposition is also supported by the general principle stated by Vaisey J in In re Adelphi Hotel (Brighton) Ld [1953] 1 WLR 955 at 961:
"It suffices for me to say that I put my judgment on this part of the case, involving as it does a point of construction, on the ground that as every taxation in which more than one party (in addition to the solicitor) is interested is prima facie a taxation as between party and party, any other basis of taxation is only justified when the party asking for it can show that he is entitled to it either upon some well-recognised principle, or under some contract plainly and unambiguously expressed."
What Vaisey J said has been accepted in New Zealand, as well as in Australia: Commissioner of Inland Revenue v Molloy [1992] 3 NZLR 164 at 168; ANZ Banking Group (NZ) Ltd v Gibson [1986] 1 NZLR 556 at 566, 569, 570.
20 I have referred to the special context of mortgagor and mortgagee. As almost every case relied on by the cross-claimant involved a mortgage, it is desirable to indicate why such cases have a unique character. In Gomba Holdings (U.K.) Ltd v Minories Finance Ltd at 184-185, Scott LJ said:
"The principle that a mortgagee is entitled to add to the secured debt his costs, charges and expenses properly incurred is, therefore, firmly embedded in the law and is the principle underlying express contractual provisions such as those that must be construed in the present case."
See also the complete explanation given by Fullagar J in Perry v Rolfe [1948] VLR 297; Maher v Network Finance Ltd (1986) 4 NSWLR 694 at 699, per Priestley JA; and the remarks of Gummow J in Re Elders Trustee and Executor Company, Limited and E.G. Reeves Pty Ltd (unreported, 12 February 1988).
21 In the lastmentioned case, Gummow J remarked that "[t]he meaning of any express provision is a question for interpretation in the particular case". Before the principle stated in Citibank Savings Ltd v Nicholson and Pirrotta and in In re Adelphi Hotel (Brighton) Ld falls to be considered, the language of the document may yield a sufficiently clear meaning on its face. The decision of Carr J in Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd (unreported, 18 May 1995) provides an example. There, as here, an applicant had claimed damages for an alleged contravention of s 52 of the Trade Practices Act. The transaction involved a lease (of equipment, not of a shop) and a guarantee, in respect of each of which relief was sought, the lessor being alleged to have been knowingly concerned in the contravention of s 52. The lessor cross-claimed for moneys owing under the lease, and for a full indemnity in respect of costs. It relied on a clause of the lease which provided as follows:
"27. The Lessee must pay:
(a) all stamp, transaction, registration, financial institutions, debit and other duties and taxes (including fines and penalties) which may be payable or determined to be payable in relation to the execution, delivery, performance or enforcement of this lease or any payment or receipt or other transaction contemplated by this lease (except to the extent that any such payment by the Lessee is specifically forbidden by the law of the place where such payment is to be made); and
(b) all costs, expenses, duties and outgoings of or incidental to:
(i) any breach or default by the Lessee under this lease; or
(ii) the exercise or attempted exercise of any right, power, privilege, authority or remedy of the Lessor under or by virtue of this lease,
including but not limited to the cost of registration, repairs, maintenance, servicing or storage of the Goods, the fees of all professional consultants reasonably incurred by the Lessor and legal costs on a full indemnity basis."
Carr J did not see any room for doubt. He referred to the remark of Gummow J cited above, and said (at 189):
"As a matter of construction, in my view, the legal costs incurred by [the lessor] in defending the principal application do not fall within clause 27(b). In those circumstances it will be entitled only to party and party costs in that application.
However, I consider that [the lessor's] costs in respect of its cross-claim do fall within clause 27(b) and that it is entitled to have those costs on a full indemnity basis."
22 In my opinion, it would be very difficult to distinguish the present clause 8.6 from the clause 27(b) the subject of the decision of Carr J. Each provision is similarly structured, and the elements of each are virtually the same. Each imposes an obligation in respect of costs - "Lessee must pay … all costs" (cl 27(b); "Tenant … indemnifies the Landlord against … any costs" (cl 8.6). The costs are "of or incidental to: (i) any breach or default by the Lessee under this lease; or (ii) the exercise or attempted exercise of any right … or remedy of the Lessor under or by virtue of this lease" (cl 27(b); or "incurred in connection with (ii) an Event of Default; or (ii) the Tenant's non-compliance with its obligations under [the lease]" (cl 8.6). In each case, "a full indemnity basis" is specified. I do not see a relevant distinction in favour of the cross-claimant between costs "of or incidental to … any breach or default" and costs "in connection with" a breach of one of the kinds comprehended by cl 8.6. The meaning to be attributed to the words "in connection with" depends on the context, and "they do not usually carry the widest possible ambit", being subject to that context: Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144 at 146, per Lockhart, Wilcox and Hill JJ, citing an earlier statement of Davies J. The context here is that of a provision imposing a liability to indemnity costs, which requires a clear connection, according to the authorities. Returning to the comparison with cl 27(b), it is cl 27(b) which is the wider, for it extends to the exercise or attempted exercise of a right or remedy.
23 The costs of the principal action were not incurred in connection with any non-compliance with obligations under the lease, but in connection with a claim of contravention of a statutory protection which related to the circumstances in which the lease came into existence. Nor were the costs incurred in connection with any repudiation of the agreement for lease; the claim for relief in respect of the lease under s 87 did not involve a repudiation of either the agreement for lease or the lease itself, but an appeal to the Court's statutory power to relieve against a valid document by reason of the alleged misleading conduct lying behind its execution.
24 If, contrary to my opinion, cl 8.6 could be construed as applying to a claim under s 52, so as to impose on the lessee an obligation to pay indemnity costs in the circumstances, it does not bear that construction "plainly and unambiguously", and should not be so understood. It may be pointed out that, on the cross-claimant's argument, the clause would apply even where if an applicant's claim under s 52 was were successful, provided one of the specified events had occurred. Both the principle accepted in Citibank Savings Ltd v Nicholson and Pirrotta and the contra proferentem rule would militate against such a construction.
25 Similar considerations apply to cl 18.6 of the lease, the language of which is far removed from that in question in, for instance, Re Elders Trustee and Executor Company Limited and E G Reeves Pty Ltd. Further, it will be noticed that this clause does not refer to solicitor and client costs. In the particular context, that is significant. The expressio unius rule is to be applied with caution, but here the other rules I have mentioned are also applicable. In any case, I do not think the clause extends to the principal proceeding under s 52.
26 Finally, cl 23.1(b) of the lease. This clause also is to the same effect as the cl. 27(b) considered by Carr J. I agree with his Honour that the costs of the principal application do not fall within such a clause. Counsel for the cross-claimant contended that the principal action was in connection with the lease and with the enforcement of the lessor's rights under the lease, particularly because; his client was seeking (first, by the local court action, and then by the present cross-action) to recover rent and other lease payments. But if this was a sufficient connection, a precisely similar argument must have been available in Quadrascan Graphics Pty Ltd v Crosfield Electronics ANZ Pty Ltd. Clause 23.1(b) does not in fact refer to costs in connection with the lease, but to costs in connection with one of a defined class of things, being themselves in connection (by virtue of the definition of Transaction Document) with the lease. Each of those things - consent, approval, exercise or non-exercise of rights, waiver, variation, release, surrender or discharge - has a quite close connection with the lease. None aptly falls within what was involved in the principal action under s 52. That action, and its costs, would not naturally be described as in connection with any of them. It was concerned, as has been said, with the circumstances as a result of which the lease came into being. If clear language is required to disturb the ordinary rule in respect of the costs of litigation, replacing it with a special right to costs as between solicitor and client, there is no such clear language here.
27 For these reasons, I reject the claim for indemnity costs, or costs as between solicitor and client, in respect of the principal action. But Leda should have an order for costs on the contractual basis in respect of the cross-claim. Each of the contractual provisions is subject to "a necessarily implied qualification that the provision applies only to costs, charges, expenses or payments properly incurred": Elders Trustee & Executor Co Ltd v Eagle Star Nominees Ltd (Supreme Court of NSW, McLelland J, unreported, 17 November 1986); Gomba Holdings (U.K.) Ltd v Minories Finance Ltd at 187. Also, there is a question whether a contractual provision about the costs to be recovered in respect of litigation in the Court can override the untrammelled discretion as to costs conferred on the Court in respect, relevantly, of "all proceedings before the Court" by s 43 of the Federal Court of Australia Act 1976. When parties contract to seek an order from the Court of a kind involving the Court's discretion, that discretion is not ordinarily obliterated: E I Du Pont De Nemours & Co v Commissioner of Patents (1987) 16 FCR 423 at 424, 432, 434-436. For this reason, the Full Court reserved its opinion as to whether the Court's discretion in respect of costs was overridden by a provision for solicitor and client costs in the mortgage in question in Elders Trustee & Executor Company Limited v E G Reeves Pty Ltd (1988) 20 FCR 164 at 167, 174. Since then, the Court of Appeal in England has affirmed that the discretion remains in such a case, though "[w]here there is a contractual right to the costs, the discretion should ordinarily be exercised so as to reflect that contractual right": Gomba Holdings (U.K.) Ltd v Minories Finance Ltd at 194. In the present case, the ordinary course should be followed, since no ground has emerged upon which the discretion should be exercised otherwise: cf Jones v Mortgage Acceptance Nominees Limited (Davies J, unreported, 23 February 1996).
28 The only order I make at this stage is to direct the cross-claimant to bring in, on a date to be fixed, short minutes of orders to reflect the reasons of the Court.
[2]
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett.
[3]
Associate:
Dated: 14 April 1999
Counsel for the Cross-Claimant: Mr S Habib
[4]
Solicitors for the Cross-Claimant: Turtons Lawyers
[5]
Solicitor for the Cross-Respondents: Mr A J L Wright of Gordon & Johnstone