LIBERTY INVESTMENTS PTY LTD v SAKATIK PTY LTD

LANDLORD AND TENANT - agreement by deed for commercial lease of premises

• outgoing tenant demolishes internal rooms - repudiation of agreement by defendant - claim that rooms were fundamental to agreement and were to be part of leased premises - inability of plaintiff to give vacant possession with rooms intact
• premises subsequently leased at a lesser rental.

GUARANTEES - second and third defendants were directors of the first defendant

• claim based on guarantees for the shortfall in rent.

COSTS - indemnity costs - whether Court of Appeal should exercise discretionary power as distinct from powers under the rules.

Appeal from Robson DCAJ. Held: (Priestley AP with Mahoney ACJ and Beazley JA agreeing) -

1. On the question of whether trial judge's findings of fact on credibility of witnesses should be overturned:

(a) The trial judge had adequate materials before him and it was appropriate for him to come to the conclusions he made, therefore the attack upon judge's factual findings must fail. Abalos v Australian Postal Commission (1990) 171 CLR 167: Devries v Australian National Railways Commission (1992-1993) 177 CLR 472, applied.

(b) (per Mahoney ACJ) The trial judge should be seen as doing no more than preferring the evidence of one witness to another for the purposes of the case. Smith v The New South Wales Bar Association (1992) 176 CLR 256, considered.

2. On the sufficiency of the trial judge's reasons and failing to take into account certain exhibits:

(a) The trial judge complied with the obligation to adequately explain and make his reasons for the decision clear. There is no difficulty in following his reasons. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 considered.

(b) (per Mahoney ACJ) In relation to a trial judge giving reasons, the relevant law is established by Pettit v Dunkley [1971] 1 NSWLR 376, applied, and it is clear from what the trial judge did that sufficient reasons were given and accordingly there was no error of law.

3. On the question of whether the doctrine of frustration applied to the agreement.

(a) The circumstances in which the doctrine will apply are varied and whether the doctrine applies, ultimately becomes a question of fact. Different categories also exist and

one particular category is, if a particular thing essential to the performance of the contract no longer becomes available, then the contract will be frustrated. Bearing in mind the trial judge's findings and the inability of the plaintiff to offer the fittings as a part of the premises, then it would be sound to say, in light of these facts, that the doctrine of frustration applied and first defendant was no longer bound by the agreement.

(b) (per Mahoney ACJ) Regard must be had to the commercial basis of the case, which was known to all the relevant parties. It is proper to infer from the evidence, that the presence of the fit,tings was not merely an incidental matter, but was one vital to the transaction. It is proper to find that within the law of frustration, the commercial purpose of the transaction was defeated.

4. Indemnity costs. The case was not one in which the Court of Appeal considered it

appropriate to exercise its discretionary powers and to make an order for indemnity costs. ORDERS Appeal dismissed with costs

This is an appeal from judgments of Robson DCAJ delivered on 8 December 1992 by which he dismissed the claim of the plaintiff, Liberty Investments Pty Ltd, against three defendants. The plaintiffs claim was that: by a deed of 21 May 1984 it had agreed with the first defendant to lease and the first defendant had agreed to accept the lease of premises at 63 Marigold Street, Revesby, at a rent and on terms set out in the deed; it was a term of the deed that the first defendant would enter into the lease upon the plaintiff obtaining vacant possession of the premises within a Period of eleven weeks from the date of the deed; it had obtained vacant possession of the property within the period; had notified the first defendant of that; and had submitted lease documents for execution by the first defendant.

The claim proceeded that: the first defendant refused to execute the lease or take possession of the premises; the first defendant repudiated the agreement; the plaintiff accepted the repudiation and subsequently leased the premises at a lesser rent.

The plaintiff claimed from the three defendants the shortfall in the rent together with certain other minor items and also interest.

The first defendant was a company called Sakatik Pty Ltd. The second and third defendants were directors of that company and had become parties to the deed of 21 May 1984 as guarantors. The claim against them was based on the guarantees.

It was common ground that the deed of 21 May 1984 had been duly made. It was also common ground that the first defendant had never taken possession of the premises or executed the lease.

The defence of the three defendants depended principally on what the premises to be leased by the first defendant were to consist of. The premises as they were on 21 May 1984 were factory premises which included a coolroom and a food preparation room, both necessary and suitable for the first defendant's business.

At the date when the plaintiff claimed the first defendant was obliged to take possession of the premises pursuant to the agreement for lease, these rooms had been removed. The defendants claimed that it was fundamental to the agreement that these rooms be part of the leased premises. In various forms they claimed that the inability of the plaintiff to give possession of the premises as promised entitled the first defendant to treat the agreement for lease as at an end.

The plaintiff tried to meet the defendants' position by saying that its director, Mr Tringas, who was treated at the trial as the person with authority to act for the plaintiff in the transaction, had at the time of the making of the agreement of 21

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May 1984 expressly told the second defendant, Mr Van Dyke, who was acting on behalf of the first defendant, that the two rooms were going to be removed before the term of the proposed lease began.

Before the trial Judge, Mr Tringas gave evidence to this effect. Mr Van Dyke's evidence was quite different. The background to it was that when he was negotiating with Mr Tringas, the business Mr Van Dyke was connected with was in premises at Hillsdale where the lease was to expire at the end of the year and where any new lease would be at an increased rental. He and the first defendant were interested in obtaining more suitable, in the sense of location, and less expensive premises.

I think it will be useful to set out in full Mr Van Dyke's evidence in chief. It is brief. It deals with the issue raised by Mr Tringas about the two rooms and it conveniently brings together a number of matters helpful for understanding the case and its background:

A. I was managing director of a company called Tuck Trucks and that company had small mobile canteens, trucks going to various locations like offices and to provide lunches and so on. I was aware that another company called Kwik Snax was in serious financial trouble and was in receivership. I became aware that the lease, the preparation of the lease by Kwik Snax, that they were on a seven days' notice and the lease my company had, Tuck Trucks, was ten months' lease and it was on a contemporary situation because we were looking around for a cheaper premises and a more central location. So, I approached the landlord of the property that was leased by Kwik Snax at 63 Marigold Street, Revesby, and the landlord appeared to be Mr Tringas. I rang Mr Tringas, told him who I was, and I was interested in the property at Marigold Street, Revesby, and whether I could come down to see him. So, we made an appointment and I had my first meeting with Mr Tringas. I told Mr Tringas that my name was Albert Van Dyke and I was managing director of Tuck Trucks, and that we were looking for premises that were suitable for our type of business. I asked Mr Tringas whether the present tenant was on a seven days' notice and he said Yes, they never sign the lease. The lease was never signed by the manager or the owner of Kwik Snax. And I said, 'Is the situation because they are in financial trouble that they would not sign the lease because the company is in receivership and that needs the approval of the receivers?' and then I asked him that if it was possible for us to lease the property. And I told them the requirements that we had, I told them that we needed a property where we could have a room that had already Council approved for food preparation and had a coolroom and that our costs were very little because we more or less pick up, everything we move over, and just keeping on trading, which is of course very important. And Mr Tringas said that, he said, 'The preparation room there and a coolroom are permanent fixtures, they can't take it, they will definitely be there'. So then I asked, I offered Mr Tringas to pay him $40,000 a year in rent and he said, 'I don't know what to do. I better go and see my solicitor about this.' And then after that I asked him if he agrees to prepare the lease and send it to my solicitor, and then gave him the name of my solicitor as Mr Haydon and Co, I don't know the address any more."

This evidence shows, among other things, the direct collision between Mr Tringas and Mr Van Dyke on the question whether the two rooms would be part of the premises when the agreed lease began.

In the cross-examination of Mr Van Dyke, conducted both by the other defendants and the plaintiff with their several purposes, some further background evidence emerged which the Judge summarised as follows: "The second defendant gave evidence, which I accept, about the essential requirements and government controls over the central base of operations from which the canteen trucks are sent out. In effect, within the shell of a factory premises a self contained building is erected, incubated and sealed from causes of contamination, consisting of a room in which food is prepared and an adjoining coolroom. Plumbing, electricity and air conditioning are connected to this self contained structure. The second defendant gave an estimate of the cost of construction and connection of services and ancillary matters to be at least $100.000." I would add to this that Mr Tringas said in his evidence that the cost of the foregoing matters would probably have been more than $50,000.

In his reasons, the Judge mentioned that the evidence in the case had extended over several days and involved lengthy inquisition into the nature of conversations leading up to the lease and further conversations in the period between the making of the agreement for the lease and the time when the plaintiff claimed the first defendant was bound to take possession.

He also mentioned there had been extensive inquiries into the circumstances pending the first defendant's departure from Hillsdale and the condition of the Marigold Street premises at the time of departure of the tenant who was in there at the time when the agreement for lease was made on 21 May 1984. He also mentioned there had been evidence from various tradesmen concerning their carrying out of relatively minor repairs immediately before, as the plaintiff claimed, the date when, again according to the plaintiff's claim, the first defendant was bound to take possession.

The trial Judge had to decide what was the substance of the conversations between Mr Tringas and Mr Van Dyke. As well as referring to the extensive evidence that I have just mentioned, he noted that he had had the opportunity to assess each of those gentlemen during lengthy periods in the witness box. He said he had come to the view that Mr Van Dyke's evidence should be accented. He gave a number of reasons for this conclusion. Having come to it, he then held that the premises offered to the first defendant were radically changed from what they had been when the agreement for lease was made and that that amounted to the agreement having been frustrated. Accordingly, he dismissed the plaintiff's claim.

The first step, and, in my view, necessarily the first step, which counsel for the plaintiff sought to take in argument in the appeal was to try to overturn the trial Judge's findings of fact about the conversations between Mr Tringas and Mr Van

Dyke concerning the two rooms. Counsel rightly recognised that there was a formidable obstacle in the way of overturning these findings of fact by the trial Judge. A line of cases stretching back to the last century and culminating in more recent times in the cases of Abelos and De Vries in the High Court have made it clear that the circumstances in which an appellate court will interfere with findings of fact relating to credibility made by a trial Judge are very restricted. The most convenient place for finding the relevant considerations in this respect is in De Vries v Australian National Railways commission (1993) 177 CLR 472.

Towards the end of the joint reasons of Brennan, Gaudron and McHugh JJ in that case, after mentioning that the Court had pointed out in recent decisions that a finding of fact by a trial Judge based on credibility was not to be set aside because an appellate Court thought the probabilities of the case were against, or even strongly against, the Judge's finding of fact, they went on:

URJ LIBERTY INVESTMENTS PTY LTD v SAKATIK PTY LTD (Priestley JA) 5

"Tf the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." (at 479)

It was one or other of these things that the plaintiff's counsel embarked upon trying to persuade this Court of in opening the appeal.

The principal matter upon which he relied concerned the legal situation between the plaintiff and the tenant of the Marigold Street premises at the time when the agreement for lease to the first defendant was made on 21 May 1984. The name of that tenant was Mr Harding and his lease had begun in 1979.

It appears that shortly after that lease was entered into he had caused a food preparation room, being one of the two rooms which became important in the conversations between Mr Tringas and Mr Van Dyke, to be erected within the factory building and had constructed that room from brick. The plaintiff's solicitor wrote to Mr Harding by letter dated 22 May 1980 pointing out to him the fact of this construction and asking him for an acknowledgment in writing that the factory would be reinstated to its original condition by removal of the food preparation room upon vacation of the premises.

By letter of 27 May 1980, Mr Harding replied making the necessary acknowledgment. These letters were relied on by the plaintiff in the appeal as evidence incontrovertibly established which showed that the trial Judge had failed to use his advantage or acted on evidence inconsistent with the facts incontrovertibly established or else that it was glaringly improbable that Mr Tringas would have said what he did to Mr Van Dyke in view of the situation established by the letters. The clause in the lease between the plaintiff and Mr Harding was also relied on as supporting the same approach.

I do not think that the existence of the letters or, more precisely, the existence of the legal situation disclosed by the letters is a fact which makes it so unlikely that Mr Tringas would have said what Mr Van Dyke said that he said in their first interview and in subsequent conversations that this court should conclude the trial judge made a mistake in accepting Mr Van Dyke's evidence on the point.

There are many possible reasons why the existence of the letters and the legal situation disclosed by the letters is not inconsistent with Mr Tringas thinking when he was talking to Mr Van Dyke that he was in a position or would be in a position to see to it that the plaintiff gave possession of the premises to the first defendant in the condition in which they were at the time of the making of the agreement on 21 May 1984.

I do not think it necessary to explore the possibilities. The distance of time between the correspondence which was correspondence by the plaintiff's solicitor and the date of the making of the agreement is one matter that would have to be taken into account.

Another flows from the considerable evidence given concerning the financial position of Mr Harding and the company with which he was connected. This evidence may well have led Mr Tringas to think that there would be no problem in recovering possession of the premises from Mr Harding in the condition in which they were at the time of his conversations with Mr Van Dyke.

Mention merely of those two matters seems to me to be sufficient to show that the letters do not constitute the kind of material which is so inconsistent with the factual findings made by the trial Judge that this Court's jurisdiction to interfere is enlivened.

As the trial Judge said, there was a great deal of evidence relating both to matters bearing on the conversations between the two men and on subsequent matters. From the point of view of this Court's consideration of the appeal, it is unnecessary to do more than consider the matters upon which the plaintiff relies in its appeal in its attempt to bring itself within the situations described in De Vries as situations where an appellate Court might interfere. I would add, however, that having read through the transcript of the evidence of Mr Tringas, Mr Van Dyke and the other witnesses, it seems to me abundantly clear that the trial Judge had before him materials upon which it was appropriate for him to come to the conclusion which he came to. I am not suggesting that I myself am venturing to make any finding of fact. I expressly disown any such intention. Iam simply saying that there was material before the trial Judge upon which it was by no stretch of the imagination irrational or insupportable for him to arrive at the conclusion which he did.

The letters that I have referred to and the lease which is consistent with them, dating from 1980 and 1979, were the principal matters relied upon by the plaintiff in this first step in its argument in the appeal. There were some other documents which came into existence at dates varying from some time round about July and August 1984 to much later which the plaintiff also submitted provided documentary material of a kind supporting the submission that the factual findings of the Judge should be overturned.

In the circumstances of this case I do not think that those documents are really relevant to the question of what the conversation was that took place between Mr Tringas and Mr Van Dyke. However, I have read the documents and the evidence relating to them and they do not in my opinion constitute evidence of the incontrovertible kind which it was submitted that they did. When the evidence of the people who told of the creation of the documents is looked at, it can be readily seen that issues of fact arose concerning some of those documents and doubts about others which would leave them in a position, so far as an appellate Court is concerned, where they do not fall into and of the requisite categories.

The result is, in my opinion, that the attack upon the trial Judge's factual findings must fail.

As I mentioned earlier, that was the principal starting point for the plaintiff's argument in the appeal. There were two further points which were put to the Court. One I can describe as the Soulemesis point. It was submitted that the trial Judge had not sufficiently disclosed his course of reasoning in his reasons for judgment and that that constituted an error of law which required the judgments to be set aside. I do not agree with this contention. Without going into the details of what pursuant to Soulemesis and a string of cases which have discussed the same point in this Court is required, for my part I think it is sufficient to say that the thrust of all those decisions is that a trial Court Judge should in explaining the reasons for his decision make reasonably clear just what the course of his reasoning is and deal with the essential points in the litigation before him in that explanation.

In the present case, it seems to me that the trial Judge complied with that obligation. It does not seem to me that there is any real difficulty or any difficulty at all in following his train of reasoning. I think, therefore, that this point also fails.

The other point put for the plaintiff requires a little explanation. I earlier said that having come to his factual conclusions the trial Judge said that what had happened had amounted to the agreement having been frustrated. That was

URJ LIBERTY INVESTMENTS PTY LTD v SAKATIK PTY LTD (Mahoney ACJ) 7

putting what the trial Judge said at the conclusion of his judgment in a slightly different form from what he said himself.

To explain this, I need to mention that what had happened between the making of the agreement of 21 May 1984 and the date early in August which the plaintiff claimed was the date when the first defendant had to take possession of the premises, was that the plaintiff had first of all met some difficulty in persuading Mr Harding to vacate the premises. It was necessary for the plaintiff to take proceedings for possession in Court proceedings before Mr Harding vacated. Mr Harding when he did vacate caused the two rooms to be demolished and removed, and the trial Judge, having said what I earlier read, concluded with these words:

"Tt is my view that by the actions of Mr Harding the agreement of May 1984 was frustrated."

The submission put was that it was wrong to say that what Mr Harding did was relevant to the frustration of the agreement, and that this observation was an irrelevant one on the part of the trial Judge. This may be so, although I express no firm opinion about it, but it does not seem to me to affect the soundness of the trial Judge's conclusion.

The circumstances in which the doctrine of frustration will apply to contracts are many and various. Many Courts of the highest authority have said that questions of frustration are in all cases ultimately questions of fact. However, different categories of case have been separated out and discussed in the authorities and the texts, making it a little easier to penetrate the law relating to frustration.

One of the categories is the category where if a particular thing essential to the performance of a contract becomes no longer available to the parties, then their contract will be frustrated. Cases supporting this general statement may be found collected in Greig and Davies, The Law of Contract, at 1308.

One of the reasons for earlier setting out the whole of Mr Van Dyke's evidence in chief was to enable it to be seen easily how important the matter of these two rooms was in the formation of the agreement. I think when his evidence is read and it is borne in mind that the trial Judge accepted what he said, there can be no question but that the availability of these two rooms in the leased premises was a matter of the first importance in the agreement for lease of 21 May 1984.

When it became impossible for the plaintiff to offer those two rooms as part of the premises to be taken possession of early in August 1984, it seems to me quite sound to say that the doctrine of frustration applied and that the first defendant was no longer bound by the agreement.

Accordingly, I have reached the conclusion that none of the arguments put for the plaintiff in the appeal should succeed, and that the appeal should be dismissed with costs.

Mahoney ACJ I agree with the judgment of Priestley JA. I shall add some observations of my own upon the three main matters argued:credibility, frustration and the reasons for judgment.

Mr Warren has properly submitted that in determining which witness of inconsistent witnesses the Judge should give credibility, it is proper that the Judge take into account all of the evidence that is before him. The extent to which this is necessary and the qualifications of it have been referred to in other decisions of this Court: see Fabre v Arenales (1992) 27 NSWLR 437.

The submission here was that the Judge did not take into account in particular the contents and effect of Exhibits L and M, the two letters to which reference has been made. When one has regard to the Judge's judgment and the nature of the contest between the parties. I am satisfied that the Judge did take those matters into account and notwithstanding, or perhaps because of, the terms of them, he found as he did, that Mr Van Dyke rather than Mr Tringas was to be the credible witness. I see no error in what has been done. I should add this.

The Judge's finding is not a finding in terms that Mr Tringas did not tell the truth so far as he was attempting to do so. The effect of a finding of the kind made by the Judge is discussed in the litigation involved in Smith v The New South Wales Bar Association (1992) 176 CLR 256. What the Judge did, as I understand his finding, is to prefer the evidence of Mr Van Dyke to that of Mr Tringas and for the purposes of this case to accept Mr Van Dyke as the credible witness. His judgment should, in my opinion, be seen as doing no more than that.

In relation to frustration, it is important, in my opinion, that regard be had to what was undoubtedly the commercial basis of the case. At least it was so if Mr Van Dyke's evidence be accepted. The commercial basis of the case as known to all the relevant parties was that when the company, which was to take a lease of the premises came to enter upon possession of them, it was to have the fittings in question, the preparation room and the coolroom, and was to have those fittings from the date on which it took possession. It is proper to infer from the evidence, which the Judge accepted, that this was not merely an incidental matter; it was vital to the transaction from the point of view of the intended lessee and was known to be such by the intended lessor, that is in effect by Mr Tringas and Mr Van Dyke.

The purpose of the taking, or proposed taking, of the lease was discussed in evidence and it is clear that the possession of those fittings and their possession from the date on which possession of the property was to be taken was vital and was one of the main reasons why the additional rent had been offered to Mr Tringas for a lease of the premises.

Mr Tringas and the plaintiff company caused or permitted this purpose to be defeated. It is not necessary to pursue the reasoning, on this aspect. But the position was, I assume, that set out in Exhibits L and M, that Mr Harding, was to remove the fittings before he left the premises. No steps were taken to persuade or prevent him doing so; it may be that the matter went further than that.

It was not necessary for the Judge to pursue this matter exhaustively. But the plaintiff and Mr Tringas were, in my opinion, so involved in the situation that it was proper to find that, within the law of frustration, the commercial purpose of the transaction was defeated. Upon this ground I would find that there had been a sufficient basis established for the Judge's finding of frustration.

It is important to record that what is here in question is, of course, an agreement and not a lease as such. It is, therefore, not necessary to pursue the questions which existed, or in the past have existed, as to the application of frustration to a lease.

In relation to the reasons given by the learned Judge, it is proper to observe that the law as established by Pettit v Dunkley (1971) 1 NSWLR 376 and the earlier cases requires that in a judgment the Judge ensure that the parties, and particularly the successful party, know why the decision was given as it was, know sufficiently the reasons for the loss by the party losing to enable that party to exercise its rights of appeal or review and to do whatever justice requires in the circumstances.

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In my opinion, it is clear from what the Judge did why he did it. For myself, I would have no doubt as to why the Judge decided that Mr Van Dyke was to be preferred to Mr Tringas in his evidence and why for this reason the claim of the plaintiff company should be dismissed. Nor do I see any difficulty in determining what he should do or might do in relation to appeal or review from the terms of the judgment.

Notwithstanding these matters, it was yet argued that the reasons given were not sufficient reasons and that there had been an error of law of the kind referred to in Pettit v Dunkley. Reliance was placed in the main, if not entirely, upon the fact that, as it was submitted, the Judge did not clearly indicate how he had dealt with Exhibits L and M and the effect of them.

In deciding what reasons are to be given and to be given under pain of being found guilty of an error of law, it is in my respectful opinion proper that the law have regard to reality and not to concepts. The law is not a game. It is not an academic exercise in which the Judge is required by way of a schematic statement of the dispute to itemise exclusively or to exhaustion all of the points which may be of relevance in relation to the case. A judgment is a practical working document. Judgment writing now occupies a great deal of public time and requires the expenditure of a great deal of public money. A Court must, of course, do what justice requires and time and money must be sufficiently provided to allow justice to be achieved. But if there is to be a great expenditure of judicial time and expense and so public time and expense, it is proper that the courts have regard to what in reality justice now requires.

In view of the current tendencies in the law, this is I think becoming more and more important. The time taken in judgment writing in a Court will, of course, vary with the course of the case but my own experience over a period of years is that judgment writing in the superior Courts occupies something of the order of 100 to 150 per cent of the time taken to hear a case. I do not speak for the District Court or other Courts at that level but I suspect that the time taken, though it may perhaps be somewhat less, is not greatly less. That matter is to be taken into account in assessing what is to be required of a Court in the statement of its reasons.

It is also to be borne in mind what in fact Courts in this State are now required to do. In deciding what reasons to be given one will have regard to the place which a Court occupies in the judicial structure. One does not expect from a Court at the lower end of the structure a detailed statement of reasoning in relation to each of the many cases that has come before it during the day.

Also regard is to be had to the number of cases which a Court is now expected to deal with in the course of its daily activities. In deciding what reasons a Judge must give the law will, in my opinion, as a matter of simple common sense take into account what the Court of which he is a member is and what it is expected to do.

I emphasise again that what a Court can do and is expected to do in detailing its reasons for judgment is at all times to be subordinate to the requirements of justice. But that Court, and this Court which reviews what is to be expected of a Court, is entitled to take into account the burden which is now imposed upon Courts.

It is proper to say, and I think the Court may properly know, that Courts such as the Compensation Court not infrequently have listed before a Judge seven or eight cases in each day. The Court of Criminal Appeal, part of the Supreme Court of New South Wales, not infrequently has before it four or five cases in a single day.

It is proper to record that this Court itself in recent times has at least in one of its divisions been dealing with three, four and five appeals each day. The reasons that are required to be given by a Court are to be assessed having regard to matters of this kind.

It might perhaps be argued that if objection is to be taken to the reasons which have been given by a Court or a Judge, it should be required of the party taking the objection to place on record, in some formal way eg, on affidavit, that he does not know, the reasons why the decision was given against him or that he does not know the reasons sufficiently to enable him properly to exercise his appellate rights or his other rights of review.

However, such a requirement does not presently exist. It is sufficient for me to say in the present case that I see no error in the judgment which the Judge gave. I think that it sufficiently appears from it what he did and why he did it and I see justice as requiring no more than what he did.

I agree with the orders that are proposed by Priestley JA.

Beazley JA I agree with the reasons for judgment of Priestley JA and with the orders proposed by him.

The order of the Court, therefore, is that the appeal is dismissed with costs.

The Court has given careful consideration to the application for costs pursuant to the letter of 12 August 1996 from Messrs Hogan and Company, the solicitors for the respondents. It is sought that an order for indemnity costs should be made in terms of that letter. I will direct that that letter be marked for this purpose as Exhibit 1.

The Court has given careful consideration to the matter but in the end it does not think that this is an appropriate case in which to make orders for indemnity costs. It may be that in some circumstances the Court of Appeal in the exercise of the discretionary power as distinct from the power under the Rules, will make an order for indemnity costs. But on balance the Court does not think that this is an appropriate case. It, therefore, refuses the application. The costs will be upon the ordinary basis.

Solicitors for the appellant: Redmond Partners Counsel for the respondent: (1 and 3) DL Williams Solicitors for the respondent: (1 and 3) Hovan and Co Counsel for the respondent: (2) In Person