Palmer v The John Gallagher Panel Beating Company Pty Ltd

It is as against that background that the present proceedings were commenced. The resolution of the case has been delayed due to the time taken, first, to obtain a transcript of the proceedings and, secondly, for the Parties Written Submissions to become available. I note one was received at the Downing Centre Registry on 9th May, 2006, which was then forwarded to me at Wagga Wagga. Not surprisingly, it was necessary to review quite a deal of written materials before completing Judgment.

The Plaintiff has demanded return of the vehicle and the Defendants have refused and retained possession. Accordingly, the Plaintiff sues claiming the following:

(a) delivery of the vehicle and excess parts supplied; (b) damages for conversion and/or a refund; (c) damages for detinue; (d) refund of $2,000.00 for overpayment; (e) interest; (f) costs.

The Defendant by Cross-Claim says there was an agreement whereby the Plaintiff/Cross-Defendant would be charged $70.00 per hour plus the cost of materials. That came to a total of $53,755.00. The Defendant sues claiming the following: (a) $22,255.00 as the balance outstanding; (b) storage fees for the detained vehicle at $100 per week from 1st June, 2004; (c) a claim for quantum meruit at $70.00 per hour for the work to complete the vehicle plus the sum of $4,160.05 for materials used; (d) interest; (e) costs.

It is noted that the matter of quantum meruit arose on 5th December, 2005, the first day of the hearing. Mr Scotting of Counsel was not the one who settled the original Pleadings. Having permitted the amendment, I ordered the Cross-Claimant to pay the costs thrown away by reason of the adjournment. In essence, as Mr Scotting correctly points out, the case is about a fixed price contract versus a cost plus or an hourly rate plus materials contract and quantum meruit only arises if either contract is void.

The Plaintiff gave evidence. His Statements of 27th August, 2005 and 5th December, 2005 were admitted as Exhibits 1 and 2 respectively. There was an amendment to Exhibit 1, paragraph 27, where, when told of the price by Mr Gallagher, Mr Palmer said, "Okay, please proceed." He confessed to being shocked when told of the further moneys required. He said, "…I had two conversations, I think three days apart. The first conversation was specifically John requesting some more money. It was at that point that I said to him I felt that I'd paid everything and he then said that he would tabulate the final amount and then approximately three days later he then came back and said to me that the final amount was the $52,000." He told Mr Gallagher that he could not pay it and would have to sell his other car. After thinking about it for a few days he sought legal advice. 9. In cross-examination to Mr Scotting of Counsel, he said that in or about October, 2003, he had spoken to Mr Gallagher about having his vehicle re-sprayed and that Mr Gallagher went to his home to look at the vehicle (although the Plaintiff was not present at that time). Mr Palmer, who at that time was working for a towing company, took his vehicle to Mr Gallagher's premises in a dissembled state.

Mr Palmer was shown a document which turns out to be of no small significance in this case. It is a series of sketches drawn by Mr Gallagher on 14th November, 2003, in the presence of Mr Palmer and became Exhibit 9. They were drawn after the paint had been removed from the vehicle. The original sketches are in black and red - black indicating the different panels of the vehicle and red indicating matters needing attention by way of potential repairs. Mr Palmer's evidence was that on 14th November, 2003, he had discussions with Mr Gallagher about the number of hours being allowed for each of the relevant matters identified in Exhibit 9. He said that on 14th November, 2003, it was his understanding that he was given a quotation of $20,000.00 for paintwork and a figure for total repairs to be undertaken that could have been $7,500.00.

Mr Palmer said of Exhibit 9 that there was one page of it missing. He said that on 14th November, 2003, not only had Mr Gallagher prepared the sketches of matters needing attention prior to painting - there was what he called a "summary page" which contained a summary of the hours on each of the other pages. He pointed to the sketches and said there were numbers circled which represented the hours Mr Gallagher allowed for repairs. Those numbers, he said, then went on to the "summary page", together with the page number of the particular sketch. That, Mr Palmer said, was how Mr Gallagher came up with the figure of $7,500.00. He knew that because he had seen it. And below that figure was one of $20,000.00 for paint and painting. Having looked at the original documents comprising Exhibit 9, he said that the "summary page" was not among them. (I interpolate here that the existence of the missing page was not the subject of challenge nor was it ever produced in the proceedings).

Mr Palmer's attention was drawn to a series of photographs which became Exhibits 3,4,5,6,7 and 8 and were taken at various stages of the repair and painting process. He agreed that as at 14th November, 2003, the paint had been stripped of the vehicle to reveal areas of plastic filler and some rust. There was an area on the nearside front mudguard which had rusted through on the sill and Mr Palmer said he pointed this out himself to Mr Gallagher. He agreed Mr Gallagher told him that he would not know the full position until the body filler had been removed and added, "When the body filler had been removed most of the body filler was hiding previously poor repairs. There was not significant rust. It was in my opinion there was not significant rust that was unearthed by taking out the body filler."

Mr Scotting questioned Mr Palmer as to his understanding of the pieces of paper prepared by Mr Gallagher on 14th November, 2003. Mr Palmer said he understood it to be a quotation. He believed that the figures were what he was going to have to pay for the repairs to the vehicle. He agreed it was not prepared on any official note paper of Mr Gallagher's business; the word "quotation" was never written upon it; and he was never given a copy of it. It was put to Mr Palmer that he well knew that the figures were in no way to be treated as a quotation. Mr Palmer disagreed. He said, "It was a figure that Mr Gallagher gave me based upon him looking at the vehicle after it had been stripped, and his professional experience."

It was put to Mr Palmer that he was prepared to spend considerably more than the vehicle was worth to obtain the repairs and paint finish he wanted. He did not agree. He said that the vehicle had a particularly good engine, transmission and rear axle. For that reason alone, he said, the repair bills to go on to replace those items were actually more than the value of the vehicle on the market. Rather than selling the vehicle which he would later on have had to replace with something else, he decided to keep the vehicle but he did not like it white. That is why he wanted it painted black. He said he had previously been offered $15,000.00 for the vehicle but now considered it worth around $5,000.00 due to it not being run for the last couple of years.

It was also put to Mr Palmer that on 14th November, 2003, Mr Gallagher said to him, "This is a mess, you can see all this plastic filler and there's bound to be repairs, panel and rust. This will completely blow your budget and my quote. Do you want me to continue or we'll just scrap the project.?" This was denied by Mr Palmer. In reply he said there was no discussion ever of scrapping the project. He also denied any suggestion about "blowing the budget and my quote." He said, "Mr Gallagher had never given me a quote at that stage, that was the reason why we were walking around the vehicle. … At that time no budget had been set." He said Mr Gallagher gave him the price which he (Gallagher) wrote down and Palmer said, "Okay, proceed."

It was put that Mr Gallagher said, "Well, in view of the condition of the Jaguar I can only do it on an hourly basis so I cannot give you a definite quote on this. I cannot tell you how much more will be involved until I completely strip it. My hourly rate is $70.00 per hour, the same as I'm doing for another job. I record the time daily. You can come and observe what I'm doing at any time." The only agreement to that suggestion by Mr Palmer was that Mr Gallagher said he could come and visit at any time. The rest of the alleged conversation was denied.

Mr Palmer also denied that Mr Gallagher had said to him that no further work would be done on the vehicle without further payments. So far as he was concerned, he said, he had a solid quote originally for $27,500.00 which was increased by $2,000.00 to $29,500.00 by agreement. There was no issue about payments, "… until Mr Gallagher surprised me by saying that I still owed him something in the vicinity of $20,000.00. I didn't realise there was a problem until that point." He firmly denied the suggestion put to him that he paid $31,500.00 in progress payments of an amount he knew that was yet to be finalised.

The Second Defendant, Mr John Daniel Gallagher, then gave evidence. His Affidavits of 25th July, 2005 and 6th December, 2005, became, respectively, Exhibits 10 and 11. His evidence extended over three days. Mr Scotting took him to his Affidavits and to two diaries - 2003 and 2004 - in which Mr Gallagher said he recorded the hours worked on Mr Palmer's vehicle as well as Annexure "I" compiled from invoices for items purchased for the same vehicle. He told the Court of a conversation he had with Mr Palmer in October, 2003. He said he told Mr Palmer that he could work on the vehicle almost continuously but would like to have progress payments to keep paying his mortgage and ongoing things like that but he would like a bulk payment at the end so he could carry out some repairs to his house. He said that Mr Palmer agreed to this and did not indicate any urgency in getting the job done.

When handed the sketches, Exhibit 9, he told Mr Scotting they were just very rough sketches he made of the damage found after paint had been removed from the vehicle. He was taken to a figure of 24 with a circle around it and asked what he meant by writing that. He ultimately agreed, although, it seemed to me, with some reluctance, that it referred to '24 hours' to do the work on the near side guard.

In cross-examination to Mr Tindall he agreed that in his fifty-odd years in the business he had assessed thousands of jobs and was careful in doing so as to lose money on them. He conceded that he made minor mistakes from time to time - agreeing that it could be between five and ten percent margin for error. He agreed that with his experience he could look at a vehicle like the Jaguar and know pretty much at an instant how long it would take to strip it.

He was referred to Exhibit 9, in particular to page two, and the number '2'. It was put to him that the number '2' was an estimate for repairs. He replied, "It's not an estimation, it's just a suggestion." He was asked, "So you've written those down for a reason other than an estimate of the number of hours it would take?" He replied, "Yes." It was further put, "… in the whole of the document, all of the sketches, have you left any panel of the whole vehicle out?" He said, "No.". He was then asked, "You did every panel and you estimated the number of hours it would take to do the repairs, didn't you?" He said, "No."

Mr Tindall continued to press the Defendant as to the purpose of Exhibit 9. The following exchange is recorded:- Q. "So you saw the gap on a bad edge and you knew that that needed some work, didn't you?: A. "Yes." Q. "And then you proceeded to record the number of hours that that would take to fix that work? A. "Yes - no, sorry no. That was a no." Q. "Mr Gallagher, did you mean 'yes' or did you mean 'no?'" A. "I meant 'no'". Q. "Are you saying no to my answers (sic) about the number of hours required for work because you want us to believe that these are just sort of stabs in the dark, as it were?" A. "No, not at all." Q. "Were they stabs in the dark at the amount of hours?" A. "Yes." Q. "These weren't guesses, were they?" A. "These were guesses." HIS HONOUR: Q. "Were they informed guesses, Mr Gallagher?" A. "I'm sorry?" Q. "Would you call them informed guesses?" A. "Informed guesses?" Q. "Would you call them that?" A. "No."

There was a further exchange in relation to Exhibit 9 which bears repetition:- Q. "It would be unlikely that the estimate, or the guess, the stab in the dark, whatever you want to call it, in terms of the total number of hours in Exhibit 9, would have changed when you did the job to any large extent, would it?" . A. "It would be very likely that it would increase." Q. "If it was very likely that it would increase, did you advise Mr Palmer that it was very likely that it would increase?" A. "Yes." Q. "Did you advise Mr Palmer that it could more than double?" A. "Yes." Q. "When did you advise him that the price would more than double?" A. "At the time I showed him the drawings." Q. "And you told him it would more than double from the estimate of 96 hours?" A."Yes." Q. "Is there any reason why you didn't tell us that in your Affidavit?" A. "No." Q. "There's no reason?" A. "No." … Q. "So did you say to Mr Palmer - please be very careful and listen to what I say, did you say to Mr Palmer, 'I have done these hours on the basis of a stab in the dark, but the quote will be more than double', or words to that effect?" A. "Words to that effect." Q. "Are you saying Mr Palmer was aware therefore, and agreed to you guessing at the number of hours and then more than doubling it, do you?" A."Yes." … Q. "Have you seen in your Affidavit anywhere where you tell his Honour that you told my client that it would more than double at the time you gave him the drawings?" A. "No." 24. There was one final exchange concerning the provenance of Exhibit 9. The evidence of Mr Palmer was that on 14th November, 2003, the Defendant prepared the sketches, and there is no doubt they are detailed even to my un-trained eye, and placed figures are various places which indicated the number of hours to do the work. Mr Palmer referred to these figures being transferred to a separate piece of paper and calculations made by the Defendant which, he said, were written on what he called a "summary page". He noted, in particular, two figures - one for around $7,500.00 and the other for $20,000.00. That "summary page", nor, indeed, Exhibit 9 itself, was referred to in either of Mr Gallagher's Affidavits and came to light in these proceedings in subpoenaed material. In particular, the "summary page" has never been produced.

The final exchange went like this:- Q."Do you remember writing down the amount for the paint job on a piece of paper?" A "No, I don't." Q. "Well, you remember writing down an amount for the paint job? Not a piece of paper you gave to Mr Palmer, I'm just saying you wrote it down on a piece of paper. Not a quote or I'm not saying that you gave a quote to Mr Palmer, I'm just saying do you remember writing an amount of $20,000 on a piece of paper? A."No, I don't remember." Q. "Do you remember writing down an amount of $7,500.00 for repairs? Remember that amount? A."No, I don't remember that amount."

Q. "See, I put it to you that you wrote the amount of $7,500.00 and $20,000.00 on another piece of paper that didn't find its way to Court. What do you say about that?" A. "I don't remember."

I think it is fair to observe that the total number of hours recorded on the sketches, Exhibit 9, is 108 hours. Mr Gallagher's hourly rate was $70.00. A fleeting resort to a calculator shows this to result in a total of $7,560.00 which is remarkably close to the figure stated by Mr Palmer as having been given him by the Defendant. What is also remarkable is the apparent accuracy of Mr Palmer's evidence in this regard, given that he never received a copy of the sketches from Mr Gallagher - nor any other papers for that matter. This cannot be dismissed as mere coincidence.

The Defendant gave evidence that Mr Palmer asked him to work full-time on completing the job on the vehicle. See also Affidavit of 25/7/2005 - Exhibit 10, par 15. The Defendant seemed to be somewhat confused as to when it was this request was made of him but nonetheless insisted the request was made. In this context, in paragraph 27 of his Affidavit, Exhibit 10, are the words, "… he would pay me enough money each month to meet my financial costs so I could work on his car and he would pay me a bulk amount at the end of the job." His answers prompted me to ask, "Did you have any faith in Mr Palmer's ability to pay you to work full-time?" He replied, "No, I didn't." I asked, "You didn't ask him to record anything in writing which you both might sign in view of your misgivings?" He replied, "No, unfortunately." But thereafter, on his evidence, that is almost precisely what he proceeded to do.

There followed cross-examination as to the amount of paint, thinners and primer used on the Plaintiff's vehicle together with the total number of coats of paint applied. An examination of Exhibits 10 and 11 plus a reading of the transcript discloses some glaring inconsistencies. One obvious one, among many, is shown in Exhibit 10 - a total of six coats. In Exhibit 11, this is increased again and in his evidence to the Court he said it was somewhere in the proximity of thirty coats.

Mr Gallagher said he recorded the hours worked upon Mr Palmer's vehicle in two work diaries - Exhibits 12 and 13 respectively. Upon examination, it seems Mr Gallagher recorded the number of hours in the diaries at the end of each day. The diaries purport to indicate times but not what was done during those times. Also, it seems clear that the entries are not entirely accurate. Either that, or there are transposition errors between the diaries and the summaries. Examples of this are hours of work recorded for Christmas Eve, 2003, and Australia Day, 2004.

There was a part of Mr Gallagher's evidence I viewed with some disquiet. During cross-examination he was asked what he perceived Mr Palmer's reaction to be when told of the total bill of $52,000.00. In brief, he said Mr Palmer told him he was, "… happy with the job and he was happy with the amount." That conversation, if it occurred, was of great significance to the Defendant's case, however, it did not appear in either of his Affidavits.

The Defendants called Matthew Brown. His Affidavit became Exhibit 15 and served as his evidence-in-chief. He was not a panel beater. He was an Ambulance Officer but called in regularly to Mr Gallagher's premises to see the progress of the cars being worked on as he had an interest in them. Mr Brown carried out an amount of paint stripping on the Jaguar - he estimated around seventy per cent - and this was done within the one day he worked on it. In cross-examination he said he had been at the workshop when Mr Palmer was there a couple of times. He heard them talking about various things but could really only recall a subject of paint colour. Other than that, he could not say whatever else they may have spoken about.

s Exhibit 16 - first report of Contract Assessors dated 15/8/2005; s Exhibit 17 - second report of Contract Assessors dated 16/12/2005; s Exhibit 18 - letter from Stefan Wronski dated 19/12/2005; s Exhibit 19 - report of Morteza Akbarian dated 27/7/2005.

33. There is no need for me to refer to their content in any depth, or at all, for the purpose of this judgment, save to say I have paid close attention to them.

34. The Defendants called Mr Morteza Akbarian who gave evidence of a nineteen-step process Mr Gallagher had outlined to him as having been carried out on the Jaguar. He concluded that such a process was in accordance with correct industry standard practice. His opinion was based upon an examination of the photographs (now Exhibits in the case); what he was told about the condition of the vehicle prior to work beginning; and the amount of work performed in terms of times and materials.

35. He said he used a Mar-Hyde paint measuring gauge to measure the micron thickness of the paint - although, he said, he did not come across micron paint thickness testing much. He was taken to the diagram of paint thickness on the Jaguar, Exhibit 20, and described how, using the paint measuring device, he was able to gauge the thickness of paint on the various locations indicated in the diagram. He was given the opportunity of commenting upon aspects of the opinions expressed by Mr Blease, the Plaintiff's expert in Exhibits 16 and 17. For example, he did not identify any area of shrink-back in the paintwork as asserted by Mr Blease, nor any sign that the vehicle would be likely to develop crow's feet..
36. 'Crow's feet', he said, could be caused by a number of factors where paint is too thick - one is the heat of the sun; another is if the top surfaces are too thick, the stresses and strains of the vehicle's vibrations can make movement and thereby cracks can appear; another is that if the top surface is dry before the coat below is dry, then that drying process of the coats underneath will cause the top surface to crack.

While I was certainly assisted by Mr Akbarian's evidence, his opinion was limited in large measure by what he was told Mr Gallagher had done. Some things he was in no position to verify. This is not to be unduly critical of Mr Akbarian. However, I feel his evidence was more directed to whether what Mr Gallagher told him was the case was reasonable in the circumstances rather than whether it was necessary to do all that was said to be done in terms of labour and materials.

I must have regard to the decision of the Court of Appeal in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305 per Heydon JA., Priestley and Powell agreeing. I note also the judgment of McLelland J., in Bell v F.S. & U Industrial Benefit Society (Unrep) NSWSC 9 September, 1987, where his Honour said, "the importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence".

On the other hand, Mr Blease, the expert for the Plaintiff, provided the Court with more relevant assistance. He has been a motor vehicle loss assessor for the past 16 or so years. He is a licensed panel beater, spray painter, motor mechanic as well. Rather than commenting upon whether Mr Gallagher's figures were reasonable in the circumstances he gave his own assessment of the total hours for repairs and preparation. This was based upon his appraisal of the vehicle together with the sketches, Exhibit 9, and the photographs, Exhibits 3, 4, 5, 6, 7 and 8. His figure was between 80 and 100 hours. Mr Gallagher's was 96 hours. The variation is minimal.

One issue of contention concerned the paint thickness, or rather, the variations of paint thickness in different areas of the vehicle. Mr Akbarian used a Mar-Hyde paint measuring gauge. As demonstrated by him in Court, this gauge had its limitations. It seemed to me that to obtain any sort of accuracy would require quite some degree of practice with the device. Mr Akbarian had used it three or four times in the past. It was a simple and basic device with its principle components being a spring and a magnet. Mr Blease was at variance with Mr Akbarian. Mr Blease relied for his opinion as to paint thickness variations upon a more sophisticated device called an 'Elcometer'. This was battery-powered and produced a digital reading on a LCD screen. Unlike the Mar-Hyde device, it was able to be calibrated and tested as to accuracy before, during and after use. In my view, it was far more accurate and I would rely upon any readings produced by the use of it.

Mr Blease was pursued rigorously in cross-examination over his opinion that the vehicle will get 'crow's feet' within a period of 6 to 12 months, depending upon exposure to the sun. But, he said, it will happen. The unevenness and thickness of the paint were the problem. I prefer the evidence of Mr Blease to that of Mr Akbarian. 42. I had the benefit of observing the Defendant/Cross Claimant giving his evidence. I have to say no mere reading of the written word will reveal how unsatisfactory I found him to be as a witness in a variety of areas of importance to the case. In short, his case strains the bounds of credulity. His evidence was interspersed with marked inconsistency and what I regarded as prevarication. In addition, while I acknowledge demeanour can be a subtle thing, I note the remarks of Bryson JA (Ipp and Tobias JJA in agreement) in Hammoud Brothers Pty Limited v Insurance Australia Limited [2004] NSWCA 366 (at para [25]). [25] "My access to the evidence is by way of the printed record, whereas the Trial Judge had the advantage of seeing and hearing the evidence, and of forming an impression of the demeanour of witnesses. His Honour did not express any reliance on observations of demeanour, or point out any particular observations which he had made, but overall it must be understood that his Honour was in a position of considerable advantage over myself, sitting on appeal, in coming to an appreciation of such influences. The influence of demeanour has been spoken of as subtle, although it is not always subtle, and the Trial Judge was in a position, legitimately, to allow his own impressions to have an influence on the appraisal of the evidence, including what were suggested to be anomalies." 43. I had grave difficulty in accepting the Defendant. It seems to me that he sought to blend together a mixture of non-controversial fact with a degree of fiction so as to come up with a plausible but quite misleading story. 44. The Plaintiff's evidence was in a quite different category. In my view he was doing his best to be truthful and accurate. He was not evasive and, unlike Mr Gallagher, did not shift ground. His assertion that he entered a fixed price contract with the Defendants is given independent support in the document, Exhibit 9. This document, or a copy of it, was not given to the Plaintiff - nor, significantly, was a copy of what he called the 'summary sheet' (which was never produced to the Court). His evidence as to its content, without prior recourse to the document, equates with what he says he was told by Mr Gallagher on 14th November, 2003. It is also supported by the assessment of Mr Blease whose estimate of times varies minimally with that of Mr Gallagher's own document.

45. In my view, the evidence is eloquent of a fixed price contract between the Plaintiff and the Defendants initially in the amount of $27,500.00 and increased by agreement to $29,500.00.

46. The Plaintiff pleads an action in detinue. That, of course, is the wrongful detention of goods. It involves the unlawful failure on the part of the alleged tortfeasor to deliver the goods up when so demanded: Bellinger v Autoland Pty Ltd. [192] VR 514, per Herring CJ at 520. To establish an action in detinue, the Plaintiff must prove that the following three elements exist:

s First, the Plaintiff must specifically make a demand for the return of the goods on the person who has legal possession of them. The Plaintiff's immediate right to possession must simultaneously subsist at the time the demand is made: Timewell v Virgoe (1868) 5 WW&A'B L 147 perf Stawell CJ at 151; s Secondly, the Plaintiff's demand must have been refused by the alleged tortfeasor: Nelson and Another v Nelson [1923] St R Qd 37, per McCawley CJ at 40; s Thirdly, where the goods are in the actual possession of the alleged tortfeasor, the refusal to return the goods to the Plaintiff must be unreasonable: E.E. McCurdy Ltd (in liq) v Postmaster-General [1959] NZLR 553, per McGregor J at 556-557. 47. I make the following findings of fact: a) A fixed price contract was formed between the Plaintiff and the Defendants on 14th November, 2003; b) That contract was initially in the amount of $27,500.00 but was increased to $29,500.00 by mutual agreement; c) The Plaintiff over-paid the Defendants in the amount of $2,000.00; d) The Defendants failed to return, and continued to retain, the Plaintiff's vehicle after a demand had been made for its return; e) Alternatively to (d) above, the Defendants manifested intentional exercise of control over the vehicle which was inconsistent with the rights of the true owner who had the immediate right to possession; f) The refusal of the Defendants to return the Plaintiff's vehicle was unreasonable; g) On the balance of probabilities the vehicle will need to be stripped down and re-painted; h) The Plaintiff has suffered damages due to the wrongful detention of the vehicle by the Defendants.

I propose the following orders:

1. Verdict and judgment for the Plaintiff on the Further Amended Ordinary Statement of Claim;
2. Verdict for the Cross-Defendant on the Cross-Claim;
3. The vehicle to be restored to the Plaintiff within a period of 28 days from the date of judgment;
4. The overpayment of $2,000.00 to be repaid to the Plaintiff within 28 days of the date of judgment;
5. Damages in the amount of $17,000.00 in respect of the wrongful detention of the vehicle, inclusive of the cost of stripping and re-painting the vehicle, to be paid to the Plaintiff within 28 days of the date of judgment;
6. The Defendants are to pay the Plaintiff's costs of the action as agreed or as assessed within 28 days of the date of judgment - this amount to include the order for costs thrown away by reason of the adjournment of 5th December, 2005.;
7. The Defendants are to pay interest from 28th February, 2004.

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