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[2005] HCA 73
appellant. Appeal allowed with costs. Orders of the Court of Appeal dated 23 July 2004 set aside and, in lieu thereof, order that the appeal to that Court be dismissed with costs.
The High Court held that the seller of a large farming property could not avoid paying damages to the buyers for lost rice-crop profits simply because the buyers had never formally asked him to approve the extra land they wanted to develop. The seller had thrown the buyers off the whole property after wrongly claiming the sale contract was cancelled. That conduct made it pointless for the buyers to ask for approval, so they did not have to. The approval power the contract gave the seller was not unlimited; he had to act reasonably and could only refuse for good reasons connected with protecting his legitimate interests. No such reasons existed on the evidence. The Court of Appeal should never have let the seller run this approval argument for the first time on appeal, because if it had been raised at the original trial the buyers could have called evidence to show approval would have been given. The buyers therefore keep the damages awarded by the trial judge.
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The respondent, Clive Roy Brothers, agreed on 25 September 2000 to sell the 25,000-acre mixed farming property known as Jellalabad, located 40 km west of Hay on the Murrumbidgee River, to the appellants for $3,350,000. The contract contemplated completion on 7 December 2000 but contained special condition 24, which permitted the purchasers to enter the property after exchange and payment of the deposit, occupy the manager's cottage as licensees without occupation fee, and "work up ground for crops" in locations "first approved by the vendor". The work was to be at the purchasers' expense and risk, to the highest local farming standards, and subject to 14 days' notice for cottage occupancy. The background was that the respondent had been ill and unable to farm the property himself. The appellants, experienced rice and wheat farmers, had been told by the respondent and his agent that there was "plenty of land" available for expanded rice production, although infrastructure would be their responsibility. The rice-growing calendar made immediate possession commercially important: crops had to be planted by late October or early November.
The appellants took possession on 12 September 2000 (prior to formal exchange), planted a 2000-2001 rice crop on already-developed land, and expended approximately $225,000 without ever seeking or obtaining express approval under special condition 24. The respondent raised no objection at the time. Disputes then arose concerning reimbursement of a $150,000 water-supply payment required by special condition 22.4. On 12 December 2000 the respondent purported to rescind the contract and ordered the appellants to vacate. They complied. The appellants commenced Equity Division proceedings seeking a declaration that the rescission was ineffective and, if necessary, specific performance. On 27 February 2001 Young J held that the contract remained on foot; it was unnecessary to make a formal order for specific performance. Completion occurred on 24 March 2001.
Thereafter the proceedings continued for damages. Before Campbell J the appellants claimed, among other heads, damages for breach of the Fair Trading Act 1987 (NSW) and for breach of contract. Relevant to the present appeal was the claim that the respondent's wrongful exclusion from 19 December 2000 until late February 2001 caused loss of the 2000-2001 rice crop (quantified at $104,641 and not in issue before the High Court) and, more substantially, prevented preparation of an additional 860 ha (approximately 600 ha in the South Coonoon Paddock and 246 ha in the Dam Paddock) for a 2001-2002 rice crop. The first appellant's evidence was that, had the contract completed on time, he would have had possession from December 2000 and could have completed the necessary surveying, landforming, pump installation and departmental approvals in time for a September/October 2001 planting. Expert evidence, including from Mr Sharman, supported the conclusion that the exclusion caused the appellants to miss the summer-autumn landforming window; winter rains made later work unreliable. Campbell J accepted this evidence, found that the respondent's breach of special condition 24 by total exclusion caused the loss, and awarded $963,852 under this head (part of a total contract damages award of $1,512,052 plus interest).
The respondent appealed to the Court of Appeal. At the hearing he sought and obtained leave to add a ground that the appellants had never established an entitlement to enter the 860 ha because they had neither sought nor obtained the vendor's approval under special condition 24. Giles JA (Ipp JA and Wood CJ at CL agreeing) held that, whether the approval power was unfettered or subject to an implied requirement of reasonableness, the appellants had failed to prove causation. The damages award was reduced to $464,641 plus interest. The High Court granted special leave, heard the appeal on the single live issue concerning the 2001-2002 crop damages, allowed the appeal with costs, set aside the Court of Appeal orders, and ordered that the appeal to that Court be dismissed with costs.
The joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ rested on three interlocking strands of reasoning, each grounded in the text of special condition 24, the factual matrix known to both parties, and established principles of contract law.
First, the Court applied the prevention principle and the doctrine of dispensation from conditions precedent articulated in Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235 and Foran v Wight (1989) 168 CLR 385. The respondent's purported rescission and total exclusion of the appellants from the property constituted an absolute refusal to perform the contract. That conduct made it futile for the appellants to tender an application for approval of the 860 ha. Kitto J's statement in Peter Turnbull (at 250) was quoted with approval: where the promisor absolutely refuses to carry out the contract and persists until the time for performance arrives, he is liable in damages although the condition remains unfulfilled. Mason CJ in Foran v Wight (at 395-396) explained that a repudiating party who intimates that the innocent party need not perform a condition precedent waives complete performance of that condition. Because the respondent denied that the contract existed at all, he could not insist on strict compliance with the approval mechanism that formed part of the very contract he repudiated. The Court emphasised that the condition was not a unilateral act by the appellants but required an act of the respondent (approval) in response to an application. The total denial of access prevented the machinery of the condition from ever being engaged. Accordingly, the failure to seek approval did not defeat the claim.
Second, the Court construed special condition 24 as imposing an obligation on the respondent to act reasonably in granting or withholding approval. Drawing on Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607-608 per Mason J, the judgment distinguished between duties to co-operate necessary for fundamental performance and those affecting collateral benefits. The proper approach was to examine the intention of the parties as manifested by the contract and its surrounding circumstances. Those circumstances included the respondent's illness, the spring timing of the sale, the mutual contemplation that the purchaser would immediately farm the land, the respondent's statement that "there is plenty of land to do that", and the fact that development improved rather than diminished the value of the security. The approval power existed to protect the vendor against adverse consequences of uncompleted infrastructure or unsuitable locations, but it was not intended to allow capricious obstruction. The respondent was therefore required to approve (or withhold approval) having regard only to legitimate interests the clause was designed to protect. On the evidence led at trial, no such adverse interest appeared. The Court noted that if the approval point had been raised, further evidence could have explored this question; its absence at trial reinforced the forensic unfairness of allowing the new ground.
Third, the Court applied the rule that a new point not taken at trial, which could have been met by evidence, cannot be raised for the first time on appeal (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Water Board v Moustakas (1988) 180 CLR 491 at 497; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at 1608 [51]-[52]). The Points of Claim and the affidavit and oral evidence before Campbell J had proceeded on the explicit basis that the critical period of exclusion from December 2000 to March 2001 had caused the loss of the landforming window. The approval issue was never mentioned. Campbell J's reasons expressly recorded that "no other obstacle to the planting of the 860 hectares has been shown to exist". The Court of Appeal's reliance on the new ground therefore denied the appellants the opportunity to lead evidence that approval would have been forthcoming or that any refusal would have been unreasonable. The High Court distinguished Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, where the limitation defence had been pleaded and the issues were defined on the pleadings; here the Points of Defence were a bare general denial and the real issues were shaped by the conduct of the trial. Leave to file the respondent's further Notice of Contention (which sought to draw a fresh inference that the appellants' intention was conditional only on completion, not on approval) was refused on the same basis: it raised a pure question of fact that could have been met by additional evidence.
The Court also observed that the respondent's conduct had prevented the very question of approval from arising. In those circumstances the appropriate claim was for damages for breach of the access provision, not for wrongful refusal of approval. Quantification required assessment of the chance that approval might reasonably have been withheld; that assessment could and should have occurred at trial. Because it had not, the trial judge's finding that the exclusion caused the loss stood.
Prior to Park v Brothers the law concerning approval clauses in sale-of-land contracts and the consequences of anticipatory repudiation was settled but required careful application to the facts. Mackay v Dick (1881) 6 App Cas 251 and Butt v M'Donald (1896) 7 QLJ 68 established the general rule that each party must do all that is reasonably necessary to secure performance of the contract. Secured Income clarified that the implication of a duty to co-operate is not automatic where the acts in question merely confer a collateral benefit; the question is always one of contractual intention. Foran v Wight and Peter Turnbull made clear that a repudiating party's intimation that the innocent party need not fulfil a condition precedent excuses actual performance of that condition, whether analysed as waiver, estoppel or prevention.
The law on new grounds on appeal was equally settled: Suttor v Gundowda, Water Board v Moustakas and Whisprun emphasised that a party is bound by the way it ran its case at trial. Where additional evidence could have been called, the point cannot be taken on appeal.
Park v Brothers did not change these principles. It applied them to a factual matrix in which an approval clause operated against the background of an invalid rescission and total exclusion. The decision confirms that an approval power in a pre-completion occupation clause will ordinarily be read as requiring reasonableness where the surrounding circumstances show that the vendor encouraged development and no legitimate protective interest would be impaired. It also illustrates the strictness with which appellate courts must approach new points that could have been met by evidence. After the decision, litigants in vendor-purchaser disputes must recognise that a vendor who excludes a purchaser after an invalid rescission cannot later rely on the purchaser's failure to comply with a condition whose performance the vendor has prevented. Trial counsel must ensure that every potential obstacle to a damages claim, including approval mechanisms, is squarely raised so that responsive evidence can be led.
Paragraph [46] quotes Mason J in Secured Income: "It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself."
Plain-English translation: Sometimes the law implies that both sides must help each other carry out the main things the contract requires. But when the help only gives one side an extra benefit (like the chance to farm early), the court looks at what the parties actually intended. Here, the approval power was not a free veto; the parties intended it to be used sensibly to protect the seller's legitimate interests, not to block development unreasonably.
Paragraph [51]-[53] discuss Foran v Wight and Peter Turnbull. The Court states that the respondent's conduct "made it plain that it would be useless for the appellants to seek approval" and that "reason, nor common sense, nor equity, dictates that he, by his conduct, was abandoning his capacity to grant or withhold approval". It then quotes Kitto J: if the promisor absolutely refuses to carry out the contract, he is liable although the condition remains unfulfilled.
Plain-English translation: When the seller said "the deal is cancelled" and locked the buyers out, it became pointless for them to ask "can we farm these paddocks?" The law does not require people to do useless things. The seller cannot later hide behind the fact that no application was made when his own wrongful behaviour stopped the application process from happening.
Paragraph [37] contains the statement that "a party is bound by the conduct of his case" and that a new point that could have been met by evidence cannot be raised for the first time on appeal.
Plain-English translation: You run your case at trial on certain assumptions. If you suddenly spring a new technical argument on appeal that the other side could have answered with witnesses or documents if they had known it was coming, the appeal court will refuse to listen. Fairness requires that both sides know the real battleground while there is still time to call evidence.
Paragraph [59] notes that the conclusions are consistent with a simpler analysis (not advanced at trial) that the vendor's breach in failing to complete on the agreed date closed the window of opportunity, citing Louinder v Leis (1982) 149 CLR 509 at 525-526 per Mason J.
Plain-English translation: Another way of looking at it, which the buyers did not even need to rely on, is that the seller's delay in settling simply meant the buyers ran out of time to get the extra land ready. Time was important because of the weather-dependent nature of landforming.
The decision is triggered where a contract for the sale of rural or developing land contains a pre-completion occupation clause permitting the purchaser to undertake works (especially crop establishment or land development) in locations approved by the vendor; the vendor purports to rescind and wholly excludes the purchaser; the purchaser affirms the contract, obtains a declaration that it remains on foot, and completes; and the purchaser then claims damages for loss of a crop that could have been planted but for the period of exclusion. It applies with particular force where the approval mechanism was never invoked prior to the repudiation, the parties' pre-contract dealings contemplated expansion of cultivation, and the vendor can point to no legitimate interest that would have justified refusal of approval. The case also applies whenever a defendant seeks to raise on appeal a point concerning non-fulfilment of a condition precedent that was not squarely put at trial and that could have been answered by further evidence going to the reasonableness of the defendant's prospective conduct.
The precedent does not apply where the approval power is expressly stated to be absolute, where the vendor's refusal is based on a legitimate protective interest identified at trial, or where the point about approval was pleaded and litigated below so that both sides had the opportunity to lead all relevant evidence.
The judgment itself treats the authorities it cites as authoritative and applies them without modification. It applies Secured Income to construe the approval power as requiring reasonableness, applies Foran v Wight and Peter Turnbull to excuse the appellants from the need to seek approval, distinguishes Banque Commerciale on the basis that the limitation defence there had been pleaded, and follows Whisprun, Suttor v Gundowda and Water Board v Moustakas to refuse the new ground and the Notice of Contention. No subsequent treatment of Park v Brothers itself appears in the text; the judgment stands as the final authoritative statement on the interaction of these principles in the context of an invalid rescission coupled with total exclusion under a pre-completion farming licence. The reasoning reinforces that contractual discretions to approve locations must be read in light of the commercial purpose of the clause and the mutual expectations of the parties at formation. The emphasis on the forensic unfairness of new points that could have been met by evidence is presented as a straightforward application of long-settled authority.
The judgment leaves open whether, in the absence of repudiatory conduct, a purchaser must always obtain prior approval before commencing development work under a clause in the form of special condition 24. It does not decide whether the approval power would be unfettered if the vendor could point to a legitimate protective interest that was not explored at trial. The Court expressly refrains from deciding whether the vendor's power was completely unfettered or subject only to an implied requirement of reasonableness, because on either view the new ground should not have been permitted. It also leaves for another day the "simpler analysis" that the vendor's failure to complete on the contractual date itself closed the development window, citing Louinder v Leis. Whether evidence that the vendor would have refused approval for reasons unrelated to the locations (for example, because he hoped to rescind) could ever be relevant remains unexplored. Finally, the precise quantification methodology for damages where there is a chance that reasonable approval might have been withheld is not prescribed; Campbell J's approach of treating the exclusion as the effective cause was accepted because the approval point had not been litigated.
Most practitioners do not realise that a vendor's total denial of access after an invalid rescission can convert what looks like a strict condition precedent (prior approval) into an entitlement to damages without the purchaser ever having to ask for approval. The forensic lesson is equally under-appreciated: a bare general denial in a defence does not preserve every possible technical point; if the real issues at trial proceed on the assumption that access was the only obstacle, an appellate court will not later allow the defendant to rewrite the case on the basis of an approval clause that was never mentioned below. These "gotchas" explain why the High Court restored the trial judgment and why careful identification of the true battleground at first instance remains critical in vendor-purchaser damages claims.
On appeal from the Supreme Court of New South Wales
I M Barker QC with D H Murr SC for the appellants (instructed by Holman Webb)
T E F Hughes QC with T D F Hughes for the respondent (instructed by Lumleys Solicitors)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Vendor and purchaser - Sale of land - Purchasers entitled to possession prior to completion on conditions including requirement of vendor's approval - Vendor wrongly purported to rescind contract - Vendor denied purchasers access to land - Purchasers sued for damages for breach of access provision - Whether necessary for purchasers to seek vendor's approval notwithstanding purported rescission - Whether vendor's conduct waived condition of approval.
Contract - Construction of contract - Purchasers to have access to land prior to completion to farm in areas approved by vendor - Whether vendor required to act reasonably in granting or withholding approval.
Contract - Construction of contract - Implied duty to co-operate - Limits of operation of implication.
Practice and procedure - Appeal - Whether it is open to an appellate court to allow an appeal on a new ground that was not raised at trial and that, if raised, could have been the subject of evidence.
"Early occupation by purchaser to do farming work - no reimbursement to purchaser.
The purchaser may enter the property and occupy the Manager's Cottage as licensee only at any time after the date of this Contract and payment of the deposit without payment of any occupation fee to work up ground for crops such work to be at his expense and risk and in locations first approved by the vendor. The purchaser agrees in doing such work to adopt the highest farming standards used in the local district and the purchaser's entry shall also be governed by the provisions of special condition 25 hereof. The purchaser acknowledges that 14 days notice given to the vendor will be required prior to occupancy of the cottage, which is presently occupied."
"22. The [appellants] were allowed access to the rice crop [ie the 2000-2001 crop] on or shortly after 27 February 2001, following publication of the reasons for judgment of Justice Young on 27 February 2001.
Further particulars are contained in the affidavits of the first [appellant] and in the experts' reports served by the [appellants]."
At the time of entering the contract [the first appellant] had formed plans for what would be done with the property, so far as cropping was concerned, after the 2000/2001 rice growing season. He intended to plant 860 hectares of rice in the 2001/2002 rice growing season. Of this, he planned that about 600 hectares was to be in the South Coonoon Paddock, and the remainder in the Dam paddock. The whole of the rice crop to be planted in 2001/2002 was to be planted on newly developed irrigation land. To be able to plant rice on that newly developed land, he would have needed first to obtain Departmental approval to plant the rice to the area in question. He would then have needed to engage a surveyor to survey the area, and mark out blocks and bays, and then to landform the area. It would also be necessary to install two river pumps to pump water from the Murrumbidgee River to the area in the South Coonoon paddock. There was already a water channel available to the area in the Dam Paddock. It would also be necessary to install irrigation stops, and various pipes, in both areas. Only after this preparatory work was done could he commence preparation of the seedbed. To fit in with the growing season for rice, the preparatory work would have to have been finished by, at the latest, September 2001. While the [respondent] was not aware of all the details concerning [the first appellant's] plans for cropping on the property, he was aware before the contract was entered, that [the first appellant] intended to make a significant increase in the area of irrigated land under cultivation, and that effecting that increase in area of irrigated land under cultivation would require the provision of significant infrastructure.
[The appellants], as well as carrying on farming activities, also have a landforming business, which owns sufficient machinery and employs sufficient staff and was available, around the time the [appellants] were excluded from the property, to have landformed the area intended to have been planted to rice. The landforming of that area would have taken approximately four or five months.
Landforming is a process which is weather dependent. [The first appellant] gives evidence, which I accept, that it is not possible to reliably plan to carry out landforming in the Hay area after about June, because winter rains usually arrive in that month, and landforming is not possible when the earth reaches a certain stage of dampness. When the earth is too wet, it is impossible to work because it sticks to the laser operated machine buckets. In winter, an inch of rain can make ground unsuitable for landforming for some weeks. As it happened, the rain which Jellalabad received in June and July 2001, would have prevented landforming in those months.
This is confirmed by Mr Sharman, who gives evidence that:
'Land development operation is best conducted in the summer and early autumn, when soil conditions are generally dry and free flowing. To have attempted to perform this operation during late autumn or winter would have been a high-risk operation because of the incidence of winter rainfall in the [Hay district].'
Thus, the exclusion of the [appellants] from the property had the effect that they lost the window of opportunity to enable landforming to be carried out, to enable 860 hectares of rice to be planted in the 2001/2002 season. No other obstacle to the planting of the 860 hectares has been shown to exist." (emphasis added)
"8. If the [first appellant] was excluded from the property on 19 December 2000:
(i) The right of the [appellants] to enter upon the property was limited to a right of entry to work up ground for crops in locations first approved by the [respondent].
(iii) … [T]here was no evidence that the [respondent] had approved the locations which the [appellants] claimed they had intended to work up and in relation to which [they] claimed to have suffered loss."
"His Honour's reasoning was that inability to commence landforming prior to 24 March 2001 meant that the [appellants] reasonably decided not to commence that work, because they could not be sure of completing it by the end of June 2001; but that if they had been allowed access to the property from 19 December 2000 they would have commenced the work and, together with the prior step of survey and the other steps of obtaining Departmental approval, installing pumps and providing irrigation works, would have planted a 2001/2002 rice crop on the newly developed irrigation land ...
The [respondent] did not challenge this reasoning, or any other factual findings underpinning it."
"The [appellants] could have proposed the locations of the 860 hectares for approval, but that did not mean that the locations would have been approved. Let it be assumed that, but for the [respondent's] purported rescission and denial of entitlement to enter upon the property, they would have proposed the locations, but did not do so because of the [respondent's] stance - [the first appellant] gave no such evidence, but it is a readily available inference ... But the [respondent] may or may not have given approval ...
If the [respondent] had an unfettered ability to approve or disapprove, on the facts he would have declined approval, as the [appellants] accepted, and the [appellants] would not have an action for breach of contract. If there was an implication that the [respondent] could not unreasonably withhold approval, the [appellants'] cause of action would be for unreasonably withholding approval, not for simple exclusion: the [appellants] did not present such a case, and it is not self-evident. On the case they presented, it remains that they did not establish an entitlement to access permitting them to do the work for the 2001/2002 rice crop."
"The [appellants] had framed their case as one of breach of the contractual entitlement conferred by special condition 24. Faced with the broad denial in the points of defence, they had full opportunity to put all necessary evidence before the Court. It is clear enough that they could not provide evidence of approval of the locations. I do not think the point is correctly described as a new ground not taken at the trial, or that it is correct to say that the [respondent] is departing from the course that he adopted at the trial. On the ultimate question of whether it is 'expedient and in the interests of justice to entertain the point' ... in my opinion the balance of expediency and justice favours doing so."
"It is easy to imply a duty to co-operate in the doing of acts which are necessary to the performance by the parties or by one of the parties of fundamental obligations under the contract. It is not quite so easy to make the implication when the acts in question are necessary to entitle the other contracting party to a benefit under the contract but are not essential to the performance of that party's obligations and are not fundamental to the contract. Then the question arises whether the contract imposes a duty to co-operate on the first party or whether it leaves him at liberty to decide for himself whether the acts shall be done, even if the consequence of his decision is to disentitle the other party to a benefit. In such a case, the correct interpretation of the contract depends, as it seems to me, not so much on the application of the general rule of construction as on the intention of the parties as manifested by the contract itself."
"A failure by the innocent party to treat an anticipatory breach of an essential term as a repudiation and to terminate the contract has the effect of leaving the contract on foot, in which event it remains in force for the benefit of both parties, just as it would if the anticipatory breach had never occurred, subject to a qualification to which I shall refer in a moment. The parties then remain bound by the contract and the repudiating party may rely on any supervening circumstance which justifies his non-performance of the contract when the time for performance arrives ... The qualification is that, if the repudiating party by his refusal to perform or other conduct intimates to the innocent party that he need not perform an obligation which is a condition precedent to the performance by the repudiating party of his obligation, and does not retract that intimation in time to give the innocent party an opportunity to perform his obligation, that party may be excused from actual performance of the condition precedent. The repudiating party then waives complete performance of the condition precedent and his conditional promise becomes unconditional."
"The principle, which applies whenever the promise of one party, A, is subject to a condition to be fulfilled by the other party, B, may, I think, be stated as follows. If, although B is ready and willing to perform the contract in all respects on his part, A absolutely refuses to carry out the contract, and persists in the refusal until a time arrives at which performance of his promise would have been due if the condition had been fulfilled by B, A is liable to B in damages for breach of his promise although the condition remains unfulfilled."
Hotham v The East India Co (1787) 1 TR 638 at 645 [99 ER 1295 at 1299]. ↑
Foran v Wight (1989) 168 CLR 385 at 396 per Mason CJ. ↑
Foran v Wight (1989) 168 CLR 385 at 422 per Brennan J, 434 per Deane J. ↑
Jones v Barkley (1781) 2 Dougl 684 at 694 [99 ER 434 at 440], cited by Mason CJ in Foran v Wight (1989) 168 CLR 385 at 397. ↑
Louinder v Leis (1982) 149 CLR 509 at 525-526 per Mason J. ↑
Park
Brothers
(1990) 169 CLR 279
(2003) 77 ALJR 1598
(1950) 81 CLR 418
(1988) 180 CLR 491
(1979) 144 CLR 596
(1954) 90 CLR 235
(1989) 168 CLR 385
(1982) 149 CLR 509
Appeal allowed with costs. Orders of the Court of Appeal dated 23 July 2004 set aside and, in lieu thereof, order that the appeal to that Court be dismissed with costs.