A V Jennings Ltd v First Provincial Building Society Ltd
[1996] FCA 306
•10 APRIL 1996
CATCHWORDS
Contract - formation - agreement - whether negotiations evidence a meeting of minds - whether discussions conclusive - whether regarded by parties as complete and final
Estoppel - whether representations relied upon sufficiently certain
Trade Practices - whether misleading or deceptive conduct
Trade Practices - whether exclusive dealing - whether third line forcing in contravention of s 47(6)
Practice and Procedure - mandatory interlocutory injunctions - principles applicable - whether the Court must feel a high degree of assurance as to the likelihood of the applicant's success on the final hearing - whether such likelihood relevant to the balance of convenience
Practice and Procedure - traditional reluctance of the Court to grant specific relief in respect of an alleged obligation to lend money
Costs - interlocutory issues finally disposed of subject to questions of appeal by leave - costs order made
Trade Practices Act s 47(6), s 52
Business Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 502 ff applied
Carson v Minister for Education (Q) (1989) 25 FCR 326 referred
Racecourse Totalizators Pty Ltd v Totalizator Administration Board (Q) [1995] ATPR 40,800 at 40,804, 40,805 referred
A.V. JENNINGS LIMITED v FIRST PROVINCIAL BUILDING SOCIETY LIMITED
No. QG 42 of 1996
CORAM:Lehane J
PLACE:Sydney
DATE:10 April 1996
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. QG 42 of 1996
BETWEEN:A.V. JENNINGS LIMITED
Applicant
AND:FIRST PROVINCIAL BUILDING SOCIETY LIMITED
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:10 April 1996
MINUTE OF ORDERS
THE COURT ORDERS:
THAT the application for interlocutory relief be dismissed.
THAT the respondent's costs of the interlocutory application be paid by the applicant including the costs of the respondent of and incidental to production of the agreement between the respondent and Devine Limited.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION ) No. QG 42 of 1996
BETWEEN:A.V. JENNINGS LIMITED
Applicant
AND:FIRST PROVINCIAL BUILDING SOCIETY LIMITED
Respondent
CORAM:Lehane J
PLACE:Sydney
DATE:10 April 1996
EXTEMPORE REASONS FOR JUDGMENT
LEHANE J: The applicant is a builder. It builds and sells relatively cheap house and land packages, as they are sometimes described. The respondent is a building society. Its business, as might be expected, includes making loans to purchasers of packages such as the applicant provides.
A perennial problem in the selling and financing of packages of this kind is the financing of what is described as the deposit gap. It is common ground that it is the practice of financiers such as the respondent to lend up to 95 per cent of the purchase price of a house and land if the loan is insured, and that mortgage insurance is available from what were described as the traditional sources only if a purchaser can find at least five per cent of the purchase price from its own resources.
That means that the provision of that sum by a third party, for example a member of the purchaser's family, is usually regarded as excluded from consideration; particularly, the provision of any part of the five per cent gap in the form of assistance from a vendor such as the applicant is excluded for these purposes.
It follows that it is, or at least would be, an advantage to a builder such as the applicant to find lenders prepared to lend on more liberal terms. Thus, when in January 1996 the applicant became aware that the respondent was providing loans on more liberal terms to customers of a competitor of the applicant, it is not surprising that officers of the applicant sought to discover more details of that arrangement and to see whether it was possible to make a similar arrangement for the benefit of the applicant and its customers.
Those considerations led to contact being made between the applicant and the respondent, and that in turn led to two successive meetings. There is a significant degree of common ground as to what happened at the meetings and there is much in the evidence of the participants on both sides which is uncontradicted.
The first meeting took place on 12 January 1996 between Mr John Titmarsh, the finance manager for Queensland of the applicant, Mr John Rappolt, a finance consultant to the applicant, and Mr Doug Muddle, the business development officer of the respondent. At the meeting the representatives of the applicant expressed interest in the apparent ability of the respondent to provide loans where borrowers, as
it was said, did not need to source the five per cent deposit from their own savings. They said that the applicant might be prepared to provide assistance to purchasers from the applicant with the five per cent deposit, and there was some discussion as to whether this might be done in some way in association with the respondent.
In the course of the discussion Mr Muddle said that the principal lending criteria of the respondent were, first, that the maximum loan to value ratio was 95 per cent, secondly, that repayments should not exceed 38 per cent of a borrower's gross monthly income, and thirdly, that, as it was described, the house packages have turf to the front yard, a driveway and floor coverings. Mr Muddle also apparently handed to the representatives of the applicant a document setting out certain lending guidelines of the respondent. That document has been amended in ink: Mr Muddle says, and his evidence is not contradicted on this point, that the amendments were not made by him.
A number of other matters were discussed relating to the proposal that the respondent might finance purchasers from the applicant where the applicant gave some assistance with the five per cent deposit. The meeting, as Mr Titmarsh recounts, concluded with agreement that arrangements would be made for the general manager for Queensland of the applicant and its state sales manager, a Mr Woodbury, to meet Mr Ramsey, the chief executive officer of the respondent. The purpose of that meeting, so it was agreed, was to initiate contact at a senior level
between the two organisations. Mr Titmarsh added that he thought the innovative nature of the finance package under discussion warranted this. So did Mr Muddle.
That then, as foreshadowed, led to a meeting which took place on 24 January 1996 at the executive boardroom of the applicant. Those present were Mr Piconi, the general manager for Queensland of the applicant, Mr Titmarsh, Mr Woodbury, and, representing the respondent, Mr Ramsey and Mr Muddle.
I shall not at this stage attempt to describe in any detail what the evidence reveals as to the discussion at that meeting. There was, however, talk of the possibility of the respondent financing purchases from the applicant on the footing that the applicant would give assistance in or towards providing the 5 per cent deposit for an individual purchaser. There was also discussion concerning the extent of the respondent's capacity to provide funds; and there was apparently an arrangement made that further contact would take place between Mr Muddle and Mr Titmarsh as to the practical aspects of providing finance to customers of the applicant.
The two meetings which I have described so far in rather general terms together give rise to the claims made by the applicant in these proceedings. The applicant says that there arose from those meetings, and possibly to an extent from later dealings between the parties, four possible bases of legal rights and obligations. The first was that there arose an agreement between the parties under which the respondent agreed to approve loans to customers of the applicant on the footing that the
applicant might provide assistance towards the provision of the 5 per cent deposit in cases where the customer fulfilled the lending criteria stipulated in the document handed over at the first meeting, as supplemented and explained by the discussion that occurred at both meetings. The second was that representations were made by the respondent, and relied on by the applicant, resulting in the respondent being estopped from denying an agreement of the general sort which I have just described on the footing, or at least partly on the footing, that it would be unconscionable to allow the respondent to resile from those representations. The third basis was that the respondent had engaged in misleading or deceptive conduct in contravention of section 52 of the Trade Practices Act. Fourthly, and finally, there was an allegation that conduct of the respondent to which I will have to return briefly was in contravention of s 47(6) of the Trade Practices Act.
On those bases, the applicant claims final relief including injunctions, damages, specific performance, and, relevantly for present purposes, interlocutory relief. The two particular orders which the applicant claims by way of interlocutory relief are the following: first, that until the trial of the action or earlier order the respondent consider those applications for finance for the purchase of houses from the applicant in the respondent's possession and approve those applications which meet the lending criteria agreed by the applicant and the respondent; secondly, that until the trial of the action or earlier order the respondent consider those applications for finance for the purchase of houses from the applicant submitted to the respondent by the applicant and approve those applications which meet the lending criteria agreed by
the applicant and the respondent up to a limit of 30 approvals in March 1996 and 40 further approvals in April 1996. Clearly that latter claim for interlocutory relief would require some modification in view of the fact that we are now no longer in March but in the middle of April.
Having said that, I shall return very briefly to the narrative. I take most of this concluding part of the narrative from the affidavit of John Titmarsh sworn on 21 March 1996; as to much, perhaps most, of it there appears to be little dispute. Following the meetings to which I have referred a number of telephone conversations took place between Mr Muddle and Mr Titmarsh. During January there were conversations in which Mr Titmarsh asked Mr Muddle what volume of loans referred by the applicant the respondent could handle and, so Mr Titmarsh says, he was told that the applicant was still working on it. Then on 2 February Mr Titmarsh says that he telephoned Mr Muddle and asked if the respondent could handle, by way of referrals from the applicant, 20 loans in February, 30 in March and 40 in April. According to Mr Muddle, Mr Titmarsh said that he thought those numbers were okay but would check with Mr Ramsey; and then either on the same day or the following day Mr Muddle spoke to Mr Titmarsh on the telephone and confirmed that the respondent would be able to approve loans on referral from the applicant in that volume. Largely, as I have said, that evidence is undisputed. I shall return to it later.
There is then evidence that during February the respondent considered and approved a number of applications submitted to it by customers of the applicant. All of those customers, apparently with one exception, required some degree of "deposit assistance": none, for what it is worth, requiring full deposit assistance, that is provision in some way by the applicant of the full 5 per cent deposit.
There were further dealings between officers of the parties in relation to loan applications and approvals, the detail of which does not matter. Then a meeting took place between Mr Muddle and Mr Titmarsh during which Mr Titmarsh said that the applicant was proposing to start a publicity campaign on 1 or 2 March 1996 built around the respondent's ability to offer loans on the basis that there was no concern over the source of the deposit moneys; the respondent's name was not to be mentioned in the publicity. It is said that Mr Muddle raised no objection to any of this and that he gave no indication that there was a problem with approvals at the levels previously indicated.
There was then a series of critical events in the early part of March. There was first a telephone call from Mr Muddle to Mr Titmarsh on 3 March to the effect that Mr Muddle had been instructed that the respondent did not wish to do further business with the applicant. That apparently arose from a belief that the respondent had formed as to the basis on which house and land packages sold by the applicant were valued. There were some telephone conversations to and fro and, it seems, a good deal of confusion about that matter which seems to have led, in itself, nowhere in particular and on which, therefore, I think it is unnecessary for me to spend further time.
More significantly, there followed correspondence between the parties. First, there was a facsimile dated 4 March 1996 from Mr Kerry Latter, operations manager of the respondent, referring to publicity material apparently emanating from the applicant and requesting that no mention be made of the respondent in the course of the advertising campaign. Mr Latter asserted also that there was no arrangement in force between the applicant and the respondent for the financing, "on no or very low deposit packages", of the price payable by purchasers of houses and land from the applicant.
That was followed by a letter from Mr Piconi to Mr Ramsey expressing shock and astonishment at Mr Latter's assertion and, referring to the meetings, claiming that there was an agreement on foot under which the respondent would finance customers, introduced by the applicant, who met the criteria of the respondent. Mr Piconi suggested that the respondent was manoeuvring away from its represented position, proposed a meeting and strongly urged reconsideration. That then led to a letter to Mr Piconi from Mr Ramsey in which, in substance, it was said that there was never an agreement to fund no-deposit lending; that such an agreement was one into which the respondent would not enter, except on the basis of full and careful documentation; and that the only agreement that had been reached was that the respondent would consider deposit assistance on a case by case basis depending on security value.
Further conversations took place between Mr Titmarsh and Mr Muddle. On 8 March, for example, there was a conversation in which, Mr Titmarsh asserts, Mr
Muddle said that the respondent was prepared to make advances to the applicant's customers generated, as it was described, during the March campaign on the basis that they had to provide 3 per cent of the deposit out of their own savings, so that the balance of 2 per cent only might be by way of deposit assistance. Mr Titmarsh says that he asked that Mr Muddle arrange to have this confirmed in writing by Mr Ramsey. There being no such confirmation forthcoming, on the 12th or 13th of March, Mr Titmarsh says, he again rang Mr Muddle who agreed to follow it up. After further conversations between representatives of the parties, on 15 March, Mr Titmarsh says, Mr Muddle told him that the respondent would not be accepting any further loan applications from the applicant's customers, including a small number then in the hands of the respondent.
That account of the circumstances will perhaps suffice for present purposes. On that basis I can proceed to consider the legal foundations which the applicant asserts support its claims for relief.
The first of those is the alleged agreement that the respondent would finance customers of the applicant, up to 20 in February, 30 in March and 40 in April, in relation to the purchase price of properties purchased by those customers from the applicant, on the footing that certain deposit assistance might be given by the applicant and that otherwise the customers were to meet the criteria set out in the document handed over at the first meeting.
Of course, in relation to each of the legal bases upon which the applicant seeks to support its claim, I am dealing with the matter at the interlocutory stage only: all I have to decide is whether there is a serious question to be tried. I must say, however, that on the material before me, I greatly doubt that there is sufficient evidence to establish that there is a serious issue to be tried as to the existence of an agreement of the kind which is alleged.
I say that because of a number of matters, but principally these. First, it is not by any means clear, on reading the evidence of those who have sworn affidavits on behalf of the applicant, precisely what the supposedly agreed criteria actually were. Certainly the document handed over does not express those criteria in whole. That is evident from the evidence of Mr Titmarsh and Mr Piconi as to what transpired at the two meetings: a number of matters were discussed, not covered in the written criteria, relevant to the consideration by the respondent of whether in any particular case it would be prepared to make an advance to enable a customer to purchase property from the applicant. They included the matters to which I have referred: the loan to value ratio, that the repayments not exceed 38 per cent of gross monthly income and, as picturesquely described, that the house packages have turf to the front yard, a driveway and floor coverings. The evidence makes it clear that other matters were discussed as well, including what might happen if a mortgagee sale had to be effected and a series of matters referred to in the evidence of Mr Ramsey which in this respect, though clearly the opportunity of contradiction was available, has not been contradicted by any further evidence led on behalf of the applicant.
Perhaps, given the time and the length at which I have already spoken, I may be excused from referring to those matters in any further detail. But the upshot of it is clear: that it could not be said with any degree of confidence that there emerged a meeting of minds as to precisely what were the criteria on which the respondent would consider an individual application for finance made to it by a customer of the applicant. Certain basic guidelines undoubtedly were clear. They are referred to, it might be noted, in the evidence of Mr Titmarsh as the "principal lending criteria". But it is not clear to me, even on the evidence given by witnesses for the applicant, that the particular matters discussed were considered by the parties to be in any sense complete or final.
It must be said also that the meeting at which the principal criteria were discussed was not in any sense a final or conclusive meeting; it was to be, and was in fact, followed by the subsequent meeting which, on the evidence of both parties, was intended mainly as an occasion for introducing senior officers of the two parties to each other and at which a great number of matters were discussed in what clearly was a quite inconclusive way. What does emerge, and it is perhaps really all that emerges, is a willingness on the part of the respondent to consider funding customers introduced by the applicant and, indeed, customers of other high quality builders, on the footing that the customers not be required to fund from their own resources the full 5 per cent deposit.
It seems to me that it is extremely difficult to extract from any of the evidence a clear agreement that there was a set of criteria established which, if they were met by a particular applicant - that is to say by a particular customer of the applicant applying for a loan from the respondent - would result in that customer being made a loan of the amount required to enable him or her to complete the purchase from the applicant.
If one adds to the picture what subsequently happened - that is to say that a number of applications were in fact received, were in fact considered, and in most cases were in fact approved - little in my view is added because that, it seems to me, is consistent certainly with an agreement but equally with the sort of arrangement which seems inescapably to emerge from the evidence of what transpired at the meetings: that is to say that the respondent was willing to consider, in accordance with its criteria, applications of the kind discussed from customers of the applicant and indeed from customers of other builders.
Once one reaches that conclusion in relation to an agreement, I think it almost necessarily follows that the same conclusion must be reached in relation to the claim that there were representations giving rise to an estoppel at general law. If there was insufficient clarity to lead to a finding that there was an agreement, there was equally I think, insufficient certainty as to a representation of the sort propounded on which the applicant might be expected to act in the way in which the applicant says it in fact acted.
The claim based upon section 52 of Trade Practices Act is perhaps in a slightly different category; much may depend on a precise analysis of the dealings which followed the meetings, though, I must say, I have considerable scepticism as to whether such an analysis would in the end yield a result favourable to the applicant. For reasons to which I will come it is perhaps unnecessary for me to pursue those matters any further.
That leaves the claim based upon section 47 of the Trade Practices Act. The exchanges between counsel and myself on this subject which took place during argument perhaps relieve me from the need to say more than that the agreement, which is in evidence, between the respondent and a competitor of the applicant is not, in my view, one the terms of which impose a condition which infringes section 47. In particular, there is nothing in the agreement which purports to forbid the respondent from financing customers of the applicant on the terms which were suggested.
I have discussed the question whether the applicant has established a serious question to be tried. I was referred to some well known authorities which discuss the principles applicable in the case of a claim for a mandatory interlocutory injunction. I am prepared to accept for the purposes of this case that the correct approach is that taken by Gummow J in Business Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at page 502 ff.
That approach has the support of at least two other judges of this Court: Spender J in Carson v Minister for Education (Q) (1989) 25 FCR 326 and Keifel J in Racecourse Totalizators Pty Ltd v Totalizator Administration Board (Q) [1995] ATPR 40,800 particularly at pages 40,804 and 40,805.
I mention those authorities at this point because in addition to doubting, at least as a general proposition, that in a case such as this the Court must feel a high degree of assurance about the plaintiff's chances of establishing his or her right at a final hearing, they appear also to suggest that the caution with which the Court traditionally approaches an application for interlocutory mandatory relief applies at the point where the Court comes to consider where the balance of convenience lies. But there is I think a degree of overlap. I know there are statements in some of the cases to the effect that it is not relevant or, at least, that it is usually not relevant to a consideration of the balance of convenience to weigh in the balance the perceived strength at the interlocutory stage of the case propounded by the applicant. I think, however, that there are cases, and it seems to me that this is one of them, where it is impossible to exclude the perceived strength of the applicant's case as one of the factors to be taken into account in weighing the balance of convenience.
As for the balance of convenience, the evidence on each side is not entirely all that one might wish but perhaps that is an unavoidable characteristic of proceedings of this kind. The applicant asserts that the balance of convenience falls in its favour for a number of reasons. It says that it committed itself to an expensive promotion and advertising campaign, and there is evidence of Mr Piconi, in rather general terms, that indeed it did. Then it says that, in consequence, the inability of the applicant to provide to customers facilities of the sort advertised will lead both to severe financial detriment and to a loss of reputation, neither of which, it says, can be adequately assessed or compensated by means of damages. The particular losses which are alleged as likely to arise are set out in the affidavit of Mr Piconi. He refers to the loss of reputation; to queries by regulatory authorities; to advertising costs; and there is a general reference to a further setback for the applicant and its corporate group which, as he says, is really not needed.
On the other hand the respondent points to the extreme inconvenience of it being required, in effect, to undertake a mechanical review of certain applications and, if they meet certain criteria, to accept them and lend money accordingly without regard to any wider considerations: for example, considerations relating to prudential regulatory requirements applying to the respondent; questions relating to the funding available to the respondent; questions relating to the backlog of loan applications with which the respondent, it says, is already faced; and questions relating generally to the effect that a requirement to grant these applications (or, at least a considerable number of them) might have on its ability to provide for other customers seeking to call upon its services.
Each party mounted an attack on the evidence led by the other as to the balance of convenience. As for the applicant's evidence, it was said by the respondent that the applicant has been extraordinarily reticent in describing the nature of the advertising campaign said to have been entered into and, in particular, providing examples of it; and that indeed is true. One of the more notable features of this case is that evidence of what the advertising campaign consisted of has been provided largely by deponents for the respondent.
Secondly, it is said that the advertising campaign continued at a time when it had been made clear to the applicant that in the view of the respondent there was no agreement of the kind which the applicant alleged. The applicant replies that that may not be entirely as it seems because, up to a time considerably later than the dates of the correspondence to which I have referred, there were continuing discussions between the parties as to the basis on which at least some funding for customers of the applicant might be provided by the respondent.
On the other side, the applicant submitted the evidence led by the respondent to substantial critical examination: particularly, Mr Latter was cross-examined in some detail as to his evidence about the potential lack of compliance by the respondent with prudential requirements if it were compelled to make any of the loans to the applicant's customers. It became clear that, although I think it must be accepted that Mr Latter has a good working knowledge of the respondent's day to day financial situation, his evidence as to the precise potential effect of the relief sought by the applicant on the respondent's compliance with prudential requirements was somewhat second hand and perhaps not as detailed as it might have been.
In the end, however, a number of considerations persuade me that the balance of convenience in this case favours the respondent. In my view the attack by the respondent on the evidence led by the applicant has considerable force; but more than that, it seems to me that even if one significantly discounts the evidence given by Mr Latter about prudential requirements, the evidence and argument on the part of the respondent as to the balance of convenience are quite formidable. In this respect I refer particularly to the fact, about which there appears to be no real dispute, that if the full relief sought were granted the respondent would be required to provide, to a particular group of those seeking to call on its services, a sum of money by way of advances which would form, at the least, a very substantial proportion of the total advances which the respondent might be ordinarily expected to provide over the periods concerned; and that that would have a considerably distorting effect on the respondent's business.
It is also, it seems to me, a very large step by way of mandatory injunction to require a respondent to make advances to persons seeking them, if they meet certain criteria (more or less mechanically applied), without regard to more general factors affecting the financial condition or business of the respondent. It is said that in the case of the competitor with which it has entered into an agreement, and to which I referred earlier, the respondent has bound itself to do substantially that very thing, and in a sense that is true. There is, on the other hand, force in the argument that that is a case where under the agreement substantial safeguards are provided which significantly affect the burden which the respondent's obligations under it otherwise impose. It seems to me a very large step to say that the Court ought to compel the making of advances where the criteria are met in circumstances where safeguards of that, or a similar kind, are not available.
The applicant sought to meet these difficulties by suggesting that the Court might be prepared to grant relief subject to conditions - for example, subject to a condition that the respondent ought not to be required to make particular advances where to do so might lead to a breach of regulatory requirements binding upon the respondent.
It seems to me that while that might go some way towards meeting the difficulty with the claim as framed in the application, it does not go far enough to convince me that I ought in the circumstances grant relief even subject to that or a similar condition. I do not think that I am in a position, on the evidence, confidently to say that the imposition of such a condition would adequately protect the respondent in relation to the business considerations to which I have referred and, in my view, clearly arise on the evidence.
There was then a suggestion that even if I were against the applicant in relation to the more substantial of the two orders sought - that is, in effect, an order requiring the acceptance of applications meeting the criteria up to a limit of 30 approvals in March and 40 approvals in April - I should nevertheless grant an injunction in relation to the apparently much more limited number of applications now in the respondent's possession.
Given my perception of the relative strength of the parties' cases it seems to me that the considerations advanced by the applicant on the question of the balance of convenience, while they may have some weight in relation to the totality of the applications to which the claims for relief refer, can have very little in relation to the very small number at present in the respondent's possession. It may, I suppose, equally be said that the arguments on the balance of convenience in favour of the respondent have considerably less weight where what is in question is simply a small number, perhaps four or five applications, rather than a large number, perhaps 70. As I have indicated, however, my conclusion is that the applicant has not on an interlocutory basis sufficiently established a balance of convenience in its favour to overcome the traditional reluctance of a court to grant specific relief in respect of an alleged obligation to lend money. In other words, in the face of what I believe to be that clear reluctance - and it is on the authorities now no more than that - there is not a sufficiently clear balance of convenience established in favour of the applicant to justify the granting even of the limited relief.
For those reasons, the application for interlocutory relief must in my view be refused and I dismiss it.
It seems to me that this is one of those cases where what has been decided in these interlocutory proceedings does amount to a final disposal - subject, of course, to questions of appeal by leave - of the particular issues before the Court today. In accordance with the way in which, in my understanding, the Court commonly acts in matters of that sort I think it is appropriate that I order that the respondent's costs of the interlocutory application be paid by the applicant.
As for the costs, also sought by the respondent, of production of the respondent's agreement with a competitor of the applicant, I imagine we are now in territory which could be accurately described as de minimis. I should be very surprised if substantial costs were incurred in that matter. My view of it is, however, that the matter was resolved in accordance with a suggestion which I made, certainly, but which I must confess seemed to me at the time - and still does - a rather obvious suggestion, and one which bore a remarkable similarity to the basis on which inspection was offered quite some time ago, and could then have been accepted, subject to the same qualification accepted today - that is, that the applicant be at liberty to seek from the Court, if it so wished on inspecting the document by its legal representatives, a wider right of inspection.
I think again I should accede to the respondent's application and order that the costs which I have ordered to be paid by the applicant include the costs of the respondent of and incidental to production of the agreement between the respondent and Devine Limited.
I certify that this and the preceding 19 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated: 29 April 1996
Heard: 10 April 1996
Place: Sydney
Decision: 10 April 1996
Appearances: Messrs S S W Couper QC and K N Wilson of counsel instructed by Barker Gosling appeared for the applicant.
Mr J D M Muir QC of counsel instructed by McCullough Robertson appeared for the respondent.
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