Ardizzone v Valentino Nominees Pty Ltd [No 4]
[2016] WADC 136
•7 SEPTEMBER 2016
ARDIZZONE -v- VALENTINO NOMINEES PTY LTD [No 4] [2016] WADC 136
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 136 | |
| Case No: | CIV:987/2015 | 24 JUNE 2016 | |
| Coram: | MCCANN DCJ | 7/09/16 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| PDF Version |
| Parties: | JOSEPH ANTONINO ARDIZZONE VALENTINO NOMINEES PTY LTD JAMES COLBY PAULA CHARMAINE COLBY CRI PROPERTY PTY LTD WALTER LA ROCCA |
Catchwords: | Appeal from registrar's order striking out parts of substituted defence Contract for sale of land Proceedings for breach of contractual warranty as to vendor's (first defendant's) knowledge of governmental or statutory orders, requisitions etc Turns on own facts |
Legislation: | Environmental Protection Act 1986 s 3(1), s 51B, s 51C, s 51D Environmental Protection (Clearing of Native Vegetation) Regulations 2004 Environmental Protection (Environmentally Sensitive Areas) Notice 2005 cl 3.4 Interpretation Act 1984 s 3 Rules of the Supreme Court 1971 O 20 r 19(1)(a), O 20 4 19(1)(b), O 20 r 19(1)(c), O 21 r 3(3) District Court Rules 2005 |
Case References: | Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157 Dollfus Mieg et Compagnie SA v Bank of England [1951] Ch 33 Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 Templeton v Leviathan Pty Ltd (1921) 30 CLR 34 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
VALENTINO NOMINEES PTY LTD
First Defendant
JAMES COLBY
First-named Second Defendant
PAULA CHARMAINE COLBY
Second-named Second Defendant
CRI PROPERTY PTY LTD
Third Defendant
WALTER LA ROCCA
Fourth Defendant
Catchwords:
Appeal from registrar's order striking out parts of substituted defence - Contract for sale of land - Proceedings for breach of contractual warranty as to vendor's (first defendant's) knowledge of governmental or statutory orders, requisitions etc - Turns on own facts
Legislation:
Environmental Protection Act 1986 s 3(1), s 51B, s 51C, s 51D
Environmental Protection (Clearing of Native Vegetation) Regulations 2004
Environmental Protection (Environmentally Sensitive Areas) Notice 2005 cl 3.4
Interpretation Act 1984 s 3
Rules of the Supreme Court 1971 O 20 r 19(1)(a), O 20 4 19(1)(b), O 20 r 19(1)(c), O 21 r 3(3)
District Court Rules 2005
Result:
Appeal allowed in part
Representation:
Counsel:
Plaintiff : Mr G Cobby
First Defendant : Mr T Coyle
First-named Second Defendant : Mr T Coyle
Second-named Second Defendant : Mr T Coyle
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Roe Legal Services
First Defendant : Fletcher Law
First-named Second Defendant : Fletcher Law
Second-named Second Defendant : Fletcher Law
Third Defendant : Not applicable
Fourth Defendant : Not applicable
Case(s) referred to in judgment(s):
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157
Dollfus Mieg et Compagnie SA v Bank of England [1951] Ch 33
Homestyle Pty Ltd v City of Belmont [1999] WASCA 59
Templeton v Leviathan Pty Ltd (1921) 30 CLR 34
- MCCANN DCJ:
Introduction
1 This is an appeal from a decision of Deputy Registrar Harman made on 12 May 2016 whereby the learned deputy registrar struck out pars 8.6, 8.7, 13 and 14.2(b) of the substituted defence of the first and second defendants.
2 The appeal is brought pursuant to r 15 of the District Court Rules 2005 and is to be determined de novo.
3 The proceedings arise from the plaintiff's purchase of a property at 113 Victoria Road, Kenwick (the Property) from the first defendant pursuant to an offer and acceptance entered into on 4 December 2012 (the Contract). Settlement occurred on 22 March 2013.
4 The second defendants were directors of the first defendant at all material times.
5 It was an express term of the Contract that the first defendant warranted to the plaintiff that it 'did not know' of any 'demand, requisition, order or requirement' relating to the Property which had been made by any government or statutory body and which remained current as at the date of settlement (the Warranty).
6 By par 11 of the statement of claim the plaintiff pleads that by letter dated 3 December 2012 (the 2012 Letter) the Western Australian Department of Environment and Conservation (the DEC) 'informed' the first and second defendants that, in effect:
(a) a substantial area of vegetation on the Property (namely banksia attenuata) had been classified as a threatened ecological community (TEC);
(b) TEC's have a special level of protection under Western Australian law, particularly under the Environmental Protection Act 1986 (WA);
(c) special care should be taken of the area containing the TEC;
(d) the first defendant was required to apply for a permit pursuant to the Environmental Protection (Clearing of Native Vegetation) Regulations 2004 (WA) before clearing any vegetation where doing so might affect the TEC present on the Property; and
(e) if the first defendant chose to sell the property then the first defendant ought to inform any prospective purchaser of the existence and location of the TEC on the Property.
7 The plaintiff contends that the classification of part of the Property as a TEC has a substantial impact on the use which can be made of the Property because of legislative proscriptions on clearing (see [34] – [37]),
8 By par 19 of the statement of claim the plaintiff pleads that none of the defendants disclosed the matters referred to at [6] prior to settlement, and therefore (par 20), the first defendant breached the Warranty.
9 The plaintiff pleads (pars 21 and 30) that he suffered loss and damage by reason of the first defendant's breach of the Warranty because he cannot use part of the Property and lost the opportunity to rescind the contract or negotiate a price reduction. In short, the plaintiff contends that he paid more for the Property than it was worth and/or what he would have paid for it.
10 The plaintiff also sues the first defendant and the other defendants for damages for contravention of s 18(1) of the Australian Consumer Law (the ACL). The plaintiff contends that, in the context of the marketing of the Property, their joint and several failures to apprise him of the 2012 Letter was deceptive or misleading conduct within the meaning of that term in the ACL.
11 The first and second defendants have filed a series of joint defences culminating in a substituted defence dated 4 March 2016. Amongst other things they contend that:
(i) by par 8.1, the Warranty is void for uncertainty;
(ii) further or alternatively, by par 8.2, a notification regarding the alleged classification of vegetation on the Property as a TEC falls outside the scope of the Warranty as it is not a demand, requisition, order or requirement by a government or statutory body but is merely a notification of an alleged classification of the vegetation by the DEC, alternatively, of an alleged determination by the relevant minister of the Crown.
(iii) further or alternatively, by par 8.3, if the 2012 Letter did give notice of a demand, requisition, order or requirement, then it fell outside the scope of the Warranty because the alleged demand, requisition, order or requirement could not be made by the DEC and was not one made by the department or any other 'authority' as defined in the Contract.
(iv) by par 8.4, the alleged classification of the vegetation as a TEC became a matter of public record prior to the settlement date under the Contract;
(v) by par 8.5, if the Warranty extended to the disclosure of the 2012 Letter, then the plaintiff, by word and conduct, both before and after the Contract date, expressly waived the Warranty insofar as it related to the 2012 Letter;
(vi) by par 8.6, if the Warranty extended to the disclosure of the 2012 Letter then:
(a) the 2012 Letter was invalid because it was not issued as a consequence of a valid determination made by the Minister; and
(b) the minister had no statutory power to determine that the vegetation is a TEC.
(vii) by par 8.7, the 2012 Letter is invalid because it purports to give notice of a classification having been made by the DEC as to the vegetation being a TEC whereas the DEC had no such power.
(viii) by par 8.8, there is no obligation pursuant to the Contract to disclose the existence of an invalid demand, order, requisition or requirement.
12 To summarize thus far, pars 8.1, 8.2, 8.3 and 8.8 plead issues relating to the construction of the Warranty and the 2012 Letter rather than its validity or force. Paragraphs 8.4 and 8.5 are pleas in the nature of confession and avoidance and raise matters which would exculpate the first defendant in the event that the construction issues are decided in the plaintiff's favour. Paragraphs 8.6 and 8.7 directly place in issue the legal validity or force of the purported determination, classification, demand, requisition, order or requirement.
13 By par 13, the first and second defendants deny that the first defendant would have negotiated the sale of the Property to the plaintiff at a discounted price materially different to the price payable pursuant to the Contract if the Warranty had been complied with, and say further that if the plaintiff had declined to proceed with the purchase of the Property pursuant to the Contract they (ie, the first defendant) would have retained the Property, and continued to enjoy the benefits of its ownership, including its increase in value subsequent to 22 March 2013.
14 By par 14.2, the first and second defendants plead that if the plaintiff suffered loss or damage as claimed (which is denied) the plaintiff failed in his duty to take all reasonable steps to mitigate his loss in that he failed to:
(a) pursue the Government of Western Australia for compensation for the appropriation of his property rights in that portion of the Property affected by the alleged TEC;
(b) challenge the validity of the 2012 Letter and/or the alleged classification of the vegetation on the Property as a TEC;
(c) make application for removal of the alleged TEC classification on the basis that the relevant area of vegetation is too isolated and too small (ie, it is unsustainable as a managed TEC or on any other basis); and/or
(d) seek rescission of the Contract.
15 As I have said, the learned deputy registrar struck out pars 8.6, 8.7, 13 and 14.2(b).
16 The parties filed detailed written submissions and presented oral submissions as to the validity of the 2012 Letter and related matters. As will be seen, it is not necessary or appropriate for me to finally rule on the validity matter.
Relevant pleading and procedural principles
17 The plaintiff sought to strike out the relevant paragraphs pursuant to O 20 r 19(1)(a), r 19(1)(b), r 19(1)(c) and O21 r 3(3) of the Rules of the Supreme Court.
18 The contemporary functions of pleadings are summarised in Kendall and Curthoys, Civil Procedure in Western Australia, [20.0.2] (citations omitted):
(i) To define the issues to be determined in the case.
(ii) To provide a structure or framework for the litigation, so that the court can control the preparation of the case in the conduct of the trial.
(iii) To provide sufficient information as to enable an assessment of whether the pleadings give rise to an arguable cause of action or defence as the case may be;
(iv) To apprise the other parties to the proceedings of the case that they have to meet.
19 Pleadings which do not raise an arguable cause of action or defence cannot be allowed. A pleading does not disclose a reasonable defence to a claim where it would not be open to the defendant on the pleadings to prove facts (or matters of law) at the trial which could conceivably disclose a ground of defence or for relief according to law (Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers Western Australian Branch v Bell-A-Bike Rottnest Pty Ltd [2005] WASCA 157 [54]).
20 No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party, but the court may of its own motion or on application order that a person be added as a party if their joinder would be necessary to ensure that all matters in dispute in the cause or matter may be completely and effectually determined and adjudicated upon (O 18 r 16). The appropriate order where an action proceeds to judgment in the absence of a necessary party is that the judgment be set aside and there be a re-trial (Homestyle Pty Ltd v City of Belmont [1999] WASCA 59 [44]).
21 A court has no jurisdiction over any person not properly before it as a party or who is otherwise to be treated, by force of statute, as if he was a party. A person who is not a party to the proceedings is therefore not bound by any order of the court in those proceedings (Templeton v Leviathan Pty Ltd (1921) 30 CLR 34, 70).
22 In the absence of very strong grounds being made out, the court generally cannot compel a plaintiff to proceed against persons he has no desire to sue, and joinder of a defendant should not occur merely for the convenience of another defendant (Dollfus Mieg et Compagnie SA v Bank of England [1951] Ch 33, 38 – 39).
23 Further, the court has no jurisdiction to grant declaratory relief against the minister or the DEC in a matter of this kind (District Court Act 1969 s 50). It would be necessary for such a matter to be remitted to the Supreme Court.
24 In summary, it is necessary for the proceedings and pleadings to ensure that issues are properly determined between parties who have justiciable issues between them and that all matters in conflict are resolved between them. It is also necessary that the pleadings be formulated in a fashion that enables the court to effectively determine the case. Pleadings should not be formulated in a way which causes embarrassment to the court and/or the parties, or absent parties who should be joined and heard. The possible need for the DEC and/or the minister to be joined as parties was canvassed during the hearing of the appeal.
An overview of the statutory provisions
25 As at 8 April 2005, s 51B(1)(b) of the EPA provided that the responsible minister could declare by notice 'an area of the State of a class specified in the notice' to be an environmentally sensitive area (an ESA). The power was not confined to specific parcels of land.
26 Pursuant to s 51B(4), before publishing a notice under s 51B(1), the minister was required to seek comments from the Environmental Protection Authority and any public authority which had an interest in the subject matter of the notice, and to take into account any comments received from those persons.
27 On 8 April 2005 the minister published the Environmental Protection (Environmentally Sensitive Areas) Notice 2005 in The West Australian Government Gazette (the 2005 Notice). The notice stated that it was made by the minister pursuant to s 51B of the EPA.
28 Pursuant to cl 4(1) of the 2005 Notice the minister declared numerous areas of the State to be ESAs. Whilst in many instances there were some geographic reference points, it is clear that in virtually every instance the minister defined each ESA by reference to a class of land. For example, by par (a) 'a declared World Heritage Property as defined in s 13 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth)' was declared to be an ESA. By par (j) the minister declared 'areas of fringing native vegetation in the policy area as defined in the Environmental Protection (Swan and Canning Rivers) Policy 1998' to be ESAs.
29 By par (e) of the 2005 Notice, the minister declared the following to be an ESA:
(e) The area covered by a TEC.
30 A 'TEC' was defined by cl 3 of the 2005 Notice to comprise a naturally occurring biological assemblage that occurs in a particular type of habitat that:
(i) the minister had determined to be a TEC; and
(ii) was referred to in the list of TECs maintained by the Chief Executive Officer of the Department of the Public Service principally assisting in the administration of the Conservation and Land Management Act 1984 (WA).
31 However, pursuant to cl 4(5) of the 2005 Notice, a TEC did not become an ESA for the purposes of the Act unless and until:
(a) the 'declaration, determination, designation, registration, listing, mapping or other description of an ecological community comprising the' TEC had been made public; or
(b) the 'owner, occupier or person responsible for the care and maintenance of the land [had] been notified of the area'.
32 Pursuant to cl 4(6) of the 2005 Notice, 'a reference to the determination of flora, an ecological community, a site or an area, was deemed to be a reference to 'the determination of the flora, ecological community, site or area as in force immediately before the day on which this notice comes into operation' (emphasis added).
33 The plaintiff contends that all and any areas of banksia attenuata in the area of the Property have been determined to be included in the relevant list of TECs in force prior to 8 April 2005 and that the 2012 Letter constituted notice of the relevant area of the Property being subject to the TEC, so that the TEC became an ESA for the purposes of the EPA no later than the receipt of that letter by the first defendant.
34 The significance of part of the Property being a declared to be a TEC is the impact of that designation upon the owner's ability to clear the native vegetation from the land. Pursuant to s 51C(a) of the EPA, it is an offence to clear native vegetation other than in accordance with a clearing permit. Applications for a clearing permit are to be made in accordance with s 51E and are to be granted or refused by the CEO of the relevant department.
35 In deciding whether to grant or refuse a clearing permit, the CEO is to have regard to the clearing principles set out in sch 5 to the Act (s 51O(2)). The CEO may only make a decision seriously at variance with those clearing principles if the CEO considers that there is a good reason for doing so (s 51O(3).
36 Clause 1(d) of the clearing principles provides, relevantly, that native vegetation should not be cleared if it comprises the whole or part of a TEC listed, designated or declared under a written law (as the 2005 Notice is: Interpretation Act 1984 (WA): s 3).
37 To put this in perspective, were it not for the purported determination affecting the Property, the plaintiff would still be obliged to obtain a clearing permit to remove the relevant vegetation. However, the determination of the relevant area as a TEC fetters the CEO's discretion to grant a clearing permit to a greater extent than if there was no TEC.
The merits of the disputed pleadings
38 The plaintiff submitted that the objected paragraphs of the defence do not disclose a ground of defence.
39 The parties' submissions focussed on a number of contentions relating to the legal effect or validity (if any) of the 2012 Letter and its contents.
40 At the risk of over-simplification, the first and second defendants contend that on the proper reading of the 2005 Notice (the validity of which is not disputed) the 2012 Letter could not have the effect contended for by the plaintiff because, in the light of cl 4(6) of the 2005 Notice, a valid determination of a relevant area could only be notified to a landowner if there was a valid determination as to that area in force or effect on the day before the 2005 Notice came into operation, ie, prior to 8 April 2005.
41 The first and second defendants further contend that the sending of the 2012 Letter by the DEC was itself merely an administrative act which could not of itself constitute a determination that the relevant land was a TEC or an ESA.
42 The plaintiff contends that the relevant land was indeed the subject of a valid ministerial determination. Mr Cobby made a number of written contentions which, at the risk of over-generalisation, all came to the same proposition, namely that the defendants' contentions as to the legal force or validity of the 2012 Letter and its contents and the construction of the Warranty were unarguable.
43 The plaintiff contends that as and from 8 April 2005 all and any part of the State covered by 'banksia attenuata' was declared to be an ESA subject (in the case of private land) to notice being given to the owner, occupier or person responsible for its care. The plaintiff contends that on its proper construction the 2005 Notice intended that notice could be given to the owner, occupier or carer of a particular parcel of land at any time subsequent to the publication of the Notice and that such occurred in the present matter when the 2012 letter was served on the first defendant. The plaintiff contends that this step was not an exercise of ministerial power and could be (and was) validly exercised at an administrative level by the DEC (which is responsible for the administration of the EPA: s 3(1)).
44 I have found both sides of the vires argument to be arguable insofar as the parties' submissions and the materials allow me to form a view. It is not necessary for me to explain my reasons in detail. Both arguments as summarised above are logical, plausible and able to be supported having regard to the legislative scheme. In short, I am satisfied that pars 8.6, 8.7, 13 and 14B of the substituted defence plead arguable issues as the validity and force of the 2012 Letter and its contents.
Other pleading issues
45 The remaining issues relate to standing and joinder.
46 I point out immediately that the second defendants have no standing in respect of the contractual dispute because they were not parties to the Contract. It is desirable that they and the first defendant file separate defences.
47 The first and second defendants contend that there is a fundamental defect in the statement of claim which is the root cause of the pleading controversy. Mr Coyle submitted that the plaintiff should have pleaded the legislative regime which is said to confer the power upon the DEC to issue the 2012 Letter and vest it with sufficient legal force or effect to constitute a 'demand, requisition, order or requirement'.
48 The first and second defendants contend that pars 8.6 and 8.7 of the substituted defence merely address that lacuna so as to better give effect to their long-standing denial that the 2012 Letter has the legal effect contended for by the plaintiff and, as such, their denial that the first defendant breached the Warranty or that they jointly or severally engaged in deceptive or misleading conduct.
49 I do not accept that submission if the plaintiff's pleaded case is as I understand it to be.
50 I have not been asked to rule on the construction of the Warranty, but I point out that on its terms the first defendant covenanted that it did not know of any demand, requisition, order or requirement relating to the Property which had been made by a governmental or statutory body. A key issue here is the knowledge of the first defendant. The plaintiff is entitled to argue that the Warranty did not discriminate between the vendor's knowledge of a valid demand, requisition, order or requirement and its knowledge of an invalid demand, requisition, order or requirement. In other words the Warranty focussed on the vendor's state of knowledge and not the actual state of the law as it affected the Property. As I understand it, such is the plaintiff's pleaded case (which is met by par 8.8 of the substituted defence). If the situation was otherwise the plaintiff would need to acquiesce with the first defendant in seeking a ruling as to the legal force of the 2012 Letter (to provide for the possibility that the first defendant's construction prevailed), but that introduces the question of the joinder of the minister and/or the DEC.
51 But the plaintiff has no desire to sue the minister and cannot lightly be compelled to do so. The force of this position can be made by asking the following question: what relief would the plaintiff seek against the minister and/or the DEC if he did join them? A declaration that there is a legally valid TEC on the Property would see off the first defendant's argument, but it would also be the result sought by the Minister and the DEC. In other words, there would be no justiciable issue between them and the plaintiff. A declaration that there is no valid TEC on the Property would serve the plaintiff and defendants' interests, but the plaintiff has no desire to seek such relief and none of the defendants have standing to seek it (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 526 - 527, 530, 538, 547).
52 In short, on the pleadings and having regard to the parties joined, the plaintiff only seeks relief if on its construction the Warranty applies to the first defendant's knowledge of any purported demand, requisition, order or requirement, irrespective of its validity. That is the plea. So, the matter turns on the construction of the Warranty and the 2012 Letter and the first defendant's state of knowledge derived therefrom, and not the vires issue, and the first defendant does not need to plead to that issue.
53 If the plaintiff fails on the construction issue then he will be left with his claim for breach of the ACL and any remedies he wishes to pursue in another forum against the Minister and/or the DEC.
54 The matter is in the plaintiff's hands and he has made his election.
55 Further, and in any event, in my opinion the court would need to have full submissions from the minister and/or the DEC if it was required to make a ruling on the vires issue. Otherwise the court would be placed in an embarrassing position and unable to effectively rule between the plaintiff and first defendant. That provides another reason for striking out the vires issue with the present joined parties.
56 This is not to say that the construction and effect of the 2012 Letter cannot be pleaded at all by the first defendant on the contractual liability issue (see pars 8.2 – 8.3). The issue as to whether that 2012 Letter constitutes a demand, order, requisition or requirement of a government of statutory body which was current at the settlement date is directly and intrinsically relevant to the ultimate issue as to whether the first defendant had knowledge of the same.
57 Issues relating to the construction of the Warranty, and the 2012 Letter, and the validity of the same, also remain relevant to the claims that the first and second defendants breached the ACL by engaging in deceptive or misleading conduct and, if so, whether the plaintiff thereby suffered loss or damage (and the quantum thereof). But, final findings would not be necessary and it would not be necessary for the Minister and/or the DEC to be joined as parties.
58 So, in conclusion, in my view the attempt by the first defendant to contest liability for breach of the Warranty based on the validity or otherwise of the 2012 Letter and/or any underlying demand, requisition, order or requirement raises false issues (since they are not necessary to meet the pleaded case) and/or hypothetical issues which cannot and should not be entertained in the absence of the minister and/or the DEC.
59 In my opinion the learned registrar's ruling in relation to pars 8.6 and 8.7 of the substituted defence should be upheld.
Paragraph 13 of the substituted defence
60 Paragraph 13 of the statement of claim pleads the detriment which the plaintiff contends he suffered as a result of the breaches of contract and/or the ACL. He contends, inter alia, that he lost the opportunity to rescind the Contract.
61 The second limb of par 13 of the substituted defence (highlighted above) is an allegation as to the benefits which would have accrued to the first defendant if the plaintiff had rescinded. In my opinion that plea is irrelevant and does not meet the plaintiff's pleading. It raises a false issue and should be struck out as it is likely to embarrass the trial and adjudication of the issues between the parties. I uphold the learned registrar's ruling.
Paragraph 14.2(b) of the substituted defence
62 At face value and viewed in isolation par 14.2 (b) of the substituted defence raises the same issue as pars 8.6 and 8.7 and is liable to be struck out in the absence of the Minister and/or the DEC as parties. However, par (b) must be understood in the context of par 14.2 as a whole, which contends that the plaintiff failed to take reasonable steps to mitigate his loss. As with pars (a), (c) and (d) (and the issues referred to at [57]) par (b) does not invite the court to make a final ruling. All four sub-paragraphs plead hypothetical contingencies which the first and second defendants contend should be taken into account in the assessment of the plaintiff's damages. The parties will be entitled to adduce evidence and make submissions as to the prospects for each contingency and the court will take them into account as appropriate in exercising its discretion in determining what damages (if any) should be awarded to the plaintiff.
Conclusions
63 In my opinion the first and second defendants' appeal should be allowed in respect of the learned registrar's decision to strike out par 14.2(b) of the substituted defence. Otherwise the appeal should be dismissed.
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