Carsten Pty Ltd v Law Mortgages Queensland Pty Ltd
[2004] VSC 258
•22 July 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 2082 of 2000
BETWEEN
| CARSTEN PTY LTD (ACN 066 888 088) (RECEIVER AND MANAGER APPOINTED) | Plaintiff |
| and | |
| LAW MORTGAGES QUEENSLAND PTY LTD (ACN 010 818 107) & ORS | Defendants |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2003 | |
DATE OF JUDGMENT: | 22 July 2004 | |
CASE MAY BE CITED AS: | Carsten Pty Ltd v Law Mortgages Queensland Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 258 | |
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Practice and procedure – Pleading – Competence and adequacy – Economic duress – ss.51A, 51AA and 52 Trade Practices Act 1974 (Cwlth) – Damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr I.J. Hardingham QC | Tolhurst Druce and Emmerson |
| For the 1st – 3rdDefendants | Richard Kendall QC Andrew K Panna | Herbert, Geer & Rundle |
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HIS HONOUR:
I have before me two matters for determination. First, an appeal by the first three defendants from an Order of Master Kings of 11 March 2003 granting leave to the plaintiff to file and serve an amended statement of claim dated 17 April 2003; and second, a summons filed on 7 April 2003 by the first three defendants to strike out parts of the statement of claim.
The plaintiff, Carsten Pty Ltd, owned premises at 471 Little Bourke Street, Melbourne, the former Law Institute site. It proposed to refurbish the premises and fit them out as apartments, a restaurant and a shop. To that end the plaintiff obtained a loan of $16,250,000 from the first defendant, Law Mortgages Queensland Pty Ltd to fund the project. The second defendant, LM Investment Management Limited (formerly named Planned Property Syndication Pty Ltd) is associated with the first defendant. Both are Queensland companies. The third defendant, Mr M.P. Dwyer, was a director of both those companies. The fourth defendant, Doug Robbie & Associates Pty Ltd, is a Queensland Company which as agent of the first defendant oversaw the project. The fifth defendant, Mr D.G. Robbie was an officer of the fourth defendant. The builder engaged by the plaintiff for the refurbishment project was Caulson Pty Ltd.
The proceedings were commenced by writ filed on 21 August 2000 with a statement of claim dated 18 August 2000 (“the first statement of claim”). That was a 77 paragraph statement of claim over the hand of senior counsel (not the senior counsel who appeared for the plaintiff before me). A defence on behalf of the then five defendants was filed on 27 October 2000. A request for further and better particulars of the statement of claim was filed on that day also. The further and better particulars of the statement of claim were filed on 15 November 2000. The fourth and fifth defendants changed their legal practitioners on 8 December 2000. An amended defence of the fourth and fifth defendants was filed with leave, also on 8 December 2000. A notice of contribution by the fourth and fifth defendants to the first three defendants was filed on 22 January 2001. An amended defence and counterclaim was filed by the first three defendants with leave on 23 January 2001. The plaintiff’s reply and defence thereto was filed on 9 March 2001. The plaintiff filed a request for further and better particulars of the amended defence and counterclaim of the first three defendants on 23 March 2001 and of the amended defence of the fourth and fifth defendants on that day also. The further and better particulars of the amended defence of the fourth and fifth defendants were filed on 18 April 2001. The further and better particulars of the amended defence and counterclaim of the first three defendants was filed on 20 April 2001. Supplementary further and better particulars were provided on 24 October 2001 by the plaintiff to the first three defendants’ request of 27 October 2000. On 23 November 2001 the plaintiff (and first defendant by counterclaim) filed a notice of discontinuance against the fourth and fifth defendants. The plaintiff claims as against each of the first three defendants the sum of $20,233,000 damages and other relief. By leave of Master Kings granted on 11 March 2003 the plaintiff on 17 April 2003 filed and served upon the first three defendants an amended statement of claim (“the amended statement of claim”). This was of 77 paragraphs and over the hand of senior counsel (not senior counsel of the first statement of claim nor the senior counsel for the plaintiff who appeared before me). That is the primary matter which brings the parties before me.
There was a constellation of satellite processes in the matter which do not concern the resolution of the questions before me and which therefore I shall not mention.
It is appropriate to set out a brief history of the factual substratum to the proceedings, relating it to the relevant parts of the amended statement of claim.
The plaintiff, Carsten Pty Ltd, owned premises at 471 Little Bourke Street, Melbourne. Those premises consisted of a ground floor and ten further floors. Carsten wished to refurbish the premises and fit them out as a 150 room serviced apartment, shop and restaurant development. It was planned that floors 1-10 would be subdivided into separate apartments and that each apartment would be issued with a strata title and then sold separately. It was estimated that each floor (1-10) would sell for $3,300,000. In 1996 and 1997 Carsten negotiated with its tenant, Pacific International Hotels Group Pty Ltd (“Pacific”) for Pacific to lease and/or manage the building when the project was completed; successfully applied to the first defendant for a loan of $16,250,000 to fund the project; and having obtained finance, contracted with Caulson Pty Ltd, a builder, to complete the project over a 26 week period for a fixed price of $7,500,000.
Once Carsten had drawn down funds under the loan agreement with the first defendant and had instructed Caulson Pty Ltd to commence building work, the first defendant appointed the fourth defendant as its agent to oversee the project on its behalf. The plaintiff alleges that the fourth defendant and the first defendant knew that Carsten was totally reliant for funding on the first defendant and that Carsten would be seriously embarrassed if delays or cost blow-outs were to occur in the completion of the project. The plaintiff alleges that between May and July 1997, the first defendant took over the project, dealing directly with the builder and asserted an entitlement to approve each part of the project before any work was commenced on that part; asserted an entitlement to make changes to the plans and specifications of the project; from time to time instructed Caulson Pty Ltd to carry out or not to carry out certain aspects of the project; threatened Carsten that the first defendant would appoint receivers and managers of the assets of Carsten and thus remove control of Carsten from its directors; threatened Caulson Pty Ltd and Carsten that the first defendant would withhold advances for which Carsten was entitled to call under the loan agreement; withheld advances for which Carsten was entitled to call and for which Carsten had called under the loan agreement; and by such conduct substantially delayed the project. The plaintiff alleges that by 18 July 1997 the first defendant had assumed total control of the project, and that in so acting, it acted unconscionably and contrary to s.51AA Trade Practices Act 1974. Mr M.P. Dwyer, the third defendant, as an officer of the first defendant was an accessory to its breach of s.51AA.
The plaintiff alleges that by reason of the first defendant’s assumption of control, costs of the project increased, the completion date was delayed, Carsten had to borrow an extra $2,550,000, sales of floors were delayed and Carsten suffered an added interest exposure. Accordingly, Carsten suffered loss and damage.
The plaintiff alleges that between July and November 1997, the third defendant, Mr Dwyer on behalf of the first and second defendants represented to Carsten that the second defendant was in a position to sell, as whole floors and without them having been subdivided into separate apartments, floors 1 to 8 of the building immediately on completion of the project, and in any event by no later than April 1998, at a price of $2,900,000 per floor to members of the syndicate of mortgage investors who had contributed to the $16,250,000 which the first defendant had agreed to lend pursuant to the loan agreement; represented to Carsten that, by reason of the immediate availability of purchasers of floors 1 to 8 of the building at $2,900,000 per floor, Carsten would be able to discharge its entire debt to the first defendant immediately on completion of the project and immediately realise a profit of approximately $4,000,000 on 8 floors of the project; and threatened Carsten that if it did not sign a Retainer Agreement and an Option Agreement whereby the second defendant was given the exclusive right to sell those floors and to be paid commission of $174,000 in respect of the sale of each such floor, then no further funds would be provided to Carsten under the loan agreement and no further progress payments would be made to Caulson. The plaintiff alleges that the July – November 1997 conduct had the purpose of inducing Carsten to enter into a Retainer and Option Agreement with the second defendant. Further the first and second defendants warranted to Carsten that, in consideration of Carsten entering unto the Retainer and Option Agreement, the second defendant would sell floors 1-8 immediately upon completion and in any event by no later than April 1998 (“the first sale warranty”).
The plaintiff alleges that on 14 November 1997, induced by those events or in consideration of the first sale warranty, Carsten entered into the Retainer and Option Agreement with the second defendant. By this agreement Carsten granted an option to it to purchase floors 1-8 of the building at $2,900,000 per floor and the exclusive right to sell floors 1-8 of the building at a price of $2,900,000 per floor on terms whereby the second defendant became entitled to a commission of $174,000 on each such sale. The first sale warranty and the Retainer and Option Agreement were breached as the second defendant did not sell floors 1-8 by April 1998.
The plaintiff alleges that the representations made by the first and second defendants as part of the July-November conduct were false and, as such, were misleading or deceptive within s.52 Trade Practices Act. Further, the July-November conduct constituted conduct by Mr Dwyer on behalf of the first and second defendants which was unconscionable and contrary to s.51AA Trade Practices Act, Mr Dwyer being an accessory to those breaches. As a consequence the plaintiff suffered loss and damage.
The plaintiff alleges that on 24 December 1997 Carsten entered into agreements with Pacific to lend it $1,950,000 and to provide it with a rental guarantee of $2,250,000 in respect of its obligation to pay rental to floor owners. Carsten had to borrow a further $1,950,000 from the first defendant for this purpose. The terms of the two agreements were onerous for Carsten but in November 1997 the first and second defendants threatened Carsten that if Carsten did not sign the Pacific Loan Agreement and make available the Pacific Guarantee, the first defendant would withhold funds to which Carsten was entitled under the loan agreement and stop progress payments to the builder. The plaintiff says that the Pacific conduct was engaged in by the first and second defendants to induce Carsten to enter into the Pacific Loan and Guarantee Agreements. That conduct, in conjunction with the July/November conduct, was unconscionable and contrary to the provisions of s.51AA Trade Practices Act, Mr Dwyer being an accessory to the conduct. As a result of the foregoing, Carsten suffered loss and damage.
The Retainer and Option Agreement had not been carried out by 30 April 1998. The plaintiff alleges that on 8 April 1998 Mr Dwyer on behalf of the first and second defendants represented to Carsten that the second defendant would sell all the remaining floors of the building by 31 July 1998 and threatened Carsten that if it did not sign the second Retainer/Option Agreement, the first defendant would call back the loans. Induced by the April 1998 conduct and its antecedents, Carsten entered into a Second Retainer/Option Agreement with the second defendant. Further, the first and second defendants warranted to Carsten that, in consideration of Carsten entering into the Second Retainer/Option Agreement, the second defendant would sell all the remaining floors of the building by 31 July 1998 (“the second sale warranty”). The second sale warranty and the Second Retainer/Option Agreement were breached as the second defendant did not sell all remaining floors by 31 July 1998. The plaintiff alleges that the representation made by the first and second defendants as part of the April 1998 conduct was untrue and misleading or deceptive contrary to s.52 Trade Practices Act. The course of conduct of the first and second defendants up to and including the April 1998 conduct was unconscionable within s.51AA Trade Practices Act, Mr Dwyer being an accessory. Carsten suffered loss and damage as a result of the breaches of s.52 and/or 51AA Trade Practices Act.
On 17 September 1998, the first defendant entered into possession of the premises as mortgagee and then sold the ground floor at an undervalue ($1,400,000) and the penthouse at an undervalue ($550,000). The latter sale was to the project builder, Caulson Pty Ltd. In selling at an undervalue, the plaintiff alleges that the first defendant acted in breach of its duties as mortgagee and accordingly Carsten suffered further loss and damage.
As I have said, the first statement of claim was with the writ filed on 21 August 2000 and was dated 18 August 2000. On 1 December 2002 an amended statement of claim was served by the plaintiff. The amended statement of claim the subject of the Order of Master Kings of 11 March 2003 as to which leave was granted to file and serve was ultimately filed on 17 April 2003. It is this document which I refer to as “the amended statement of claim”.
On 11 March 2003 Master Kings ordered that the plaintiff have “leave to file and serve an amended statement of claim substantially in the form of the fourth proposed amended statement of claim”. The reference in that Order to “fourth” was a reference to antecedent proposed amended statements of claim. The only proposed amended statement of claim which has relevance to these reasons is the proposed amended statement of claim of 1 December 2002, which I shall call “the proposed amended statement of claim”. The Master ordered that the amended statement of claim be filed and served on or before 4 April 2003. In fact it was not filed and served until 17 April 2003. No point is now made of that failure, Master Evans on 11 April 2003 having granted that extension of time. On 14 March 2003 the three defendants filed notice of appeal from the Order of Master Kings of 11 March 2003 granting the plaintiff leave to file and serve the amended statement of claim. That is the first matter before me.
Also, on 7 April 2003 the three defendants filed a summons seeking the striking out of numerous paragraphs of the first statement of claim (18 August 2000) on the grounds that they do not disclose a cause of action, are vexatious and an abuse of process. Those paragraphs were paragraphs 28, 29, 31(a), 32, 39, 40, 41, 42, 43, 50, 51, 52, 58, 59, 60, 61, 62, 69, 73 and 77. On 11 April 2003 Master Evans granted leave for the summons to be heard by a Judge, thus enabling it to be heard (as I did) at the same time as the appeal from the 11 March 2003 Order of Master Kings, as both proceedings involved connected considerations. I granted the defendants leave to add six further paragraphs to the application to strike out. They were paragraphs 34A, 39A, 49A, 55A, 59A and 73A. Ultimately before me senior counsel for the defendants, having addressed with particularity the discrete matters, submitted that the statement of claim should be struck out in its entirety (T. 84, 94).
Consonantly with the above, I shall refer to the statement of claim filed on 21 August 2000 as “the first statement of claim”, the proposed amended statement of claim of 1 December 2002 as “the proposed amended statement of claim”, and the amended statement of claim filed on 17 April 2003 pursuant to the Order of Master Kings of 11 March 2003 as “the amended statement of claim”.
Because the matters raised by the appeal from Master Kings and those raised by the summons to strike out paragraphs (or the whole) are substantially related, it is convenient to proceed to consideration of the relevant pleadings from the dual perspective of the appeal and the summons. To that I now turn. As the parties before me expressed their submissions in terms of the paragraph enumeration of the amended statement of claim, I shall do likewise here. I shall refer to the amended statement of claim, for convenience, as “the ASC”. As the plaintiff on 23 November 2001 filed a notice of discontinuance against the fourth and fifth defendants, hereafter I shall refer to the first to third defendants as “the defendants”.
The first paragraph of the ASC which the defendants submit cannot be sustained is paragraph 28. The defendants submit that the reference therein to the March – April conduct being unconscionable is meaningless at that conduct was the plaintiff’s own conduct. However the plaintiff proposes to rely not upon the March – April conduct but the May – July conduct independently, or at the least the totality of the two sets of conduct. Accordingly there is nothing now in this point of the defendants. Next, the defendants submit that there is no exposition of how the May – July conduct constitutes misleading or deceptive conduct. However, the reference to s.52 has now been deleted from paragraph 28. Next, the defendants submit that no material facts are pleaded as to how the May – July conduct was unconscionable. However, paragraphs 15 – 27 of the ASC set out material facts of alleged economic duress which in my view come within the description of unconscionable conduct under s.51AA: Crescendo Management Pty Ltd v Westpac Banking Group[1] (“It is sufficient if the illegitimate pressure was one of the reasons for the person entering into the contract”). Here, the plaintiff submits it was the accumulation of the discrete facts (including lawful threat) which constitutes the illegitimate pressure and thus unconscionable conduct. As to lawful threat constituting economic duress in certain circumstances, see Cockerill & Ors v Westpac Banking Corporation[2]. The notion of unconscionability in s.51AA is not limited to conventional Amadio unconscionability: Olex Focas Pty Ltd & Anor v Skodaexport Co. Ltd. & Anor[3]. These objections of the defendants are not sustained.
[1](1988) 19 NSWLR 40 at 46 per McHugh JA (as then he was and in whose judgment Samuels and Mahoney JJ.A. agreed).
[2](1996) 142 ALR 227 at 278 per Cooper J.
[3](1998) 3 VR 380 at 402-403 per Batt J (as then he was).
Like answers apply to the defendants’ submissions as to paragraph 29 ASC.
I turn next to paragraph 31 ASC. The defendants submit that paragraph 31(a) is deficient in that it does not allege how or why it is that because of the assertions, threats and actions alleged in paragraph 26 Carsten was compelled to borrow a further sum of $2,550,000. In my view the plaintiff’s exposition is clear: paragraph 26(f) alleges delay brought about by the first defendant’s conduct and paragraph 30(b) alleges increased costs and delays. That is sufficient exposition of the genesis of the further borrowing. This objection of the defendants is not sustained.
The next of the defendants’ submissions may be grouped together. As to paragraphs 34A, 39A, 49A, 55A and 59A of the ASC, which in substance allege that the defendants lacked reasonable grounds to make representations as to future matters, the defendants submit that the pleadings are deficient in that material facts should have been pleaded to show an absence of reasonable grounds. The defendants rely upon Truth About Motorways Pty Ltd v Macquarie Infrastructure Investments Ltd[4]. The plaintiff no longer relies upon paragraph 49A. It is plain that the plaintiff is relying upon the operation of s.51A as to future representations. Thereby once the plaintiff makes the allegation which attracts the section, the onus is upon the defendants (s.51A(2)) and thus it is for the defendants rather than the plaintiff to assert the reasonable grounds. The plaintiff, by the pleading here under consideration, has made it clear that it relies upon s.51A and that is sufficient notice: State of Western Australia v Bond Corporation Holdings Ltd & Ors[5] and Cummings v Lewis & Ors[6]. These objections of the defendants are not sustained.
[4](1998) ATPR 41-633 at 40, 864.
[5](1990) 99 ALR 125 at 129 per French J.
[6](1993) 113 ALR 285 at 293-294 per Sheppard and Neaves JJ.
As to paragraph 39 ASC, the defendants submit that it fails to plead how and why the representation that the second defendant was in a position to sell floors 1 – 8 for $16,260,000 immediately was untrue. There is nothing in this point. The particulars provided are sufficient.
As to paragraph 40 ASC, the defendants submit that no material facts are pleaded to show how or why the conduct referred to was misleading or deceptive. Again, there is nothing in this point. Paragraph 39 alleges that the representation was untrue: that is the genesis of its deception. Pleaded data in paragraphs 34(a) and (b) and the particulars to paragraphs 35 and 39 go to the same end.
As to paragraphs 41 and 42 ASC, the defendants submit that they do not set out material facts showing how or why the conduct was unconscionable. However, as reviewed in paragraph 20 above, the relevant considerations apt to attract s.51AA are set out in paragraphs 30-39A ASC including the threats alleged in paragraph 34(c) and cumulatively the matters pleaded are said by the plaintiff to constitute economic duress and thus be unconscionable. This objection is not sustained.
As to paragraphs 50 and 51 ASC, the defendants submit that insufficient material facts are pleaded to show how the alleged conduct was unconscionable. Again, it is plain from the pleading that the so-called Pacific conduct combined with the July – November conduct is that which is relied upon as constituting unconscionability. Like reasoning applies as in paragraph 20 above and paragraph 26 above. This objection is not sustained.
As to paragraph 58 ASC, the defendants submit that the representation that the second defendant would sell all the remaining floors by 31 July 1998 was not a representation but a prediction. This is a matter for evidence at trial. It may be that in evidence it is proved that it was a representation or it may be that it was a representation as to future matters within s.51A or the allegation may fail. This objection is not sustained.
As to paragraphs 59 and 61 ASC, the defendants submit that paragraph 59 is unclear and confusing. However the plaintiff proposes that paragraph 59 now read:
“By reason of the matters set out in paragraphs 53 to 58 hereof the representation (being part of the April 1998 conduct and referred to in paragraph 55(a) hereof) constituted conduct by LMQ and/or PPS in trade or commerce which was misleading or deceptive or likely to mislead or deceive contrary to the provisions of section 52 of the Trade Practices Act 1974 (Cwlth).”
The proposed paragraph 59 is clear and is permitted.
As to paragraphs 60 and 61 ASC the defendants submit that paragraph 60 is confusing and fails to plead material facts. The plaintiff proposes that paragraph 60 now read:
“By reason of the matters set out in paragraphs 53-56 and 58A hereof, the April 1998 conduct separately or in conjunction with
(a) the May – June conduct and/or
(b) the July – November conduct and/or
(c) the Pacific conduct
constituted conduct by LMQ and/or PPS in trade or commerce which was unconscionable and contrary to the provisions of section 51AA of the Trade Practices Act 1974 (Cwlth).”
The proposed paragraph is permitted. For reasons stated in paragraph 20 above, the allegations in the proposed pleading paragraph 60(a), (b) and (c) are sufficient to allege unconscionable conduct by economic duress.
As to paragraphs 32, 43, 52, 62 and 69 ASC (claims for loss and damage relating to particular categories of conduct) and paragraphs 73A and 77 ASC (claims for loss and damage expressed generally) the defendants submit that the pleadings are deficient in that the nexus between cause and effect is not spelt out. Particularly in relation to paragraphs 73A and 77 ASC the defendants rely upon Bond Corporation Pty Ltd v Theiss Contractors Pty Ltd & Ors[7]. To this the plaintiff replies that paragraphs 32, 43, 52, 62 and 69 particularise loss and damage in respect of each allegation of conduct in contravention of the Trade Practices Act 1974. By contrast paragraphs 73A and 77 are global. The test was stated by French J in Bond Corporation[8] namely:
“In the case of misleading and deceptive statements said to constitute a contravention of section 52 … facts and circumstances should be set out leading to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect.”
The plaintiff submits that that test is satisfied as follows. Paragraph 32 ASC relates to the unconscionable behaviour involved in the May – July conduct. The pleading sets out facts and circumstances which lead to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect. Paragraph 43 ASC relates to the behaviour in breach of ss.51AA and 52 involved in the July – November conduct. The pleading sets forth facts and circumstances which lead to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect. Paragraph 52 ASC relates to the unconscionable behaviour involved in the Pacific conduct. The pleading sets out facts and circumstances which lead to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect. Paragraph 62 ASC relates to the behaviour in breach of ss.51AA and 52 involved in the April 1998 conduct. The pleading sets out facts and circumstances which lead to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect. Paragraph 69 ASC is a routine claim for loss and damage arising out of the sale by the first defendant as mortgagee in possession for undervalue of the ground floor and penthouse floor of the premises. Nothing contained in French J’s judgment indicates that a global assessment of loss and damage arising from, inter alia, breaches of the Trade Practices Act is impermissible.
[7](1987) 71 ALR 615.
[8](Above) at 622.
I consider those submissions on behalf of the plaintiff are sustainable. The inclusion of a general claim for loss and damage does not invalidate the particular.
Of course nothing I have said about the pleadings involves any conclusion of fact, which waits upon the evidence adduced at trial, or any conclusion of law as to the matters propounded by the plaintiff other than the competence or otherwise of the pleading.
I am satisfied, subject to the matter I state below at paragraph 35, that the ASC (including that which was stated before me by Dr Hardingham and which I have incorporated into this judgment) is competent as a matter of pleading. Accordingly I dismiss the defendants’ appeal from the Order of Master Kings of 11 March 2003 granting leave to the plaintiff to file and serve the ASC. For like reasons I dismiss the defendants’ summons to strike out paragraphs of the statement of claim and the application made before me by Mr Kendall to strike out the whole statement of claim.
I do not consider it is proper pleading to import by reference, as the ASC by paragraphs 32, 43, 52, 62 and 69 purported to do, an extrinsic expert report. I add that that pleading was not settled by Dr Hardingham. That report is a 12-page economic loss report by Mr N. Rockliffe and dated 17 April 2003. It is not for the defendants to dredge through a report to find by an uncertain process what is alleged against them. I consider that, so far as the plaintiff seeks to rely upon finite and discrete matters, those paragraphs of the ASC should be redrawn to state them. Dr Hardingham conceded as much before me (T.79). The report then should not be included as a pleading item.
I grant leave for that and any amendments consequent upon my judgment to be made by the plaintiff, filed, and served upon the defendants. Those amendments comprehend that which was foreshadowed by Dr Hardingham before me as to ASC paragraphs 28 (at T.59), 40 (at T.80), 59 (at T.76) and 60 (at T.77). I grant leave to the parties upon notice to the other side to return directly to me if there are any disputations as to the competence of those further pleadings.
I regret the delay that has occurred in the handing down of this judgment.
I shall hear the parties at a time convenient to them as to consequential orders and costs.
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