Guerow, M. & Bedelis, C. v Willson, J.M.

Re: MATEY GUEROW and CHRISTOPHER BEDELIS
And: JOHN MAXWELL WILLSON; JOHN WILLSON (HAMERS CRAYPOT INN)
PTY. LIMITED; GRAY HOLDINGS PTY. LIMITED; IAN JAMES GRAY and
GAY GRAY
No. T G9 of 1989
FED No. 100
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Trade Practices - sale of hotel premises and business - vendor employs agent to find purchaser - inaccurate information given by vendor to agent - offer made by prospective purchaser - offer based on inaccurate information - offer not binding on prospective purchaser - acceptance of offer not binding on vendor - whether vendor's conduct was misleading or deceptive - purchaser not prejudiced by vendor's conduct - whether breach of ss.52 and 53A of Trade Practices Act established

Trade Practices Act 1974, ss. 52, 53A and 75B

HEARING

SYDNEY

#DATE 23:3:1990

Counsel for applicant: W.A. Ayliffe

instructed by: Ayliffe & Ayliffe

Counsel for 1st and 2nd

respondents: P.A. Griffits instructed by: Griffits & Jackson

Counsel for 3rd, 4th and

5th respondents: S. Carter instructed by: Page Seager

ORDER

1. Application dismissed.

2. Applicants to pay respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This case raises questions as to the liability of an owner of property in respect of conduct in which he engages in the course of abortive negotiations for the sale of the property to a prospective purchaser.

In February 1989, the first respondent ("Willson") was the owner of land at Strahan on the west coast of Tasmania. An hotel is erected upon this land. Willson was also the owner of the liquor license attached to the hotel. The hotel premises were leased to a company known as John Willson (Hamer's Craypot Inn) Pty Limited ("the hotel company"). The shareholders in this company were Willson and his two daughters. The hotel business was conducted by the hotel company. The business included the provision of accommodation for tourists. The chattels used in connection with the hotel business were owned by the hotel company.
A supermarket and a newsagency were conducted on land adjoining the hotel, this land also being owned by Willson. The supermarket and newsagency were leased to tenants. It will be convenient hereafter to refer to all the land owned by Willson as "the hotel freehold".
In February 1989, Willson decided to place the hotel land and business on the market for sale, and notified four brokers that they were available for purchase. One of the brokers was Mr Barlow. Barlow and Mr Craig Coombs are directors and proprietors of a company known as Coobar Pty Limited which trades as Barlow & Coombs Hotel Brokers.
In mid-February 1989, Willson met Mr Ian Gray, the fourth respondent, on a social occasion. Gray had earlier expressed some interest in purchasing the hotel at Strahan. Willson told Gray that it was for sale and invited him to inspect it.
On 23 February 1989, Coombs telephoned Willson and arranged to inspect the hotel, which he did on the following day. Willson advised Coombs that he wanted $1 million clear for the property. There was some discussion between the two men as to the ownership of the hotel and as to the existence of the hotel company. There is a dispute as to exactly what was said about those matters.
Coombs told Willson that he had a possible purchaser in mind, but did not mention his name. The purchaser was, in fact, Mr Matey Guerow, the first applicant, who was in partnership with the second applicant in buying and operating hotels in Victoria and Tasmania. Whilst at Strahan, Coombs telephoned Guerow and ascertained that he might be interested in purchasing the hotel. Arrangements were made for them to discuss the matter the following day.
I am satisfied that during the course of discussion held on 24 February, Willson indicated to Coombs that if he found a buyer for the hotel, he would want the sale to be completed expeditiously. However, I am not satisfied that he indicated to Coombs that he had a pressing need to sell the hotel or that he was anxious to effect a quick sale.
Upon his return to Hobart, Coombs had a discussion with Guerow who offered to pay $950,000 for the hotel on a walk-in/walk-out basis, subject to inspection of the business records. Thereafter, on 28 February, Coombs sent a letter (dated 26 February) by facsimile transmission to Willson. The letter was in the following terms:

"BARLOW & COOMBS Hotel Brokers 26 February, 1989 Mr J. Willson,

Hamer's Craypot Inn Pty Ltd., Esplanade,

STRAHAN. TAS. 7468.

FAX: 004 717389

Dear John,

I wish to confirm that this Company would like to make an offer on behalf of a client a (sic) to purchase the shares in your Company. The offer recognizes that (sic) the value of the assets at $950,000 plus the value of stock at the time of takeover and is made conditional of

(sic):

1) On a walk in/walk out bases, and that all works required to meet the Licensing Board, Tasmanian Fire Service, Tasmanian Department of Health and Local Government and (sic) will be completed by the completion date of the Contract. 2) It is understood that the Ice Machine and Wine Chiller are leased and will be assigned over.

3) 'This agreement is conditional upon the purchaser's solicitor (sic) acceptance of the vendor's title to the subject property and satisfactory inspection by the purchaser's solicitors of trading figures within fourteen

(14) days of the date hereof. Should no objection be taken by the purchaser's solicitors in writing to either title or figures within that time this condition shall be null and void. Should objection be taken within that time all moneys paid pursuant to this agreement shall be refunded in full without deduction and this agreement shall be at an end.' I accept this offer subject to formal contract being drawn. ........ ........ ........ JOHN WILLSON ........ ........ ........ DATE

Yours faithfully,

(Sgd) Craig Coombs."

It will be convenient to refer to this letter as "the offer letter".

The above letter was accompanied by a note from Coombs, as follows:

"I have had trouble convincing the purchaser that the hotel is worth $1M. He has spoken to someone in Gov (sic) and believes the boats are going to move across the river. I believe you should give this offer serious consideration. It will be a very quick settlement and finance is not a problem."

During the evening of 28 February, Coombs rang Willson to discuss the matter. Willson told Coombs that he was concerned about the purchase price. He also said he needed time to check whether the boat wharf was to be moved to the opposite shore of the river. In the course of this discussion Willson told Coombs that there was a debt of $10,000 owing to him by a guest house known as Franklin Manor. He said he was concerned that he would not be able to recover this debt after the sale of the hotel and, accordingly, wanted to raise the purchase price to $960,000. Thereafter, Coombs obtained Guerow's concurrence to raise his offer to $960,000. He then telephoned Willson and advised him to change the figure in the offer letter to $960,000, and initial the alteration. Late in the evening of 28 February, Willson altered para. 2 of the offer letter by deleting the reference to $950,000 and inserting in lieu thereof $960,000, initialled the alteration, signed the letter and faxed it back to Coombs.

There was much evidence from Coombs and Willson as to exactly what was said about the ownership of the hotel freehold. According to Coombs, he asked Willson on 24 February who owned the property and Willson said that his company was the owner. Coombs also said he asked Willson if the company owned any other assets apart from the hotel and Willson replied that it did not. Coombs said he asked Willson in whose name any contract should be in, and that in response to his question Willson handed him his business card which had the company's name on it, saying: "This is the name of the owners". According to Coombs, he explained to Willson that if the company owned the property, it would be possible for the shares in the company, rather than the land itself, to be transferred to the purchaser, thus effecting a substantial saving in stamp duty.
Willson gave evidence that the company had been formed to operate the hotel business on the advice of his accountants. He said that in February 1989 he was marketing the Strahan property "as an entity" and that he wanted $1 million for it. He claimed that in his discussions with Coombs he did not differentiate between the ownership of the company and of the business. He said he pointed out the boundaries of the land-holding to Coombs and said: "(T)hat's all ours, the lot." He agreed he discussed the existence of the company with Coombs but denied that he told Coombs that the company owned the hotel freehold. He also denied that Coombs asked him who owned the property and that Coombs raised with him the question of transferring the shares in the company to a purchaser. However, he agreed that Coombs said there would be certain tax advantages if the company could be sold with the business.
I have come to the conclusion that neither Coombs nor Willson have accurate recollections of exactly what was said between them. I think neither gave deliberately untruthful evidence on this issue. I do not think either of them attributed much significance to the precise details of the relationship between the hotel company and Willson on the one hand, and the title to the hotel freehold on the other. They both understood that what was being offered for sale was all the land and the hotel business. They knew that, if a sale eventuated, it would be necessary for solicitors to be employed to attend to the preparation of such documents as would be necessary to ensure that the purchaser would become the owner of the assets being offered for sale.
From Willson's point of view, since the hotel company was a family company in which he owned most of the shares, it would not have been a matter of much significance to him whether he referred to the hotel freehold as being owned by the company or by himself. Certainly, I think that when he spoke to Coombs on 24 February he did not deliberately misrepresent the title position. Coombs was his agent and he had no reason to mislead him. He did not know at that stage whether Guerow, or anyone else for that matter, would make him an offer. Indeed, he did not even know of Guerow's existence.
Moreover, if Coombs had been interested to know the precise position as to ownership of the hotel freehold, I think he probably would have asked Willson for particulars of the title. Yet he did not make any such request of Willson, nor did he seek information as to the terms of the leases of the supermarket and the newsagency, save as to the gross rentals from those parts of the premises.
I do not accept that Willson said, in terms, that the company owned the hotel freehold. However, I think it likely that during the course of their discussions, Willson used words which conveyed to Coombs that the company owned "the hotel". I am prepared to accept that he did use such words and that Coombs took the reference to "the hotel" to mean the hotel freehold and I propose to consider the applicants' case upon this basis.
However, it seems to me that the precise words used by Willson in his conversation with Coombs are of little importance. I am satisfied that Coombs told Guerow that the hotel company owned the hotel freehold. Guerow gave evidence to that effect and I accept his evidence. I did not understand counsel for the first and second respondents to argue that it was outside the scope of Coombs' authority to tell Guerow that the company owned the hotel freehold.
The terms of the offer letter and the circumstances in which Willson signed it are of importance. The wording of the letter is unusual. The letter does not identify any purchaser by name nor does it state, in terms, that any purchaser has made an offer. The terms of the letter are almost as consistent with the "client" being inclined to make an offer as with him having made an offer. The letter is addressed to Willson, and refers to "the shares in your Company". It was known to all concerned that Willson was not the only shareholder in the company. Yet the letter does not envisage that the shareholders other than Willson should signify their acceptance of the offer.
According to Guerow, he did not authorize the inclusion at the foot of the letter of the words "I accept this offer subject to formal contract being drawn". It appears these words were included by Coombs without reference to Guerow. When Coombs was asked what his purpose was in including the words he said that his understanding was that "this was a preliminary document to be followed by a more detailed document spelling out the conditions in more detail and legal jargon."
The three conditions set out in the offer letter were appropriate to be included in a contract for the sale of land, but less appropriate to be included in a contract for the sale of shares. This was particularly the case in respect of the third condition. According to Coombs, Guerow told him that he would like to make an offer "subject to his normal conditions". These "normal conditions" had been suggested by Guerow's solicitor for use on other occasions when he had made offers to purchase land. Guerow had not consulted his solicitors before making the offer for the Strahan hotel.
Guerow gave the following evidence in respect of the offer letter:

"Your intention was, was it not, that in due course, a proper contract should be drawn up by your solicitors and the vendor's solicitors?---Yes.

Yes. And that at that stage there would be negotiation about what should be put in that contract?---That is the general rule, yes. Yes. There were a number of things that were not - that needed to be resolved, were not there? Would you have wanted a restrictive covenant?---That is the general rule, yes. You mean in terms of operation, another property? Yes?---Yes.

How far would you have wanted that restrictive covenant to extend?---Well, certainly, that it would not apply to another licence in Queenstown, sorry, in Strahan. Not to Queenstown?---Well, Queenstown, I felt, is quite a way off.

. . . .

"HIS HONOUR: If he had not been prepared to give that would you have gone on with the deal?---That is a judgment I would have had to make, your Honour, but it is the usual thing to put that in. It is not always agreed on, but certainly usual. In most cases it is agreeable, but not always as I understand it. In the others that I have been involved in, it has been agreed to."

The third condition in the offer letter appears to have been included for the purpose of giving notice to Willson that the unnamed purchaser would require further contractual documents to make provision for the matters referred to in that condition. It seems reasonable to infer from the reference to "satisfactory inspection by the purchaser's solicitors of trading figures ..." that at the time the letter was written the purchaser had not satisfied himself as to the hotel's trading figures. Indeed, at the time the offer letter was written, Willson had not been asked to produce his books for inspection. It is true that Coombs had inspected the books and made calculations from them and furnished those calculations to Guerow. But Coombs was Willson's agent and when Willson signed the offer letter he did not know whether the purchaser would be content to rely upon what Coombs may have told him.
According to Willson, he did not believe that by signing the offer letter he would be contractually bound. He claimed that his belief was based upon his opinion that "it was not a contract". He said that on 28 February he planned to find out about the Gordon River boats on the following day. (In fact, on the morning of 1 March, he checked whether there was any proposal that the boats should use a wharf on the opposite bank of the river, and ascertained there was no such proposal). He said that he signed the offer letter as an indication of his interest in negotiating seriously. He further said that when he sent the letter back to Coombs, he "bore in mind that my company did not own the property, but I did not worry about sorting that out until I decided to proceed with the sale and the preparation of a formal contract". Coombs denied that Willson said anything to the effect that he was signing the letter only as an indication of his interest in negotiating seriously.
I am satisfied that whether or not Willson told Coombs of the reason why he was prepared to sign the offer letter, he believed he would not be contractually bound by placing his signature upon it. I think he was correct in this belief.
In my opinion the signing of the offer letter by Willson did not contractually bind him, or anyone else. Willson did not purport to sign the document on behalf of the other shareholders in the company and, in any event, he had no authority to do so. It must have been plain to all concerned that many details of the proposed sale remained to be settled. Not the least important of these was the question whether the vendor would be prepared to give a covenant not to compete in the hotel trade with the purchaser. The lengthy documentation which was brought into existence when the hotel was ultimately sold to the Gray interests exemplifies the numerous matters upon which agreement had not been reached as at 28 February. Counsel for the applicants virtually conceded that the inclusion in the offer letter of the words "... subject to formal contract being drawn" gave Willson the right to withdraw from any arrangement contemplated in the letter. In my opinion such a concession was inevitable in the light of the authorities: see Masters v Cameron (1954) 91 CLR 353, and Commercial Bank of Australia Ltd v G.H. Dean & Co Pty Ltd (1983) 2 Qd R 204 at 209. See also Greig and Davis, The Law of Contract (1987) at pp 220-226.
In Masters v Cameron (supra), Dixon C.J. McTiernan and Kitto JJ. said, at p 360:

"Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract."

With respect to cases falling within the third class, their Honours said at p 361:

"They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own: Governor Etc. of the Poor of Kingston-upon-Hull v Petch

((1854) 10 Exch 610 (156 ER 583)). The parties may have so provided either because they have dealt only with major matters and contemplate that others will or may be regulated by provisions to be introduced into the formal document, as in Summergreene v Parker ((1950) 80 CLR 304) or simply because they wish to reserve to themselves a right to withdraw at any time until the formal document is signed."

Their Honours went on to say (pp 362-363) that it had been recognized in the decided cases that phrases such as "subject to contract" and "subject to the preparation of a formal contract" prima facie create an overriding condition so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract.
The circumstances of the present case point very strongly to it falling within the third class of cases discussed in Masters v Cameron. On 28 February it was not the intention of either Guerow or Willson to make a concluded bargain. They had not agreed on all the terms of any bargain. Indeed, Guerow had not committed himself in writing to anything. The terms of the offer letter were hopelessly inadequate to reflect all the terms of a possible sale of the hotel and the business associated with it. What was contemplated was a reasonably complicated transaction. It involved the sale of a substantial licensed hotel and an associated business of providing accommodation. Substantial and valuable personalty was used in the business and was to be the subject of the sale. The sale of the land upon which the newsagency and supermarket stood was also involved. A company was involved in the transaction and there were shareholders other than Willson in the company. All these matters point strongly to the conclusion that Willson's signature on the offer letter was not intended to, and did not, commit him or the hotel company to any binding contractual arrangements.
I am satisfied that on 28 February, Willson was not disposed to commit himself irrevocably to accept an offer of $960,000. He knew that Gray was interested in the property and might well make an offer as, in fact, he did the following day. He also appreciated that since the offer of $960,000 was apparently predicated upon the basis that the value of the hotel might be adversely affected by a proposal that the tourist boats should use a different wharf, the offer might be increased if he could demonstrate that there was no such proposal. Moreover, Willson was under no great pressure to find a buyer.
In these circumstances, I think that if, on 28 February, Coombs had submitted an offer to Willson to buy the hotel freehold and a separate offer to the shareholders to buy their shares in the hotel company, those offers would not have been accepted without qualification. Willson's responses to the offers would have been so framed as to enable the vendors to withdraw before signing further documentation to be prepared by their solicitors. To put the matter another way, I am satisfied that as at 28 February Willson was keeping his options open in case he received a higher offer.
On 1 March 1989, the fourth respondent offered to purchase the hotel freehold and the hotel business for $1.1 million. This offer was accepted and on the same day Willson sent a fax message to Coombs as follows:

"I regret to advise that I must rescind my Fax of yesterday, as I have been offered a sum far in excess of your client's.

I have not signed a document at this stage, however, if you wish to make further negotiations, please do so, post haste."

On 9 March Willson entered into a formal agreement for the sale to the third respondent of the hotel freehold. The sale price was expressed to be $800,000. On the same day, the hotel company agreed to sell to the third respondent the goodwill of the hotel business and the furniture, furnishings, plant and equipment used in the business. The purchase price was expressed to be $200,000. In a separate agreement, the third respondent agreed to sell an aeroplane to the second respondent for the sum of $30,000. The evidence discloses that this plane was worth considerably more than $30,000 and more like $85,000. However, it seems that the parties agreed to place a value of $130,000 upon the aeroplane and to treat the transfer of it as being equivalent to the payment of a further $100,000. Effectively therefore the agreed sale price of the hotel freehold and of the hotel business was $1.1 million.
It is against the above background of facts that it is necessary to determine the applicants' claim. The essence of the claim pressed against the first two respondents was that Willson's conduct in giving Coombs to understand that the company was the owner of the hotel freehold misled the applicants into making the offer contained in the offer letter. It was argued that if they had not been so misled, the applicants would have made two offers, one to Willson for the purchase of the hotel freehold, and another to the hotel company for the purchase of the goodwill of the hotel business and the personalty associated with it. It was then submitted that those offers would have been accepted in terms which would have given rise to binding agreements. Alternatively, it was submitted that at least the offer which would have been made to Willson to purchase the hotel freehold would have been accepted by him in terms which would have made his acceptance irrevocable. In my opinion, all these submissions must be rejected.
I have no doubt that Willson's acceptance of any offer would have been conditional upon a formal contract being drawn up, just as his acceptance of the offer contained in the offer letter was "subject to formal contract being drawn". If it be assumed that Guerow was inadvertently misinformed as to the ownership of the hotel freehold, Guerow's position is not improved in the present litigation. His position was not worsened by any such mis-information because any offer which he otherwise would have made would not have been accepted in terms which gave him enforceable rights.
Counsel for the applicants submitted that if Willson had accepted an offer for the hotel freehold on a "subject to formal contract" basis, his acceptance would have been binding upon him even if the hotel company's acceptance of a separate offer for the business on a "subject to contract" basis would not have been binding upon the company. I do not think this submission has substance. Since Guerow wished to purchase both the hotel freehold and the hotel business, the separate offers would have been made inter-dependent. The separate acceptances of those offers would also have been made inter-dependent. Guerow did not want to buy the hotel freehold without the hotel business, and Willson did not want to sell the one without the other.
In any case, in the circumstances of the present case, an agreement to sell the freehold on terms similar to those contained in the offer letter and on a "subject to formal contract" basis would not have been binding on Willson. Guerow himself conceded in his evidence that such an agreement would have left unresolved matters of importance, such as the terms of a condition restricting Willson's future trading in opposition to the hotel.
It was claimed that Willson's conduct was fraudulent in that he deliberately told Coombs the company owned the hotel freehold, intending that Guerow should act on that information. I reject this submission. I am satisfied that Willson did not intentionally make false statements to Coombs as to the ownership of the freehold.
In a separate submission, it was put on behalf of the applicants that they were misled by Willson into not putting an offer which might have been accepted in preference to the offer put by Gray. I am not sure that I fully understood this submission, but it seems impossible of acceptance in the light of the fax message sent by Willson to Coombs on 1 March. In that message Willson invited Coombs to submit further offers. Since Coombs was in close contact with Guerow, it is reasonable to assume that Guerow was informed that he could make a higher offer, but that he declined to do so. I am unable to appreciate how it can be said that his decision not to make a higher offer was occasioned by any conduct on Willson's part.
It is unnecessary to determine the nice point whether the erroneous information given to Guerow as to the ownership of the freehold constituted, in the circumstances of the present case, conduct proscribed by s.52 or s.53A of the Trade Practices Act. If it were necessary to decide the point, I would think the better view is that Willson's conduct did not infringe the Trade Practices Act. Guerow must have known that his discussions with Coombs were tentative in the sense that whatever he was told would be of no consequence if a binding agreement did not subsequently come into existence. He knew that the accuracy of anything he was told about the title to the hotel freehold would be checked by his solicitor should he later commit himself to buy the property. In fact he did not disclose his identity to Willson, let alone make him an offer which, if accepted, would have been binding upon him. In these circumstances, he was not misled or deceived into altering his position by anything that Coombs said to him about the title to the freehold.
For the above reasons I am of the opinion that the case against the first and second respondents fails.
The claim against the third, fourth and fifth respondents can be summarily dismissed. Indeed, it was virtually abandoned at the end of the trial. As pleaded, the claim against these respondents was that they conspired with, and aided and abetted, the first and second respondents in the alleged contraventions of ss.52 and 53A of the Trade Practices Act. Two matters were relied upon in support of this claim. First, it was alleged that the third, fourth and fifth respondents had offered to pay the legal costs of the first and second respondents in the event of legal proceedings being commenced by the applicants. A consideration of the evidence tendered in support of this allegation satisfies me that it was not made out. Secondly, it was said that the third, fourth and fifth respondents offered to pay a higher sum to Willson and the hotel company if the company would breach what was said to be its agreement with the applicants. As I have found, there was no such agreement.
Further, there is no evidence that it was part of any arrangement between the third, fourth and fifth respondents and Willson and his company that the company would breach any agreement with the applicants. All that the third, fourth and fifth respondents did was to make a higher offer. They knew of the terms of the offer letter of 26 February and of its doubtful status as a document giving rise to any enforceable rights. They were entitled to take the view (which, in my opinion, was plainly correct) that the existence of the offer letter did not restrict Willson's right to contract with them. There is no substance at all in the claim against these respondents.
Had it been necessary to consider the question of damages in this case, I would have assessed the applicants' damages at approximately $55,000. I think the combined value of the hotel freehold and the hotel business (and the associated personalty) as at February 1989 was approximately $1.1 million. Guerow gave evidence that if he and Bedelis had purchased those assets for $960,000, they would have resold them to the Gray interests. Had they done this, they would have made a profit of $140,000 less the expenses which would have been incurred in the purchase and resale. It was agreed that these expenses (which would have been largely made up of legal costs and commission) would have been about $45,000. Thus the gross profit would have been about $95,000. It was conceded that this profit would have been subject to capital gains tax and that the after-tax profit would have been approximately $50,000. However, since the tax would not have been payable until some time after the resale of the assets, the applicants could have invested the $95,000 pending assessment and payment of the capital gains tax. I would have allowed a further sum of approximately $5,000 for the loss of the interest which the applicants would have earned on the amount of their profit, after allowing for tax on that interest. I think such an assessment of damages would be in conformity with the principles applicable to the assessment of damages in cases brought under s.52: see Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 and Collins Marrickville Pty Limited v Henjo Investments Pty Limited & Ors (1987) ATPR 40-822.
The application is dismissed with costs.

[1990] FCA 100

23 MARCH 1990