Lancaster & Anor v Esanda Finance Corporation Limited

[1991] HCATrans 204

!:

,	'i
,¥_~·~	,,

*

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl of 1991

B e t w e e n -

ARNOLD MURRELL LANCASTER and

MAX MURRELL LANCASTER

Applicants

and

ESANDA FINANCE CORPORATION

LIMITED

Respondent

Application for special

leave to appeal

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Lancaster 1 8/8/91

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 8 AUGUST 1991, AT 3.21 PM

Copyright in· the High Court of Australia

MR C.J.L. PULLIN, QC:  May it please the Court, I appear

with MS M.L. O'BRIEN, for the applicant.

(instructed by Taylor Smart)

MR E.M. HEENAN, QC:  May it please the Court, I appear with

my learned friend, MR M. LEVITAN, for the

respondent. (instructed by Stables & Co)

MASON CJ: Yes, Mr Pullin.

MR PULLIN: Your Honours, this application raises a very

short point, and if I can briefly mention the

facts, they are that a farmer entered into two hire

purchase agreements - - -

MASON CJ:  We are familiar with the facts, Mr Pullin.

MR PULLIN: Very well, Your Honours.

MASON CJ:  You might, as shortly as you can, indicate to us

the grounds on which you say that the Full Court

was arguably wrong.

MR PULLIN:  Very well, Your Honours. The position is that

one needs to go to section 28 of the Hire Purchase

Act, and section 28 is, of course, headed,

"Avoidance of Certain Provisions". Bearing in mind

the background of the hire purchase

legislation - - -

MASON CJ:	Now, where do we find section 28?
MR PULLIN:	The relevant part of it is found

McHUGH J: Page 58 in the record.

MR PULLIN:  - - - at page 97 it is also reproduced, but that is only one part of it.

MASON CJ: Will 58 serve your purpose then? The bottom

of 58, top of 59.

MR PULLIN: Yes, that will serve my purpose, Your Honours.

Can I just indicate that that is not reproducing the full section 28, but I can just tell you that

section 28 is headed up, "Avoidance of Certain

Provisions", and then it has those introductory

words -

Any provision in any agreement or other

document whereby -

and then there are - - -

MASON CJ:  A series of paragraphs.

Lancaster 2 8/8/91

MR PULLIN:	And as you can imagine, they are the kind of provisions which say that rights conferred on the
hirer to determine a hire purchase agreement must not be excluded or restricted; rights on
determination must not be different from those
specified in the Act, and that kind of thing.

DEANE J: There seems to be a typographical error in the

reproduction of the clause there, Mr Pullin.

MR PULLIN:  Which line, Your Honour?

DEANE J: It reads:

the hirer under a hire-purchase agreement is

requirement -

It should be "required".

MR PULLIN: Yes, quite correct. I am looking at the Act and

it should be "required".

So it is a very simple point turning upon the

correct view of this section and the application of the facts in this case, and in many other cases, to this section. The position is, of course, that the farmer in question here fell into arrears and there

were moneys due and not paid which would have

attracted a provision in the hire purchase

agreement that 8 per cent interest be paid.

Now, what was done was that the hire purchase

company, as it has done on many occasions, then

said to the hirer, well we will simply vary the
hire purchase agreement so that you will be

released from your obligation to pay the annual

instalments as were set out originally. We will

treat the balance which is due, part of it which

constitutes arrears, as the principal amount. We

will now recalculate the terms in relation to that and you will pay the new figure in lieu of the	payments which were payable originally and the best	example of it can be seen shortly, at the bottom of
page 59 of the record. You will see that on
page 59, between lines 20 and 25, you will see -
this is the original agreement:

The agreement provided for four yearly

instalments of rent of $31,516.16, which

themselves incorporated an interest component

of 22% per annum.	The total amount payable
was $126,064.64.	The first instalment fell

due on 12 February 1983. It was not paid.

The parties then entered into the first revision agreement dated 8 July 1983.

Lancaster 8/8/91

There was a $6,000.00 payment reduction on the

original amount owing and the effect of the

variation can then be seen opposite line 20:

Balance of rent outstanding prior to variation

$120,064.64

Add terms charges for variation

which are calculated, of course, at 22 per cent or,

in any event, much higher than 8 per cent and new

annual payments were then worked out on that basis.

So, it was not in dispute, before the court, that the amount financed included the arrears, which had not been paid under the original hire purchase

agreement and as Mr Justice Seaman said on page 98,

and he was dissenting:

Because it was common ground -

this was between lines 5 and 10 on page 98 -

that the variation agreements in fact required interest in excess of 8 per cent to be paid on

overdue payments, it follows that His Honour

was correct in finding that the revision agreements in relation to the first hire

purchase agreement were void, and it becomes

unnecessary to deal with -

other grounds which followed.

DEANE J:  If there had been an exchange of cheques, would

you have any argument?

MR PULLIN:  In other words that the first agreement was paid

out - - -

DEANE J:  If the hire purchase company had lent the money to

pay out the first agreement and then entered into

the revision agreement in a document to the effect

of the revision agreement.

MR PULLIN: Yes, we would, Your Honour, because, turning - -

DEANE J: Well, would it be different?

MR PULLIN:  We say it would not be different, because,

clearly what is being attempted by the hire

purchase company is an avoidance of the provisions

of the anti-avoidance provisions in the Act,

because section 28(1) is couched in terms that

indicate that the legislature was trying,

straining, to make sure that this kind of loop-hole

argument would not be used. It talks about:

Lancaster 4 8/8/91

any provision in any agreement or other

document.

So it opens up indicating that it is not limited to

just what is in the hire purchase agreement at all

and then it says:

the hirer under a hire-purchase agreement is required to pay any sum ..... in respect of -

and so we have that very broad phrase which we

would all be familiar with as having the widest

possible meaning -

any amount due under the hire-purchase

agreement but not paid exceeding a sum equal

to the simple interest on that amount

calculated at the rate of 8 per centum per

annum on a daily basis for the period for

which it is due and not paid.

and that provision is void.

Now, quite clearly, the hire purchase company

says, "That is not a good rate of return for us,

8 per cent." It says it unashamedly and these days

of high interest one can understand it. But if

they wish to recover more than 8 per cent they

should really approach the legislature and secure

amendments to the Act. They have not done that.

They have approached - - -

DEANE J: That means if there is a default the hire purchase

company cannot accede to the hirer's request to

discharge the current obligations and refinance the

transaction; it must go into possession and sell

up or allow the amount outstanding to escalate at

an uneconomic rate of interest.

MR PULLIN:  No, Your Honour, it may sue, it may issue a

writ.	If the person refuses to pay then they can
sue or, alternatively, they can repossess.	Now,

what His Honour the Chief Justice said is that it

is a matter of characterization of the payment of

the money that is now due under the other

agreement. His Honour Mr Justice Pidgeon talked

about it in terms of whether it was genuine or not;

a genuine recalculation.

Now, in our submission, it is a matter of deciding whether or not this section is an anti-

avoidance provision, the language of which is

intended to catch this kind of transaction or

whether it can be avoided by this very simple

device. Because, quite clearly, once it becomes

knowledge that this device can be used then, of

course, the section will probably never apply.

Lancaster 5 8/8/91

McHUGH J:	Does it come down to this, that as a result of the refinancing agreement, whatever else might be
the situation, that 22 per cent is being paid on the $31,516 or some part of it?

MR PULLIN: Twenty-two per cent is being paid on a part of

the arrears.

McHUGH J: Well, that would include the $31,516 which was

the first instalment which was not paid.

MR PULLIN: Well, yes, but I think, Your Honour, that

because they applied the rebate provisions part of

that has probably no doubt been reduced. But what

is clear and was conceded was that of course an

element of those arrears would of course be now

included in the principal and 22 per cent would be

charged instead of 8 per cent.

The judgments are very short indeed.

His Honour the Chief Justice simply says that he

characterizes the payments no longer as interest.

In fact, His Honour the Chief Justice says this on

page 62.	He says it in two sentences, just under
line 10:

They were not amounts then due but unpaid.	In
my opinion the new instalments cannot be
characterised as including "any sum -

and Mr Justice Pidgeon, who was the other judge in

the majority, said, on page 74 between lines 5

and 10:

In my views 28(l)(d) is not aimed at

terms charges.	Terms charges are a method of
determining the rent during the hiring.	Terms

charges, calculated in the manner I have set

out, were genuine terms charges and were an
element of rent under the agreement and could

not be regarded as interest. The Act does not

prohibit the parties from varying their

agreement in the manner these agreements were

varied -

So, that is the long and short of it,

Your Honours. Nothing more can be said about the

argument which would be advanced at the hearing

other than the fact that we would go to the history

of the legislation. I do not intend doing that

now, but quite clearly it has had a long history of

adding provisions to prevent what are regarded as
abuses by hiring companies. The 1959 Act which has

been a model around Australia and which has a

similar provision in it is one of those provisions.

Lancaster 6 8/8/91

DEANE J:  Mr Pullin, we have not got copies of the actual

agreements before us. The second agreement is

referred to variously as a revision agreement and a

variation agreement. What was it? Was it a new

agreement or was it a variation of the existing

agreement?

MR PULLIN: Could I take Your Honour to page 2 of the

papers. You will see there the first hire purchase

agreement contained two terms, (a) and (b), which

are set out, one of the terms being that 8 per cent

would be paid on overdue moneys. The first

revision agreement, which is typical of the

revision agreements, is set out starting at

line 15, so there was a separate document. It

said:

In lieu of the rent instalments

payable ..... the following instalments ..... (b)

The Lancasters would continue to be bound by

such of the terms of the first Hire Purchase

Agreement as were not varied; (c) Varied as

aforesaid the first Hire Purchase Agreement

and every provision thereof would continue to

be of full force and effect.

DEANE J:  So it was a true variation, not a new agreement.

MR PULLIN: Yes, that is correct.

DEANE J: Not a completely new agreement, except in so far

as a variation is a novation and therefore a new

agreement.

MR PULLIN: Yes, and there are some cases that one can go

into debate on the nature of a variation but that

does not seem to have been of much importance in

this case.

The other point that Your Honours might be

interested in is set out in His Honour the

Chief Justice's judgment where, on page 60,

His Honour set out the worksheet that was used to

arrive at the principal which was divided up for

the purpose of creating the new terms charges.

So on page 60 you will see there was a

worksheet presented in evidence, showing the

original rent, less the rent which had actually

been paid, showing the rebate of terms charges -

which has been referred to, I think, by

Justice McHugh - and the balance to be refinanced, and then the terms charges at the high interest

rate, 22 per cent or some other high figure, added,

and then the $144,000, and then that is divided by

the number of years. So, I think that is all the

relevant facts, Your Honours, and I - - -

Lancaster	8/8/91
McHUGH J:	Does it mean that the relevant hire purchase

agreement for the purpose of section 28(l)(d) is

the original agreement as varied by the revised

agreement?

MR PULLIN: Well, Your Honour is referring to the expression

"hire purchase agreement" appearing in the first

line in D?

MCHUGH J: Yes.

MR PULLIN: Yes, that is correct.

McHUGH J: Then do you not have some difficulties, because

under that hire purchase agreement he is not

required to pay any sum of money in respect of any

amount due under that agreement which is in excess

of 8 per cent.

MR PULLIN: 

I agree with that, Your Honour, if one takes a,

with respect, blinkered approach, and only looks at
the position after the variation has taken place.

But if one regards "hire purchase agreement" as

applying to the hire purchase agreement originally

executed, one then reads the introduction to

section 28(1) as referring to the variation
agreement because there is a provision in an

agreement or other document whereby, and then (d):

the hirer under a Hire Purchase Agreement is

required to pay any sum -

McHUGH J: Well, except that that hire purchase agreement

does not exist after the variation. If you look at

the original document, then he was not required to

pay interest in excess of 8 per cent, so 28(1)(d)

does not apply. If you look at the hire purchase

agreement as varied, again, the hirer is not

obliged to pay at a rate in excess of 8 per cent.

MR PULLIN: That is certainly the reasoning that the supreme

court adopted, but we would say that that is a far

too restrictive view and why should it be the case,

we would argue, that one should have regard only to

the hire purchase agreement after it is varied

because 28(1) is talking about covering also

agreements outside the hire purchase agreement.

Your Honours, just staying with this point

about whether or not one should only look at the

hire purchase agreement after it is varied, if that

is the correct view of course we are defeated and
section 28(l)(d) really has no value as a

protective device because the device here - - -

Lancaster	8/8/91
MASON J:	It has very limited value, very limited value

indeed, in that it would lend itself to relatively

easy avoidance.

MR PULLIN: Yes.

MASON J: But your problem really is to formulate a

proposition which encompasses the case that you

want to put, that takes account of the language of

subparagraph (d).

MR PULLIN:  Our argument would be this on appeal,

Your Honours, that the reference to hire purchase

agreement in 28(l)(d), that is the first line,

clearly applies to the original hire purchase

agreement, there can be no question about

section 28(l)(d) applying to that. There is no

doubt also that moneys became due and not paid, to

use the words at the end of (d). There is no doubt

that both of those things occurred.

McHUGH J: But the hirer was never obliged under that

agreement to pay interest at a rate in excess of

8 per cent.

MR PULLIN: 

I entirely agree with that, Your Honour, but

then we would say, but it is necessary to look at
the opening,the introductory words to
section 28(1). Is it not the case, we would ask

rhetorically, that there is a provision in the
revision agreement or other document whereby the

fact is that the moneys due and not paid under the

original hire purchase agreement is now money which

is going to be attracting a much higher rate of interest. And that is the proposition we would

advance on appeal.  ·

Your Honours, do I need to say anything about

the matter of public importance?

MASON CJ:  No.

DEANE J:  Mr Pullin, is what Justice Seaman did, in effect,

to say the amount due was the amount which would

have been due if the revision agreement had not

been made?

MR PULLIN: -I am sorry, I have just lost the page,

Your Honour. I think His Honour was simply

accepting that there had been a concession, as

there must be in any of these cases, that a

component of the principle, page 84 I think it is,

where his judgment commences, and he simply says

that because there had been a concession that

arrears had been included then, of course, the section operated to strike it done. Does that

answer Your Honour's question?

Lancaster	8/8/91
DEANE J:	I am not quite sure what would happen on

His Honour's view. Would the amount which could be

apportioned as representing excess interest be

deleted, or would you go back to the original hire

purchase agreement on the basis that the whole of

the revision agreement was struck down by

section 28(l)(d)?

MR PULLIN:  We would say that the whole agreement would be

struck down. It would be void because its only

purpose was to recalculate the amount which was due

and so if it is struck down and is void then the

original agreement stands, the original instalments

were payable; those instalments, if not paid, would

attract interest at 8 per cent. That is what has

been avoided by this agreement that -

DEANE J: That answers my question, thank you.

MR PULLIN: Unless there are any other questions, I have no

further submissions, may it please the Court.

MASON CJ: Yes, thank you, Mr Pullin. Yes, Mr Heenan.

MR HEENAN:  May it please Your Honours. We have put forward

an outline of our submissions, and if I might

inquire -

MASON CJ: Yes, we have them.

MR HEENAN:	I do not propose to rehearse what is set out in the submissions, Your Honours, but might I go
directly to section 28(l)(d) and emphasize that the
prohibition, the excess interest, relates to any
amount due under the hire purchase agreement but
not paid, the connotation being, in our submission,
and as found in substance by the Full Court was that it was an amount in arrears under the hire purchase agreement, probably an instalment in
arrears in a sum continuing due and payable.

The substance of the revision agreement was to

capitalize instalment or portion of it that had

been outstanding with the consequence, so we have

always submitted, and the Full Court has found,

that it was no longer due and payable.

DEANE J:  What if, instead of the revision agreement the

parties had varied the hire purchase agreement to

provide that all outstanding payments of interest

will be capitalized and treated as loan funds and

bear interest at the rate of 22 per cent and had

done nothing else at all? Would there be any

difference between that position that this

position?

Lancaster 10 8/8/91

MR HEENAN:  Not substantially, Your Honour, because in

that - perhaps there may be one difference and it

would be that all the interest under the hire

purchase agreement would not have been due and

payable at the time - - -

DEANE J:  They would need to do it every three months?

MR HEENAN:  Yes. I think these were annual or quarterly

payments. But our point has always been that the

prohibition is against money due and payable and

that it could be tested in this way: could the

financier bring an action in debt for the amount

due under the hire purchase agreement but not paid

at any time after the revision? And we would say

that the answer is self-evident because no such

action would lie unless the money was then due and

payable. That is a consequence of the

capital - - -

McHUGH J:  The paragraph talks about a document as well as

an agreement; why cannot you seize on the document

which later came to be the revision agreement and

say that that document before it was accepted

offended the provisions of 28(l)(d)?

MR HEENAN: Well, Your Honours, the answer is, it had no

effect and there was obligation to pay any interest

on any amount outstanding. There was a substantial

change in character of the obligation produced by the revision agreement. Previous to the revision

agreement, there was money due and payable, being

the instalment in arrear. The effect of the

revision was to discharge any obligation for the

immediate payment of that money, render it no

longer not paid or due and to substitute a new

agreement of which it formed portion of the

capital.

Your Honours, might I take the Court very

briefly back to the worksheet on page 60 in the

judgment of His Honour the Chief Justice because

there seems to have been a little confusion in the
judgments, particularly at first instance, as to

exactly what has occurred. Your Honours will see

that the amount originally financed was some

$7~ 1 000.	That appears at line 29 at the foot of
page 60.	The amount newly financed under the

revision agreement was $89,879, That is at

line 21. The difference between those two sums is

$11,289.80. That is referred to by the

Chief Justice in the top line of the following

page.

Now, that sum, that $11,000, is obviously well

short of the full instalment of $31,516.16 even

after the part payment of $6000 has been reduced.

Lancaster 11 8/8/91

The amount outstanding and liable to interest at

8 per cent under the original hire purchase

agreement from February onwards was $25,516, but

only a portion of that - the $11,000 - which has

been recapitalized. The reason for that is that

the terms charges have been rebated.

The significance of all this, Your Honours, is that it is wrong, in our respectful submission, to

contend that 22 per cent has been charged on the

full amount of the instalment in arrear.	The
prohibition of 8 per cent would relate to

8 per cent on the amount of arrears - the figure I

mentioned a moment ago, $25,516 - and the sum which

has been charged in substance here is a somewhat

fortuitous result which is the product of the

consequence of the part payment of the instalment

and the period during which interest was

accumulating between instalments. In fact it is

slightly more than 8 per cent, if one does the

mathematics, coming out at a figure of somewhere

between 9 and 10 per cent.

DEANE J:  But the whole of the rebate would be attributed to

unpaid and future instalments. No part of it

would be attributed to the instalments that were

overdue, because they could not possibly be

rebated.

MR HEENAN: Except, Your Honours, in a hire purchase

agreement with regular payments on a reducing

balance, the first instalment has a larger

component of interest and a smaller component of

principal the last.

DEANE J:  I follow that, but none of the interest component

of the instalments which had already fallen due

would be rebated.

MR HEENAN: That is so, Your Honour, and in substance, the

11,000 - - -

DEANE J: Which means the whole of the interest components

of the instalments that had already fallen due is

carried into the final refinancing figure.

MR HEENAN:  Yes. The 11,000, in substance, represents

interest at 22 per cent on the full amount financed

for· the first year and His Honour the Chief

Justice's assumption at pages 60 to 61 is therefore

correct.

McHUGH J: But that means, does it not, that under the

revised agreement the hirer will be paying 22

per cent on part of the original instalment unpaid.

MR HEENAN:  Yes, approximately a third of it.

Lancaster 12 8/8/91

McHUGH J:  So this really means, from your point of view,

that this is a triumph of form over substance, does

it not? Supposing the original agreement had been

varied so that it stood, except that you rebated

$20,000-odd, and then charged 22 per cent on the

11,000 or part thereof. That would be a breach of

28(l)(d), would it not?

MR HEENAN:  Your Honours, we would submit, with respect,

that that would not be so because of the

change in character of the obligation worked by the

revision, and this is in substance the point that I

was making earlier and I do not wish to be

repetitive. It is a question about the

significance wrought by the capitalization.

Your Honours, might I mention very briefly one

point which was not raised before the Full Court or at first instance but, under the Western Australian

Hire Purchase Act there is power under section 36A

for a hirer to seek relief if he is in distressed

circumstances.

I understand my learned friend has put forward

a copy of the Hire Purchase Act. If Your Honours

had that and were able to look at section 36A - -

DEANE J:  We do not have it, Mr Heenan.

MR HEENAN:  I am very sorry, Your Honours. The proposition

that I was attempting to - - -

McHUGH J:  I think it appears in the judgment somewhere or other, does it not, Mr Heenan?

MR HEENAN:  It is not referred to, Your Honours. The point

that I was about to make arises that when the

Commissioner of Consumer Affairs exercises this

relieving power he is permitted, at his discretion

and on the request of the financier, to impose what

is called a deferral charge.

One of the species of relief which he is

entitled to grant is to	extend the time for the
hire purchase agreement	or the payment of any
particular instalment.	In return for that the
financier can ask for a	deferral charge.

Under section 36A(2a)(b), this deferral charge

may be an amount which does not exceed the

additional amount that would have been payable

under the agreement had the agreement been entered

into for the period as extended by the relief

granted, together with insurance expenses

et cetera. In substance, this deferral charge can

be interest or terms charges as if the hire

purchase agreement had been calculated for the

Lancaster 13 8/8/91

longer period of, say, five years in the case of

one year's extension right from the outset.

This necessarily means that if the original ruling rate in the terms charges was 22 per cent as

it was here, a deferral charge for the further year

at 22 per cent may be levied. Now, there are some

difficulties about the maximum amounts allowable

under section 36A, and whether or not the
commissioner is exercising a special power which

only he can give, but we would say that it is a

clear acknowledgement that allowing interest to

accumulate as it were for an extra year at the

original rate does not contravene 28(1)(d).	I am
sorry Your Honours do not have the section.

Other than to rely on the matters in our

written submissions, Your Honours, those are the

matters which we ask you to consider.

MASON CJ: Thank you, Mr Heenan. Yes, Mr Pullin.

MR PULLIN:  Your Honours, I only wish to reply to mention

section 36A, and we say that it does not avail the

hire purchase company to say that there could have

been a supervised adjustment to the contract if

application had been made. It cannot be said that

because that provision exists that the hire
purchase company can go out into the field and

carry out its own adjustment in a way that breaches

the Act. That is the only point I wish to make in

reply.

DEANE J: Mr Pullin, can I ask you this: if your argument

be wrong, would it not be true to say that

clause (d) remains effective to achieve its purpose

unless the borrower or hirer renegotiates an

amendment which, as it were, discharges the

obligation to pay the relevant interest and

substitutes for it some other obligation?

MR PULLIN: Well, that, as I understand it, Your Honour, is

the point that was made, I think, by one of the

judges in the supreme court; that is, that there
is nothing to prohibit a variation. Is that, in
essence, the same point that Your Honour is putting

to me?

DEANE J: We1l, yes. That the clause does remain operative

unless the hirer sees fit to agree to a variation

of the contract. Now, I appreciate considerations of the positions of hirers in these circumstances,

but I was just querying what seemed to have been

suggested, that the clause would lose its point and

purpose if your application were to fail or if the

decision were to stand.

Lancaster 14 8/8/91

MR PULLIN:  Your Honour, if it had been simply intended to

be a provision which related to arrears and not to

be a type of anti-avoidance provision, it would

have simply said that no more than 8 per cent can
be charged on arrears, but it does not say that.

It uses this rather elaborate language which

clearly contemplates that the parties will, in some

circumstances, enter into an agreement outside the

terms of the hire purchase agreement, hence the

introductory words which quite clearly direct

themselves to the kind of agreement that we have

here.

We would say that it is a plain failing to

observe the clear intention of the legislature
indicated by the heading, "Avoidance of certain
provisions", and the language which is used which
would indicate that the Court should not apply

strict legalistic principles but should look to the intent of the parties where there is some effort to

avoid the restriction which is contained in

section 28(l)(d).

So it really just comes down to that view of

section 28(l)(d) as to whether or not it is

regarded as an anti-avoidance provision with the

wider application that I have suggested, or whether
it can be restricted, as the members of the Full

Court approached it, simply to say, "Well, it does

not apply when one characterizes the payments and

applies legalistic principles to it". If it please

Your Honours.

MASON CJ: Thank you, Mr Pullin. The Court is not persuaded

that the decision of the Full Court of the Supreme

Court of Western Australia is attended with

sufficient doubt to justify the grant of special

leave to appeal.	The application is therefore
refused.

MR HEENAN:	If it please Your Honours, we ask for costs.
MASON CJ: Costs not opposed, Mr Pullin?
MR PULLIN:	- - - opposed, Your Honour.

MASON CJ: Opposed? Can you hear what I am saying?

MR PULLIN: Yes, we do not oppose, Your Honour.

MASON CJ:  The application is refused with costs.

AT 4.02 PM THE MATTER WAS ADJOURNED SINE DIE

Lancaster 15 8/8/91