MacKenzie v Albany Finance Ltd
[2004] WASCA 301 (S)
•16 DECEMBER 2004
MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2004] WASCA 301 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 301 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:117/2003 | 23 JUNE & 16 DECEMBER 2004 | |
| Coram: | MALCOLM CJ EM HEENAN J LE MIERE J | 16/12/04 | |
| 19/05/05 | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Declaration as to mode of calculating interest Respondent to pay 90 per cent of costs of appeal Respondent to pay costs of cross-appeal Subject to proof of joint interest in cause of action continuing to date of death of first appellant Order for first appellant's name to be removed as a party | ||
| B | |||
| PDF Version |
| Parties: | JAMES MACKENZIE JOAN EDNA MACKENZIE ALBANY FINANCE LTD |
Catchwords: | Interest Rate of interest applicable to increased judgment allowed on appeal Costs of appeal Change of parties due to death after judgment |
Legislation: | Nil |
Case References: | Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 77 ALJR 989 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 Russell v Scott (1936) 55 CLR 440 Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2004] WASCA 301 (S) CORAM : MALCOLM CJ
- EM HEENAN J
LE MIERE J
DECISION : 19 MAY 2005 FILE NO/S : FUL 117 of 2003 BETWEEN : JAMES MACKENZIE
- JOAN EDNA MACKENZIE
Appellants (Plaintiffs)
AND
ALBANY FINANCE LTD
Respondent (Defendant)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MCLURE J
Citation : MACKENZIE & ANOR v ALBANY FINANCE LTD
File No : CIV 2657 of 2000
(Page 2)
Catchwords:
Interest - Rate of interest applicable to increased judgment allowed on appeal - Costs of appeal - Change of parties due to death after judgment
Legislation:
Nil
Result:
Declaration as to mode of calculating interest
Respondent to pay 90 per cent of costs of appeal
Respondent to pay costs of cross-appeal
Subject to proof of joint interest in cause of action continuing to date of death of first appellant
Order for first appellant's name to be removed as a party
Category: B
Representation:
Counsel:
Appellants (Plaintiffs) : Mr D H Solomon
Respondent (Defendant) : Mr G R Donaldson
Solicitors:
Appellants (Plaintiffs) : Solomon Brothers
Respondent (Defendant) : Blatchfords
(Page 3)
Case(s) referred to in judgment(s):
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 77 ALJR 989
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Pledge v Roads and Traffic Authority (2004) 78 ALJR 572
Russell v Scott (1936) 55 CLR 440
Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: I have had the opportunity to read in draft the supplementary reasons for decision in relation to the orders proposed to give effect to the decision of the Court and the issue of interest to be allowed on the increased component of the judgment in favour of the appellants as a result of the appeal being allowed. The developments which have taken place since the publication of the reasons are set out in the further reasons to be published by E M Heenan J. I agree with those reasons and the orders which his Honour has proposed.
2 EM HEENAN J: When the reasons for decision of this Court were delivered on 16 December 2004 and counsel for the appellant moved for orders, this Court directed that the parties should file a minute of the orders proposed to give effect to the decision of the court and that this should deal with the issue of interest to be allowed on the increased component of the judgment in favour of the appellants which resulted from their success in this appeal. The parties were directed to file brief written submissions by 21 December 2004 in the event of failure to agree on the orders proposed.
3 Since then, the parties have notified the court that they have been unable to agree upon the amount of interest to be allowed on the additional component of the judgment resulting from this appeal, nor upon the issues of the costs of the appeal and cross-appeal.
4 The court has also been informed that, sadly, one of the appellants, Mr James MacKenzie, passed away on 20 December 2004, after the decisions of this court on the appeal and cross-appeal had been delivered but before final orders were made. Accordingly, it has become necessary to effect a change in the parties on account of Mr MacKenzie's death. A motion to remove his name from the record has been filed, supported by an affidavit of the solicitor for the appellants dated 24 March 2005 deposing to his death.
5 The parties have also notified the court that, subject to any direction of the court to the contrary, they are prepared to have these outstanding issues determined on the papers and upon written submissions. In this regard they rely upon:
• copy of a letter from the appellants' solicitors to the respondent's solicitors dated 13 January 2005 annexing a minute of proposed orders and a schedule of calculations for interest sought;
(Page 5)
- • copy of facsimile transmission from respondent's solicitors to appellants' solicitors dated 24 January 2005 annexing another (different) schedule of calculations for interest;
• copy letter - appellants' solicitors to respondent's solicitors 27 January 2005;
• letter - appellants' solicitors to the Associate to the Chief Justice, the presiding Judge on the appeal;
• respondent's written submissions on outstanding issues dated 4 March 2005;
- In these papers the solicitors for the appellants also advised that their present client relies upon the written submissions of 17 June 2004 filed in support of the appeal (particularly pars 4 - 9). Similarly, the respondent's solicitors have informed the court that their client also relies on the written submissions filed for use on the appeal dated 22 June 2004 (particularly pars 75 - 84).
Motion to change parties
6 The evidence at the trial and the findings of the learned trial Judge were that seven of the eight deposits of money with Albany Finance Ltd claimed by the appellants had been made by Mr and Mrs MacKenzie jointly or jointly and severally and that these included the deposit of $64,000 of 21 June 1989 (Item 9) and the deposit of $8,000 said to have been made on 29 January 1998 (Item 13). The evidence was, and her Honour found, that of these, the deposit of $64,000 (Item 9) was made by the appellants jointly. Her Honour also found that another deposit, the $10,500 (Item 11) made on 3 December 1992, was made on behalf of Mrs MacKenzie alone and that she was entitled to recover that sum, together with compound interest. (See reasons for decision of this Court of 16 December 2004 [47] and [145]).
7 The findings that a deposit of $64,000 (Item 9) was made by the appellants jointly, and that the deposit of $10,500 (Item 11) was made solely on behalf of Mrs MacKenzie, were not challenged on the appeal and the orders proposed gave effect to the joint entitlement of the appellants to that $64,000 together with interest and to Mrs MacKenzie's claim to the $10,500 together with interest.
(Page 6)
8 The further evidence now placed before this Court reveals that Mr James MacKenzie died at the Regional Hospital Albany on 20 December 2004, after suffering a heart attack the day before and that Mrs Joan Edna MacKenzie has survived him. The affidavit of the appellants' solicitor sworn 24 March 2005 also deposes that:
"With the exception of Joan Edna MacKenzie's claim for $10,500 deposited on 3 December 1992, referred to as Item 11 in the action and in this appeal, all the deposits made by the late James MacKenzie and Joan Edna MacKenzie with the respondent and the subject of the action and this appeal were made in their joint names."
- Because all jointly owned property of the appellants passes to Mrs MacKenzie on the death of her husband it should follow that she is now solely entitled to all the proceeds of the judgment in this action, including the additional components of the judgment resulting from the success on the appeal. See Russell v Scott (1936) 55 CLR 440 where many of the authorities were reviewed by Dixon and Evatt JJ and Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344. This conclusion is, however, dependent on the joint ownership of the rights to those deposits or, more precisely, to the entitlement to the proceeds of the judgments in the action, remaining as the joint property of Mr and Mrs MacKenzie up until the death of Mr MacKenzie. The affidavit filed on behalf of the appellants does not expressly depose to the continuation of the joint ownership of these rights by the appellants up until the date of Mr MacKenzie's death but it seems to assume this.
9 In the circumstances, I consider that the court should require further evidence, by affidavit or otherwise, from Mrs MacKenzie confirming the continuation of the joint entitlement to the proceeds of this judgment up until the date of her husband's death and, if this is forthcoming, an order should be made removing Mr MacKenzie's name from the record and leaving Mrs MacKenzie as the sole appellant entitled to all the proceeds of the judgment as varied by the decision on this appeal.
10 Mrs MacKenzie should, therefore, be granted liberty to file a further affidavit or such other evidence as she may be advised, confirming the continuation of the joint entitlement to the proceeds of the judgment until the date of her late husband's death and, upon this being done, the late Mr MacKenzie's name should be removed as an appellant. The parties should have liberty to apply to a single Judge of this Court for any further directions which might become necessary to deal with this procedure.
(Page 7)
Interest on deposits
11 The interest payable on this deposit by the respondent may be calculated in one of two ways.
12 The rate of interest payable on the deposit of $64,000 (Item 9) sought by the appellants is "the rate of interest currently paid by Albany Finance Ltd at each renewal date on deposits for such a term and unpaid interest shall be added to each deposit renewed ... " in accordance with the terms then contained on the respondent's investment forms in use and applicable to new deposits as at 11 April 1989. (See [235] of the judgment after trial.) This $64,000 was deposited with the respondent on 21 June 1989 at a time when the interest payable for a six month deposit was 18 per cent per annum with qaurterly rests. The appellant's contention is that interest should now be calculated in accordance with the terms applying to short term deposits incorporated by the deposit application form at the time it was made.
13 The respondent's submission, however, is that the depositors were entitled to interest at 18 per cent per annum calculated quarterly for the six months duration of the deposit, that is until 21 December 1989, but that after this maturity date the money would earn interest at the rate offered by Albany Finance Pty Ltd to depositors from time to time upon "at call" deposits of the relevant amount. This submission relies upon the absence of any agreed provisions in the terms of the contract for the original deposit of these monies to deal with the situation which would apply if the money was left with the respondent after maturity. The respondent submits that this is the correct approach on the basis that the original deposit was not made by, or accompanied with, an application form containing terms for the continuation of the then prevailing six month fixed deposit account interest rates from time to time after maturity.
14 The learned trial Judge was not satisfied that the appellants had established that an investment form containing express terms to deal with the interest payable on the deposit if rolled over after maturity, had ever been completed (see reasons for decision [237]). Her Honour's findings in this regard were:
"Mr Jamieson's evidence was that the defendant did not always use such forms when taking deposits and if a form had been used it would have been retained on the plaintiffs' file. There is no evidence of a form on the plaintiffs' file for deposit 346 or for any other deposits save for 1027 (Item 11). Mr MacKenzie did not give evidence that he completed an investment form for
(Page 8)
- this deposit. I am not satisfied that the plaintiffs completed an application form for deposit 346 or any other deposit with the defendant save for 1027."
- Her Honour went on to conclude that the plaintiffs' deposit became repayable at the expiry of the term and from then on remained at call on demand. Consequently, her Honour held that, from the date of maturity onwards, the deposit accrued interest at the rate offered by the respondent to depositors from time to time on "at call" deposits of the relevant amount and that this interest should be compounded by being added to the deposit and itself then carry interest at the applicable rate (see [241]).
15 That finding was specifically challenged by ground 3 of the appellants' ground of appeal which contended that the learned trial Judge had erred in not holding that this deposit of $64,000 was made using the application form for deposits with the respondent current at 21 June 1989. The appellants supported that submission by reference to a letter from the respondent dated 21 June 1989 (Exhibit 126) together with further submissions challenging the reliability of the evidence from Mr Jamieson which had been accepted by the learned trial Judge. These challenges were based upon adverse findings about his credibility made on other issues and also because of inferences said to arise from the documentary evidence.
16 There can be no doubt that the standard form for short term fixed deposits in use by the respondent in December 1989 contained terms as found by the learned trial Judge (at [235]) which support the appellants' claims about the basis for the calculation of interest. The question, however, is whether or not this particular deposit was made upon such terms. On this issue the appellants carried the onus of proof and the learned trial Judge's decision was, in effect, that this onus of proof had not been satisfied. In practical terms this was because: no application form for this particular deposit was found among the records of the respondent, despite the evidence of Mr Jamieson of the practice that such application forms were attached to the file; his further evidence that such forms were not always used when deposits were taken; and because Mr MacKenzie did not give any evidence that he had completed an application form when making this particular deposit.
17 The appellants submit that in reaching her decision on this issue the learned trial Judge did not make any express reference to Exhibit 126, the letter from the respondent to Mr and Mrs MacKenzie of 21 June 1989 acknowledging this deposit in the following terms:
(Page 9)
- "Dear Mr and Mrs MacKenzie,
We acknowledge your application for a Deposit Account with Albany Finance Limited and enclose the following:
1. Certificate No 346 dated 21st June 1989
Thank you for your support.
Yours faithfully,
Albany Finance Limited"
- They submit that this gives rise to a strong inference that a written application form accompanied the deposit at the time it was made. The appellants also point out that Mr Jamieson did not expressly address this issue, nor did he make any reference to an absence of a deposit application form, during the course of cross-examination about this deposit at trial (t/s 958). They also submit that the evidence from Mr Jamieson to which her Honour referred (at [237]), to the effect that Albany Finance Ltd did not always use such forms when taking deposits and that if a form had been used it would have been retained on the appellants' file, was not specific to this transaction. The appellants also submit that the use of deposit forms containing terms relied upon for this deposit in June 1999 should be inferred from the defendant's answer to interrogatory 1(4) which confirmed the existence of deposit forms prepared by the defendant for the purpose of applications being made by members of the public to deposit money with the defendant in the period 10 November 1987 to 29 January 1998 as including a form of the kind relied upon by the appellants - Exhibit 54. These submissions are further reinforced for the appellants by observations about inconsistencies in Mr Jamieson's evidence and adverse findings about his credibility made elsewhere, to which I have already referred, although in another context, at [90] in my earlier reasons for decision on this appeal.
18 However, the situation which remains is that despite the inference which obviously arose from Exhibit 126, there was no documentary evidence to establish that this deposit of $64,000 was made on the terms, relating to the payment of interest after maturity, upon which the appellants rely. The absence of such written evidence was considered to be significant in itself in view of what Mr Jamieson claimed was a practice of annexing such deposit forms, when they were used, to the depositors' files. There was then the further general evidence of Mr Jamieson, admittedly not specific to this transaction, that such deposit
(Page 10)
- forms were not always used. All of this must be taken against the general background of the trial which clearly showed that many of the records of the respondent were irregular, unreliable and not properly kept and that record-keeping and other business practices which might ordinarily be expected to be followed in a deposit-taking business of this nature, were not consistently observed.
19 The learned trial Judge was plainly left with a situation where there was some evidence each way upon the issue of whether or not the $64,000 deposit had been accompanied by an application form incorporating express terms as to the rates of interest which should be payable upon the deposit after maturity. However, there was no express documentary evidence in support of the appellants' contention and the most that the appellants could rely upon were the inferences which might be expected to arise from Exhibit 126 and from regular business practice. On the other hand, there was the absence of a written application form, clear evidence that the business practices of the respondent during this period were anything but regular, and some evidence from Mr Jamieson, which the learned trial Judge accepted, indicating the absence of any such written deposit application form.
20 Any decision in such circumstances must inevitably be affected by the impressions which the learned trial Judge gained about the credibility and reliability of the two witnesses who gave evidence which might have been regarded as material to this issue, namely Mr MacKenzie and Mr Jamieson. Nothing was said by Mr MacKenzie confirming or supporting the existence of a specific application form accompanying this deposit.
21 I do not consider that any appeal court considering a challenge to the finding of fact made by the learned trial Judge on this issue could uphold the challenge unless satisfied that there is uncontrovertible evidence that points decisively to error on the part of the trial Judge - Fox v Percy (2003) 77 ALJR 989 and Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 per McHugh J at [43]. Especially is this so where, as in the present case, the onus of proving the existence of this particular term of the contract of deposit rested upon the appellants: Dearman v Dearman (1908) 7 CLR 549 per Griffiths CJ at 553. This was a long and complicated trial involving events which happened many years before. The reliability of personal memories and accounts of events by witnesses was limited; and in a number of instances shown to be wrong. Any such finding that the terms of the contract of deposit relied upon by the
(Page 11)
- appellants have not been established upon the evidence is entitled to particular respect.
22 Certainly I do not consider, despite the existence of some inferences supporting the appellants' submissions, that it could be said that there has been any error demonstrated in this finding by the learned trial Judge. Accordingly, I consider that the appellants' claims for the basis of calculation of interest upon the deposit of $64,000 must be dismissed and that the finding by the learned trial Judge that the deposit bears interest, to be calculated on a compound basis, at the rates prevailing from time to time for deposits with the respondent payable at call should stand.
23 The appellants' success at trial in respect of the deposit of $10,500 made with the respondent on 3 December 1992 (Item 11) also results in an additional entitlement by the appellants to interest upon this sum. However, in this instance, no issue has been raised for resolution by this Court about the terms upon which that money was deposited nor upon the rate or manner of calculation of interest accruing after maturity. The parties have informed us that they are agreed upon the method of calculating interest upon this deposit and, therefore, it is unnecessary to attend further to that entitlement.
24 The resolution of these questions of principle concerning the manner and rates from time to time applicable for the calculation of interest upon the deposit of $64,000 does not, by itself, produce a formula for the precise calculation of interest payable by the respondent to the appellants upon these components of the judgment. More is needed, namely, the ascertainment of the rate or rates of interest payable by the respondent from time to time upon a deposit of this magnitude and the fixing of the periodic rests after which accrued interest would be capitalised so as to provide for compounding of the interest.
25 The learned trial Judge found that in respect of the deposit of $64,000 (less the amount which her Honour found had been repaid), interest would be paid quarterly on the last days of March, June, September and December and interest not paid directly to the appellants on the due date would be compounded and added to the deposit which would then carry interest at the rate offered by Albany Finance Ltd to depositors from time to time on at call deposits on the amount that should have been standing to the plaintiffs' credit from time to time (reasons for decision [312(c) and (d)]. No cause has been shown to depart from the decision of the learned trial Judge to order that interest on this deposit, now the whole of the deposit, should be calculated from the date of
(Page 12)
- maturity on a compound basis with quarterly rests on the days mentioned. For the six month period of the deposit before maturity interest should, of course, be calculated at 18 per cent per annum with two quarterly rests.
26 The actual rates of interest applying to amounts of this order on deposit with the respondent from time to time after maturity in December 1989 will need to be agreed between the parties and, if not so agreed, should be referred to a Master of this Court for inquiry and the result of the inquiry be reported to a single Judge of this Court to allow such a final determination to be made.
27 I observe that in the papers which the parties have submitted to this Court for the determination of these issues, each proposes a series of quarterly calculations of interest but at different rates from time to time. For this reason it will be necessary for the actual rates of interest applying from time to time upon at call deposits to be identified and employed in the final calculation.
Costs of the appeal
28 As set out in the reasons for decision of 16 December 2004, this appeal and cross-appeal concerned three deposits, namely:
• Item 9 21/6/89 $64,000
• Item 11 3/12/92 $10,500
• Item 13 29/1/98 $ 8,000
$82,500
- The appellants were successful in their appeal in establishing an entitlement to the repayment of the whole of the deposit of $64,000 with interest but failed in their attempt to establish that they should also be entitled to repayment of the deposit (Item 13) of $8000 plus interest. In the cross-appeal the respondent failed in its attempt to establish that it had a limitation defence in respect of deposits Item 9 ($64,000) and Item 11 ($10,500) but succeeded in opposing the principal appeal in relation to Item 13. On these grounds the respondent submits that, as it was successful in respect of Item 13, any order for costs should reflect its success on this discrete issue. Citing Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 per Anderson J at 574 - 575, counsel for the respondent submitted that it would do justice to the parties in the appeal if the appellants were to be awarded 80 per cent of their taxed costs and disbursements of the appeal.
(Page 13)
29 While it is, of course, true to claim, as the respondent has, that the appeal in respect of Item 13 - the deposit of $8000 was a separate and distinct cause of action and, similarly, a separate and distinct issue on the appeal, it cannot be overlooked that all the issues on the appeal, to a significant extent, required a review of the pattern of dealings between the appellants and the respondent over many years against a background of irregular operation by Mr Jamieson of the respondent's business. This required scrutiny and evaluation in respect of all the issues raised. While there was undoubtedly some additional time and attention at the hearing of this appeal occupied by the unsuccessful challenge by the appellants to the finding in respect of Item 13, this was comparatively small having regard to the need for the parties and the court to review the whole of the history of the dealings between the parties which were the subject of the judgment after trial.
30 The separate evidence relating to deposit Item 13, including documentary evidence, represented only a small component of all the evidence and other materials included in the appeal books and the electronic appeal record. It is difficult to conclude that there would have been any significant saving in expense if those parts of the evidence and record had been omitted from the materials prepared by the parties for the hearing of the appeal. However, some part of the costs of the solicitors and counsel in preparing for the appeal and in the conduct of the appeal must have been attributable to the issues concerning Item 13 upon which the appellants failed. Leaving out of account the effect of interest accrued on the deposits upon which the appellants succeeded, the ratio of the principal sum of $8000 (Item 13) to the aggregate of the two other deposits ($74,500) is close to 10 per cent. If the compound interest to which the appellants are entitled were to be taken into account, the ratio would be significantly less, even if a notional component of interest on the $8000 were to be allowed because that deposit was made with LKJA many years after the other two. Coincidentally, those parts of the written submissions and the time spent by counsel at the hearing dealing with issues arising from Item 13, as a matter of impression, also appeared to me to be only of about that order. Consequently, in my view, I consider that on the subject of the costs of the appeal and the cross-appeal this Court should order that:
(a) the respondent should pay to the appellants 90 per cent of their costs of the appeal to be taxed, subject, however, to sub-par (c) hereof;
(Page 14)
- (b) the respondent should pay to the appellants the costs of the cross-appeal to be taxed to the extent that the costs of the proceedings were increased by the cross-appeal as determined by the taxing officer; and
(c) the appellants shall be entitled to recover, as part of their costs of the appeal, the whole of the costs of the preparation of the appeal book including the electronic component of the appeal book, notwithstanding sub-par (a) above.
Summary
31 For these reasons I am of the opinion that this Court should now make the following additional orders, namely:
(1) That subject to the appellant Joan Edna MacKenzie, filing further affidavit or other evidence confirming that until the death of James MacKenzie on 20 December 2004 both appellants continued to hold their interests in the causes of action in these proceedings (except in respect of the deposit Item 11) jointly, the name of James MacKenzie should be removed as an appellant as from the date of his death and that Joan Edna MacKenzie should continue as the sole appellant. Reserve liberty to apply to a single Judge of this Court for further directions to deal with any further issue arising from this change of the parties.
(2) It be ordered and declared that the appellants' entitlement to interest upon the amount of $64,000 deposited with the respondent on 21 June 1989 (Item 9) should be calculated as follows:
• from 21 June 1989 to 21 December 1989 at the rate of 18 per cent per annum with interest calculated and capitalised quarterly on the last day of September and pro rata to maturity on 21 December 1989; and
• from 22 December 1989 until judgment after trial on 29 July 2003 at the rate of interest offered from time to time by the respondent to depositors on at call deposits on the amount that should have been
(Page 15)
- standing to the appellants' credit from time to time as compound interest with quarterly rests on the last days of March, June, September and December.
- (3) That in the absence of agreement between the parties upon the aggregate amount of interest payable to the appellants, as a result of the judgment in this action, as varied by this appeal, the issue of the calculation of the interest payable shall be referred to a Master of this Court for inquiry and the result of the inquiry shall be reported to a single Judge of this Court to allow such a final determination to be made.
(4) In relation to the costs of the appeal and the cross-appeal:
(a) the respondent do pay to the appellants 90 per cent of their costs of the appeal to be taxed, subject, however, to sub-par (c) hereof;
(b) the respondent do pay to the appellants the costs of the cross-appeal to be taxed to the extent that the costs of the proceedings were increased by the cross-appeal as determined by the taxing officer; and
(c) the appellants shall be entitled to recover, as part of their costs of the appeal, the whole of the costs of the preparation of the appeal book including the electronic component of the appeal book, notwithstanding sub-par (a) above.
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