McMahon, McMahon v State of Tasmania

[2024] TASSC 79

[2024] TASSC 79

COURT:	SUPREME COURT OF TASMANIA
CITATION:	McMahon, McMahon v State of Tasmania [2024] TASSC 79
PARTIES:	McMAHON, Robert Francis
McMAHON, Finola Anne
v
STATE OF TASMANIA
FILE NO:	2733/2020
DELIVERED ON:	16 December 2024
DELIVERED AT:	Hobart
HEARING DATES:	25, 26, 27 September and 6 November 2024
JUDGMENT OF:	Marshall AJ
CATCHWORDS:

Real Property – Torrens title – Certificates of title, folios and crown grants generally – Parcels and descriptions – Error in description of land – Title mistakenly included crown land – Land in title sold to plaintiff – Crown land never for sale – Evidence that plaintiff never intended to purchase crown land – Crown is registered proprietor of land.

Aust Dig Real Property [1220]

Cases:
Breskvar v Wall (1971) 126 CLR 376

Marsden v McAlister (1887) 8 NSWR 303

Legislation:
Crown Lands Act 1976 s 6(1), s 13
Land Titles Act 1980, s 27A, s 40(2), s 42, s 40(3)(f)

Local Government (Building and Miscellaneous Provisions) Act 1993

REPRESENTATION:

Counsel:

Plaintiffs:	P King
Defendant:	M O'Farrell SC

Solicitors:

Appellants:	Bleyer Lawyers Pty Ltd
Respondent:	State Litigation Office

Judgment Number:	[2024] TASSC 79
Number of paragraphs:	59

Serial No 79/2024 File No 2733/2020

ROBERT FRANCIS McMAHON and FINOLA ANNE McMAHON v

STATE OF TASMANIA

REASONS FOR JUDGMENT MARSHALL AJ
16 December 2024

1             The plaintiffs, Mr and Mrs McMahon, applied to the Court for a declaration that they are the registered proprietors of "the whole of the land known as 5 Morrisby Street, Rosebery in Tasmania Vol 137764 and folio 1." The plaintiffs have applied for an order for possession of the portion of land on that title, which is currently occupied by the State of Tasmania, the defendant, in the proceedings.

2             The State has counterclaimed. In its counterclaim, the State claims that the land referred to in the plaintiffs' claim is partitioned by a continuous wooden fence making a boundary between 5 Morrisby Street, to the north the of fence, and 1 Propsting Street, which is to the south of the fence. The State alleges that the land at 1 Propsting Street is owned by the Crown in the right of the State of Tasmania. The State claims, to the extent that its land at 1 Propsting Street is contained in "Folio of the Registrar Volume 137764, 1" it is there contained in error.

3             The State's contention is that there is a mistake in the registered title parameters that relate to 5 Morrisby Street. The mistake was said to arise as a consequence of an error made in 2002 when 5 Morrisby Street was declared to be surplus to the needs of the State. Prior to 2002, the property which is 5 Morrisby Street was not the subject of a registered title.

4            The plaintiffs say that there was no mistake in the description of the land in the Certificate of Title "CT 137764, folio 1".

Background Facts

5             In 2002, a plan was produced by the Office of the Surveyor General in order to support an application by the State to bring unalienated Crown land under the Land Titles Act 1980 ("the Act"). As a result of the success of that application, the description of the land on the relevant Certificate of Title was and is as follows:

"Town of ROSEBERY

Lot 1 on plan 137764 (section 27A of the Land Titles Act) derivation: Whole of Lot 1 on plan 137764 Gtd. to the Crown."

6 Section 27A(2) of the Act allows the Recorder of Titles, on the application of the Director General of Lands, to bring under the Act any land of the Crown by creating a folio of the Register for the land.

7 The application under s 27A of the Act was supported by a plan drawn by Mr Bakes, a surveyor then employed by the State. An officer of the Department of Treasury and Finance wrote a memorandum instructing Mr Bakes to prepare the plan.

8             In compiling the plan drawn by him, Mr Bakes had access to a street atlas plan of the Rosebery township. The relevant street atlas plan for the land was attached to the memo from the Department of Treasury and Finance to Mr Bakes. There was a hatched area drawn on the street atlas page given to Mr Bakes. The hatching on the street atlas page covers the outline of the larger building

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on the corner of Morrisby and Propsting Streets (where a block of eight flats was located), but not the smaller building next door, which contains a house on the disputed part of the land. The disputed part of the land is the land south of the dividing fence. The Certificate of Title in relation to 5 Morrisby Street shows what the State alleges to be 1 Propsting Street as included as part of 5 Morrisby Street, or at least a relevant part of 1 Propsting Street, being the land immediately behind 5 Morrisby Street, with a house on it.

9             In giving that instruction , The Department of Treasury and Finance intended Mr Bakes to produce a plan with the block of flats and did not intend to include the land and house behind the dividing fence, which is known as 1 Propsting Street.

10           Mr Bakes did not carry out those instructions because he surveyed the whole of the land shown on the town chart as 5 Morrisby Street, which included the land and house at 1 Propsting Street. It is of no consequence whether the mistake arose from a lack of clarity in instructions given to Mr Bakes, or of some fundamental misunderstanding in the mind of Mr Bakes at the time.

11 The preponderance of the evidence before the Court shows that it was not the intention of the State when bringing the land at 5 Morrisby Street under the Act, that the part of the land on which the house at 1 Propsting Street is located was to form part of the title.

12 It is beside the point that the land applied for under s 27A of the Act was the land consisting of 1,012m², which included the block of flats at 5 Morrisby Street, as well as the land behind the fence and the house over that dividing fence at 1 Propsting Street.

13           The evidence before the Court, which is of most utility in understanding what occurred in 2002, is contained in documentary material. That evidence discloses that the State, at that time, formed the view that the block of eight flats at 5 Morrisby Street, which had been used for teacher accommodation, was surplus to its needs, as was the land on which the flats were erected. That parcel of land has been known locally as 5 Morrisby Street. It was not the intention of the State to declare as surplus to requirements, the land over the dividing fence, which has been known locally as 1 Propsting Street.

14 Under s 6(1) of the Crown Lands Act 1976, Crown land is only permitted to be disposed of in accordance with that Act. Before Crown land is sold, s 13 of that Act dictates that the Director General of Lands must fix a reserve price and not sell it less than the reserved price. A contract in writing is required for the sale of Crown land. The Minister for Crown Lands is authorised by s 13(1) to sell the land.

15           On 13 February 2002, the Deputy Secretary (Corporate Services) of the Department of Education, wrote a Minute to the Minister for Education. The subject matter was recorded as "Restructure of teachers' residences – Rosebery District High School." The recommendation was as follows:

"That you declare the property known as the Morrisby Street flats, Rosebery (asset 6008) containing eight (8), one bedroom flats as surplus to educational requirements and approve its disposal."

The "Background" information contained in the Minute included the following dot points:

"● the Morrisby Street flats are located on the corner of Morrisby and Propsting

Streets, Rosebery;

• a condition report on the property…confirmed that the property is in poor to average condition. Work required to bring the flats up to current Department standards has been estimated at $37,000;

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•	furthermore, due to their one bedroom configuration, the units are considered unsuitable for accommodating teaching staff with families;
…
•	the property is considered saleable with interest already shown by tourism operators in the area…"

16           On 16 April 2002, the Executive Officer (Accommodation) of the Department of Education wrote to the Secretary of the Department of Treasury and Finance, under the heading "SALE OF SURPLUS PROPERTY – ROSEBERY PID 6027503." The letter read, so far as is material,:

"The abovementioned property is a block of single bedroom flats at 5 Morrisby Street, Rosebery and was recently approved for disposal by the Minister for Education…Could you please arrange for the property to be sold…"

17          A property information sheet, produced by the Valuer-General, Tasmania on 23 April 2002 referred to "property ID 6027503, Municipality: West Coast.". The address was listed as 5 Morrisby Street, Rosebery. The land area is listed as 0.607 hectares and the land use as "Flat-s".

18           On 3 May 2002, the Secretary of the Department of Treasury and Finance wrote to the Secretary of the Department of Primary Industry, Water and Environment ("DPIWE") for the attention of Mr T Grant, Valuation Services, Ulverstone. The topic was "SALE OF CROWN PROPERTY – 5 MORRISBY STREET, ROSEBERY". So far as is material, the letter said:

"The Department of Treasury and Finances currently investigating the sale of the above property by public auction. The property situated on the corner of Morrisby and Propsting Streets, Rosebery is composed of eight single bedroom flats. Title to the property has not been issued….I would be grateful if you would undertake an inspection of the property and provide a market value for the property for the purpose of determining a reserve price."

19           On 20 May 2002, the north west area manager for Roberts Limited, Estate Agents, wrote to an officer of the Department of Treasury and Finance, enclosing a "Property Report". That property report was dated 14 May 2002. It noted under the heading of "IMPROVEMENTS" the following:

"Known as "the Caves" substantial double storey brick construction capacity 8 x 1 bedroom flats, each approximately 40m², plus 8 vehicle carport accommodation and a utility room, approximately 25m²."

A probable sale price of between $42,000-$50,000 was referred to in the report.

20           In a memorandum dated 28 May 2022, written by a valuer in DPIWE to the Valuer-General, reference is made to a request by the Secretary of the Department of Treasury and Finance for a current market valuation. The land is described in the letter as follows:

"The site is rectangular in shape and comprises an area of 607m²…"

It can be observed at this stage that the above is different from what was ultimately surveyed by Mr
Bakes in what he refers to as land consisting of 1,012m².

21   Under the title "Improvements" there is a reference to:

"1980 Brick veneer two storey building with galvanised iron roof comprising 8 one
bedroom flats…"

A market value of $40,000 is suggested. There is no reference to the remaining 405m² of what is now on the Certificate of Title, which consists of the land behind the fence and the structure on that land.

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22          On 19 June 2002, a notice appeared in the Tasmanian Government Gazette, under the Crown Lands Act 1976. The notice said:

"NOTICE is hereby given that the Department of Treasury and Finance is facilitating the sale of property listed below and that under the provisions of the Crown Lands Act 1976 the property will be submitted for sale by public auction.

Eight single bedroom flats
5 Morrisby Street, Rosebery
1012m² of land zoned
Village
Auction date:
1.00pm Wednesday
3 July 2002
Estate Agents appointed to market the property on behalf of the Crown; Roberts Real
Estate
103 Wilson Street
Burnie
DAVID LLEWELLYN
Minister for Primary Industry Water and Environment"

23           The reference to 1012m² was an error. The error resulted from Mr Bakes including on the title, the land at 1 Propsting Street, directly behind the dividing fence, which included a structure not connected to the flats. The notice should have contained a reference to 607m², which is the measurement of the property containing the eight, one bedroom flats to the north of the dividing fence. Until Mr Bakes returned the plan he had prepared to the Department of Treasury and Finance there was no indication from any source that the size of the land to be sold was greater than 607m². It appears that Mr Bakes assumed that the land on the other side of the diving fence was intended to be included on the title. A field survey, which he did not undertake, would have revealed his error.

24           On 3 July 2002, Mr Brett Schulze and Mr John Schulze purchased the property at 5 Morrisby Street, Rosebery at a public auction conducted that day. At the time, the brothers operated a business called "Schulze Engineering", which had premises at various places in Tasmania, including Rosebery.

25           Mr Brett Schulze gave evidence that he was interested "in the auction of the block of eight flats at Morrisby Street because, at the time, a major challenge for our business was attracting and retaining staff to work in Rosebery, and we were looking to provide accommodation."

26           Mr Brett Schulze said that he recalled the auctioneer saying that what was being auctioned was a block of eight flats. At the auction, he said, there was no mention of "the house next door at 1 Propsting Street being included in the auction."

27           The Schulze brothers purchased the property for $40,000. The sale was for "All THAT property situate and known as 5 Morrisby Street, Rosebery in Tasmania." The vendor was described as "The Crown". The "TITLE" on the contract was described as "The whole of the land situate at 5 Morrisby Street, Rosebery in Tasmania which is more particularly comprised and described as Lot 1 on survey plan P137764, a copy of which is attached hereto and marked "A"." The attachment described as "A" had a plan of title, which showed Lot 1 as 1,012m² and encompassing the part of the property at 1 Propsting Street as well. That discrepancy appears not to have been noticed by anyone involved in the sale at the time. There was never any authorisation by the Tasmanian Government, or any its departments or agencies, to sell land as surplus to requirements other than the 607m², known as 5 Morrisby Street, including the eight flats on the property.

28           Mr Brett Schulze gave evidence that in signing the contract for sale, he was "agreeing to the purchase of a block of eight flats". The schedule of chattels in the contract gives credence to that belief, given that it refers to "eight x electric stoves; eight electric heaters" being a reference to

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chattels in the flats and not to any chattel in the building behind the dividing fence. Mr Brett Schulze gave evidence that the fence at the back of the property with the flats separated those eight flats from Propsting Street.

29           On 1 March 2005, the plaintiffs entered into a contract to purchase 5 Morrisby Street, Rosebery. The purchase price was $300,000. The sale was conditional on the plaintiffs obtaining finance. The contract became unconditional on 24 May 2005. In 2011, the plaintiff re-financed a loan with an entity now known as Unity Bank.

30           The advertisement for the sale of 5 Morrisby Street in 2005, was produced by LJ Hooker's Burnie office. The advertisement said, in red capitalised writing, "EIGHT SINGLE BEDROOM FLATS – ROSEBERY". Underneath that heading, the following was stated: "Eight brick and colourbond flats located in central Rosebery, West Coast, Tasmania." Underneath that, the following appeared, "These flats let for $70.00 per week (total $560.00 per week) and the reopening of the mines in the area, rental accommodation in Rosebery is at a premium." The advertisement contained one large photograph of the flats and three smaller photographs, showing different views of the flats. In the larger photograph, the small building in the nature of a residence, can be seen behind a wooden, separating fence. That small building has frequently been referred to in these proceedings as a cottage.

31           In his evidence, the first plaintiff, Mr McMahon, said he saw the above advertisement on the internet. Under cross-examination, Mr McMahon said that the fence was there when he looked at the property. He said he thought the house over the fence, was the next house in the street. When asked in cross-examination whether in 2005 he thought he was buying the house, which he described as the next house in the street, Mr McMahon prevaricated by talking about buying land to "strata develop" and failed to answer a simple question put directly to him.

32           When asked about whether there was any mention of a house in the advertisement, Mr McMahon said, "It appears to be the flats." Mr McMahon finally agreed that the advertisement did not mention the house. He did not directly answer whether he thought he was buying the house on the land over the dividing fence, which he described as "the next house in the street". I find that Mr McMahon, on behalf of himself and the second plaintiff, had no intention of purchasing anything in 2005, other than a block of eight flats and the land on which they stood, when he entered into a contract of sale for 5 Morrisby Street, Rosebery.

33           In 2015, Mr McMahon was considering the prospect of a strata development of land at 5 Morrisby Street. He engaged PDA Surveyors "to assist with land surveying and the preparation of a compliance strata plan for the property." In March 2017, PDA compiled a boundary survey of 5 Morrisby Street. On about 13 March 2017, Mr Hudson from PDA, telephoned Mr McMahon. According to Mr McMahon, Mr Hudson said, "That there was a cottage on our land title, and it would need to be included in the strata development plan."

34           Mr McMahon gave evidence that Mr Hudson's work led him to identify the cottage as being on the title belonging to himself and his wife, and that the occupants of the cottage were illegally on his land. He described the cottage as "wrongful occupation" of his land, despite the fact that it was erected before he bought the land in 2005, and that it was situated over a fence behind the land he thought he was buying in 2005, and that in 2005 he considered that it was the next house in the street.

35           Mr McMahon said he was informed in 2017 that the cottage was being occupied by Rosebery High School and was leased out by the Hon. Jeremy Page Rockliff MP in his capacity as Minister for Education. In January 2017, Mr McMahon gave the headmaster of Rosebery High School a Notice to Vacate. His solicitors engaged in correspondence with Crown Law regarding the irregular shaped

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block, known as 1 Propsting Street. They maintained that the area on which the cottage is located is
on his land as shown on the Certificate of Title, belonged to the plantiffs.

36           The State responded to Mr McMahon to the effect that an error had been made when the land was originally sold to the Schulze brothers. In May 2018, Mr Rockliff wrote to Mr McMahon informing him that the survey undertaken as part of the sale process in 2002, had incorrectly identified 1 Propsting Street and that the cottage was meant to be retained by the Department of Education for use by the high school.

37           The history of this matter shows that the plaintiffs intended to purchase a block of land with eight flats on it, and had no intention of purchasing the land on which the cottage stood, because it was not for sale. An error in the description of the land on the title for 5 Morrisby Street was discovered by the plaintiffs' surveyor in 2017. The plaintiffs then claimed ownership of land which was never for sale, in relation to which they had no intention to purchase, but now claimed as theirs, seeking to take advantage of a mistake made in the Surveyor General's office in 2002.

38           The plaintiffs' claim they have been levied some local government and/or utility charges in respect of the land described on the title. Apart from dismissing the plaintiffs' action, the Court will invite submissions from the parties on any ancillary orders required, which may have the effect of reimbursing the plaintiffs for any fees and charges which they have been wrongly levied, or part thereof. Only some of these charges may be rectified by representations to the State. Representations to local government bodies and other utilities independent of this action, may be required by the plaintiffs, armed with a copy of this judgment.

39           I accept the submission of the defendant that in 2002 the State did not intend to sell the cottage or the land on which it stands to the Schulze brothers, and that the Schulze brothers did not intend to buy the cottage and the land on which it stands in 2002, or sell it to the plaintiffs in 2005. Further, the plaintiffs did not intend to buy the cottage and the land on which it stood in 2005. The assertion of ownership arises from the 2017 discovery of a 2002 mistake. I also accept the submission of the defendant that no one knew the disputed land formed part of the title to 5 Morrisby Street until 2017.

40           The critical pieces of evidence in this case are the documents and the evidence of Mr Brett Schulze and Mr McMahon about what they thought they were purchasing. Interpretations of documents by current government officials, or recently retired officials, do not give the Court assistance when it could glean by itself the relevant assistance required from perusing the documents. No crucial issue of credibility arises in the matter, other than Mr McMahon's reluctance to initially be frank about what he knew he was purchasing in 2005.

Section 40(3)(f) exception

41 Section 40(2) of the Land Titles Act provides:

"Subject to sub-sections (3) and (4), the title of a registered proprietor of land is
indefeasible."

Section 40(3)(f) of the Act provides that:

"The title of a registered proprietor of land is not indefeasible…so far as regards any portion of land that may be erroneously included in the folio of the Register or registered dealings evidencing the title of that registered proprietor by a wrong description of parcels or boundaries."

42           In this case, the portion of the land on Certificate of Title for 5 Morrisby Street, which is over the dividing fence and includes the cottage, has been erroneously included in the folio for the Register

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for 5 Morrisby Street as a result of a wrong description of the borders of 5 Morrisby Street. The evidence before the Court in this matter, to that extent, is crystal clear. Further, as the High Court made plain in Breskvar v Wall (1971) 126 CLR 376, a person who obtains registration of a title to land that is erroneously included in a folio of the Register by reason of wrong description, obtains a defeasible title to land, which is liable to be set aside in favour of the original owner. See also Marsden v McAlister (1887) 8 NSWR 303 at 307 per Stephens CJ, who said:

"…where land is erroneously included in a certificate of title, the legal estate still
remains in the original owner of the land."

43           I accept the submission of the defendant that the compiled plan produced by the Surveyor General's office in 2002 for the purpose of supporting an application to bring unalienated Crown land (on which eight flats stood), under the Land Titles Act, caused the wrong description of boundaries of the land to be recorded in the folio of the Register Volume 137764 Folio 1.

44           There was a physical mis-description of the land intended to be sold in the compiled plan itself. So much is a question of fact on which there is no doubt, based on the documentary evidence and the intentions of the State, the Schulzes and the first plaintiff.

45 There is no impediment in relying on intrinsic material to determine that there is a mistake in the Register. Otherwise, the exception in s 40(3)(f) of the Land Titles Act would be a dead letter and there would be no basis for any investigation into the possibility of error on the face of a Certificate of Title.

46           In this case, the documentary evidence and the evidence of Mr Brett Schulze, and Mr McMahon himself, shows as a matter of fact, that the inclusion of the land beyond the dividing fence was never intended to be declared surplus to State requirements and was never intended to form part of the title for 5 Morrisby Street. The evidence referred to above shows conclusively that the Department of Treasury and Finance intended that Mr Bakes produce a plan of the land, which included only the eight flats and the land on which they were constructed, and not the cottage behind the dividing fence and the land on which it is situated. The most likely cause of the mistake was Mr Bakes' misunderstanding about the instructions to him from the Department of Treasury and Finance in that he surveyed the land shown on the town chart as 5 Morrisby Street, where that chart incorrectly included the land behind the dividing fence through to Propsting Street. It may be, in Mr Bakes' defence, that the instructions given to him lacked sufficient specificity.

47          In short, an error in the plan prepared by Mr Bakes led to the land being mis-described on the Certificate of Title that was obtained for it, being previously unalienated Crown land.

Bona fide purchasers for value?

48 Section 42 of the Land Titles Act has the effect of protecting bona fide purchasers for value from an action for recovery of land. The text of s 42 shows that the protection includes cases involving error in the Register of titles.

49 Section 42 of the Act is of no assistance to the plaintiffs. They were not bona fide purchasers of the entirety of the land, which is covered by the Certificate of Title for 5 Morrisby Street. They intended to buy the land with the eight flats on it. That was all that was for sale and it was all that they thought they were buying, until they later discovered the extent of the title for the property when seeking to develop 5 Morrisby Street.

50          At least since 1970, the cottage built on land facing Propsting Street, behind the dividing fence between it and 5 Morrisby Street, has been occupied by the State.

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Does bringing unalienated Crown land under the Act require subdivision?

51 The plaintiffs submit that bringing unalienated Crown land under the Act required subdivision. It is not clear where this argument takes them, but it has no merit in any event. Under s 27A of the Act, the State effectively applies to the Recorder to create a separate folio of the Register for any parcel of land that was previously unalienated Crown land. There was no requirement to comply with the provisions of the local government Local Government (Building and Miscellaneous Provisions Act) 1993 requiring subdivision. That Act, in any event, does not apply to the Crown.

History of the irregularly shaped block of land which is 1 Propsting Street

52           The plaintiffs contend that 1 Propsting Street is only the triangularly shaped portion of land next to a square block, which they contend is 5 Morrisby Street. This is incorrect. The triangularly shaped portion and the oblong behind the dividing fence, combine to form 1 Propsting Street. Prior to 1970, the irregularly shaped block of land was owned by Zeehan Council, as the local government body for the area was then known. At that time, ownership passed from the Council to the Crown in the right of the State.

Disposition of the plaintiffs' claims

53           The plaintiffs are not entitled to a declaration that they are the registered proprietors of the whole of the land at Volume 137764 Folio 1 of the Register because prior to them becoming recorded on the Register as proprietors of that land, the land was erroneously described on the Register, and the plaintiffs were not bona fide purchasers for value for the whole of that land.

54   Accordingly, the plaintiffs are not entitled to an order for possession of all of that land.

55           Ancillary orders may be required to deal with any issue involving any payment that the plaintiffs may be entitled to, based on any State levies or charges incurred on the assumption that they were entitled to be registered as owners of the disputed land.

Counterclaim

56          Having regard to the Court's findings of fact and legal analysis in the plaintiffs' case, it is appropriate to make orders in the nature of those sought by the defendant in its counterclaim.

57   Those orders are as follows:

(1)	It is declared that the Crown in the right of the State of Tasmania is entitled to an estate in fee simple in the land known as 1 Propsting Street, Rosebery, being the land to the southward side of the continuous wooden fence in 137764/1 ("the disputed land").
(2)	It is declared that the Crown in the right of the State of Tasmania is entitled to be the registered proprietor of the disputed land.
(3)	The plaintiffs are directed to take such action in respect of the Register to reflect these reasons for judgment and have the disputed land excised from the title 137764/1.
(4)	The plaintiffs are restrained from dealing with or disposing of the disputed land.
(5)	The parties are to file and serve within fourteen (14) days any further orders sought by them in respect to the counterclaim.
(6)	Liberty to apply.

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Disposition of the plaintiffs' claim

58   The appropriate orders in the plaintiffs' action are as follows:

(1)	The plaintiffs' claim as contained in the writ filed on 6 November 2020 and its amended Statement of Claim of 11 December 2020 is dismissed.
(2)	The parties are to file and serve within fourteen (14) days a minute of any further orders sought in the plaintiffs' action.

59           During the course of the hearing, it became apparent to the parties that other interests may be affected by the counterclaim. Those interests were respectively, an individual who assisted the plaintiffs in their purchase of 5 Morrisby Street and a bank which assisted the plaintiffs in refinancing the purchase. These parties are the third and fourth respondents to the counterclaim. They may have an interest in further orders to be made by the Court in the plaintiff's case, and the defendant's counterclaim, and are at liberty to file submissions in respect to those matters should they so desire. That is the reason for the making of order (6) on the counterclaim.