McMurtrie v Commonwealth of Australia
[2002] NSWSC 1147
•29 November 2002
CITATION: McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC 1147 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20448/99 HEARING DATE(S): 22 November 2002 JUDGMENT DATE: 29 November 2002 PARTIES :
Mark McMurtrie (Respondent/Plaintiff))
The Aboriginal & Torres Strait Islander Commissioner (Appellant/2nd Defendant)
Dumaresq Shire Council (Appellant/3rd Defendant)JUDGMENT OF: Studdert J
LOWER COURT
JURISDICTION :Supreme Court LOWER COURT
FILE NUMBER(S) :20448/99 LOWER COURT
JUDICIAL OFFICER :Master Harrison
COUNSEL : A.S. Howen (Respondent/Plaintiff)
D. Robinson (Appellant/2nd Defendant)
D. McGovern SC (Appellant/3rd Defendant)SOLICITORS: Ward Maxwell & Co (Respondent/Plaintiff)
Australian Government Solicitor (Appellant/2nd Defendant)
Phillips Fox (Appellant/3rd Defendant)LEGISLATION CITED: Aboriginal and Torres Strait Islander Commission Act
Conveyancing ActCASES CITED: Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998)
Hoyts Pty Limited v Spencer (1919) 27 CLR 133
Maybury v Atlantic Union Oil Co. (1953-54) 89 CLR 507
Chapman v Chapman (1983) 2 NSWLR 420
Esanda Limited v Burgess (1984) 2 NSWLR 139
Gates v City Mutual Life Assurance Society Limited (1985-86) 160 CLR 1
Walton v Gardiner (1992-93) 177 CLR 378DECISION: See paras 61-62.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONSTUDDERT J
Friday 29 November 2002
JUDGMENT20448/99 MARK McMURTRIE v THE COMMONWEALTH OF AUSTRALIA & ORS
1 HIS HONOUR: On 13 August last I published my reasons for concluding that the appeal of each appellant should succeed and that the plaintiff’s statement of claim should be struck out. I deferred making final orders however until the plaintiff/respondent was given the opportunity of placing evidence before the Court in support of an application to be afforded the opportunity to replead. I directed that the plaintiff/respondent file and serve within fourteen days any affidavit or affidavits supporting any such application and directed that the matter be listed again on 10 September 2002.
2 On 10 September 2002 counsel for the plaintiff was not in Court but his instructing solicitor made an application for an adjournment and I adjourned the matter until 25 September 2002, directing that counsel for the plaintiff present the proposed further amended statement of claim with accompanying submissions by 20 September 2002. Those directions were not complied with and on 25 September I gave further directions requiring the plaintiff to file and serve written submissions within seven days addressing matters then specified. I also directed that a copy of the proposed amended pleading be served within that period and I set a timetable within which the defendants were to file their submissions, listing the matter for hearing on 22 November.
3 Whilst the plaintiff did not comply strictly with the timetable set on 25 September, the Court has had the benefit of written submissions from all counsel and oral submissions were presented on 22 November, when I reserved my decision.
4 In considering whether or not the plaintiff should be allowed to replead his statement of claim, regard must be had to the question of delay thus far and whether the plaintiff has a case to advance, considering the latter issue of course against each defendant in turn. Regard must also be had to the form of the proposed amended statement of claim and whether or not it satisfies the requirements as to pleading of the Rules of Court.
5 The history of the delay in this matter was recorded by Master Harrison in the judgment of 19 March 2002. I will not repeat what the master then said, but, in short, whilst the plaintiff filed his original handwritten statement of claim over three years ago, the cause has still not advanced past the pleading of the plaintiff’s claim. Before the master delivered judgment the plaintiff had been granted at least seven adjournments so that he could properly plead his causes of action against both defendants.
6 I determined on appeal that the pleading considered by the master should be struck out.
7 Affidavits were presented from the plaintiff and from his solicitor relating to documents discovered by the plaintiff. In his affidavit of 27 August 2002 the plaintiff deposed to his wife discovering a box of documents some eight weeks previously. Mr Howen informed the Court that the existence of those documents was brought to his attention immediately prior to the hearing of the appeal on 8 August 2002. Ms Pyliotis deposed in her affidavit of 28 August 2002 to the fact that the plaintiff had forwarded to her documents recently discovered and those were exhibited to her affidavit. These documents evidenced communications between the plaintiff and the second defendant, ATSIC.
8 The discovery of those documents identified by Ms Pyliotis influenced the form of the pleading upon which the plaintiff now wishes to rely, namely the second further amended statement of claim.
9 The second defendant and the third defendant oppose the plaintiff’s application that he now be permitted to replead in accordance with that document and it is necessary that I consider the claim against each of those defendants separately.
The claim against ATSIC
10 In the pleading upon which he now seeks to rely, the plaintiff pleads in para 8 an agreement with DEET (the Department of Employment, Education and Training). That agreement is pleaded to have been for a period of four years and to provide an annual wage subsidy and a training allowance. In paras 9, 10 and 11 various terms of that agreement were pleaded.
11 In para 14 the plaintiff pleads the statutory conferral of DEET’s responsibilities to the plaintiff to ATSIC. I shall return to consider the form of para 14 presently and I shall also consider para 15.
12 Subsequent paragraphs plead what ATSIC did and did not do for the plaintiff but the essence of the plaintiff’s claim in contract is that the contractual obligations undertaken by DEET, which later became the burden of ATSIC, were not complied with. There are features of the pleading against ATSIC in contract about which the second defendant complains as not complying with the Rules of Court and I shall address these shortly.
13 In para 28 the plaintiff purports to plead a case against the second defendant in negligence and in para 29 alleges breaches of duty of care.
14 In para 45 the plaintiff advances a claim for damages against both the second and the third defendant without attempting to distinguish the claim made against either.
15 So much for the overview of the pleading against the second defendant.
16 In thorough written submissions, the second defendant contended that the plaintiff’s claim in contract was untenable and that no contract existed. Rather, what the plaintiff received were grants from public money, and that this was apparent from a consideration of the documents exhibited to the affidavit of Ms Pyliotis. Any rights which the plaintiff might have had were not contractual rights and any redress he might have had was to be found in an administrative tribunal rather than in this Court.
17 The second defendant’s submission which I have endeavoured broadly to summarise may well ultimately prevail, but I do not consider the issue is one which ought to be determined summarily. The authorities make it clear that the discretionary power to order summary judgment has to be exercised with exceptional caution: see Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 per Barwick CJ at 129; Webster & Anor v Lampard (1993) 177 CLR 598 at 602; and Air Services Australia v Zarb (unreported, NSWCA, 26 August 1998, per Rolfe AJA). It seems to me that the plaintiff is entitled to have his day in court in an endeavour to prove contractual liability in the second defendant and that his claim as to such liability ought not to be regarded as utterly hopeless so as to warrant summary dismissal.
18 There is an associated issue in relation to the claim in contract and that is whether strictly ss 7 and 8 of the Aboriginal and Torres Strait Islander Commission Act 1989 could have the effect of transferring contractual obligations from DEET to ATSIC. However, once again, I consider that this is a matter that ought to be determined at trial.
19 Whilst I have concluded that there is an issue for trial in relation to the plaintiff’s claim in contract against ATSIC, there are respects in which the pleading presently under consideration is unsatisfactory.
20 Mr Robinson was critical of the manner of expression of the claim in para 14 and submitted that the paragraph did not properly plead a case based upon the provisions of the Aboriginal and Torres Strait Islander Commission Act to which I referred. As I understand s 8, the power of conferral of function under that section is to be exercised by a notice published in the Gazette and no such exercise has been pleaded. It would seem, however, that the plaintiff would have to prove the relevant publication before he could enliven the statutory construction for which he would contend.
21 However, whilst para 14 could have been better expressed, and save for the last two sentences, I consider the paragraph suffices to assert a contractual obligation which passed from DEET to ATSIC by reason of the operation of ss 7 and 8 of the Act. The last two sentences in para 14 do not seem to me, with respect to Mr Howen’s argument, to advance the plaintiff’s case. It is not clear what is intended. Either there has been a statutory transfer of responsibilities under s 8 or there has not. These last two sentences go nowhere and ought not to be permitted to be pleaded.
22 Paragraph 15 is, to my mind, in precisely the same position. Mr Howen conceded in the course of submissions that that which was pleaded in para 15 did not give rise to any cause of action and, to my mind, the paragraph should not be allowed.
23 I do not propose to address line by line the content of the pleading as against ATSIC, but Mr Robinson submitted that paras 26.15, 26.16, 26.17 and 26.19 were either imprecise or circular, and I agree with those submissions. These sub-paragraphs should not be pleaded.
24 Mr Robinson submitted that paras 26.11, 26.12 and 26.18 allege breaches that appear to be immaterial. I agree with this submission, and I would add to those para 26.20.
25 Paragraph 26.13 also seems to be immaterial to any loss pleaded.
26 Turning to the plaintiff’s claim pleaded in negligence, I consider para 28 to be inadequate. Whilst it may be sufficient to identify the material facts giving rise to the existence of a duty of care by reference to assertions of fact earlier pleaded in a statement of claim, para 28 does not do this but simply directs the reader to “the facts and circumstances pleaded in this further amended statement of claim”. In my opinion, this does not address in a satisfactory manner the requirements of the rules. At the very least, and only provided this clearly identifies those facts relied upon, the pleading should identify the paragraphs of the statement of claim that pleads those facts.
27 This brings me to the claim for damages. Paragraph 45 is expressed thus:
- “45. As a result of the breaches of contract and duty of care pleaded in respect of the Second and Third Defendants, the Plaintiff has suffered economic loss and damage the particulars of which include:
- 45.1 Loss of payments due under the TAP program formerly administered by DEET.
- 45.2 Loss of future contracts for the refinishing of aircraft and aviation related equipment.
- 45.3 Loss of plant, fixtures and equipment located in and around the said land and hangar.
- 45.4 Loss of capital value of the Plaintiff’s business conducted at the hangar at Armidale.”
28 It is to be observed that the paragraph does not attempt to distinguish between the heads of damage claimed against the second defendant and the heads of damage claimed against the third defendant. To take para 45.1, it surely could not be contended that the third defendant could be liable for the loss here pleaded. In any event, there is a necessity for the pleader to address the issue of damages against each defendant discretely.
29 A further difficulty that para 45 presents is the inadequacy of expression. Looking at the position of the second defendant, it is entitled to know how it is alleged that the various losses are referable to the various breaches, whether in contract or in negligence, and how the losses are quantified.
30 It follows from what I have written that I do not consider that the plaintiff ought to be allowed to rely upon this pleading against the second defendant. Mr Robinson submitted that in the event that I came to this view that should be the end of the matter and the plaintiff ought not to be given the opportunity to further replead. Mr Robinson submitted that the plaintiff ought not to be permitted to keep coming back again and again to have the court consider proposed amendments. I have considerable sympathy with that submission, but I have decided that the plaintiff should have one further opportunity to plead as against the second defendant, and this will be reflected in the orders I am going to make. Before coming to this conclusion I have had regard to the issue of delay. However, the evidence as to the recent discovery of documents has not been challenged, and, in all the circumstances, I have concluded in the exercise of my discretion that what has occurred in the past should not prevent the plaintiff from having a final opportunity of putting his pleading in order against the second defendant.
31 I turn to the pleading against the third defendant.
The claim against Dumaresq Shire Council (DSC)
32 The plaintiff has substantially altered the pleading as against the third defendant.
33 The claim in contract is pleaded in para 30. It is pleaded that the plaintiff entered into an agreement to lease land at Armidale airport. The pleading earlier determined to be deficient was in the language of an agreement to enter into an agreement and as such was manifestly unenforceable. The amended pleading in para 30 of the particulars thereunder overcomes that deficiency. The pleading sufficiently conveys that what is relied on is a lease, albeit an oral one.
34 In para 32 the plaintiff pleads he moved his business to Armidale airport “in about March 1993”, and then in para 33 there is pleaded a financial agreement entered into between the plaintiff and the third defendant for the construction of a hangar at the airport. In para 34 the plaintiff pleads taking possession of the hangar and the land “in about July 1993”.
35 What is then pleaded in paras 35 and 36 is the submission of a written lease by DSC to the plaintiff in September 1993 differing in its terms from the provisions of the lease orally agreed, and the refusal or failure to provide a written document in accordance with the oral agreement. In para 37 the plaintiff pleads that he refused to execute the lease, and that DSC told him if he failed to sign the lease he would not be permitted to hold the official opening on 3 December 1993. In para 38, it is pleaded that the plaintiff held an official opening on 3 December 1993 and that he commenced to trade thereafter.
36 Paragraphs 39-42 plead events later particularised in para 44 as being in breach of the lease. Then, in para 45, is the rolled-up claim for damages against both the second and the third defendants already considered when addressing the plaintiff’s claim against the second defendant.
37 This pleading has attracted a number of submissions as to what it is contended are its deficiencies.
38 Mr McGovern identified as the first of the deficiencies that it failed to identify the date of commencement of the term of the lease. This is undoubtedly correct. The plaintiff has pleaded a lease for a term of twenty years with an option for a further period of twenty years. However, no commencement date has been pleaded, and in oral submissions Mr Howen contended that the lease started somewhere between January and July 1993, acknowledging in effect that the plaintiff was unable to assert a precise starting date. How then is the twenty year term to be ascertained? How can the expiry date be determined absent a specific starting date? How could it be determined when the option was to be exercised?
39 It is further submitted that the oral agreement for lease does not constitute a complete cause of action because it lacks the necessary writing required by s 54A(1) of the Conveyancing Act.
40 As to this, the pleading does not specifically assert part performance to overcome the absence of writing. Mr Howen however submits that the plaintiff can rely upon the events pleaded in paras 32-34 in part performance. The plaintiff claims to have entered into a financial agreement with the third defendant for the construction of the hangar and he claims to have attended to fitting the hangar out with plant and equipment.
41 Technically it seems to me that part performance could be pleaded by way of reply in the event of the plaintiff being allowed to proceed on a statement of claim and in the event that the third defendant pleaded in its defence, reliance on s 54A(1) of the Conveyancing Act. In the circumstances, I would not regard s 54A(1) of the Conveyancing Act as necessarily defeating any claim the plaintiff might otherwise arguably have.
42 Complaint is made about para 45, the substance of which I considered earlier when considering the way the plaintiff sought to plead his case against the second defendant. I will not repeat what I have written above about this paragraph.
43 There is an added deficiency in para 45 so far as it concerns the third defendant. On its face, the paragraph pleads damage by reason not only of breaches of contract but also by reason of breach of duty. The latter expression refers to a claim in negligence and it has previously been determined against the plaintiff that no such claim is maintainable against the third defendant. Paragraph 45 could not be allowed.
44 The third defendant has also submitted that the proposed pleading contains allegations that are embarrassing and irrelevant. This submission concerns paras 35-38 which I referred to earlier but in the present context I set these paragraphs out in full:
“35. In September 1993 the DSC provided the Plaintiff with a copy of a lease and Deed of Agreement for signing by the Plaintiff. The said documents did not reflect the terms and conditions of the said agreement entered into about January 1993 as a consequence of which the Plaintiff did not sign the documents. The differences between the oral agreement and the written lease were as follows:
35.1 The written lease did not contain an option for a further lease for a period of twenty years.
35.2 The written lease did not contain a clause which explicitly reflected the oral agreement in relation to the business the Plaintiff could conduct on the said land.
37. In December 1993 the Plaintiff refused to complete the execution of the lease and Deed of Agreement on the grounds the documents did not reflect the agreement entered into in about January 1993. DSC represented to the Plaintiff that if the Plaintiff did not sign the said documents the Plaintiff would not be permitted to hold the official opening in the presence of the Minister for Regional Development on 3 December 1993.36. Between about July 1993 and December 1993 the Plaintiff requested DSC to amend the said documents to reflect the terms and conditions of the agreement entered into about January 1993. DSC refused or failed to supply documents reflecting the terms and conditions of the oral agreement.
- The representation was made at a meeting at the DSC on 1 December 1993.
38. On 3 December 1993 the Plaintiff held an official opening of this business and commenced trading at Armidale Airport under the name of New England Aircraft Refinishers.”
45 What is the relevance to the plaintiff’s case of the matters pleaded in paras 35-38?
46 In para 35 the plaintiff avers he did not sign the lease but there was evidence before this Court as Annexure A to the affidavit of Simon Patrick Wilson sworn 14 July 2000 a stamped lease document purporting to bear the plaintiff’s signature.
47 If it was the plaintiff’s case that he did not sign the lease, then it would be a matter to be determined at trial as to whether he did or not. Unless and until it was established that he did not sign the lease, the legal consequences of his having done so would not arise. Hence what was conceded in submissions on 22 November 2002 is important.
48 In the course of his submissions on that date Mr Howen said (T 34) “Mr McMurtrie says the contract was not signed” but counsel went on to indicate he was referring there to the pleading, presumably in particular para 37 as set out above. However, later in submissions Mr Howen acknowledged that the plaintiff signed the lease but sought to distinguish signature from execution. I set out what appears in the transcript (T 37):
- “HIS HONOUR: Is it your case you didn’t sign this lease?
- HOWEN: It is our case that Mr McMurtrie did not execute the lease.
- HIS HONOUR: It is.
- McGOVERN: That is the first I have heard of that.
- HIS HONOUR: Well that’s the end of it, if that’s the case. You say did you did not sign the lease.
- HOWEN: Yes, what he said is at paragraph--
- HIS HONOUR: Mr Howen, I just want to know that is your case, that you did not sign the lease?
- HOWEN: There is a difference between sign and executed.
- HIS HONOUR: It is your case that your client did not put pen to paper.
- HOWEN: It is my client’s case he did not execute a lease, he did not [enter] into a written contract.
- HIS HONOUR: Very well, so it is your case that what purports to be the signature on the annexure to the affidavit of Mr Glascott is not your client’s signature.
- HOWEN: No, I’m not saying that.
- HIS HONOUR: Well, I don’t understand what you are saying. I thought a moment ago you told me you did not sign the lease.
- HOWEN: I used the particular word ‘did not execute’ a lease.
- HIS HONOUR: What is the distinction you were drawing?
- HOWEN: If one executes the lease, one with the intention to enter into contractual relations signs a document.”
49 Later, Mr Howen submitted it was the plaintiff’s case that the written lease was not a valid lease creating the legal relationship of lessor and lessee (T 39). This, as I understand the submission, is because the writing did not correspond with the alleged earlier oral agreement.
50 This brings me back to a further consideration of Hoyts v Spencer (1919) 27 CLR 133. I referred to this decision in my earlier judgment. In Hoyts Knox CJ said at 138-139:
- “From the authorities referred to during the argument the following propositions may be deduced, viz.:—(a) When parties negotiate an agreement by parol and subsequently reduce it to writing, the writing constitutes the contract (Knight v. Barber 16 M. & W., 66, at p. 69), or at any rate is conclusive evidence of its terms (Wake v. Harrop 1 H. & C., 202), subject, of course, to the right of either party to proceed for its rectification or rescission on sufficient grounds. (b) A distinct collateral agreement, whether oral or in writing, and whether prior to or contemporaneous with the main agreement, is valid and enforceable even though the main agreement be in writing, provided the two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement.”
51 Isaacs J said as to a collateral contract (at 147):
- “The truth is that a collateral contract, which may be either antecedent or contemporaneous (per Erle C.J. and Byles J. in Lindley v. Lacey 17 C.B. (N.S.), at pp. 586, 587 and per Cockburn C.J. in Angell v. Duke L.R. 10 Q.B., 174, at p. 177), being supplementary only to the main contract, cannot impinge on it, or alter its provisions or the rights created by it…”
52 The principles to be drawn from Hoyts v Spencer remain undisturbed: see, for example, Maybury v Atlantic Union Oil Co. (1953-54) 89 CLR 507; Chapman v Chapman (1983) 2 NSWLR 420; Esanda Limited v Burgess (1984) 2 NSWLR 139; and Gates v City Mutual Life Assurance Society Limited (1985-86) 160 CLR 1.
53 In Chapman (supra), Hoyts was considered in its application in Australia and Priestley JA said:
- “There is no doubt that in Australia a collateral agreement which impinges upon a main agreement and would alter the rights created by it cannot stand with the main agreement and is unenforceable: Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507, at 518; Cheshire & Fifoot, Law of Contract, 4th Aust ed (1981), pars 153 and 154, at 56, 57, 58. The case which in Australia is regarded as the foundation of this proposition is Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133. In that case Knox CJ and Isaacs J delivered separate judgments with each of which Rich J agreed. Knox CJ (at 139) distinguished between two types of collateral agreement. One is where there is a distinct collateral agreement either oral or in writing, which may be prior to or contemporaneous with the main agreement, which itself may be in writing. Provided the two may stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement, the collateral agreement is valid and enforceable. The other type is where the consideration for the collateral agreement is the making of the main agreement.”
54 There is no suggestion in the present case that the consideration for the oral agreement was the execution of the written lease so that it seems to me, given the acknowledgement in argument that the plaintiff signed the written lease, the agreement pleaded could only be enforceable provided it can stand with the written agreement in the sense that the provisions of the agreement remain in full force and effect. As I read the pleading and compare it with the written lease, this proviso is not satisfied.
55 I add a reference to the judgment of Hutley JA in Esanda Limited v Burgess (supra) at 145:
- “…evidence to contradict it [referring to a document purporting to be the sum total of the bargain integrated into the one instrument) cannot be given except to show that there are errors in expression of the terms agreed upon, the remedy for which is rectification, or that the parties have made a true collateral contract, that is a contract entirely consistent with the written contract but dealing with matters outside it.”
56 The lease which Mr Howen has now admitted was signed by the plaintiff bears date 8 April 1993 and there have been no proceedings for its rectification. When one considers the terms of the written lease, and when one considers what has been pleaded outside those terms, I do not consider that the pleading can properly be regarded as averring a true collateral contract in the sense described by Hutley JA in Esanda.
57 Mr McGovern submitted that the Court should not allow the plaintiff to plead a cause of action which is doomed to failure (Walton v Gardiner (1992-93) 177 CLR 378 at 393). I accept that submission.
58 Plainly, for reasons I have stated, the Court should not allow the plaintiff to proceed against the third defendant on the second further amended statement of claim. The question remains, however, as to whether the plaintiff should be given a further opportunity to replead as against the third defendant.
59 Mr McGovern, like Mr Robinson, contends that the plaintiff ought not to be given unlimited opportunities to present an acceptable statement of claim and there are costs considerations. I also have to consider the utility of giving the plaintiff a further opportunity.
60 It seems to me, given the acknowledgement properly made by Mr Howen in the course of submissions that the plaintiff did sign the lease, to pursue a claim that fails to recognise the full force and effect of that lease would in all probability prove to be fruitless. Moreover, the plaintiff has deliberately chosen not to plead a claim based upon that writing. In all the circumstances, I have decided that I should not afford any further opportunity to the plaintiff to replead as against the third defendant.
Orders of the Court
61 The appeal of the second defendant:
1. The appeal is allowed;
2. I order that the amended statement of claim filed pursuant to the order of Master Harrison on 24 May 2002 be struck out.
3. I refuse leave to the plaintiff to rely upon the second further amended statement of claim the subject of oral submissions on 22 November 2002.
4. I allow the plaintiff until Friday 13 December 2002 to serve upon the second defendant a proposed third further amended statement of claim and to pursue an application for leave to proceed upon such pleading;
5. In respect of such application, the matter is to be listed for directions only at 2.00 pm on Friday 13 December next.
7. I reserve the costs of 10 September and 25 September 2002.6. I order the plaintiff to pay the second defendant’s costs of the appeal from the decision of the master and the costs of the proceedings before me on 22 November 2002.
62 The appeal of the third defendant
1. The appeal is allowed.
2. I order that the amended statement of claim filed pursuant to the order of Master Harrison on 24 May 2002 be struck out.
3. I refuse leave to the plaintiff to rely upon the second further amended statement of claim the subject of oral submissions on 22 November 2002.
5. I reserve the costs of 10 September and 25 September 2002.4. I order the plaintiff to pay the third defendant’s costs of the appeal from the master and the costs of the proceedings before me on 22 November 2002.
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