Northcorp Ltd and Amex Corporation Pty Ltd v Allman Properties Pty Ltd, Allanson, Crichlow

[1996] QCA 186

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7 of 1995.

Brisbane

[Northcorp & Anor. v. Allman & Ors.]

BETWEEN:

NORTHCORP LIMITED

(First Plaintiff) First Respondent

AND:

AMEX CORPORATION PTY LTD

(Second Plaintiff) Second Respondent

AND:

ALLMAN PROPERTIES (AUSTRALIA) PTY LTD

(First Defendant) Appellant

AND:

GEORGE FREDERICK ALLANSON and

AUBREY DESMOND CRICHLOW

(Second Defendants)

AND:

MANISA PTY LIMITED

(Third Defendant)

__________________________________________________________________________

Macrossan C.J.
Pincus J.A.

Helman J.

___________________________________________________________________________

Judgment delivered 14/06/1996

Joint Reasons for Judgment of Pincus J.A. and Helman J.; separate dissenting Reasons for
Judgment of Macrossan C.J.
___________________________________________________________________________

1.          APPEAL ALLOWED WITH COSTS.

2.          JUDGMENT AND ORDERS BELOW SET ASIDE.

3.          ORDER CLAIMS MADE BY NORTHCORP LTD AND AMEX CORPORATION PTY LTD BE DISMISSED WITH COSTS, INCLUDING COSTS RESERVED BY THE ORDERS REFERRED TO IN THE JUDGMENT UNDER APPEAL.

___________________________________________________________________________ CATCHWORDS: CONTRACT - construction - other circumstances - factual

conclusions - credit - joint venture - "progress" - prior negotiations
- interpretation - extrinsic material - common intention.
McDonald v. Longbottom (1857) 120 E.R. 1177
Bank of New Zealand v. Simpson [1900] A.C. 182
B & P Constructions (Aust) Pty Ltd v. Brian A Cheeseman & Assoc.
Pty Ltd (1994) 35 N.S.W.L.R. 227
Walker Civil Engineering (Qld) Pty Ltd v. F A Pidgeon & Son
Pty Ltd (1986) 3 B.C.L. 345
Young v. Schuller (1883) 11 Q.B.D. 651

re Interwest Hotels Pty Ltd (1993) 12 A.C.S.R. 78

Counsel:	Mr J Couper Q.C. for the appellant. Mr G Brandis for the first and second respondents.
Solicitors:	Hunt & Hunt for the appellant. Barry & Nilsson for the respondents.
Hearing date:	21/07/1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7 of 1995.

Brisbane

Before Macrossan C.J.
Pincus J.A.
Helman J.

[Northcorp & Anor. v. Allman & Ors.]

BETWEEN:

NORTHCORP LIMITED

(First Plaintiff) First Respondent

AND:

AMEX CORPORATION PTY LTD

(Second Plaintiff) Second Respondent

AND:

ALLMAN PROPERTIES (AUSTRALIA) PTY LTD

(First Defendant) Appellant

AND:

GEORGE FREDERICK ALLANSON and

AUBREY DESMOND CRICHLOW

(Second Defendants)

AND:

MANISA PTY LIMITED

(Third Defendant)

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND HELMAN J.

Judgment delivered 14/06/1996

The record in this appeal includes a considerable quantity of evidence and as the reasons

below show, a great number and variety of considerations, some of marginal significance, were

urged upon the primary judge as supporting one side or the other. The facts which require

mention, in order to explain the basis on which the appeal is being dealt with, are fortunately less

voluminous, although their being embedded in a great deal of less relevant material does not
make analysis any easier.

In essence, the dispute is about two points: whether the primary judge was right in his

construction of an agreement which became Exhibit 1, and whether his Honour was correct in

the conclusions he drew as to the effect of a certain conversation on 5 December 1988. It was

common ground that the construction of the agreement should be determined against the

background of prior events and contacts between the parties and there was dispute concerning

such contacts and events. The first point, construction of the agreement, depends in part on the

judge’s factual conclusions, based on his opinion of the credit of the witnesses. The second

point, the content of a conversation, is entirely a matter of the judge’s view of credit, the

appellants’ counsel arguing in effect that the version of the conversation which the judge

accepted was so unlikely that his Honour’s findings should be interfered with.

Both points in issue have to do with a claim for $162,000 plus interest which succeeded

before the primary judge, his Honour holding that the $162,000 was payable by the appellant, as

the respondents asserted, under the agreement we have mentioned and that the disputed

conversation of 5 December 1988 did not take away the right to payment which accrued under

the agreement.

As instituted, the suit involved two plaintiffs and three defendants, but judgment was

given only against the first defendant Allman Properties (Australia) Pty Ltd ("Allman") and it is

the sole appellant. At material times two of the defendants, Messrs Allanson and Crichlow, were

directors of Allman. The respondents, initially plaintiffs, are two companies ("Northcorp" and

"Amex") associated with one another and with the families of Messrs D E Shephard and
P Dawes.

The parties on both sides of the record had, prior to the events in issue, been involved in

real estate investment and development of various kinds. In August 1988 a contract was made

under which Allman agreed to buy land at Calamvale for $3.45M, from persons not parties to

these proceedings; a deposit of $180,000 was paid and settlement was due on 2 December 1988.

The contract was not absolute, but subject to conditions; these do not require discussion.

About 10 November 1988 Northcorp signed a contract to buy the Calamvale land from

Allman for $7.5M, but that transaction did not proceed. On 19 November 1988 representatives

of both sides met to discuss the possibility of a joint venture to acquire, develop and sell the land

and on 24 November 1988 Shephard sent Allanson and Crichlow a fax confirming that Northcorp

was interested in a joint venture. It appeared from the terms of that fax and from other evidence

that Northcorp had, or was thought to have, substantial finance available to it at short notice and

that seems from Allman’s point of view to have been an attraction of the proposed joint venture.

In the fax of 24 November Shephard proposed that any joint venture should involve the purchase

of the Calamvale land by a new entity at $6M, with Northcorp having a 50% interest. He also

suggested that Northcorp manage the project at a fee and added the suggestion that Northcorp

commit "up to a million dollars in cash as equity to our 50% interest in the project".

The following day, on 25 November 1988, there was a discussion between Crichlow on

behalf of Allman and representatives of Northcorp, in Perth. On that occasion the terms

discussed were basically those mentioned in the fax of 24 November 1988, except that it was

proposed that, of the $6M which Allman was to receive on the acquisition of the land, $2M was

to come from the transfer of 37 lots. To go ahead a little, when a contract for the sale of the Calamvale land from Allman into the joint venture was drawn up, the lots transferred as part of

the price were valued at $2.4M, not $2M.

On 26 November, the next day, what was called a letter of intent regarding the proposed

joint venture was signed by Shephard and by Crichlow and it embodied, in substance, the terms

agreed on the previous day. The document contemplated the joint venture would involve the

acquisition, subdivision and sale of the land "either in total, large portions or single undivided

lots".

On 28 November 1988 there were discussions between a Mr Barry, the solicitor for

Northcorp, and Crichlow and Allanson. At that stage the joint venture vehicle "Expocourt", was

identified and it was said that Expocourt would purchase the land from Allman for $3.5M, the

rest of the price being met by transfer of blocks of land.

On the same day as the meeting between Barry and the Allman interests, 28 November,

the proposed financier of the purchase, Barclays, approved a facility of $3.6M to fund the

purchase of the land by Allman and associated expenses; it will be recalled that settlement of

that purchase was due on 2 December, 1988. Two days later, on 30 November 1988, Allanson

told Northcorp, in effect, that it would not be practicable to arrange the transaction between the

proposed joint venturers before the settlement of the sale to Allman occurred. Then Shephard

suggested, by a fax he sent to Allman, that the contract in favour of Allman be settled and that

a joint venture providing for the acquisition of the land by Expocourt be entered into later.

The first mention of the possibility of payment of $162,000 to Allman appears to have
been on 30 November 1988, when Allanson told Shephard that there would be a short-fall of

funds available to Allman, to the extent of $162,000. As will appear, that sum was later paid to

Allman. The primary judge took the view, correctly as it seems to us, that the figure of $162,000

was in fact arrived at as being half of certain expenses which Allman was incurring in relation

to its purchase of the land which was intended to be put into the joint venture. It would be a

coincidence if the amount which Allman was short in meeting its obligations in relation to the

purchase of the land happened to be half the amount of expenses associated with the purchase;

so one might suspect that the call for $162,000 to be contributed at that stage towards the

purchase by Allman was due to a desire on the part of those associated with Allman to have

Northcorp commit itself to the extent of producing a substantial amount of cash. At an earlier

stage, on 24 November, there had been a suggestion, as we have mentioned, that Northcorp might

contribute $1M. Allanson said in evidence, in effect, that the understanding was that the

$162,000 was not to be refunded in any circumstances, being the price that Northcorp had to pay

for being let into the deal. That proposition - that the $162,000 was not refundable in any

circumstances - is plainly contrary to the terms of Exhibit 1, the relevant part of which is set out

below, and is not a view of the matter which we were asked to adopt.

On 1 December 1988 there was discussion between representatives of the parties as well

as some communication by fax. The appellant placed considerable reliance upon Exhibit 40, a

note which Shephard made to record the outcome of a conversation had between Shephard and

Dawes on the one hand and Allanson and Crichlow on the other, by telephone, on that day which

was the eve of the settlement of the sale to Allman.

" Calamvale 1/12/1988

Discussion with Fred Allanson and Des Crichlow.

1.          Barclays have verbally agreed to settle on the basis of a letter of intent to enter into a J.V. by Crichlow Group and Northcorp signed by 2 Northcorp directors.

In the event a J.V. has not been completed within 3 months then the borrowers will be in default and the lender can call up the loan in full.

2.          We agreed that Amex would provide $162.000 free of interest personally to Fred and Des on an undertaking that the funds become due and payable in the event that a J.V. is not entered into.

Money to be TT to - Drake Walker & Leahy trust a/c

Bank of New Zealand
410 Queen St
Brisbane Queensland

A/c No. 124722-00 "

The expression "that a JV is not entered into" underlined above, but not underlined in the

exhibit, is of importance. That is so because if that was the true agreement, then the $162,000

in issue cannot be recoverable. The exhibit was accepted by the primary judge as correctly

stating the content of the relevant conversation. The matter is complicated by the circumstance

that the payment was initially to be a personal advance to Allanson and Crichlow, but it is not

now in issue that, if there was any obligation to repay, it was an obligation of Allman.

Shephard also told Allanson that he would send a fax to be signed and returned, setting

out the terms of the advance and that became Exhibit 1. Although Shephard’s note, Exhibit 40,

accepted as setting out a true account of the conversation between the parties of 1 December

1988, unambiguously specified the event in which the $162,000 was to be repaid, Exhibit 1, sent

and signed later on the same date, introduced a vaguer test. The relevant part of Exhibit 1 is as

follows:

"We confirm our agreement to advance to you the sum of $162,000 to assist in the purchase of the Calamvale property. We have received a facsimile from your Solicitors, Drake, Warren & Lahey confirming your instructions that the funds are to be used only in connection with the purchase of the vacant land at Calamvale. We would be pleased if you could both confirm, by signing this letter, that the advance is related to the contemplated joint venture between Allman Properties (Australia) Pty. Ltd., and Northcorp Limited, and that in the event that that transaction does not progress that the funds advanced to you will be returned to this Company." (emphasis added)

The important difference between Exhibit 40 and the fax of the same date, Exhibit 1, is

that the former says that the $162,000 becomes due and payable "in the event that a JV is not

entered into" and the latter that "in the event that that transaction does not progress" the funds are

to be returned. The judge took the view that the whole content of the agreement about the

$162,000 was in Exhibit 1.

The reasons of the primary judge include a very detailed analysis of other events in the

complex history of the parties’ dealings, but it is unnecessary to summarise that here; most of

what his Honour said is common ground. Mention should, however, be made of some matters

of present significance. The $162,000 promised was sent on 1 or 2 December, but owing to some

confusion on Allman’s side, further mentioned below, Allanson thought it had not been sent.

After more negotiation a binding joint venture agreement was made on 13 January 1989 (Exhibit

19) and on the same date Allman entered into a contract to sell the Calamvale land to Expocourt.

The contract allowed Expocourt to take possession immediately and that it did. The contract

provided for settlement of the sale on 2 June 1989. For reasons which were the subject of

considerable evidence, but do not now appear to matter, funds to complete the purchase were not

made available and it did not proceed. There followed litigation between the parties of which

the present is one element.

When Exhibit 1 was signed, the parties contemplated that a joint venture agreement in

due form would be drawn up and signed; the notion of "progress" referred to in Exhibit 1 might

perhaps be taken to refer to the transition from a stage at which the parties were in a joint venture only in the sense that there was a letter of intent, to the stage at which that was turned into a

binding detailed agreement. The main argument of the appellant amounts we think to this:

assuming the notion of "progress" is unclear, it should here be taken to refer to the drawing up

and execution of a joint venture agreement, because that is a possible meaning of "progress" in

this context and because that accords with the expressions the parties used in their conversations

which led to the preparation and signing of Exhibit 1.

The respondents, on the other hand, contended that "progressing" the transaction could

not reasonably be thought to refer only to making a formal joint venture agreement, but must at

least encompass the acquisition of the land by the joint venture vehicle Expocourt. The

respondents’ argument does not require for its acceptance that this Court fix the precise point at

which the transaction can be said to have progressed within the meaning of Exhibit 1; it is

enough for the respondents’ purposes that we accept the contention that it cannot have progressed

until at least the land the subject of the venture has been acquired by Expocourt.

It was not suggested that the primary judge was in error in admitting evidence of prior

negotiations and in particular the evidence consisting in Exhibit 40, being the notes which

Shephard made of the parties’ conversation on 1 December 1988. Generally speaking, discussion

in the authorities of the relevance of negotiations leading up to the formation of a contract refers

to the question whether the evidence should be admitted, rather than to the use which can be

made of it when admitted. But if Exhibit 40 had any relevance it could only have been relevance

to what the parties meant by the term "progress" in Exhibit 1; it is difficult to see any other

question in the case to which the document was relevant.

We are of the view that the rule which excludes evidence of negotiations as irrelevant to

the interpretation of the language of an agreement finally made between the parties does not

prevent the Court from noticing what the parties agreed to, as set out in Exhibit 40. It appears

to be accepted that evidence of negotiations may be relevant to the identification of the subject

matter of a contract; an example is McDonald v. Longbottom (1857) 120 E.R. 1177, in which

the expression "your wool" was given meaning by reference to the parties’ previous contacts and

discussions. Another is Bank of New Zealand v. Simpson [1900] A.C. 182 in which, after

referring to McDonald v. Longbottom and similar cases, the Privy Council held that evidence of

correspondence and discussions leading up to the making of a written contract was relevant in

considering the interpretation of expressions used in the contract. That was done on the basis that

words in the contract pointed to "something which was known to and in the contemplation of

both parties to the contract and with reference to which they contracted". Perhaps what this

means is that, where the expressions used are ambiguous on the face of it, to such a degree as to

suggest that the parties must have had in mind something more precise which they have failed

to express, evidence of the negotiations may be allowed. "Your wool" is a simple example; the

parties contracting about "your wool" must surely have had some more accurately defined wool

in mind. Bank of New Zealand v. Simpson is a stronger example; there the expressions in

reference to which evidence was admitted, in a dispute about building a railway, included "total

cost of the works", which is not on the face of it particularly ambiguous.

Cases of this sort were discussed in the New South Wales Court of Appeal in B & P

Constructions (Aust) Pty Ltd v. Brian A Cheeseman & Assoc. Pty Ltd (1994) 35 N.S.W.L.R.

227. After referring to McDonald v. Longbottom, Kirby P. (as his Honour then was) remarked:

"At least if on the face of the written agreement, the words appear ambiguous, the parties may call evidence to clear up the ambiguity. They may provide their own dictionary as to the meaning to be assigned to a particular word or phrase". (235)

In the same reasons, his Honour spoke of the desirability of harmony between the courts’

approach to the construction of statutes and that applied to the construction of contracts; in

relation to the former, much extrinsic material and in particular evidence of what is said in

Parliament may, in appropriate cases, be placed before a court. In B & P Constructions Mahoney

J.A. discussed the same problem; in construing a rather informal written contract Mahoney J.A.

indicated at p. 247 the range of matters, including prior discussions between the parties, which

his Honour thought could be considered in deciding the dispute. See also per Macrossan J (as

his Honour then was) in Walker Civil Engineering (Qld) Pty Ltd v. F A Pidgeon & Son Pty Ltd

(1986) 3 B.C.L. 345 at 353.

It might be noted that another apparent exception to the parol evidence rule is that

evidence of discussion between the parties may be let in to show the capacity in which a party

has contracted, for example whether on his own behalf or on behalf of a company, or as trustee:

Young v. Schuller (1883) 11 Q.B.D. 651, applied in re Interwest Hotels Pty Ltd (1993) 12

A.C.S.R. 78, especially at 89, 90. The latter decision was given on the basis that even where

there is no ambiguity on the face of the contract, i.e. where on the face of it there is no mention

of trusteeship, extrinsic evidence may be admitted to show that the true intention of the parties

was that one of them should contract as trustee.

In the present case, the primary judge commented adversely on the length of time the

hearing took; it appeared that side issues were vigorously pursued. But it does not appear to us

that careful application of the rules governing exceptions to the parol evidence rule need necessarily lead to the admission of a mass of extrinsic material, much of it having little to do

with the question at issue. Here, as it seems to us, the only exchange between the parties having

any significant bearing upon the intended meaning of "progress" is Exhibit 40, a single page

document accurately recording a conversation between the parties immediately preceding the

relevant contract and not disputed by the respondents; admission of such a document need not

have held the case up much. Where the contract is, as here, brief and elliptical and considerable

light can be thrown upon what the parties intended by admission of a preceding document

accurately recording the parties’ stated intentions, it is difficult to see any disadvantage or

injustice accruing from its reception or its consideration by the courts; in our opinion Exhibit 40

may properly be considered in determining the meaning of the word "progress" in Exhibit 1, as

relevant to the intended subject-matter of that element of the contract.

With or without reference to Exhibit 40, it can be deduced that the parties intended

"progress" in Exhibit 1 to connote that the transaction referred to, the "contemplated joint

venture", would move forward; the question which the judge had to answer was: how far

forward? The solution his Honour adopted was that it had to move at least as far as acquisition

of the land by the joint venture vehicle; as we have pointed out, the respondents may succeed

without any finding by this Court as to the degree of progress necessary to defeat the liability to

repay the money advanced.

But the fact that the case can be decided without determining that point creates a risk that

the lack of certainty in the judge’s construction may not be given sufficient notice. It has to be

said in favour of the appellant’s contention that, once one rejects the construction that the

transaction has been "progressed" if any significant amount of progress is made, the selection of a particular point well in the future as being the critical one has an appearance of arbitrariness.

The transaction could possibly be said to "progress" if the parties became bound by a formal

agreement, as in fact occurred; if one or both of them subsequently acted under the contract with

a view to taking the business forward, as in fact occurred; if the land contemplated were

acquired; if it were developed - for example by subdivision; if it were sold and the proceeds

divided. Of these possibilities, the judge has selected the acquisition of land as the minimal

standard, on the basis that until that happened "the joint venture was a hollow exercise". The

implication is that the parties could hardly have intended that the $162,000 advanced could be

kept by Allman unless the transaction had progressed so far as to give some solidity to the joint

venture.

Assuming the venture was to become profitable, the more it was advanced towards

completion the better for both parties and in particular the better for Northcorp; one can

understand that if Northcorp had been asked, about the time of the making of the agreement

constituted by Exhibit 1, whether it would prefer that the $162,000 be repayable if the joint

venture never acquired the land it might have answered in the affirmative.

But we know, not what might have happened, but what did happen; on the very day on

which Exhibit 1 came into existence, the question arose in discussion between the parties and no

such degree of progress as the judge postulated was contemplated; what was discussed, as

Exhibit 40 shows, was that the money should be repayable if a joint venture was not entered into.

And there is no suggestion that the negotiations were taken any further; after explaining that the

agreement about the $162,000 set out in Exhibit 40 "would have been as agreed through

discussion on the phone that day" - i.e. on 1 December 1988, Shephard was asked about Exhibit
1 by his counsel:

" Did you, in fact, cause to be prepared on Amex’s letterhead the document Exhibit 1 and have that faxed to Mr Crichlow and Mr Allanson on 1 December?-- Yes.

You then received back from them the fax simply executed by Allanson and Crichlow in the manner on the bottom right-hand corner on the same day?-- That is right.

Do you say that that embodies the agreement that you had reached on the telephone?-- Yes. "

Our opinion, then, is that the learned primary judge should, with the assistance of Exhibit

40, have read "progress" in Exhibit 1 as referring to progress to the point of having a joint venture

agreement made. But if Exhibit 40 is ignored, and the word "progress" did not refer to the mere

making of the joint venture agreement, there was still in our opinion sufficient evidence of steps

towards the implementations of the parties’ common intention, under the joint venture

arrangements, to constitute progress. Most importantly, Expocourt entered into an agreement to

purchase the land in question from Allman and took possession under that agreement; the

manager of the project then began to engage consultants to implement the venture.

What happened, ultimately, was of course that the venture did not proceed to fruition,

because as mentioned above the contract Expocourt had to buy the land was never completed.

There was some discussion before us, as there is in the reasons below, of allocation of blame for

this outcome, but it was not contended that Allman should be held liable on the basis that the

non-completion of the purchase by Expocourt was its fault.

The primary judge’s reasons appear to assume that it would not have been worthwhile for Northcorp to pay the $162,000 for any less progress than the acquisition of title by the joint venture vehicle. But that is by no means necessarily so. The point depends on how keen

Northcorp’s directors were to join in the venture; the making of a proper joint venture agreement

might have been thought quite enough advantage to Northcorp to warrant payment of $162,000.

But whatever might have been thought, what was in fact thought by the Northcorp director

involved is known, from Exhibit 40.

In summary, our view on this aspect of the case is that if Exhibit 40 can be used in

construing Exhibit 1, then the appeal must be allowed; but the same result follows if Exhibit 1

is read without reference to Exhibit 40, and on the assumption that the mere making of the joint

venture agreement would not be enough progress. On the latter basis one gives "transaction does

not progress" its ordinary meaning as requiring, not full implementation of the transaction, but

some significant degree of implementation, and that there was.

The conclusion at which we have arrived is enough to dispose of the appeal, by allowing

it; but there is as we have mentioned a second point and something should be said about it.

The appellant relied below, unsuccessfully, on an oral agreement of 5 December 1988,

as depriving the respondents of any rights they might otherwise have had in respect of the

$162,000. The matter was essentially one of credit for the primary judge and his Honour

considered the evidence carefully and in detail. But the appellant contends that the conclusion

arrived at was of a most improbable nature. The evidence showed that the $162,000 was

transferred by Amex in accordance with the agreement of 1 December 1988, but by a mistake on

Allman’s side the sum was not identified and Allman thought the money had not come. There

was a discussion on 5 December 1988 which Allanson said resulted in an agreement that the sum of $162,000 would become an out-and-out contribution to the joint venture expenses. That was

denied by Shephard and Dawes who said there was no discussion of the $162,000.

The principal criticism of his Honour’s conclusion is that when one has regard to what

led up to the discussions of 5 December 1988 it was rather unlikely that the fate of the $162,000

would not have been at least a topic for consideration. The appellant also puts forward some

lesser contentions against the judge’s conclusion, such as the fact that the judge accepted that

Allanson had tried to be truthful about what happened.

But there were rational bases for rejecting Allanson’s version, set out in detail in the

reasons. It is sufficient to exemplify them by referring to one only. This is that in written

submissions relating to the dispute which was tried below, filed in 1990 in the Supreme Court

of Western Australia, Allman argued its case relating to the $162,000 in some detail without

suggesting that the $162,000 was an out-and-out payment. The third contention on p. 4 of that

submission was:

" The advance was only to be treated as a loan to the second defendants if a joint

venture was not entered into ".

The second defendants were Allanson and Crichlow.

The onus being on Allman, it failed to satisfy the primary judge that the discussions on

5 December 1988 had the outcome it alleged; his Honour’s conclusion depended in part on the

impressions he had of the witnesses and should not be interfered with. Taking a broader view,

on the documentary evidence it would seem to us rather improbable that the parties came to such

an agreement as Allman alleged, on 5 December 1988. Our conclusion then is that, were it not

for the view we have taken as to the construction of Exhibit 1, we would have dismissed the appeal. But because we are of opinion that on the true construction of Exhibit 1, Allman was not

obliged, in the events which happened, to refund the $162,000, we would allow the appeal with

costs, set aside the judgment and orders below and order in lieu that the claims by Northcorp

Limited and Amex Corporation Pty Ltd be dismissed with costs, including the costs reserved by

the orders referred to in the judgment under appeal.