Penrith City Council v Robose Pty Ltd

[2002] NSWSC 599

CITATION:	Penrith City Council v Robose Pty Ltd [2002] NSWSC 599
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2393/02
HEARING DATE(S):	26 and 27 June, 2002
JUDGMENT DATE:	27 June 2002
PARTIES :	Penrith City Council - Plaintiff Robose Pty Ltd - Defendant
JUDGMENT OF:	Palmer J

COUNSEL :	J.B. Simpkins SC - Plaintiff R.G. Forster SC - Defendant
SOLICITORS:	Gadens Lawyers - Plaintiff Bowen & Gerathy - Defendant
CATCHWORDS:	CONTRACT - SALE OF LAND - INFORMAL CONTRACT - Council calls for tenders for purchase of land for development - tender states no binding contract until formal exchange - defendant developer is successful tenderer - defendant does not exchange contracts but proceeds with development application - whether parties evinced common intention that a binding contract would come into existence notwithstanding no formal exchange - ESTOPPEL - Whether developer had actual belief that binding contract existed. HELD: Conduct of parties did not evince intention to depart from the normal expectation of parties engaged in the purchase and sale of land that there would be no binding contract unless and until formal exchange of counterparts - developer did not actually believe that a binding contract existed prior to formal exchange.
CASES CITED:	Masters v Cameron (1954) 91 CLR 353
DECISION:	Declaration that no binding contract existed.

1    By a Summons filed on 23 April 2002, the Plaintiff seeks a declaration that no binding agreement for sale has come into existence between itself as vendor and the Defendant as purchaser of land situated at 62 Great Western Highway Kingswood (to which I will refer as "the Property"). Alternatively, the Summons seeks a declaration that if the Court does find that such an agreement for sale did come into existence, there should be a declaration that the agreement was terminated validly by the Plaintiff on or about 27 November 2001. At the heart of this controversy is the issue whether any contract for sale of the Property has ever come into existence. 2    The facts may be fairly briefly stated. On 1 November 1999 the Plaintiff called for tenders for the purchase of the Property. The tenders were to close on 10 December 1999. The Council issued to those interested a document containing the terms of the tender. Clauses 7, 13 and 17 of the tender are in the following terms:

“7. The offer may be accepted by the Vendor delivering notice of acceptance of the Tender to the Tenderer at the address shown on the Tender Form or to the fax number also shown on the form. Service shall be deemed to be effected when acknowledgement by the Tenderer’s fax machine is received or one (1) business day after being sent by prepaid post or delivery service. The Tenderer shall have ten (10) days to deliver a duly executed Contract to the Council along with the ten percent (10%) deposit required by the Contract and the Council shall have seven (7) days to return its duly executed counterpart.

13. If the Tenderer who is given notice under Clause 7 that their offer has been accepted fails to then deliver the Contract and deposit as required by this document the Council shall be entitled to then negotiate with any other Tenderer or any other person and be under no obligation to the Tenderer to whom the notice under Clause 7 was given.

17. Tenderers should note it is not Council’s intention to be bound until it has formally resolved to accept the Tenderer’s offer and sent notice of acceptance of the offer and Contracts have been exchanged in accordance with this document.”
3    On 9 December 1999, the Defendant submitted its tender to the Council. The tender was enclosed under cover of a letter dated 9 December 1999 in the following terms:

“Please find enclosed our offer in the sum of $1,178,000-00 and our tender form for the above.

This offer is subject to 38 or more sites being accommodated on the subject parcel of land and approved for construction.

Our price is negotiable and subject to design approval.”
4    The enclosed Form of Tender was in the following terms insofar as they are relevant:
“ROBOSE PTY LTD of 4 VICARS PLACE WETHERILL PARK Telephone No. 9756 0282 Fax No. 9756 0281 hereby offers to purchase from PENRITH CITY COUNCIL the property known as LOT 101 D.P. 876202 GREAT WESTERN HIGHWAY KINGSWOOD on the terms and conditions set out in the attached Contract for the sale of land for the purchase price of ONE MILLION ONE HUNDRED & SEVENTY EIGHT THOUSAND DOLLARS dollars ($1,178,000) and agrees that in the event of this offer being accepted it will deliver the executed Contract and deposit (10% of tendered purchase price) within ten (10) days of notice of the acceptance in accordance with the terms and conditions of the Contract for the sale of land. A Bank Cheque for One Thousand Dollars ($1,000) by way of Tender Deposit is attached.”
5    On 20 December 1999 the tenders which had been received by the Plaintiff were considered by it and a decision was deferred pending a further report. 6    On 7 February 2000 the Plaintiff resolved to accept the Defendant's tender. 7    On 8 February 2000 the Plaintiff sent a letter to the Defendant in the following terms:

“Further to our telephone conversation today, I wish to confirm that Council last night resolved to accept your tender for the purchase of the abovementioned land for the amount of $1,178,000. This is subject to you agreeing to amend your proposal to achieve improvements in the proposed development and your agreement to the imposition of an appropriate covenant on the land to guarantee that the land is developed in accordance with the approved development application.

In regard to further amendments to the proposed development, I informed Council that I had only just received a revised plan but indicated that further changes may be possible during the formulation of your development application.

Council has also agreed to give you vacant possession of the site upon exchange of contracts and authorise your company to lodge a formal development application. In this regard Council wants to see lodgment of that development application within eight (8) weeks of the date of this letter.

Accordingly, could you now instruct your architect to finalise all the necessary details to allow early lodgment of that development application. Your architect should consult Mr. Stephen Fryer (47 32 7725) of Council’s Development Advisory Unit during the course of that development application preparation.

In the meantime I would appreciate details of your Solicitor so that Council’s Legal Officer can arrange preparation of the contracts etc.”
That letter was signed by Mr Gary Dean, Corporate Manager, Operations.

8    On 16 February 2000, the Defendant notified the Plaintiff of the name of its solicitor and on 6 April 2000 the Plaintiff sent a draft contract for sale of the Property to the Defendant's solicitor, Ms Hughes. 9    On the next day, that is 7 April, Mr Frisoli who is the principal of the Defendant and of a number of associated companies, including a company called Yatooma Constructions Pty Ltd, sent to Ms Hughes a facsimile in the following terms:
“We have had an offer to purchase Kingswood (i.e. the Property) even though we may not have officially purchased it ourselves.
We need to prepare a contract for sale.
Please call me on Monday to discuss any conditions that may be appropriate etc.”
10    On 1 May 2000 Ms Hughes sent to Mr Frisoli by facsimile the Special Conditions of the contract which had been forwarded to her on 6 April. She informed Mr Frisoli that there were no problems with the Special Conditions. 11    Shortly after this conversation with Ms Hughes, Mr Frisoli spoke to Mr Gary Dean, Operations Manager of the Plaintiff. Mr Frisoli says – and there is no real dispute about the matter from the evidence – that he said to Mr Dean words to the effect: "My solicitor advises me that those amended conditions are acceptable” . Mr Dean, according to Mr Frisoli, merely said: "That's fine” . The Contract was never executed by the Defendant. Needless to say, there was never any formal exchange. 12    On 4 May 2000 the Defendant sent to Ms Hughes a facsimile relating to the Property in the following terms:

CONTRACT FOR SALE

VENDOR: PENRITH CITY COUNCIL

PURCHASER:

1. YATOOMA CONSTRUCTIONS ACN 081 087 667
4 VICARS PLACE WETHERILL PARK NSW 2164

2. EARTH LOOP PTY LTD ATF EARTH LOOP PTY LTD SUPERANNUATION FUND
17 GOODSIR ST ROZELLE NSW 2089 ACN 078 065 308

3. ROSTSUN CONSTRUCTIONS (NSW) PTY LTD
ACN 003 693 310 ATF THE DI CIANNI FAMILY TRUST

4. RINGA TRUST
DETAILS TO BE PROVIDED

ON SALE CONTRACT

VENDORS: AS ABOVE (1-4)

PURCHASE: I WILL ADVISE.

Special condition to be incorporated.”
13    On 5 May 2000, a Development Application was lodged on behalf of the Defendant in respect of the Property. 14    Thereafter the Defendant expended time, effort and money by itself and through its consultant in endeavouring to obtain Development Approval for its proposed subdivision of the Property. There were frequent discussions between the Defendant and its representatives and members of the Plaintiff's staff concerning various problems and difficulties which arose during the course of considering the Development Application. 15    There is no necessity to go into the detail of those efforts expended by the Defendant. There is no real contest about them; neither is there any contest that the Defendant has expended a substantial sum of money in attempting to obtain the Development Approval for the Property. 16    These efforts continued from approximately May 2000 until November 2001. 17    On 19 November 2001 the Plaintiff resolved to refuse the Development Application. There were a number of difficulties with the proposed development. It is not necessary to go into them in detail now. One of the reasons appears to have been that there was opposition from local residents to the development. There has been no suggestion that the refusal of the Development Application was motivated by bad faith on the part of the Plaintiff. 18    On 3 November 2000, some 12 months before the Development Application was finally refused, the Defendant had sent a facsimile to Ms Hughes relating to the Property in these terms:

“Further to our conversation, I advise as follows:

1. We wish to have the following parties on the contract between Penrith Council and ourselves added:

Earth Loop Pty Ltd ATF The Earth Loop Superannuation Fund
PO Box 1544 ROZELLE NSW 2039 ACN: 078 065 308

Ringa Trust
8 Cutler Ave ST MARYS NSW 2760

Rostsun Constructions (NSW) Pty Ltd
ATF The Di Cianni Family Trust
39 Kalang Road EDENSOR PARK NSW 2176
ACN: 003 693 310

Could you please advise if this is acceptable by Penrith Council.

2. If the above additions are acceptable to Council, we require these plus Robose Pty Ltd for the contract of sale.

3. Sale price is $43,000-00 per unit.

4. Delete Clause 15 from the contract for sale (see attached).

5. In the contract for sale there is an A4 site plan sketch of 38 units, this was our original design. After that we re-designed the site for 40 units for DA submission (attached is sketch we are working to at this stage with Council). Should we attach this sketch in the contract for sale?

Prior to exchanging with other side please advise regarding the above and we will issue further instructions.”
19    On 6 November 2000, the Defendant sent a further facsimile to Ms Hughes advising that one of the parties to be inserted on the contract between the Plaintiff and the Defendant would be Filomena Cignarella and Rena Gaudiosi instead of “Ringa Trust”. 20    As I have recorded, the Plaintiff resolved to refuse the Development Application on 19 November 2001. On 26 November 2001, the Plaintiff gave to the Defendant a notice of its determination to refuse the Development Application. On 27 November 2001, the Plaintiff wrote to the Defendant in the following terms:

“Council at its meeting of 19th November, 2001 has refused your Development Application for forty (40) medium density townhouses over the site. You will be informed in due course.

As part of the Tender documentation, a Condition of the sale to your Company was that development of this land must proceed in accordance with an approved Development Application for the whole of the land.

Condition 9 was subject to the approval of a Development Application for medium density housing. Should Council disapprove the Development Consent, then either party may terminate the Contract for Sale.

As well as the refusal of the Development Application, there is no legal commitment between your Company and Council. The Contract of Sale documents have never been exchanged nor has any option arrangement been discussed or agreed to.

Council accordingly believes that as the document was not executed there is no contractual relationship. If I am wrong about this and there is such a relationship, then I put you on Notice that pursuant to the closure [sic] in the agreement that the sale is terminated.”
21    On 29 January 2002, the Defendant's solicitors sent to the Plaintiff a copy of the contract for sale of the Property executed by the Defendant with a cheque for the deposit. On 4 February 2002 the Plaintiff returned the contract and the deposit. Thereafter the Defendant commenced proceedings in the Land and Environment Court, seeking a review of the refusal by the Plaintiff to approve the Development Application. 22    I have come to the conclusion that there has never been a binding contract between the parties for the sale of the Property. In giving my reasons for that conclusion, it will be convenient to follow the structure of Mr Forster's very clear and helpful submissions. 23    Mr Forster submits there are four issues for determination: first, whether a binding contract for sale of the Property ever came into existence; second, whether the Plaintiff is estopped from denying that a contract came into existence; third, if a contract did come into existence, whether there were terms implied in that contract as alleged in paragraphs 25 to 27 of the Defendant's Defence and, if so, whether those implied terms have been breached by the Plaintiff; fourth, if a contract has come into existence, whether as a matter of construction the Plaintiff can rely on Special Condition 9 of that contract in order to terminate it when an appeal to the Land and Environment Court is on foot. 24    Mr Forster concedes that if the conclusion of the Court is that a binding contract has never come into existence and there is no estoppel operating against the Plaintiff in that regard then issues 3 and 4 do not fall for determination. 25    I will deal with issues 1 and 2 first. The question is whether a binding contract came into existence. Mr Forster submits that, by the Plaintiff's letter of February 2000, the Plaintiff made an offer to the Defendant capable of immediate acceptance in terms. Mr Forster submits that that offer was accepted by the Defendant, firstly by Mr Frisoli in his conversation with Mr Dean in which Mr Frisoli said that the Special Conditions were fine and, secondly, by the conduct of the Defendant in thereafter proceeding with the expenditure of money and effort in order to obtain Development Approval of the Property. 26    It has been said repeatedly in the authorities that in a case of an agreement for sale of land, especially where the parties have solicitors acting for them, the natural expectation and intention of the parties will be taken to be that no binding contract comes into existence until counterparts have been formally exchanged. It would take cogent evidence indeed to satisfy the Court that the parties intended to be bound by some informal agreement. That is especially so in the case of a contract which is complex in its terms and in respect of which there is a large sum of money involved. That, of course, is the case here. 27    Mr Forster submits that what happened in the present case shows that there was an intention to be bound on the part of the parties prior to exchange of formal counterparts and that this is a case which falls into the second category of Masters v Cameron ((1954) 91 CLR 353). Whichever category of Masters v Cameron a transaction falls into is a matter for determination according to the intention of the parties as deduced from, and demonstrated by, the extrinsic evidence. In my opinion, it is transparently clear in this case that there was never any common intention of the parties that there be any binding agreement between them before there was a formal exchange of counterparts. My reasons for so concluding are as follows. 28    Firstly, I have regard to the matrix of circumstances in which the parties were dealing. A tender document had been promulgated by the Plaintiff which clearly indicated in Clauses 13 and 17 that it was not the Plaintiff's intention to be bound in any contract for the sale of land until two conditions had been fulfilled: first, a formal resolution to accept the tenderer’s offer and, second, the exchange of contracts in accordance with the tender. 29    That intention is also manifest in the Form of Tender which the Defendant was required to submit, and which the Defendant did in fact submit, to the Plaintiff when accepting the tender. The Form of Tender clearly contemplated the execution and delivery of formal counterparts of a contract. 30    Secondly, the letter of 8 February 2000 which the Plaintiff wrote to the Defendant accepting the tender refers to exchange of contracts and requests the Defendant to notify it of the Defendant's solicitors, in order that the Plaintiff's legal officer can arrange for preparation of the contract. 31    Thus far there is no indication whatsoever in the matrix of factual circumstances surrounding the contract that the intention of the parties was anything other than in accordance with the normal expectation that contracts would be formally exchanged before a binding agreement came into existence. Indeed, if anything, those circumstances reinforce, and reinforce strongly indeed, that expectation. 32    Thirdly, I take into consideration the fact that the Defendant is an experienced developer. According to the evidence, Mr Frisoli has been a developer for some years and has acquired in excess of a dozen properties for development. He has had the benefit of legal advice, no doubt, in the course of that experience. 33    Fourthly, in my view, the submission that the Plaintiff's letter of 8 February 2000 to the Defendant was an offer capable of acceptance in terms cannot be sustained. The suggestion that the Defendant's conduct thereafter in seeking Development Approval for the land constituted some form of acceptance, goes nowhere if there was no offer in the letter of February 2000 capable of acceptance, as I have held. 34    Finally, the conversation which Mr Frisoli alleges he had with Mr Dean goes no way at all to demonstrating an intention on the part of both the Plaintiff and the Defendant to depart from the previously indicated expectation that there would be no contract unless and until there was a formal exchange of counterparts. It is quite clear that all that Mr Frisoli was concerned about in his enquiries from Ms Hughes about the Special Conditions was whether the Special Conditions in themselves caused any peculiar problems or difficulties; that they did not is all he communicated to Mr Dean. The communication was certainly not expressly in terms to the effect that a contract was now in existence between the parties and that the parties would thereafter proceed on the basis they were formally bound. 35    In any event, there is no evidence, and I would not infer otherwise, to the effect that Mr Dean was authorised, or held out as authorised, by the Plaintiff to conclude any informal binding agreement for sale of land with anybody. 36    For those reasons, I am of the view that no binding contract came into existence between the parties by reason of anything done or said in consequence of the Plaintiff's letter of 8 February 2000. I am satisfied that the parties at all times demonstrated an intention that there be no binding contract in existence unless and until formal counterparts were exchanged. 37    I now deal briefly with the submission that despite the absence of formal exchange of counterparts of contract the Plaintiff is estopped from denying the existence of the contract by its conduct. 38    Mr Forster rightly identifies three essential elements for this claim. The first element is that the Defendant must have held at all relevant times a belief that notwithstanding the absence of exchange of contracts there was a binding agreement between the parties and that exchange was merely a formality. The second element is that in reliance upon that belief the Defendant expended money and acted to its detriment. The third element is that the Plaintiff was aware of the Defendant's belief, did not take any steps to dissuade the Defendant from its course, and otherwise induced and encouraged the Defendant to act in accordance with its belief. As Mr Forster says, there must be a degree of unconscionability in the Plaintiff's conduct in this respect. 39    I turn to the first of the elements, namely, whether the relevant belief was at any time held by the Defendant. The Defendant, as I have said, is controlled by Mr Frisoli and he alone has given evidence about the Defendant's belief. He has asserted in his evidence that, from the time in his conversation with Mr Dean onwards, he believed that there was a binding contract between the Plaintiff and the Defendant. 40    I cannot accept this evidence. Firstly, it is inherently improbable; secondly, it is contradicted by the communications which passed between himself and his solicitor, Ms Hughes. 41    Mr Frisoli’s evidence is improbable because he is, as I have noted, an experienced developer and at all relevant times during the course of this transaction he had the advice of his solicitor, Ms Hughes. I gather from her evidence this morning that she has acted for Mr Frisoli for some time prior to the transaction which is the subject of these proceedings. I infer that Mr Frisoli had Ms Hughes available to him to give him legal advice as and when required. Mr Frisoli concedes that his understanding was that normally a binding agreement for the sale of land does not come into existence until exchange of contracts. He admitted that he had read the terms of the tender promulgated by the Council and Clauses 13 and 17 to which I have referred. 42    He was asked why, after he had been notified that the Plaintiff had accepted the Defendant's tender, he did not immediately set about arranging for the exchange of the contracts which had been sent by the Plaintiff to the Defendant's solicitor in April. He gave this evidence:

“Q: When you learnt on or about April of 2000 that your solicitor had been sent a draft contract you understood, did you, to be the Council’s position it was not bound to sell the land absent the formal exchange of contracts.
A: I don’t think I gave it any thought at all at that time.

Q: No thought at all.
A: No, I don’t believe, I simply passed it on to my solicitor and I expected the matter to get resolved.

Q: If you gave it no thought, may I take it you had not altered any belief you have previously held about that matter?
A: I just accepted it, I think, the contract came through, and just busy, it is the DA, and I just did not think of anything else.

Q: Did not your solicitor say ‘Come on in and sign the contract’?
A: I don’t believe she did.

Q: Did you not say ‘I will make an appointment to come in and sign the contract’?
A: No.

Q: Did you not understand the reason you did nothing about that particular matter, you did not turn your mind to any exchange at that point of time?
A: I don’t know I did.

Q: When did you next turn your mind to the question of whether there needed to be a formal exchange of the contract in order to be binding on Council’s part to sell?
A: Sometime after the rejection.

HIS HONOUR: Q: Have I understood? When you were told that your solicitor had received the contract from the Council and that, as far as you could see, the conditions were no problem, why didn’t you immediately make arrangements for the formal exchange of the contract and payment of the deposit?
A: Because what in fact had happened, I think, that the contact got sent to me via post and I had a discussion with her earlier. I thought it was all okay, the contract was sent by post, put on my desk and, I think I may have just passed them on to my secretary and just basically forgot, I don’t think I have any other explanation.

Q: In short you say: Just forgot to attend to exchanging and attending to the deposit?
A: Normally a matter between solicitors. I mean it is not the first time I have exchanged, it is, normally leave it with my solicitor and normally pursued by my solicitor or the other party. In this case nothing happened.

SIMPKINS: Q: Does his Honour understand from that answer you gave a little while ago you forgot until you learned the Council rejected the development and was stating: Not a binding contract?
A: No further conversation.

Q: You forgot about this as being a matter of interest to you up until that time?
A: We were running along as if there was a contract, certainly thought there was a contract.”
43    Mr Frisoli's evidence that he simply forgot about the exchange of the contracts until the Plaintiff notified the Defendant that the Defendant's Development Application had been rejected in November 2001 is not only inherently improbable, it is contrary to the evidence I have drawn attention to, viz. the correspondence between Mr Frisoli's companies, including the Defendant, and Ms Hughes concerning the identity of possible parties to the contract between the Plaintiff and the Defendant in addition to the Defendant itself. 44    It is clear that from at least April 2000 the Defendant was contemplating on-selling the land to others or inducing others to come into the development of the land as co-purchasers. It seems quite clear that the Defendant fully appreciated that contracts had not been exchanged at all times up to and including 3 November 2000 when the Defendant sent a letter to Ms Hughes seeking to have parties added to the contract between the Plaintiff and the Defendant. I draw attention particularly to the paragraph numbered 2 in that letter: "If the above conditions are acceptable to Council, we require these [i.e. the additional purchasers] plus Robose Pty Ltd for the contracts of sale” . The letter also calls for the deletion of Clause 15 of the contract and requires advice as to whether an amended sketch for the development should be included in the contract for sale. 45    In my view it is perfectly clear from this chain of correspondence that Mr Frisoli well appreciated at all times during 2000 and 2001 that a contract for sale had not been executed between the Plaintiff and the Defendant and that, accordingly, there was no binding agreement between them for the sale of the land. 46    Mr Forster has said that Mr Frisoli's evidence should be accepted because he is not a lawyer and might not be expected to understand that a contract does not come into existence until exchange of formal counterparts. This is contrary to Mr Frisoli's understanding as conceded in his evidence. Further, the notion that there is no legally enforceable agreement in existence between a buyer and seller until exchange of contracts is not difficult to comprehend. Most people in the community who have bought or sold a house are made well aware of that circumstance. Bearing in mind Mr Frisoli's degree of sophistication as a property developer, I cannot accept that he was not perfectly well aware at all times from April 2000 onwards that there was no binding contract between himself and the Council. 47    Mr Forster asks rhetorically why would the Defendant expend a considerable amount of money in attempting to procure a Development Approval unless the Defendant actually believed that there was a binding contract in existence. It seems to me from the correspondence and the communications between the Defendant and Ms Hughes that a legitimate inference may be drawn that the Defendant was endeavouring to obtain a Development Application for the Property without itself having to expend, out of its own resources, the amount of the deposit or the total purchase price, and was seeking to defer the commitment to purchase until such time as a Development Approval was obtained and others could be more readily induced to participate in some form of joint venture or could be induced to purchase the Property with the benefit of a Development Approval, at a profit to the Defendant. 48    In these circumstances I am completely unable to accept that Mr Frisoli and thereby the Defendant actually entertained any belief from February 2000 onwards that there was a binding contract in existence between the Plaintiff and the Defendant despite the absence of formal exchange of the contracts. 49    Having reached that conclusion, it is, strictly speaking, unnecessary to deal with the other two elements in the claim for estoppel which Mr Forster has identified. Because there was no relevant belief on the part of the Defendant, there could be no expenditure by the Defendant in reliance upon that belief. Because there was no relevant belief, there could be no unconscionable advantage taken by the Plaintiff of that belief. 50    However, I should add for completeness that in my view there is no evidence at all which would support an assertion that the Plaintiff was aware that the Defendant was expending money on the Development Application in reliance on some belief that a binding contract existed. The Plaintiff would have been reasonably entitled to believe that the Defendant, an experienced developer with the benefit of legal advice, would know perfectly well without having to be told that there was no contract without a formal exchange. 51    In those circumstances, it is not necessary now for me to deal with the third and fourth issues identified by Mr Forster. Accordingly, the result is that there will be a declaration in the terms sought by the Plaintiff, and the Amended Cross Claim of the Defendant will be dismissed. There will be declaration in terms of prayer 1 in the Plaintiff's Summons filed 23 April 2002 and, as I have said, the Amended Cross Claim will be dismissed. 52    Mr Simpkins seeks orders for costs on an indemnity basis. He says that the Defence and Cross Claim of the Defendant were patently hopeless and should not have been pursued. While I have been able to reach a clear view as to the result of the case, I would not go so far as to say that the case as presented by the Defendant was mischievous to the extent that it should attract the disapprobation of an indemnity costs order. There was an arguable case – perhaps not a strong arguable case, definitely not a strong arguable case – but nevertheless an arguable case. As to the conduct of the proceedings themselves, I should say that both parties have conducted the proceedings with efficiency and preciseness. There is nothing whatsoever on the part of the Defendant that I would justify indemnity costs. I think the usual party/party costs order should apply. The Plaintiff's costs will be paid by the Defendant on that basis. Exhibits may be returned.
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Last Modified: 07/05/2002