Piggott & Anor v Cowen

[1988] HCATrans 55

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B71 of 1987

B e t w e e n -

KEITH PIGGOTT and BRIDGET PIGGOTT

Applicants

and

GEOFFREY NATHAN COWEN

First Respondent

and

DALLYN INVESTMENTS PTY LIMITED

Second Respondent

Application for special leave to

appeal

Piggott

MASON CJ

wil:SONJ

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO.CANBERRA

ON FRIDAY, 25 ~.ARCH 1988, AT 11.05 AM

Copyright in the High Court of Australia

C2T20/l/JM 1 25/3/88

MR I.D.F. CALLINAN, QC:  I appear with my learned friend,

MR P. LYONS for the applicant. (instructed by

Flower & Hart).

MR R.V. HANSON, QC:  I aopear with my learned friend,

MR M.R. BLAND for the respondent. (instructed

by Mcinnes, Wilcon and Jensen)

MR CALLINAN:  Your Honours, in this case the first respondent

had acted as the financial adviser and accountant
to the male applicant for a number of years before

the events with which the Court was particularly

concerned arose. Your Honours, Mr Justice McPherson,

who tried the case held at page 7 of the application

book that the relationship of professional financial

adviser and accountant had existed between the
applicant and the first respondent for those years.

Your Honours, the second respondent was the

first respondent's family company. In May 1980 the

male applicant wished to engage in a gold mining
venture in north Queensland and, for that purpose,

to acquire some mining leases being vacated by a

company, Dillingham. He sought the advice of

the first respondent in relation to the financing
of the purchase. He was also interested in involving

another client of the first respondent, a Mr Widjaja,

a Chinese gentlemen, in the project. The first

respondent charged the male applicant fees for

the provision of advice as to how the applicant might

finance the purchase.

(Continued on page 3)

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MR CALLINAN (continuing):	Your Honours, could I very briefly

refer to some pieces of evidence. The record was

supplemented by a third affidavit of Mr Meadows,

and two or three pages of transcript at the trial

were exhibited. Your Honours, that material is

exhibit Din a third affidavit of Mr Meadows sworn

on 24 March 1988. Do Your Honours have that?

It starts at page 196.

MASON CJ:	Yes.
MR CALLINAN:	Your Honours will see that at about line 5 it

was put to the accountant, the respondent, that he

had claimed an entitlement to fees and he said:

I claimed entitlement to be paid in

respect of all of those -

and included in all of those was the venture in

question. Your Honours, I do not think I need go

to it, but that was effectively reiterated at the other

pages which form part of that exhibit, page 199 and

page 212. That that was so also appears from the

memoranda of fees, which are exhibited, and in

particular, page 111 of the application book.

Your Honours, what happened then, the first respondent,

the accountant, approached Mr Widjaja about his being

involved in the matter and in the event an agreement

was made that the respondent accountant and

Mr Widjaja would, between them, take a 26 per cent

interest in the venture and the balance of the venture

would remain with the applicant.

Your Honours, the particular complaint that was

made at the trial and made on appeal was that that

interest was acquired, it was submitted, at an

undervalue, by the accountant financial adviser.

Your Honours, that really appeared in two places.

It appears, indeed, on the ordinary arithmetic, from

the reasons for judgment of His Honour Mr Justice McPherson

where His Honour refers to the cost of the venture -

at page 6 of the applications book - and for $100,000

the investors, who were Widjaja and the respondent,

were to receive a 26 per cent interest in the mining

venture and, indeed, what happened, Your Honours, was

that 16 per cent was taken by Widjaja for $80,000 which

meant that he obtained each percentage unit for $5000, and the acountant, by himself, that is the respondent,

by himself, and by a solicitor who held in trust some

shares for the accountant's father, took a 10 per cent

interest for $20,000, therefore acquiring each of the

units for $2000, rather than $5000.

TOOHEY J:  Mr Callinan, the trial judge seems to have approached

that aspect in this way, as saying perhaps that

might have been the source of some complaint by

Widjaja against Cowen in relation to their dealings,

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but that so far as the applicant was concerned, he

wanted $100,000 for which he was prepared to make

available the 26 per cent free carried interest,

and that that was really the beginning and end of

it, so far as the relationship between the applicant

and the first respondent was concerned.

MR CALLINAN:  That is exactly how the learned trial judge did

approach it, and that, in our submission, we would

submit, was the error because -

TOOHEY J:  Have you not got findings of fact pretty strongly

against you in that regard?

MR CALLINAN:  No, we would submit not, your Honour - inferences

from facts yes, but not findings of fact in respect

of those matters. Your Honours, it is incontestable

in this case that the acquisition price by the

financial adviser/accountant was much less than the

acquisition price by Widjaja. That was incontestable.

The second incontestable matter is that those dealings

between those people and the extent to which or the

price of which the accountant was acquiring the shares

were not disclosed to the applicant.

(Continued on page 5)

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MR CALLINAN (continuing):  Now, Your Honours, had it been

disclosed to him, we would submit that the true
value of the shares was $5QOO, each, then he would

not have permitted, we would submit, his own

financial advisor/accountant, or certainly he would

have been entitled to obtain independent advice

with respect to the acquisition by his financial

advisor accountant of shares at two-fifths the price

that was being paid by a third party. The fact,

we would submit, Your Honours, that a separate

duty may have been owed by the respondent to

Widjaja cannot and does not alter the obligations

which would have been owed by the respondent to

his own other client, the applican4 and - - -

TOOHEY J:  If you set up Widjaja's purchase price as if

it is the yardstick ~y which all other interests

are to measured, do you go so far as to say that a $100,000, looking at the totality sought to be

raised, was inadequate for the 26 per cent interest.

MR CALLINAN:	Yes, Your Honours, because that does not stand alone. There is another document and may
I refer Your Honours to it, it is exhibit E to
the third affidavit of Mr Meadows.  And this is
the respondent's own document - may I inquire
whether Your Honours have that document?

WILSON J: Is this the handwritten - - -

MR CALLINAN:	Yes.
MASON CJ:	Yes, we have that.
MR CALLINAN:	And Your Honours will see that next to the respondent's name G. Cowen, appears - this was an
admitted document of the respondent, original
proposal 4 per cent for $20,000, per unit of percentage $5000, adjusted 8 per cent for $20,000.
Then underneath that "FOC", free of charge. So
that the respondent, himself, in his own internal
ascertained I might say, conceded that he was
document, the date of which was never precisely
obtaining 6 units under that proposal free of
charge.  So that, Your Honours, there were really
two bases for saying that the price of $2000
per unit was an undervalue:  cne is by comparison
with the acquisition by Wadjaja, but of greater
importance, the concession - the admission
contained in his own handwriting by the respondent.

So that we would submit, Your Honours, that

there is no question that the acquisition was

at an undervalue, it was not contested that those

matters were not disclosed to the applicant. It

was an error of law for the learned trial judge

not to look to the question and the consequences of

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that non-disclosure. It was also an error of

law to consider the matter simply from the

standpoint of the obligation owed to Wadjaja. The

obligation was also owed to the applicant.

Your Honours, in relation to that question, we

submit that really there are two important

matters of general importance which arise for

consideration. One is, Your Honour, the

obligations of a professional advj ser/accountant,

a professional financial adviser and accountant

to his client, and we submit that it is not a

case that depends simply on its own facts. The

approach of the court below at first instance,

and the approach of the Full Court, was as if

the categories were closed and as if the duties

which might be owed by a fiduciary accountant

were, as a matter of principle, likely to be

different from those owed by a solicitor to his

client.

There are a number of indications to that effect in th~ judgment and we would submit, as

we say, that it is a matter of general importance.

It is not possible, Your Honours, to compartmentalize,

as it were, the different situations or the

different duties which were owed by the accountant

from time to time to the applicant. Your Honours,

once the fidvciary relationship exists, then we

would submit the proper application of the

principles requires that there be full disclosure

of all relevant matters.

(Continued on page 7)

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MR CALLINAN (continuing):  Your Honours, this particular

question, we would submit, has not been considered

by the High Court. Your Honours, DALY's case was

a particular case which turned on its own facts.

Your Honours, I think, have a reference to that

in 148 Commonwealth Law Reports. There is a

consideration of this sort of question in the Privy Council

in t1IdfASTER V BYfilJE, another case to which we referred Your Honours,

(1952) 1 All ER 1362. Your Honours, the duty of disclosure wed by

Canadian solicitor there to his clients is set

out at page 1369 in particular. Your Honours, that

was one of the transactions which was considered

by the court. The other transaction that was

considered by the court was a joint land venture,

described in the material as -

MASON CJ:  Before you pass away from the first transaction,

Mr Callinan, as I understand it the Full Court

was against you on the proposition that there was

a fudiciary relationship giving rise to a fudiciary

duty?

MR CALLINAN:	Yes.
MASON CJ:	It is always difficult to erect a question of

general principle when the issue is, "Is there

a fudiciary relationship? Is there a fudiciary

duty?" You will recall that in the judgments in

this Court in HOSPITAL PRODUCTS, I think a majority

of the members of this Court were at pains to point

out that no acceptable definition had emerged and

it seemed unlikely that one ever would. Therefore,

these question invariably depend upon close

examination of the facts and circumstances of the

particular case and this case looks a sui generis

case.

MR CALLINAN:	Your Honour, we are aware, of course, of the passages to which Your Honour referred, but
what we had in mind was the statement of His Honour
Mr Justice Connolly with which the other members
of the Full Court agreed.
MASON CJ:	The page?
MR CALLINAN:	Page 36 of the application book. After setting

out what His Honour the learned judge at first

instance had said His Honour went on to say that

a reference to Dr Finn's book could be added and

that about about point 8:

This passage derives from the judgment of

Dixon J., as he then was, in JOHNSON V BUTTRESS.

Paragraph 176 summarises the legal relationships

which are deemed to be ones of influence.

The principal relationships are solicitor

and client, parent and child, guardian and

ward, religious adviser and devotee, engaged

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couples, medical adviser and patient and, possibly, trustee and beneficiary. Apart from these categories, relationships of influence,

if alleged, must be proved as a matter of

fact.

We would submit, Your Honours, that that is an

unwarranted, with respect, closure of the categories

in.which the presumption does arise and should

arise.

TOOHEY J:  Mr Callinan, I think the difficulty you face

there is that the trial judge did not treat this

relationship as one in which fiduciary duties did

not arise, in fact, he specifically held that in

giving financial advise over a period of years

there was a fudiciary obligation owed by the first

respondent to the applicant. But he said in regard

to this particular transaction, it was initiated
by the applicant, initiated not merely for the purpose
of borrowing money but as a means of attracting

Mr Widjaja into the mining venture. So it was

very much a finding on fact and in no sense, I

think, can it be said that His Honour closed off
the relationship of being incapable of giving rise

to fudiciary obligations.

MR CALLINAN:  Your Honour, can I say two things in relation

to that, first of all to the findings of fact which

His Honour made. His Honour, we would respectfully

submit, erred in having made those findings of
fact and then having regarded that as the end of
the matter and not having looked to the question

whether a fudiciary duty none the less arose even

though the applicant initiated the proposal and

even though the applicant initiated it for two

reasons. His Honour seemed to think, with respect,

that because the proposal of the transaction was

initiated for two reasons and was initiated by

the applicant then, inevitably, no fudiciary

relationship could arise.

(Continued on page 9)

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MR CALLINAN (continuing): Your Honours, it was for that reason

that His Honour then went on, we would submit,
to approach the question of fiduciary duty in a

much narrower way than was warranted. And

Your Honours would not, at this stage, want me

to refer at all to the evidence, or of the evidence

in any detail, but it was undoubted that there

was no disclosure of those critical matters to
which I have referred Your Honours.

MASON CJ: Mr Callinan, you may have a point here, it is

not really the point that you have been urging

up to date, but one criticism that might be made

of Mr Justice Connolly's judgment, at page 36,
is that he seems to treat the law and the principles
with respect to a relationship of influence as

being decisive in relation to fiduciary relationship.

Now that comes about because in the previous

quotation from the passage of the judgment that
appears at the top of page 36, there is some reference

to the inter-relationship between fiduciary relationship

and relationship of influence. But, of course,

in law the two are distinct except to the extent

that they overlap and the principles that relate

to them have differences. Bu~ even conceding that

there may be an element of confusion in the judgment

at that point, you still come back to the proposition

that the existence or non-existence of a fiduciary

relationship, a fiduciary duty, depends on the

particular circumstances of the case.

MR CALLINAN:  Your Honours, yes, of course. The consideration

of that particular factual matter, if I can put

it that way, was, we would submit, very much influenced

by the approach of both courts to the sort of

question to which Your Honour the Chief Justice

has referred. In other words, it is impossible,

Your Honours, to get the facts right, we would

submit, or to identify what are the relevant facts

if one does not start, we would submit, from the

correct approach to the principles and the application

of those principles.

And we would submit, Your Honours, it was

for that reason, for example, that His Honour,

the learned judge at first instance, went off to

consider a matter which was not really relevant

to the issues before him, that is, the nature of the

duties owed to Widjaja. And there does seem,with

respect, to have been a tendency by the presiding

judge in the Full Court to treat the categories -

and this might be what Your Honour the Chief Justice

said to me in a different way -of presumed influence

as giving rise to different duties and different

obligations from those categories in which the

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fiduciary relationship is proved as a fact. And

we would submit that unless one corrects that matter

then the findings in relation to the facts are

influenced by that approach and error occurs.

Your Honours, could I mention something, briefly,

about the second principal transaction that fell

for consideration?

MASON CJ:	Yes.
MR CALLINAN:	That was a joint land venture an~ Your Honours,

1 have to concede that the evidence with respect

to undervalue there was not clear. It was our

contention, however, that there was evidence upon

which a finding of undervalue could, and should, have been made but, again, His Honour's approach

to the matter of the fiduciary obligations owed by the accountant to the applicant coloured the whole of his approach to that matter and, indeed,

it is virtually the same point, that is, as the

point that we raise on the first transaction.

However, there is a further point which does

give some considerable cause for concern. Your Honours,

could I just briefly refer you to some matters
of evidence.

(Continued on page 11)

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MR CALLINAN (continuing):  Your Honours, the joint land

venture was to be regulated by a deed drawn up,

I think, by the respondent himself which appears

at page 53 of the applications book.	And from
recital Bit appears that:

the Trustees -

who are my clients, the applicants -

agreed with Dallyn Investments -

who was a company controlled by the respondent -

and Roger Kent to buy the property in their

name for the use and benefit of all of them -

and my clients were to contribute 92,500 and the

respondent $22,500, and, Your Honours, the

arrangements were, as set out in paragraph 4 on

page 55, that - I am sorry, Your Honours, I should
go back a little earlier than that. Paragraph 1
on page 54:

The Trustees hold the property UPON TRUST ..... in the proportions set out in the schedule -

and I will refer Your Honours to the schedule shortly.

And then, paragraph 4 on page 55:

The parties hereto agree that if the sub-division envisaged by the plan drawing attached ..... cannot be carried out in its

entirety owing to requirement of Councils

and other competent authorities then they

will do everything in their power to

commission a sub-division -

as near as may be, in effect. Then paragraph 5:

The parties hereto envisage Roger Kent will

subdivide its area of land and develop the same for the purpose of sale at a profit -

Your Honours, the schedule is, in fact, the map,

or the drawing, which appears at page 58, the fold- out document, which purports to designate the areas to be held by the applicant, the areas to be held

by the respondent's interests and the area which

was to be subdivided. Your Honours, it was conceded

at the trial by Mr Hanson who appeared for the

respondent that	specific performance was
impossible.	And could I refer Your Honours to

page 20 of the applications book, at about point 1.

MASON CJ: That is because of lack of subdivision, is it?

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MR CALLINAN: Exactly, but then what happened - and I can

deal with it very shortly - His Honour held, at

first instance, that even though it could not be

effected - the joint purpose, as it were, could

not be effected -the land should continue to

be held as between the applicant and the respondent
as trustee by the applicant for those parties with
respect to the land which could, in fact, not be

subdivided. It followed from the concession

necessarily made by Mr Hanson that he was conceding

that it was impossible to effect that purpose,

that is, the subdivision.

That being so, we would submit, it was an

impossible practical result for the learned trial

judge to declare, as he did, that the land as to

one unsubdivisible portion, should be held on

behalf of the applicant, another portion held on
behalf of the respondent, or the respondent's

interest, and the third portion should be held

on behalf of the applicant. And we would submit

that the correct result, then, was that the parties

should be restored to their original position by

return of their contributions; that a declaration,

in the circumstances,was a declaration of the

futility and ought not to have been made and that

it was a futility stems, we would submit, from the concession made and necessarily made by my

learned friend,Mr Hanson,at the trial.

(Continued on page 13)

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TOOHEY J:  Mr Callinan, I had rather thought that the impossibility

of subdivision emerged after trial and before the

hearing in the Full Court.

MR CALLINAN:  Your Honours, that is really what we thought,

with respect, at the time because an attempt was

made to have fresh evidence introduced on the appeal

to demonstrate that this was so. But if one looks,

in fact, at page 20, which I have just read to

Your Honours, we would submit it inevitably follows from the concession,which was made by Mr Hanson, that

specific performance of the deed was impossible,

"was now out of the question". That appears at about

point 4.

So that, Your Honours, we do submit that there

are questions of general importance. We submit that

there are errors at law and indeed what has happened

in this case is that there has been a declaration made

which is, to all intents and purposes, a futility.

Those are our submissions, Your Honour.

MASON CJ: Thank you, Mr Callinan. Mr Hanson, we need trouble

you only on the last question. That is the question

that arises under the document, and it arises

specifically because it appears that you have conceded

that specific performance cannot be obtained in view

of the impossibility of subdivision.

MR HANSON:  Your Honours, the concession, from memory, was

directed to specific performance of the total

arrangement set out in the deed, and Your Honours

will observe - I think it is at this page of

Mr Justice McPherson's judgment - that there was a

company proposed to be used as a subdivision

vehicle for the balance of the land not taken personally

by Piggotts and the Cowens. And, from memory, the

concession was directed to that fact, that it was no

longer desired by the parties that this Roger Kent Pty

Ltd should go ahead and subdivide the balance of the

land.

TOOHEY J: Roger Kent was set up, I gather, for the purposes

of selling the lots, once subdivided. Is that right,

or not?

MR HANSON:  I think that appears from the deed itself, Your Honour.

The land was divided into three portions, or into shares to be held by three entities: Piggottson one

hand; Cowens on the other and then Roger Kent was to

subdivide and sell the balance.

TOOHEY J: What was the effect of the concession made by you,

Mr Hanson, that the applicants would in fact acquire

the share that Roger Kent would otherwise have held?

MR HANSON:  No. We ignored Roger Kent, Your Honour, and I

on that page, page 20, about point 5 of the page: think the judgment deals with that. In fact, it is

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In the circumstances, including the fact that

treproposal for joint subdivision and development

of the land will plainly not now proceed, it

would clearly be wrong to declare that the third

section is held on trust for Roger Kent. The

result is that that section of the land will,

like their own section, be held by the

Piggotts beneficially and free of any trusts

imposed by ex.11 -

which was the deed.

TOOHEY J:  I rather thought that is what I had put to you, perhaps in

a slightly different form, that the end result of

that would be that the only trust to arise by virtue

of a judgment of the court would be a trust in relation

to the first respondent's interests.

MR HANSON:  Yes, Your Honour, and that is all we sought and

Mr Justice McPherson deals with that on the previous

page, at page 19, in a different context. The

defendant suggested that the whole of the venture had

been abandoned, or rescinded and His Honour deals with

that commencing on page 18, second paragraph,

"repudiated" is the word, "repudiated or 'abandoned'

the deed".

(Continued on page 15)

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MR HANSON (continuing):  His Honour's response is at the

middle of page 19 that:

Termination of the agreement upon repudiation would not have the effect, without more, of

divesting accrued property rights of that

kind.

TOOHEY J: 

The end result, Mr Hanson, was that there was

a judgment of the court declaring that the applicants
held area A in trust for your client, is that right?

MR HANSON:  1 just do not know which letter. I think it

was A, Your Honour, yes. The one in red, 1 think

it is.

TOOHEY J:  And is that a declaration to which effect can

be given?

MR HANSON: ln our submission, yes, Your Honour.

TOOHEY J:  ln what way?

MR HANSON: It may still be possible to effect a subdivision

to give effect to portions A and B - give effect

to that part of the deed. The Piggotts are to

take Band the Cowans are to take A.

TOOHEY J: And if that does not prove possible, how would

the interests of the parties be adjusted on sale?

MR HANSON:  There would be a petition for sale and division

of the proceeds according to an equity action for

petition.

TOOHEY J:  You mean based on the relative values of the interests

of the parties under the trustee?

MR RANSON:  Yes, Your Honours. I think this was dealt with

by Mr Justice Connolly in the concluding passages

of his judgment at page 41.	He describes it, 1
thin~ as a classic case or a suitable case for

partition.

TOOHEY J: lt is at the end of page 41.

MR HANSON:	"A classic case for sale in lieu of partition."
WILSON J:	And that accommodates the portion numbered C

as well.

MR HANSON: It would have to, I think, Your Honour.

TOOHEY J: But, it would only need to accommodate it in the

sense that there is a declaration of trust in regard to area marked A, otherwise the court has not spoken

as to the balance of the land. Save by implication

it belongs to Mr Callinan's clients beneficially.

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MR HANSON:	Yes, as I sai~ we ignored the balance of the land and sought no relief regarding that land.
TOOHEY J:	One could see there could be problems of how you would value interest for the purposes of the
sale of the entirety but that is no doubt a matter
of mechanics and valuation.

MR HANSON:  Yes, Your Honour. The whole case does raise

difficulties but if we confine ourselves to what

was sought in the pleadings and the orders that

were made, there really is no difficulty. There

would be difficulties if it were sought to give

effect to the deed in toto. It is a curious action

in that the third party to the deed was no party

to the action. You have a declaration concerning

the other two parties to the deed only and their

interests under the deed.

It is, as Mr Justice Connolly said - it may

not be possible to subdivide but there is no evidence

that subdivision cannot be achieved. So if the

case is confined to what the plaintiff, who is our

client, soµght and whatwas declared in his favour,

there really is no problem. If there is nothing

else that Your Honours would like to hear from

us on

MASON CJ: Thank you, Mr Ranson.	Yes, Mr Callinan.
MR CALLINAN:	Your Honours, with respect, my learned friend's

submissions overlook paragraph 4 at page 55 of

the deed. Now that paragraph does not speak of

anything other than a subdivision in terms of the

design which forms part of the deed:

The parties hereto agree that if the sub-division

envisaged by the plan drawing attached initialled

by the parties hereto cannot be carried out

in its entirety ..... then they will do everything

in their power to commission a sub-division

of the land as nearly as possible to the said

plan.

(Continued on page 17)

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MR CALLINAN (continuing:  Your Honours, the concession

inevitably means that a subdivision in accordance

with the plan in its entirely or indeed in anyway

substantially like it is impossible. Now that

being so, it was not open for the learned trial

judge to make a declaration as if only part

of the deed had to be considered. It is plainly,

in our respectful submission, erroneous. The

second matter in relation to my learned friend's

submissions is this: the learned presiding
judge in the Full Court treated the matter of

partition as a simple matter upon the basis of evaluation which he purported to construe. In

doing that he deducted from the value of

the land and improvements a value for the improvements

and then purported to treat each and every

square metre of the land as being of equal value.

Now there is no evidence at all before the Court

to that effect. And, indeed, it would be rather

unlikely that the back land, as it were, would

have the same value, for example, as the front land.

So that His Honour's whole approach, we

would submit, with which their other Honours on

the court agreed, is erroneous.

TOOHEY J: But, Mr Callinan, that exercise was not done for

the purpose of determining the relative interest

of the part•ies on partition or sale, but rather

to meet the argument that there had been an

undervalue, an undervalue as far as the respondent

is concerned?

MR CALLINAN:  Yes, of course, with respect, I accept that

Your Honour. I only refer to it because of

the way in which my learned friend dealt with it.

I do not for a moment, with respect, dispute that

that was the approach of the learned presiding
judge. But my learned friend seemed to refer

to that for the basis of indicating that a

partition might readily be undertaken.	We would
submit that it just is not open, when there is

a concession that specific performance of an

agreement is not possible, for the ourt in effect
to order specific performance in part of the

agreement, because that is in effect what His Honour

has done. By making the declarations that he

did, declarations about which my learned friend
is very guarded, in respect of which he says, it

may be that a subdivision is not possible.	We
would submit that, Your Honours, it is an

appropriate case and unless there is anything

further,I cannot add anything, Your Honour.

MASON CJ:  Thank you, Mr Callinan. The outcome of the

principal questions sought to be raised in the

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Piggott

proposed appeal depends upon the particular

facts and circumstances of this case. And they

include findings of fact which have been made

by the courts below, findings that depend partly

on an assessment of credibility. In that respect,

we do not regard the present case as one which

is a suitable vehicle for the ventilation of

any question of general principle. There is

making of this declaration was attended with

another question sought to be raised and that
relates to the making of a declaration of

trust of land said to be incapable of subdivision.

sufficient doubt to justify the grant of special

leave to appeal. In those circumstances the

application for special leave to appeal is

refused.

MR HANSON:  We would ask for costs Your Honours.

MASON CJ: Yes, you cannot oppose that, can you, Mr Callinan?

MR CALLINAN:	No, Your Honours.
MASON CJ:	The application is refused with costs.

AT 11.48 PM THE COURT WAS ADJOURNED SINE DIE

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