Ramsey v Vogler

[2000] NSWCA 260

CITATION:	Ramsey & Ors v Vogler [2000] NSWCA 260
FILE NUMBER(S):	CA 40197/99
HEARING DATE(S):	4 September 2000
JUDGMENT DATE:	13 October 2000
PARTIES :	Leicester Denis Ramsey (First Appellant) Kim Sue-Ellen Ramsey (Second Appellant) Welcome Waggon of Australia (NSW) Pty Limited ACN 068 767 233 (Third Appellant) Juanita Kay Vogler (Respondent)
JUDGMENT OF:	Mason P at 1; Stein JA at 2; Heydon JA at 52

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	EQ 1747/96
LOWER COURT JUDICIAL OFFICER :	Bryson J

COUNSEL:	P E King (Appellants) In Person (Respondent)
SOLICITORS:	P E King (Appellants) n/a (Respondent)
CATCHWORDS:	AGENCY - false representations - vicarious liabilty - agent acting within course of authority from principal - misleading and deceptive conduct - representations by telephone and post from Queensland received in New South Wales - whether conduct in New South Wales - D
LEGISLATION CITED:	Fair Trading Act 1987, ss 42, 68, 70(4)
CASES CITED:	Credit Lyonnais NV v ECGD [2000] 1 AC 486 Diamond v Bank of London & Montreal Ltd [1979] 1 QB 333 Distillers Co v Thompson [1971] AC 458 Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485 Strike v Dive Queensland Inc (1998) ATPR 41 - 605 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
DECISION:	See para 51 for orders

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40197/99
EQ 1747/96
MASON P
STEIN JA
HEYDON JA

Friday, 13 October 2000

Leicester Denis RAMSEY & ORS v Juanita Kay VOGLER

Background

In the Supreme Court Leicester Ramsey, his wife Kim and a company they control, the Welcome Waggon of Australia (NSW) Pty Ltd (the plaintiffs), sued Juanita Vogler and John Davies. They sought a declaration that an agreement between the company and Ms Vogler was void and that the $70,000 paid under the agreement to Ms Vogler be repaid to them. By the agreement Ms Vogler sold to the company a business system for the operation in NSW of a greeting card service. The plaintiffs claimed that false representations made to them by Ms Vogler and Mr Davies had induced them into the agreement. Breaches of the Fair Trading Act 1987 (NSW) were also claimed.

At first instance

His Honour found that the conduct complained of took place in Queensland and the Fair Trading Act (NSW) had no extra-territorial effect. His Honour found that Mr Davies had made fraudulent representations which induced the execution of the agreement. There was no finding on the responsibility of Ms Vogler, as principal, for her agent, Mr Davies. Bryson J directed an inquiry as to damages by the Master. Amongst the orders made in his Honour’s judgment on costs was an order that Mr Davies pay Mr Ramsey’s costs of the proceedings. The appellant has been unable to locate Mr Davies.

The appeal

Mr Ramsey appeals against Ms Vogler as sole respondent. The appellant submits that his Honour was in error in characterising the conduct of Ms Vogler and Mr Davies as having occurred in Queensland. Second, assuming his Honour was correct to characterise the conduct as having occurred in Queensland, he was in error in finding that the Fair Trading Act (NSW) did not confer a remedy on Mr Ramsey against Ms Vogler. Third, his Honour should have found that Ms Vogler, as principal, was vicariously liable in respect of the fraudulent representations made by her agent, Mr Davies.

Held (Stein JA, Mason P and Heydon JA agreeing)

The false representations made by Mr Davies were made within the course of his authority from Ms Vogler. She is vicariously liable.
Credit Lyonnais NV v ECGD [2000] 1 AC 486 applied.

Telephone conversations of Mr Davies speaking from Queensland to Mr Ramsey in NSW and the dispatch of several letters by post from Queensland to Mr Ramsey in NSW constituted conduct in NSW for the purpose of the Fair Trading Act (NSW). The communications were received in, and were intended to be acted on, in NSW. Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485; Sydbank Soenderjylland A/S Bannerton Holdings Pty Ltd (1996) 68 FCR 539 applied.

Orders (Stein JA, Mason P and Heydon JA agreeing)

1. Appeal allowed.

2. Set aside Order 3 made by Bryson J on 26 February 1999.

3. In lieu thereof, give judgment for the first appellant, Leicester Denis Ramsey, against the respondent, Juanita Kay Vogler, for damages and interest to be assessed.

4. Order that, unless within 21 days the respondent gives notice by letter in writing to the solicitors for the first appellant that she contests the assessment of damages by Master McLaughlin of 6 July 1999, judgment may be entered for the first appellant against the respondent in the sum of $106,309.75 together with interest in accordance with the Supreme Court Practice Note, calculated to the date of these Orders.

5. Order that, in the event that the respondent gives notice by letter in accordance with Order 4, an inquiry be held before a Master to ascertain and certify the amount of damages and interest for which judgment should be entered, and direct that a judgment should be entered, and direct that a judgment be entered in accordance with the Master’s certificate.

6. Order that the respondent pay the first appellant’s costs of the proceedings in the Equity Division of the Court and of this appeal.

OoO

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40197/99
EQ 1747/96
MASON P
STEIN JA
HEYDON JA

Friday, 13 October 2000

Leicester Denis RAMSEY & ORS v Juanita Kay VOGLER
JUDGMENT

1    MASON P: I agree with Stein JA. 2    STEIN JA:

Introduction

3    By their Statement of Claim Leicester Denis Ramsey, his wife, Kim Sue-Ellen Ramsey and a company they control, Welcome Waggon of Australia (NSW) Pty Ltd, (the company) sued Juanita Kay Vogler and John Davies. The relief sought included a declaration that an agreement dated 24 March 1995 between the company and Ms Vogler was void, and that the sum of $70,000 paid under the agreement to Ms Vogler be repaid to the plaintiffs. The defendants denied the claim of the plaintiffs and cross-claimed for the sum of $20,000, being the unpaid portion of the purchase price of $90,000. I will refer to the pleadings in more detail later. 4    By the agreement Ms Vogler sold to the company a business system for the operation in New South Wales of a greeting card service called the Welcome Waggon of Australia and Australian Greeting Service.

Judgment at first instance

5    Bryson J found that neither Mrs Ramsey nor the company were entitled to a remedy and this finding is not contested on the appeal. His Honour further found that the conduct Mr Ramsey complained of took place in Queensland and that the Fair Trading Act 1987 (NSW) (the Act) had no extra-territorial effect. This meant that the claims under the statute against Ms Vogler and Mr Davies failed. However, the plaintiffs had also alleged that Mr Davies had made fraudulent representations which induced the execution of the agreement. Bryson J found this proven and directed an inquiry as to damages. On the cross-claim, his Honour gave judgment for the cross-claimant, Ms Vogler, against Welcome Waggon of Australia (NSW) Pty Ltd for $20,000. This is also not challenged on appeal. 6 On 6 July 1999 Master McLaughlin assessed the damages which Mr Ramsey was entitled to receive from Mr Davies at $106,309.75, together with interest of $31,429. On 8 February 2000 his Honour made orders as to costs. Amongst other orders, he ordered Mr Davies to pay Mr Ramsey’s costs of the proceedings. The appellant has been unable to locate Mr Davies.

The appeal

7    Mr Ramsey appeals naming Ms Vogler as the sole respondent. The appellant raises three issues. First, was his Honour in error when he characterised the conduct of Ms Vogler and Mr Davies as having occurred in Queensland? Second, was his Honour in error in finding that the Act did not confer a remedy on Mr Ramsey against Ms Vogler, assuming his Honour was correct to characterise the conduct as having occurred in Queensland? Third, whether his Honour should have found that Ms Vogler, as principal, was vicariously liable in respect of the fraudulent representations made by her agent, Mr Davies. 8    If the last mentioned issue is found against Ms Vogler, it will be strictly unnecessary to address the issues concerning the Fair Trading Act (NSW), in particular the issue of its extra-territorial application.

The principal/agent relationship

9    His Honour found that in his communications with Mr Ramsey, Mr Davies was acting within the general authority conferred on him by Ms Vogler, his principal. However, in concluding that Mr Davies made fraudulent representations to Mr Ramsey, his Honour did not make any finding as to the responsibility of his principal, Ms Vogler. It seems that he simply did not address the issue. 10    The only reference to the question is to be found in his Honour’s judgment on costs, almost a year later, in which he said that it was Mr Davies’ use and abuse of Ms Vogler’s authority which caused the litigation. However, this judgment also acknowledged that Mr Davies, in committing the fraudulent conduct, was acting in Ms Vogler’s interest and within the general terms of the express agency she had conferred on him, although it did not, in its terms, extend to committing frauds. 11    At the hearing of the appeal Mr Peter King of counsel appeared for the appellant. Although Ms Vogler filed written submissions prepared by her solicitor, the solicitor ceased to act and Ms Vogler appeared for herself.

The Statement of Claim

12    It is first necessary to examine the pleadings, which have their curiosity. The Statement of Claim alleges that Ms Vogler traded as and owned the Australia-wide rights to the Welcome Waggon of Australia and Australian Greeting Service. She and the second defendant, Mr Davies, advertised for sale the sole rights to the business in New South Wales. The plaintiffs responded to the advertisement in the Sydney Morning Herald. A number of representations were made by each of the defendants to induce the plaintiffs to buy the business. All of the representations were false. The plaintiffs relied on the representations and entered into an agreement on 24 March 1995 to purchase the New South Wales rights to the business for $90,000. The sum of $70,000 was to be paid on or before that date and the balance by 31 March 1996. Breaches of the Fair Trading Act (NSW) were alleged. 13 Paragraph 11 of the Statement of Claim pleads that Mr Davies was the agent of Ms Vogler in relation to the sale of the business. He is alleged to have made four false representations which induced the sale (paras 12 and 13). 14 It is important to note that representations in paras 12(c) and (d) alleged against Mr Davies are virtually identical to the representations in paras 6(h) and (i) alleged against Ms Vogler. Paragraph 16 of the Statement of Claim characterises the conduct of Mr Davies as ‘fraudulent’. The relevant representations alleged in para 12 are:

(c) That in December 1994 in Melbourne, three shopping malls had agreed to commence advertising/sponsoring and the call rates were $15, $15 and $17 respectively.
(d) That the business provided a genuine opportunity to establish a substantial cash flow and at the same time obtain a return for franchising/selling areas throughout New South Wales.

15    His Honour found that the representations alleged in paras 12(c) and (d) were made by Mr Davies and that they were fraudulent. It was on this basis that he found for Mr Ramsey against Mr Davies and ordered the inquiry into damages. 16    In relation to the representation in para 12(c) Bryson J said:

In my finding it appears from Mr Davies’ own evidence that the statement “ in Melbourne last month three shopping malls agreed to commence advertising/sponsoring and the call rates were $15, $15 and $17 respectively ” was false to his actual knowledge. Attributing the events to “ last month ” that is to December 1994 was not of much significance but had some significance for its suggestion of immediacy and progress associated with obtaining three shopping malls in a month, and gave some false colour to the statement. It is quite clear from his own evidence that he knew that it was not true that three shopping malls had agreed to commence advertising/sponsoring. The statement related to a material matter and Mr Ramsey had regard to it.

17    As to the representation in para 12(d) his Honour said that it was first to be found in the information furnished on 21 January 1995 but was renewed on 23 January 1995 with figures. These were, according to his Honour, projections which were ‘obviously very optimistic’. Mr Ramsey may not have taken them seriously. However, the letter from Mr Davies of 9 February 1995 furnished much more extensive calculations, described as ‘completed cashflow statements’. His Honour examined the contents of the letter and the cashflow projections. His Honour said:

Given their source and the statements in the letter of 9 February 1995 the cashflow statements and calculation schedules could only have been understood by their recipient as intended to show how there was, as earlier expressly represented, a genuine opportunity to establish a substantial cashflow and obtain a return for franchising and selling areas, and that this demonstration was based on the experience, including the Queensland experience, of the vendor. There was no other impression which it could reasonably have produced; in particular it could not have been understood as a product of the imagination unrelated to any experience, or as a set of good figures intended to give comfort to Mr Ramsey’s bank but otherwise not of significance. Overall the communications which led to these documents and the documents themselves conveyed, in a clear way, that the results depicted were reasonably achievable by operating the Business System, and that there was a genuine opportunity to establish the cashflow which they illustrated.

18    His Honour observed that the projections had ‘no imaginable relation to actual experience of Mrs Vogler in conducting the business in Queensland’. They also bore no relation at all to the experience of a Victorian franchisee, Mrs Kannipian. 19    According to his Honour, the cashflow projections were:

… altogether fantastic; they had no actual relation to any experience and any appraisal of actual experience would demonstrate, to any honest person considering the matter reasonably, that Mr Davies’ projection could not realistically be achieved in any circumstance.

20    Bryson J found that the representations in para 12(c) and (d) were untrue to the knowledge of Mr Davies. The representations were fraudulent and were material to and acted on by Mr Ramsey.

The defences filed

21    The defence filed was a joint one and included the defences of both defendants. Indeed, the same solicitor and counsel acted for both defendants at the trial. 22    It is of note that Ms Vogler pleaded to the whole Statement of Claim including that concerning allegations against Mr Davies. She did not admit para 11 whereas Mr Davies did admit that he was the agent and Ms Vogler, his principal. There is however no doubt that Ms Vogler appointed Mr Davies as her agent to market the sale of the business. She did this in writing on 19 April 1994 and the document became Exhibit G. The agreement provides that the sale proceeds be divided equally between Ms Vogler and Mr Davies, the latter to receive 50% as his commission. 23    Ms Vogler’s defence denied any misrepresentations were made by her which induced the plaintiffs to enter into the agreement. Paragraph 11 of her defence states:

Further and/or in the alternative the First Defendant states that if any representations were made by her or her servants or agents regarding the said business concept such representations were known by the Plaintiffs to be such as … [Emphasis added]

24    The pleading raised other defences including that Queensland law applied, and by implication, New South Wales law did not apply. 25    The defence of Mr Davies denied any false or fraudulent representations. 26    Inelegantly drawn as the Statement of Claim is, it is apparent that the plaintiffs were alleging that, insofar as representations were made by Mr Davies, he was making them as agent for his principal, Ms Vogler. On the evidence called the plaintiffs did not allege that Ms Vogler personally made the representations set forth in paras 6(h) and (i), rather that these were made by Mr Davies (see paras 12(c) and (d)). It is plain however that the plaintiffs were alleging that they were made by him as Ms Vogler’s agent. His Honour found that in making the representations to Mr Ramsey, Mr Davies was acting within his authority as the general agent for Ms Vogler. As I have said, Exhibit G dictated this course. So did the way the trial was conducted. 27    Ms Vogler gave oral evidence in which she expressly referred to Mr Davies as the agent and that she had appointed him as the agent for sale and marketing of the business. In cross-examination she agreed that she was aware that Mr Davies gave Mr Ramsey projected cashflows for the business in New South Wales and that she did not look at them. 28    Further, Ms Vogler accepted that she left the selling to Mr Davies, repeatedly referring to his expertise, and that she adopted what he did in the selling. Mr Davies indicated that material used by him to market the business to the plaintiffs came from Ms Vogler. In some respects the evidence of Ms Vogler confirmed this. 29    Moreover, no argument was advanced at the trial to the effect that Mr Davies was not Ms Vogler’s agent or, alternatively, that Mr Davies exceeded his authority. The respondent has provided the Court with the written submissions of the defendants at the trial. They raise no issue disputing the agency. Rather they argue that the defendants were not liable for a variety of other reasons. 30    As I have recounted, his Honour found that the representations in paras 12(c) and (d) were falsely made to the knowledge of Mr Davies. 31    In effect, his Honour found that Mr Davies told lies to Mr Ramsey to cause the plaintiffs to buy the business. In making the false representations, Mr Davies was acting within the authority conferred on him by Ms Vogler. She received the moneys paid by the plaintiffs under the agreement. Why then should she not be held to be vicariously liable? 32    In Credit Lyonnais NV v ECGD [2000] 1 AC 486 at 494 Lord Woolf MR, as he then was, addressed the issue of vicarious liability saying that the general approach was clear beyond peradventure. He cited Lord Macnaghten in Lloyd v Grace, Smith & Co [1912] AC 716 at 737, who referred to Blackburn J in McGowan & Co v Dyer (1873) LR 8 QB 141, the latter reflecting a much approved statement in Story on Agency. 33    After quoting from Blackburn J, Lord Woolf said at 494:

This statement makes clear the principle on which vicarious liability depends. It is that the wrong of the servant or agent for which the master or principal is liable is one committed in the case of a servant in the course of his employment, and in the case of an agent in the course of his authority. It is fundamental to the whole approach to vicarious liability that an employer or principal should not be liable for acts of the servant or agent which are not performed within this limitation.

34    It is apparent that the false representations made by Mr Davies were made within the course of his authority from Ms Vogler. There is no evidence to the contrary. Had his Honour addressed the question of vicarious liability when he gave judgment, he would have been bound to find that Ms Vogler was vicariously liable for the false representations of her agent, given the finding that Mr Davies was acting within his general authority when making the representations, and the evidence generally. The representations were clearly made in the course of Mr Davies’ authority from Ms Vogler. The remark by his Honour when considering costs, that Mr Davies had abused his authority, was made in the context of determining costs and not liability, which he had decided almost one year earlier. In any event, the judgment on costs acknowledged that in committing the fraud Mr Davies acted in Ms Vogler’s interest and within the general terms of his express authority. 35    It follows in my view that his Honour was wrong to give judgment for Ms Vogler on the plaintiffs’ claim. He should have given judgment for the appellant Mr Ramsey, against the first defendant/respondent Ms Vogler, for damages and interest to be assessed.

Where did the conduct occur?

36    I turn to the question of whether the Fair Trading Act (NSW) applies. As I have said, it is strictly unnecessary to determine this issue since I have found that the respondent is liable for the fraudulent representations of her agent Mr Davies. However, I would wish to make some observations since it seems to me that his Honour’s approach was in error. Bryson J said that so far as the statutory counts were concerned, it was necessary to make a finding about the place of the conduct and the making of the representations. The test was, where in substance did the conduct occur or were the representations made? His Honour concluded:

Everything relevant which they did they did in Queensland, and this is no less so because they used postal or electronic means which ensured that someone in New South Wales received their communications. If attention is maintained on their conduct and their representations it should be concluded that the location of the conduct and representations was in Queensland.

37    This lead his Honour to find that Ms Vogler did not engage in any conduct or make any representation to which the NSW Act applied, either herself or by Mr Davies. Nor, said his Honour, did Mr Davies.
38    However, his Honour’s conclusion as to the place of the conduct and representations overlooked a significant line of authority which it appears was not brought to his attention. 39    In Distillers Co v Thompson [1971] AC 458 at 468 the Privy Council said that the correct approach is to look at the events constituting the tort and ask, where in substance the cause of action arose. 40 Diamond v Bank of London & Montreal Ltd [1979] 1 QB 333 concerned fraudulent and negligent misrepresentations made by telephone and telex in Nassau to Mr Diamond in London. Donaldson J had held that the tort of fraudulent misrepresentation was committed in Nassau when the telexes were sent and from where the representator spoke on the telephone. The Court of Appeal disagreed. Lord Denning MR, with whom in separate judgments, Stephenson LJ and Shaw LJ agreed, said at 345 - 346:

It seems to me that in the case of fraudulent misrepresentation, when it is made by telephone or by telex, as it was here, the tort is committed at the place where the message is received - wherever it is heard on the telephone by the receiver or tapped out by the telex machine in the receiver’s office. It was so held in Canada in Original Blouse Co Ltd v Bruck Mills Ltd (1963) 42 D.L.R. (2d) 174. The judge there said that when a communication is made by telephone or by telex, it is to be regarded in the same way as a letter sent by hand or a message sent by word of mouth by a messenger to the recipient. In such a case there could be no doubt that the fraudulent misrepresentation was made at the point where it was received and where it was acted upon.

41    In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567 - 8 Mason CJ, Deane, Dawson and Gaudron JJ noted that:

In some cases an act passes across space or time before it is completed. Communicating by letter, telephone, telex and the like provide examples. In Diamond v Bank of London & Montreal Lord Denning MR stated that a representation or a statement effected by telephone or telex takes place “where the message is received - wherever it is heard on the telephone by the receiver or tapped out by the telex machine in the receiver’s office”. In the view of Stephenson LJ the situation was like the publication of a defamation or the act charged as an offence in Director of Public Prosecutions v Stonehouse in that although initiated outside the country it “operates on persons and property in this country”.

42    The members of the Court added:

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon.

43    Diamond was applied by French J in Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485 at 493. His Honour accepted that the making of representations by telephone and facsimile from outside Australia communicated to Paper Products within Australia constituted conduct by Tomlinsons in this country for the purposes of the Trade Practices Act 1974. 44 In Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 547 - 548 the Full Federal Court applied Diamond and Paper Products. After reference to Voth (including its reference to Distillers) the Court said:

The primary judge held that the evidence showed a prima facie case that the conduct constituted by the Christiansen statement (the express representation and the first implied representation) occurred in Australia. It was open to him so to hold. Mikkelsen made the call from Australia which elicited the statement. The statement was heard by Mikkelsen in Australia. Mikkelsen was acting for Bannerton, and was negotiating in Australia with the lender of funds for Bannerton’s building project in Australia. In those circumstances, there is nothing artificial in saying that the conduct occurred in Perth, where the inquirer was located, and where the statement would be and was acted on.

45    Paper Products has also been applied by Davies J in Strike v Dive Queensland Inc (1998) ATPR 41 - 605. The existence of these three Federal court cases on legislation which was the model for the Fair Trading Act was notified to the parties by this Court. The parties apparently did not direct Bryson J’s attention to them.

46    Bryson J found that the conduct under consideration consisted of telephone conversations of Mr Davies speaking from Queensland to Mr Ramsey in New South Wales and of the dispatch of several letters by post from Queensland to Mr Ramsey. Applying Voth and Distillers his Honour asked where in substance was the conduct engaged in or were the representations made. His answer was that they all occurred in Queensland and accordingly the NSW Act did not apply.

47    In my view this was not correct. The fact that the representations were made by telephone and post from Queensland does not mean that the conduct and representations could not constitute conduct and representations in New South Wales for the purposes of the NSW Act. The representations were received by Mr Ramsey in New South Wales, as was intended by Mr Davies. They were intended to be acted on in New South Wales to acquire and run a business confined to New South Wales. As stated in Voth, there is no difficulty in concluding that the representations and conduct were in substance made at the place (New South Wales) to which they were directed. The damage was suffered in New South Wales and the cause of action embraced ss 42 and 68 of the Act. The suffering of damage in this state completed the cause of action. 48 It seems to me that the conduct and representations of Mr Davies were within the NSW Act. By reason of the express evidence of agency, as well as by means of s 70(4) of the Act, Ms Vogler is responsible for the conduct and representations of Mr Davies, found by his Honour to be fraudulent. The representations were also clearly in breach of s 42 of the Act. The first appellant, Mr Ramsey, is therefore entitled to succeed against Ms Vogler under the Act, as well as in respect of the fraudulent misrepresentations. Order 3 made by his Honour should be set aside and the appellant is entitled to judgment against the respondent, Ms Vogler, for damages and interest to be assessed. 49 It is accordingly unnecessary to address the question of the extra-territoriality of the NSW Act. 50 Since Ms Vogler appeared unrepresented she was given the opportunity to file further submissions. She subsequently did this via her previous solicitor, Mr Philip Beazley. However, they raise no matter which changes my above opinion.

Orders

51    Counsel for the appellant served Ms Vogler with draft Orders in case the appeal was upheld. She was given the opportunity of responding but has not done so. The suggested form of orders is appropriate with one exception. An order was proposed that in the event of a further inquiry by the Master, which was no more favourable to the respondent, then the respondent pay the costs of the assessment on an indemnity basis. That might be appropriate to be made by the Master if a further inquiry be held. However, it should be left to his discretion. Accordingly, I would propose that the following orders be made:

1. Appeal allowed.

2. Set aside Order 3 made by Bryson J on 26 February 1999.

3. In lieu thereof, give judgment for the first appellant, Leicester Denis Ramsey, against the respondent, Juanita Kay Vogler, for damages and interest to be assessed.

4. Order that, unless within 21 days the respondent gives notice by letter in writing to the solicitors for the first appellant that she contests the assessment of damages by Master McLaughlin of 6 July 1999, judgment may be entered for the first appellant against the respondent in the sum of $106,309.75 together with interest in accordance with the Supreme Court Practice Note, calculated to the date of these Orders.

5. Order that, in the event that the respondent gives notice by letter in accordance with Order 4, an inquiry be held before a Master to ascertain and certify the amount of damages and interest for which judgment should be entered, and direct that a judgment should be entered, and direct that a judgment be entered in accordance with the Master’s certificate.

6. Order that the respondent pay the first appellant’s costs of the proceedings in the Equity Division of the Court and of this appeal.

52    HEYDON JA: I agree with Stein JA.

OoO