Ray Mullins and Sons Pty Ltd v Skycorp Investments Pty Ltd
[2009] WASC 308
•16 OCTOBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RAY MULLINS & SONS PTY LTD -v- SKYCORP INVESTMENTS PTY LTD [2009] WASC 308
CORAM: LE MIERE J
HEARD: 21-23 SEPTEMBER 2009
DELIVERED : 16 OCTOBER 2009
FILE NO/S: CIV 1886 of 2007
BETWEEN: RAY MULLINS & SONS PTY LTD (ACN 009 177 324)
Plaintiff
AND
SKYCORP INVESTMENTS PTY LTD (ACN 078 121 534)
Defendant
Catchwords:
Lease - Proper construction of covenant - Whether defendant breached covenant - Turns on own facts
Legislation:
Nil
Result:
Declaration of proper construction of covenant
Declaration that defendant breached covenant
Category: B
Representation:
Counsel:
Plaintiff: Mr M J McCusker QC & Mr A Metaxas
Defendant: Mr P G Clifford
Solicitors:
Plaintiff: Metaxas & Hager
Defendant: Lawton Gillon
Case(s) referred to in judgment(s):
Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Ray Mullins & Sons Pty Ltd v Skycorp Investments Pty Ltd [2006] WASC 241
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522
LE MIERE J:
Introduction
In June 1997 the defendant leased land at the Hillarys Boat Harbour on which a two level building was erected. The plaintiff operated a restaurant and pool hall from shop 51 on the ground floor of the building that it was subleasing from the defendant.
The plaintiff and the defendant, through its agent, Sullivan Commercial Pty Ltd, negotiated the possible relocation of the plaintiff from shop 51 to the Function Centre on the first floor of the building. The negotiations were conducted by Peter Duffield, a director of Sullivan Commercial, and James Side, the managing director of the plaintiff.
On 19 August 1997 the plaintiff accepted an offer by the defendant to lease the area which was contained in a letter of 18 August 1997. A formal lease was subsequently drafted by the defendant's solicitors, and executed by both parties on, or about 15 September 1997.
The lease contained a covenant by the defendant not to carry out any development on the north side of the building which will obstruct the existing view enjoyed by the lessee provided that the lessor may construct a new line of ground floor canopies along the north and east sides of the building.
At the time there was a line of tensile canopies along the north side of the building. In August 2007 the defendant removed those canopies and constructed a line of canopies with a tiled roof structure and a line of canopies with an opaque roof structure. The plaintiff says that the new canopies obstruct the view from its premises more than the old canopies did and more than a second line of canopies of the same style and dimensions as the old canopies would. The plaintiff says that the defendant has breached the covenant in the lease.
This case concerns the proper construction of that covenant and whether or not the defendant breached it by erecting the new canopies.
The facts
By letter of 4 July 1997 Sullivan Commercial, on behalf of the defendant, offered to lease the Function Centre to the plaintiff on certain terms and conditions. Mr Side and Mr Duffield subsequently met and on a number of occasions discussed the offer and exchanged correspondence about the terms on which the defendant and plaintiff were willing to lease or take a lease of the area.
Mr Duffield met with Mr Side on or about 28 July 1997. After that meeting Mr Duffield further amended the offer to lease to take into account matters raised by Mr Side in a facsimile letter of 23 July and discussed at their meeting on 28 July. The terms included:
AREA
All of the existing premises known as the First Floor Function Centre located Sorrento Quay, Hillarys Boat Harbour and comprising approximately 1393 square metres including the north and south balconies.
Please note:‑
1. The existing stairs to the first floor balcony located on the north side of the building will be removed by the Lessor.
2. The north and south balconies will not be included as net lettable area.
Mr Side made some handwritten amendments to the proposed terms and conditions of lease set out in Sullivan Commercial's letter of 29 July 1997. One amendment made by Mr Side was to delete the second paragraph of special condition 5 which related to lessor's works and in its place write:
The lessor agrees not to carry out any development on the north side of the building that will in any way obstruct the existing view enjoyed by the lessee during the duration.
On receiving the plaintiff's counteroffer Mr Duffield forwarded a copy to Greg Poland, who was the person instructing Mr Duffield on behalf of the defendant. Shortly after sending the plaintiff's counteroffer to Mr Poland, Mr Duffield spoke to Mr Poland. During that discussion Mr Duffield made notes on the plaintiff's counteroffer of Mr Poland's instructions. Next to the item concerning development of the north side of the building Mr Duffield wrote, 'Except new line of canopies (one level)'.
Mr Duffield and Mr Side met to discuss the matter further on or about 4 August 1997. After that meeting Mr Duffield further amended the offer to lease to incorporate those of the amendments in the plaintiff's counteroffer that were agreed to by Mr Poland on behalf of the defendant and as discussed with Mr Side on or about 4 August 1997. On 5 August Mr Duffield sent a further amended offer to lease to the plaintiff. Special condition 5 'Lessor's Works' included the following new paragraphs:
The Lessor agrees not to carry out any development on the north side of the building that will obstruct the existing view enjoyed by the Lessee during the Lease term.
Please note, there will be a new line of ground floor canopies (north and east sides) constructed by the Lessor at a later date (the Special Condition).
I find that Mr Side met with Mr Duffield on or about 4 August 1997 and during that meeting Mr Duffield said words to the effect that the defendant had plans to erect a second line of canopies to the north of the existing line of canopies and that the new line of canopies would be identical to the existing line of canopies and would have little effect on the lessee's views. I make that finding for a number of reasons. First, Mr Side's evidence is uncontradicted. Mr Side recalls the effect of what Mr Duffield said but not the exact words. The passage of time explains Mr Side's inability to remember the exact words spoken by Mr Duffield. Second, Mr Duffield has no recollection of the conversation. However, Mr Duffield has no recollection of any conversations at the time. Mr Duffield's evidence is a reconstruction based upon his file and other documents available to him. Mr Duffield does not deny the conversation. Third, Mr Side's evidence is supported by exhibit 2, a plan dated 30 September 1997 bearing the name John L Silbert & Associates, architect, and the job title 'Proposed Alterations to Function Centre, Hillarys Boat Harbour'. Mr Silbert was the defendant's architect. Mr Silbert said that the plan was prepared by a contract drafting service under his commission and his firm's direction. The plan shows a proposed second line of canopies which appears identical to the existing line and bears the note 'new tensile canopies to match existing'. Mr Silbert said that at about that time his firm had been engaged by Mr Poland on behalf of the defendant to prepare some proposals for a new line of canopies and that what was proposed at that time was another line of tensile canopies to match the existing line of tensile canopies. Fourth, the note 'except new line of canopies (one level)' made by Mr Duffield next to the relevant part of special condition 5 on the offer to lease of 29 July 1997 shows that Mr Duffield was aware of the defendant's plan to erect a new line of canopies to the north side of the building. Fifth, on 5 August 1997, after his discussions with Mr Side and Mr Poland, Mr Duffield further amended the offer to lease to refer to a new line of ground floor canopies to be constructed by the lessor at a later date. That suggests something was said at that meeting about the defendant erecting a new line of canopies.
Mr Duffield made further amendments to the offer to lease and in a telephone conversation with Mr Side on or about 18 August 1997 agreed those amendments. Mr Duffield then sent an amended offer to lease dated 18 August 1997 to the plaintiff. There was no change to the terms and conditions relating to area and that part of special condition 5 concerning development on the north side and the construction of a new line of ground floor canopies. On 19 August 1997 Mr Side returned the offer to lease of 18 August 1997 executed by the plaintiff. The plaintiff submits that this agreement of 19 August 1997 was the true agreement between the plaintiff and the defendant.
The lease document was subsequently drafted by the defendant's solicitors. The lease was executed by the parties on or about 15 September 1997.
I find that at the time the parties executed the lease the defendant planned to construct a new line of canopies that were to be identical to the existing line of canopies and the plaintiff knew that. That is established by the plan that is exhibit 2, the evidence of Mr Silbert, Mr Duffield's handwritten note 'except new line of canopies (one level)' and the conversation between Mr Side and Mr Duffield on or about 4 August 1997.
The lease
The lease is in the form of a deed between the plaintiff and the defendant. The leasing clause provides that the lessor leased to the lessee the Premises. The Premises are defined to mean that part of the building specified in item 2 of the Schedule. Item 2 of the Schedule defines the Premises as follows:
That part of the 1st floor of the Building known as at the date of this Deed as the Function Centre shown for identification purposes only as the area outlined in red on the plan annexed to this Deed and having an area of approximately one thousand three hundred and ninety three square metres (1393 m2).
There was no plan annexed to the deed.
Clause 10.5 of the Lease provides:
The Lessee shall during the Term have a licence to use the North and South balconies adjoining the Premises on the same terms and conditions as applicable to the Lessee's lease of the Premises except that no Rent will be payable by the Lessee during the Term in respect of the Lessee's use of the North and South balconies.
It appears from the terms of the lease, including the definitions, that the parties did not intend the balconies to form part of the leased premises. They intended that for the term of the lease, the balconies would be the subject of a licence, not a lease: see Ray Mullins & Sons Pty Ltd v Skycorp Investments Pty Ltd [2006] WASC 241, [140] (Templeman J).
The lessee's covenants included a covenant not to use or permit to be used the Premises for any purpose other than carrying on business as a restaurant/café, kiosk, licensed bar, entertainment centre and snooker/pool hall incorporating amusement machines. The effect of cl 10.5 is that the defendant was to use the balconies only for that purpose.
The Lessor's covenants include:
4.10Restriction on future development
Not to during the Term carry out any development on the north side of the Building which will obstruct the existing view enjoyed by the Lessee from the Premises PROVIDED THAT the Lessee acknowledges that the Lessor may at any time during the Term construct a new line of ground floor canopies along the north and east sides of the Building.
The Lease contains a whole agreement clause that provides that the provisions in the deed comprise the whole of the agreement between the parties and no further or other covenant or provision may be implied in the deed or arise between the parties by way of collateral or other agreement.
Issues of construction of the lease
There are two questions of construction. First, does cl 4.10, when read with cl 10.5 restrict development that will obstruct the view enjoyed from the Premises and the northern balcony or the Premises alone? Second, does the proviso to cl 4.10 permit the defendant to construct:
1.any canopies that stand on or are affixed to the ground;
2.only canopies that restrict the view from the Premises and the balcony no more than the old line of tensile canopies would and a new line of canopies of the same style and dimensions as the old canopies; or
3.only an additional line of canopies of the same style and dimensions as the old canopies?
Does the Lease protect the view from the Premises and the balcony?
The first question is whether the effect of cl 4.10 is to protect the view enjoyed by the lessee from the Premises and the north balcony or from the Premises alone. The view from the balcony is important to the plaintiff. The plaintiff operates a restaurant or café and functions on the balcony.
I find that on its proper construction cl 4.10 when read with cl 10.5, and having regard to the surrounding circumstances known to the parties and the purpose of cl 4.10, restricts development that will obstruct the view enjoyed from the Premises and the northern balcony. Whilst the defendant did not concede that to be so, counsel for the defendant did not argue to the contrary and accepted that was a reasonable construction of cl 4.10 and cl 10.5.
What canopies may the defendant construct?
The critical issue is the extent of the authority conferred on the defendant by the proviso in cl 4.10 to construct new canopies.
The Lease is a commercial contract. The principles relating to the interpretation of commercial contracts apply generally to the interpretation of the lease. The primary task of the court in construing the Lease is to ascertain the common intention of the parties as expressed by their words in the Lease. The court is to ascertain the meaning that the document would convey to a reasonable person having the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the agreement. It is the objective intention of the parties, evidenced by their words and actions, that is relevant. Evidence of the subjective intention of either of them is not admissible: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40].
A commercial contract, including a lease, should not be interpreted in a 'narrow spirit of construction, but as the Court would suppose two honest business men would understand the words they have actually used with reference to their subject matter and the surrounding circumstances': Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288, 300 (Isaacs J); Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22]. The Lease should be given a businesslike interpretation taking into account 'the language used by the parties, the commercial circumstances which the document addresses and the objects which it is intended to secure': Wilkie v Gordian Runoff Ltd [2005] HCA 17; (2005) 221 CLR 522, [15].
The purpose of the covenant in cl 4.10 of the Lease is, subject to the proviso, to prevent the lessor from carrying out any development on the north side of the building which will obstruct the view enjoyed by the lessee and so protect the view enjoyed by the lessee from the area on which it is to carry on its hospitality and entertainment business. The proviso in cl 4.10 authorises the lessor to construct a new line of ground floor canopies along the north and east sides of the building. The proviso in cl 4.10 should not be construed so as to defeat the purpose of cl 4.10, that is, to protect the view enjoyed by the lessee.
The surrounding circumstances known to the parties at the time of execution of the Lease include the following. First, the plaintiff was to occupy the premises and the northern balcony to carry on its hospitality and entertainment business. Second, the view from the area occupied by the plaintiff was important to it. That is apparent from cl 4.10 itself, the location and surrounds of the building, which faces the marina and the ocean, and the nature of the plaintiff's business. Third, there was an existing line of tensile canopies to the north of the building. Fourth, at the time of execution of the Lease the defendant planned to construct a new line of canopies that were to be identical to the existing line of canopies.
Having regard to the surrounding circumstances known to the parties and to the purpose and object of the clause, the proviso to cl 4.10 authorises the defendant only to construct an additional line of canopies to the north of the old canopies and of the same style and dimensions as the old canopies. The words 'new line' draws attention to the existing line of canopies and that the new line of canopies is to be in addition to the existing line of canopies. Having regard to the purpose of the clause and the surrounding circumstances known to both parties that I have referred to, reasonable persons in their position would have understood the proviso in cl 4.10 to authorise the defendant only to construct an additional line of canopies of the same style and dimensions as the old canopies.
The defendant submits that a canopy is any structure with a roof and open sides and that a ground floor canopy is a canopy affixed to, or standing on, the ground floor. That may not be so. In the context of cl 4.10, and having regard to its purpose, a ground floor canopy might mean a canopy that does not extend beyond the height of the ground floor of the building. However, that was not argued by the parties.
The defendant submits that the proviso in cl 4.10 authorises it to construct a new line of canopies along the north side of the building as long as the canopies are affixed to, or stand on, the ground. I do not accept that. Two honest businessmen in the position of the plaintiff and the defendant at the time they executed the Lease would not understand cl 4.10 to have that meaning. That interpretation of cl 4.10 would greatly diminish the protection given to the plaintiff by the clause. It would permit the defendant to construct a line of canopies that entirely obscured the view from the north balcony providing that the structure met the description of a canopy and was fixed or attached to the ground.
Did the defendant breach the covenant?
Whether the defendant breached the covenant by constructing the new canopies depends upon the construction of the covenant compared with the development undertaken by the defendant
The new canopies comprised a line of steel framed canopies with a tiled roof structure and a line of canopies with an opaque plastic roof structure. The plaintiff says that the new canopies obstruct the view enjoyed by the plaintiff as at 1 December 1997 from the leased premises and the north balcony to an extent greater than that caused by the old canopies and to an extent greater than that which would have been caused by the construction of a new line of canopies that matched the old canopies.
The new canopies are not of the same style and dimensions as the old canopies. The old canopies were made of a tensile plastic material flowing from a peak to four corners at a lower level. The roof or 'canopy' of the new canopies is a rigid structure made of tiles and opaque plastic. The old canopies were a pyramid shape which provided a view through almost all angles. On the other hand, the new canopies have an inverted V shape which offers only a narrow view between each peak. Each 'line' of the new canopies runs north‑south, whereas the line of old canopies ran east‑west.
There is no doubt that the construction of the new line of canopies obstructs the view enjoyed by the lessee from the Premises and the north balcony as at the execution of the Lease. Therefore, the defendant breached the covenant in cl 4.10 of the Lease unless the construction of the new canopies is authorised by the proviso in cl 4.10. I have found that the construction of the new canopies is not authorised by the proviso in cl 4.10 because the new line of canopies is not an additional line of canopies of the same style and dimensions as the old canopies. Therefore, the defendant has breached the covenant.
Do the new canopies obstruct more than two lines of the old ones?
The defendant submitted that the new canopies do not obstruct the view from the premises and the north balcony more than a second line of canopies of the same style and dimensions as the old canopies would have. It is strictly not necessary to decide that point. The defendant breached the covenant by constructing new canopies that obstructed the view enjoyed from the Premises and the balcony at the time of the execution of the Lease and which were not authorised by the proviso to cl 4.10 because they are not an additional line of canopies of the same style and dimensions as the old canopies. That is so even if the new canopies did not restrict the view more than the old canopies and a new line of canopies of the same style and dimensions would have. However, in case the matter should go on appeal I will set out my findings on that issue.
I find that the new canopies obstruct the view enjoyed by the plaintiff from the leased premises and the north balcony to an extent greater than that caused by the old canopies and to an extent greater than that which would have been caused by the construction of an additional line of canopies that matched the old canopies.
Both parties called expert evidence in relation to the view enjoyed by the lessee from the Premises and the north balcony. The expert called by the plaintiff was Neil Smith, an architect and registered builder. The expert called by the defendant was Mr Silbert.
Mr Smith measured and observed the sightlines from the northern balcony from the eye line of a male Australian of average height. Mr Smith made observations and measurements of sightlines when one line of canopies existed on the northern side of the building of the style and dimensions of the old canopies, sightlines had an additional identical row of canopies being constructed and sightlines that exist now that the new canopies have been built. Mr Smith's observations and calculations are:
(a)The sightline over one line of canopies was 13 m away. The pyramid shape of the canopies provided a view through almost all angles;
(b)The sightline over two lines of canopies would be 23 m away. The pyramid shape of the canopies would provide a view through almost all angles;
(c)The sightline over the new structure is 24 m away when standing directly in line with, and looking over, the lowest point of a trough between two peaks, but this point has no width. Once a person looks left or right of that centre line, the sightline increases proportionately until at an angle of 11 degrees, the sightline is 140 m away. From that point onwards the ridges start to merge and the sightline increases even further [5.1].
Mr Smith made the following conclusions:
(a)The view features being the boardwalk, bandstand, trees, people, other buildings, jetty, boats, trees, beach and ocean were, or would be significantly visible over one or two lines of canopies from the Pot Black Northern Balcony and the Pot black Northern Doors and Windows. These same view features are now, significantly or partially obscured by the new structure for a large percentage of the available vista.
(b)Because these view features are of different sizes and locations and because the new structure has peaks and troughs, it is impossible for me to give an exact percentage of the view lost. However my estimate would be approximately 75% when compared with one line of canopies and 50% when compared with two lines of canopies.
(c)Not only has the view from balcony, doors and windows been reduced, but the view has changed from a view over a flowing tensile structure largely framed by trees and water to one of tile roof and rigid canopy with straight sightlines [5.3].
I accept the evidence of Mr Smith, including his conclusions, with the following qualification. Mr Smith said that it is impossible to give an exact percentage of the view lost. Nevertheless, he offered his estimate of the percentage view lost when compared with one line of canopies and the percentage lost when compared with two lines of canopies. I do not attach any weight to those percentage estimates, except that they show that the loss of view is substantial.
Mr Silbert was initially instructed by a letter of 5 December 2008 from the defendant's solicitors. He was provided with a copy of Mr Smith's report and asked to provide:
1.your comments and observations in respect of the enclosed expert report;
2.advice on what the enclosed expert report means and how to answer that expert report; and
3.if necessary, please provide a report countering the enclosed report, detailing:
(a)whether the ground floor canopies obstruct the view from the Pot Black premises;
(b)to what extent, if any the view from the Pot Black premises is obstructed;
(c)the difference in view obstructed if the temporary canopies were erected instead of the new canopies; and
(d)what percentage of the leased area (Pot Black) is negatively affected by the 'change' in canopies? and
4.any other matter you consider relevant.
Mr Silbert did not provide any comments or observations in respect of Mr Smith's report. He was instructed by a further letter of 6 February 2009 that in preparing his report he should specifically consider the view from nine specified points in the Premises or north balcony. That is what Mr Silbert did. Mr Silbert concluded that the view from the northern balcony is by reason of the construction of the second line of canopies is reduced only by 5%. That opinion was based upon Mr Silbert's assessment of the view from various points, including the view seated at various tables within the Premises or north balcony as well as the view standing from various points on the north balcony and inside the Premises. Mr Silbert also took into account the use of the Premises, heavy drapes covering portions of the Premises, the layout of tables and chairs on the balcony and other features of the layout of the Premises and balcony.
In cross‑examination Mr Smith said that counsel for the defendant was missing the point of his report. In re‑examination Mr Smith explained what he meant:
The essence of my report was really focusing on the fact that when you get a series of pyramids, even though you've got two rows of pyramids, you can always see through valleys. It's like looking through a lot of triangles, you can always see through, but in this case what you've got is long lines or ridges and once you turn through, in the case of Pot Black itself not the balcony ‑ if you turn through seven degrees then you've got a continuous line of ridges and it blocks the view completely. You can't see a single thing once you turn ‑ when you get out, if you're standing right in the middle of the V and then you turn seven degrees you see nothing. If you're standing up on the balcony the same occurs and your view is actually transfixed to about 170 metres away. Because you can see through the V, once you turn to the right there is a continuous run of ridges. It blocks it out completely (ts 112).
I find that Mr Silbert's evidence also missed the point made by Mr Smith. In cross‑examination it was put to Mr Silbert that to the observer there is a greater degree of obstruction to the view by the new tiled roof than there would have been had there been two lines of tensile canopies. Mr Silbert replied:
I find that a subjective question that I would prefer not to answer other than say that the canopies that are constructed now are more in keeping with the overall design theme that was established when the centre was built (ts 173).
When it was put to Mr Silbert that that was not the question, he replied, 'Well, that's my answer' (ts 173).
I prefer the evidence of Mr Smith to that of Mr Silbert. Mr Smith's evidence more directly addresses the question of whether the new canopies obstruct the view enjoyed by the plaintiff at the time of execution of the Lease from the Premises and the north balcony to a greater extent than that which would have been caused by the construction of a new line of canopies that matched the old canopies. Mr Silbert failed, or failed adequately, to address the point made by Mr Smith that the view looking through a series of pyramid shaped canopies is quite different from that looking along or through lines of rigid troughs and ridges.
Rectification
The plaintiff submitted that if the Lease is to be construed so that the restriction on development in cl 4.10 protects the view enjoyed by the lessee from the Premises but not the view from the north balcony then the Lease should be rectified to conform to the Special Condition in the 19 August 1997 agreement. That Special Condition restricts development so as to protect the view from the north balcony as well as the Premises.
I have found that the restriction on development in cl 4.10 when read with cl 10.5 of the Lease is not limited to the view enjoyed by the lessee from the Premises but extends also to the view from the balcony. Therefore, there is no relevant disconformity between the Lease and the agreement made on 19 August 1997. Therefore, no question of rectification arises.
Conclusion
When the plaintiff commenced this action it claimed a mandatory injunction requiring the defendant to remove the new canopies. The plaintiff no longer presses that relief. The relief now sought by the plaintiff is a declaration concerning the proper construction of the Lease and a declaration that the new canopies are in breach of the Lease. The plaintiff alternatively seeks rectification of the Lease to accord with the true agreement of 19 August 1997 and a declaration that the new canopies are in breach of the Lease as rectified. The plaintiff seeks damages for breach of the covenant.
I find that on its proper construction cl 4.10 of the Lease, when read with cl 10.5, means that the lessor may not carry out any development on the north side of the building which will obstruct the view enjoyed by the lessee from the Premises and the north balcony at the time of the execution of the Lease provided that the lessor may construct a new line of ground floor canopies along the north side of the building that are of the same style and dimensions as the canopies existing along the north side of the building at the time of the execution of the Lease.
I find that the defendant breached the covenant in cl 4.10 of the Lease by constructing the new canopies.
I decline to order rectification of the Lease on the ground that there is no relevant difference between the lessor's covenant in cl 4.10 when read with cl 10.5 of the Lease and the Special Condition in the agreement of 19 August 1997.
At the commencement of the trial I directed that the issue of liability should be tried separately and the question of the quantum of damages, if any, should be adjourned to be tried at a later time. If the parties cannot agree on the quantum of damages the matter will be relisted to assess damages.
0
6
1