Tonkin v Johnson

[1997] QCA 403

IN THE COURT OF APPEAL	[1997] QCA 403
SUPREME COURT OF QUEENSLAND

Appeal No. 9251 of 1996

Brisbane

[Johnson v. Tonkin]

BETWEEN:

GRAHAM JOHNSON

(Second Defendant) Appellant

AND:

PATRICIA IRENE TONKIN

(Plaintiff) Respondent

AND:

BRIAN JAMES GUNN

(First Defendant)

McPherson J.A.
Williams J.

Cullinane J.

Judgment delivered 7 November 1997

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - Extension of time to appeal a default judgment - Stay of execution - Order 47, Rules of the Supreme Court - Section 10 Limitations of Actions Act 1867 - Section 48 Supreme Court Act 1995 - Whether interest accrues beyond the limitation period. National Westminster Bank PLC v. Powney [1991] Ch. 339; Arnold v. Martyn [1974] Qd.R. 206; Re Fitzgerald, McDonnell v. Fitzgerald [1897] 1 I.R. 556.
Counsel:	Mr D.B. Fraser Q.C. for the appellant Mr P.R. Dutney Q.C. for the respondent
Solicitors:	Kinneally Mahoney, t/a for Morrow & Associates, for the appellant Phillips Fox, t/a for Cohen Kirby & Iser, for the respondent
Hearing Date:	22 October 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9251 of 1996

Brisbane

Before McPherson J.A.
Williams J.
Cullinane J.

[Johnson v. Tonkin]

BETWEEN:

GRAHAM JOHNSON

(Second Defendant) Appellant

AND:

PATRICIA IRENE TONKIN

(Plaintiff) Respondent

AND:

BRIAN JAMES GUNN

(First Defendant)

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 7 November 1997

This is an appeal against an order of Mackenzie J. refusing an application by the second

defendant in action no. 170 of 1982 in the Cairns District Registry of the Supreme Court to set aside a

default judgment given in favour of the plaintiff. On the same occasion, his Honour granted the plaintiff

leave under O.47 r.24 to issue execution against the second defendant. The appeal also seeks to have
that order set aside.

The action arose out of an incident on 21 June 1981 as a result of which the plaintiff’s husband

John Tonkin died three days later. Both he and she were passengers on a tourist vessel “Tropic

Princess”, of which the second defendant was the skipper, which left Cairns on 21 June 1981 on a trip

to Fitzroy Island. The plaintiff and her husband acted on an announcement made by the second

defendant en route to Fitzroy Island to participate in underwater diving on arriving there. In the course

of the diving that followed, John Tonkin was noticed floating unconscious on the surface of the water.

He was flown back to Cairns; but, despite efforts to resuscitate him, he died three days later. Evidence

given at the coroner’s inquest was that tests later carried out showed that the regulator on this diving

equipment supplied to Mr Tonkin was defective, and did not comply with the manufacturer’s standards.

The plaintiff instituted her action for damages under Lord Campbell’s Act on 15 October 1982

and delivered a statement of claim on 22 December of that year. The first defendant in the action was

Brian Gunn, who was the scuba diving instructor on the vessel. According to material relied on by the

second defendant in the application, Gunn is said to have been an independent contractor who, with the

second defendant’s assent, conducted on the vessel a separate business of his own of hiring out

underwater diving equipment and giving instruction in its use to passengers who elected to dive in the

course of the trip.

It would have been difficult to extract this information from the second defendant’s defence,

delivered on 25 February 1982, which did little more than deny allegations in the statement of claim. In

consequence, the plaintiff administered a set of interrogatories to the second defendant. They were not

answered by the second defendant and, as a result, on 6 August 1986, Thomas J. set aside the defence

and, in default of pleading, gave interlocutory judgment for the plaintiff against the second defendant for
damages to be assessed. The assessment followed on 13 April 1988, when Connolly J. delivered

reasons in which he assessed the plaintiff’s damages at $141,220. On the face of the formal order

made by Thomas J. in the record there is an almost decipherable entry that damages had been so

assessed on 13 April 1988. It is not clear precisely when that entry was in fact recorded; but the

parties before us appeared to accept that it was on or about that date. It was only then that the

judgment in favour of the plaintiff became enforceable.

It was followed by a series of attempts by the plaintiff to enforce the judgment against the

second defendant. Her difficulties in that regard were no doubt increased by the fact that she lived at

Bendigo in Victoria, of which she and her husband were residents in 1982, and the action was being

conducted in the Circuit Court at Cairns. Nevertheless, by 1993 she had succeeded in issuing and

serving on the second defendant a bankruptcy notice founded on the judgment given on 13 April 1988.

It came before the Federal Court in Brisbane, where it was, on the second defendant’s application, set

it aside on 12 August 1994, for reasons which are reported as Re Johnson; Ex parte Johnson v.

Tonkin (1994) 53 F.C.R. 70. Essentially, the reason was that the judgment was, within the meaning of

s.40(1)(b) of the Bankruptcy Act 1966 (Cth), “not one the execution of which has not been stayed”

both at the time of issue and of service of the bankruptcy notice. Although issued in 1993, the

bankruptcy notice had not been served until some time in May 1994, by which time more than six years

had elapsed since the date of the judgment on 13 April 1988. Before execution issued, leave of the

court was needed under O.47 r.24(1)(a) of the Rules of the Supreme Court; and no such leave had

been obtained before the bankruptcy notice was served.

The plaintiff accordingly took steps to obtain the necessary leave under that rule. Her

application, issued on 22 August 1995, was heard but dismissed by a Judge in Chambers in the Circuit

Court at Cairns on 28 November 1995. On the same occasion, a further application, made by the

second defendant to set aside the default judgment, also came before that judge; but it was adjourned to

a date to be fixed. From those orders an appeal to this Court was allowed on 26 July 1996 on the

ground that the two applications had been disposed of in the incorrect sequence. The application to set

aside the default judgment should, it was held, have been disposed of first, before the application for

leave to issue execution was considered. The result was that the order dismissing the plaintiff’s

application was set aside so as to enable the second defendant’s application to set aside the judgment to

be considered first.

It was in consequence of that order on appeal that the matter came to be determined by

Mackenzie J. in Cairns over a year ago on 3 October 1996. His Honour’s reasons record the plaintiff’s

concession at the hearing that, if the second defendant made out the matters contained in the material

filed on his behalf in that application, he had an arguable defence to the plaintiff’s claim in the action. His

Honour nevertheless concluded that no case had been shown for setting aside the judgment, and

exercised his discretion against doing so.

It may be accepted that, as a general rule, a defendant against whom a default judgment has

been regularly entered in conformity with the Rules of Court can, on showing a defence on the merits,

ordinarily expect to have it set aside even after a lengthy period of time has elapsed from the date of

judgment. There are reported cases of judgment being set aside many years after the event. Success

on such application is, however, not a matter of right but of discretion; and an appeal against a decision

refusing to set aside a judgment confronts the double obstacle of being not only an appeal against the
exercise of a discretion, with all the difficulties which that entails; but also one that involves a matter of

practice or procedure, as to which the power to intervene on appeal is exercised even more sparingly.

See Queensland Trustees Limited v. Fawckner [1964] Qd.R. 153, 166, applying the well known

dictum of Jordan C.J. in Re Will of Gilbert (1946) 46 S.R. (NSW) 318, 323. Against that, it might be

said that, although a matter of practice or procedure was involved, the present case is one in which

substantive rights fell to be determined; but, even if that is so, I am satisfied that, far from being shown to

have been wrong, the decision appealed against was plainly correct.

Two principal factors influenced his Honour in arriving at the conclusion he did. The first was

that the delay in applying to set aside the judgment had resulted in prejudice to the plaintiff. It was, his

Honour said, true that the prejudice was, having regard to the nature of the case that the defendant

proposed to make out, not as serious as it might have been; however, because of the lapse of time, it

would now be difficult to properly investigate whether any possible basis of liability existed other than

that originally relied on. Even if all witnesses were still available, there was a real possibility that they

would have no independent recollection of events or contemporaneous documentation relating to those

events.

Before this Court, there was some debate about alternative ways in which the plaintiff’s case

against the second defendant might be, or might have been, formulated. It is, in my opinion, not

necessary to canvass them here in any detail. Suffice to say that it was open to his Honour to conclude

that, in the circumstances including the time at which the second defendant’s application to set aside was

first made, there was real prejudice to the plaintiff, or at least a potential for it. His Honour’s reasoning

on this aspect of the matter is not shown to have been erroneous.

The second factor influencing the decision refusing to set the judgment aside was that the

sequence of events leading to the plaintiff’s obtaining judgment in default, and the delay in applying to set

it aside, had arisen from “considered decisions on the part of the [second defendant] not to defend and

not to apply to have the judgment set aside until it became imperative to do so”. There can be no doubt

about the correctness of that conclusion, or about his Honour’s remark earlier in his reasons that it was

an inescapable conclusion that the defence was struck out because the second defendant “chose not to

answer the interrogatories”. In this context his Honour’s use of the word “chose” was singled out for

criticism. It was submitted that the second defendant had in fact no choice in what he did or failed to

do. He had at the relevant times no money with which to instruct solicitors to advise or act on his

behalf; and the advice which he in fact received was that, because he had no assets, the plaintiff would

not pursue him.

The particular passages relied on in the affidavit of the second defendant are as follows:

“14. Back in 1986 I did not understand the effect of the interrogatories that had been

delivered and could not afford legal representation. The extent of my legal
advice at the time was to the effect that I had no money and should not worry
about the action because the Plaintiff would not pursue me. Consequently, I
failed to answer the interrogatories and judgment was entered by default.

15.        At the time when the Interlocutory Judgment was entered against me on 6 August 1986 and later when damages were assessed on 13 April 1988, I was not in a position to fund my defence or to resist the Judgment.

16.        After the Judgment was entered I delayed in taking steps to have the Judgment set aside or varied because the Plaintiff’s delay in executing the Judgment reinforced my ignorant understanding of the law ... and secondly, there was a 12 month delay between the dismissal of the Bankruptcy Notice and the taking out of the present Summons, where again I thought the Plaintiff had decided not to proceed.”

The first point to be noticed is that the second defendant was not called upon to understand the effect of

the interrogatories, but simply to answer them. Both factually and verbally they are in a form that is not

at all difficult to understand without the benefit of legal assistance. Numerically, there are only 14 of

them extending over no more than two typed pages.

The idea that a defendant who is sued is entitled to consider himself immune from legal liability if

he has no funds with which to engage legal representation is plainly misconceived. As it is, the second

defendant does not condescend to particularity in setting out the extent of his assets, if any, at the time;

or in explaining why, if he had none at all, he did not apply for legal aid. His claim of poverty is, in any

event, not borne out by the frequency with which he travelled to various destinations abroad sometimes

for lengthy periods between 1986, when the default judgment was entered, and 1994, when he

succeeded in having the bankruptcy notice set aside. There are no fewer than 12 such occasions

recorded in the list ex. GMJ1 to his affidavit. They include one on 2 August 1989, when he travelled to

the United Kingdom to be married on 19 August 1989. The second defendant was, of course,

perfectly entitled to pursue his private interests and to spend his money as he wished; but not at the

expense of his legal obligations to others. His Honour was justified in concluding that his failure to do

anything to defend the action, to oppose the judgment, or to move promptly to have it set aside, was the

result of a considered decision on his part. Unlike most, if not all other cases of this kind, the judgment

debtor here was in fact aware from the beginning that there was a judgment against him. It is not a case

where the default judgment was given against him without any fault on his part, as in W.R. Carpenter

Australia Limited v. Ogle [1998] 2 Qd.R. 000. In these circumstances, no basis is shown on this

appeal for interfering with the judge’s decision not to set aside the judgment in default given as long ago
as 1986.

There remains for consideration the appeal against his Honour’s order giving the plaintiff leave

to proceed. As to that, O.47 r.23 provides that, as between the original parties to a judgment or order,

execution may be issued at any time within six years from the date of the judgment. In that context the

date of the judgment here means the date on which it became enforceable by execution, which was 13

April 1988, when damages were assessed. Order 47 r.24 then proceeds:

“In the following cases, that is to say -

(a)         When six years have elapsed since the date of the judgment or order, or any change has taken place by death or otherwise in the parties entitled or liable to execution;

(b)        ...

(c)         ...

the party claiming to be entitled to execution may apply to the Court or a Judge for

leave to issue execution accordingly ...”.

The origins of the rule go back a very long way. At common law there was a presumption, after

the lapse of a year and a day from judgment in an action, that the judgment had been satisfied. That

being so, the only remedy left to a judgment creditor in personal actions was to bring a separate action

of debt on the judgment: see Day’s Common Law Procedure Acts, at 111. However, by the Statute

of Westminster II, 1285, a judgment creditor was allowed to obtain from the court a scire facias,

which was the equivalent of an order to show cause, warning the judgment debtor that execution would

issue, for which it had to be shown that the judgment remained in force and had not been satisfied or

compromised. See Tidd’s Practice, vol. 2, at 1134 (7th ed.). There were other circumstances, such
as the death of one of the parties, in which a scire facias was needed in order to revive a judgment

before execution issued. Much later, the scire facias procedure was replaced by a simple application

for the leave of the Court to issue execution after a specified period of time had elapsed. See Day’s

Common Law Procedure Acts, at 111 to 115. In referring to the lapse of a specified period of time

after the date of judgment, and to death of a party, O.47 r.24 continues even now to reflect some of the

old procedure. The rule does not refer to statutory periods of limitation; but it was submitted before us

that the expiration of such a period is a relevant consideration in exercising the discretion under O.47,

r.24.

In the present case there is no question of a limitation period applying to the judgment debt of

$141,200 arising from the judgment given by Connolly J. on 13 April 1988, which was when the

damages were assessed and the judgment became enforceable. The period specified in s.10(4) of the

Limitation of Actions Act 1974 is 12 years from the date on which the judgment became enforceable,

which would take the expiration of that period here to the year 2000. On the other hand, the second

defendant submits that a different limitation period is applicable to interest accruing on the judgment

pursuant to s.73 of the Common Law Practice Act 1867 or (as it now is) s.48 of the Supreme Court

Act 1995; and that the learned judge at first instance ought in his discretion to have restricted the

plaintiff’s leave to issue execution by excluding amounts of interest that were statute barred. Instead,

what his Honour said was:

“It is not necessary to analyse the relationship between s.73 of the Common Law
Practice Act or s.48 of the Supreme Court Act, s.10(4) of the Limitation of Actions
Act and O.47 r.24 or the question whether interest on a judgment should be treated as
separate and distinct from the judgment itself in this kind of application. In my opinion
leave ought not be made subject to limitations as to the amount of interest recoverable in
the particular circumstances of the case.”

The first question is whether there is any limitation period applicable to interest on a judgment.

The only relevant provision of the Act is s.10(1), which provides:

“The following actions shall not be brought after the expiration of six years from the date
on which the cause of action arose:-
...

(d)        an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture, or sum by way of a penalty or forfeiture”.

Interest arising on a judgment appears clearly enough to answer this description. Statute apart, there is

no general right to interest on a judgment for a money sum. It was the statutory provision in s.73 of the

Common Law Practice Act of 1867 that first conferred such a right.

So to say is, however, not to conclude the point against the plaintiff in this case. Section 10(1)

applies only when an action is brought, and, by applying for leave to issue execution on the judgment,

the plaintiff here was not bringing an action on the judgment. Under the old law, proceedings for scire

facias were not regarded as the bringing of a fresh action but simply as a means of reviving the existing

action, which had become dormant through lapse of time after judgment. See Freeman on Judgments

§442, vol.1 (4th ed., 1892), at 763-765. Freeman, who wrote in the United States in the latter part of

the 19th century, said that scire facias was sometimes spoken of as a new action; but that it was in truth

no more than a continuation of the existing action, in which the defendant or judgment debtor was not

permitted to rely on a defence anterior to the original judgment. See Freeman, at 764. On the basis of

his analysis, courts in the United States have held that proceedings to enforce judgments by execution

are not subject to limitation periods imposed by general limitation statutes. See, for example, Bankers

Life Insurance Co. v. Robbins 80 N.W. 484, 485-486 (Neb. 1899), where it was said that “the object is not to obtain a judgment, but to obtain the permission of the court to execute a judgment

already in existence”. In England the same point was regarded as moot in Williams v. Welch (1846) 3

Dow. & L. 565. It may be added that, at the time Freeman wrote, a majority of American states had

already adopted the procedure of application for leave to execute in place of scire facias, and the

author’s remarks are directed equally to applications of that kind. See also Evans v. O’Donnell

(1886) 18 L.R. (Ir.) 170, 171.

There are, however, decisions in other common law jurisdictions in which statutory limitation

periods have been applied to what, at first sight, appear to be applications for leave to issue execution.

In Re Fitzgerald, McDonnell v. Fitzgerald [1897] 1 I.R. 556, the Master of the Rolls in Ireland held

that, on a judgment to which a 20 year limitation period was applicable, arrears of interest on the

judgment were restricted by a provision of that Act limiting arrears of interest to six years “next after the

same .. shall have become due”. In that and in a number of other cases in which the question has been

considered, the proceedings in which it was sought to recover or enforce a claim to interest were,

however, separate from the action in which judgment itself had been obtained. In Re Fitzgerald, a

judgment for the sum of money had been recovered against the defendant in 1887, and it was only after

his death in 1895 that separate administration proceedings were instituted in which the claim was made

to recover interest on that judgment. The claim or at any rate the administration proceedings were

regarded as an action to recover or enforce the judgment debt: see Sherwood v. Hannen (1886) 17

L.R. (Ir.) 270. The same is true of several of the English decisions commonly cited in this context; for

example, Watson v. Birch (1847) 15 Sim. 523; 60 E.R. 721; Hebblethwaite v. Peever [1892] 1

Q.B. 124; and Jay v. Johnstone [1893] 1 Q.B. 189.

It is therefore always necessary in each case to look very closely at the nature of the

proceedings and the statutory provision (if any) under which the right sought to be enforced arises, and

to compare it with the form of the limitation provision relied on by the defendant. The word “action” in

s.10 of the Limitation of Actions Act 1974 is defined in s.5(1) of that Act as including “any

proceedings in a court of law”. In Arnold v. Martyr [1974] Qd.R. 206, E.S. Williams J. rejected a

submission that an application for leave to issue execution on a judgment after expiration of the statutory

limitation period was not an “action” within the meaning of a similar provision in The Limitation Act

1960. In doing so, he referred to authorities that included Watson v. Birch (1847) 15 Sim. 523; 60

E.R. 721; W.T. Lamb & Sons v. Rider [1948] 2 K.B. 331; and 16 Halsbury’s Laws of England, 3rd

ed., at p.227. In giving his decision, which was not reserved, his Honour said he had only a short time

to look at the authorities; and his reasons appear not to have been corrected before being reported.

The reference in Arnold v. Martyr to Halsbury, vol. 16 (3rd ed.), should, I think, be to para.8, at

pp.6-7, of vol. 16 of that edition, and not to p.227. It is easy to understand how a shorthand writer in

recording the reasons, which were given orally, might have mistaken “pages 6 to 7" for “page 227".

What is said at pp. 6-7 is that, although issuing execution is not bringing an action to enforce a judgment,

“the Court will not give leave to issue execution when the right of action is barred”.

The decision cited in support of that proposition is W.T. Lamb & Sons v. Rider [1948] 2 K.B.

331, where the Court of Appeal rejected a submission that the English rule corresponding to O.47,

r.24(1)(a) was ultra vires or invalid as conflicting with the English equivalent of s.10(4) of the

Limitation of Actions Act. Far from supporting the proposition in Halsbury, the reasoning in that

decision appears to be directly opposed to it. The definition of “action” in the English Limitation Act was and is the same as in the Queensland legislation; but the Court in Lamb v. Rider considered that

the reason for including “any proceeding in a court of law” in the statutory definition was simply to

include proceedings commenced by a process other than a writ, such as an originating summons. The

question was recently reconsidered by the Court of Appeal in National Westminster Bank Plc v.

Powney [1991] Ch. 339, where it was held that an application to extend time for execution of a

warrant of possession was not an “action” barred by lapse of time under the Limitation Act 1980

(U.K.). The reasoning of Slade L.J. in that case is, if I may respectfully say so, persuasive. In

recognising the historic distinction between the right to sue on a judgment and the right to issue execution

under it, it accords with the view adopted in the United States that reviving a judgment in order to issue

execution on it is not itself an “action” subject to general limitation periods imposed by statute. See also

Poucher v. Wilkins (1915) 33 O.L.R. 125, 127-128.

The other Queensland decisions on the subject do not bear directly on this issue in the appeal.

In Hine v. Hine [1969] Q.W.N. 38, Hart J. regarded it as a factor operating in favour of granting leave

under O.47, r.24 that, if leave were to be refused, the applicant would have been entitled to bring an

action upon a judgment for costs, which had been taxed within the limitation period, although the decree

on which the costs had been given had been made outside it. In World Square Pty. Ltd. v. Taylor

[1990] 1 Qd.R. 583, Lee J. held that the discretion under the rule was unfettered, and declined to grant

leave on evidence that, in the particular circumstances there, the defendant would be likely to be

prejudiced if execution was allowed to issue. As I read his reasons, however, his Honour deliberately

refrained from holding that the expiration of a statutory limitation period raised an absolute bar to

granting leave under O.47, r.24(1)(a). On the contrary, he accepted the submission of counsel for the
plaintiff that “a relevant consideration in granting leave was the fact that the plaintiff was still in time to

sue by a separate action upon the judgment itself” ([1990] 1 Qd.R. 583, 588).

Even if it is relevant in exercising the discretion under O.47, r.24 that interest, or some of it, on

the judgment first accrued beyond the limitation period, it is by no means necessarily a decisive

consideration against allowing execution to issue for that interest. Accepting that the discretion

conferred by the rule is unfettered, it remained open to his Honour to decide as he did that, in the

circumstances of this case, the discretion should not be exercised in favour of the second defendant. He

referred to the plaintiff’s submission that for 10 years the second defendant had failed to pay the

judgment debt, and that there was no reason why the statutory interest should not be paid in full. It is

perhaps not clear that that submission positively influenced his discretion; but, even if it did, it is difficult

to regard it as illegitimate. In substance, the second defendant deliberately took the risk that the plaintiff

would never attempt to enforce the judgment obtained in her favour. The fact that, in the end, the risk

went against him is not a reason for relieving him from its consequences. If he had, so much earlier, paid

the judgment, or gone bankrupt, or perhaps settled the action, the interest would not have accrued at all,

or to the same extent. Instead, he elected to defy or ignore the efforts of the plaintiff to enforce her

rights against him. Now that she has succeeded, he is not in a position to claim the court’s indulgence in

his favour for his own misplaced assessment of her intentions.

I would dismiss the appeal with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9251 of 1996

Brisbane

Before McPherson JA
Williams J
Cullinane J

[Johnson v. Tonkin & Anor]

BETWEEN:

GRAHAM JOHNSON

(Second Defendant) Appellant

AND:

PATRICIA IRENE TONKIN

(Plaintiff) Respondent

AND:

BRIAN JAMES GUNN

(First Defendant)

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 7 November 1997

I have had the advantage of reading the reasons for judgment prepared by McPherson JA and

I agree with all that he has said. At the conclusion of submissions I thought there may be some proper

basis for limiting the recovery of interest in the circumstances, but the researches of McPherson JA have

convinced me that the respondent is entitled to execute the judgment including the awarded interest.

Once it is accepted that an application for leave under O.47 r.24 to issue execution is not an action for purposes of s.10(1) of the Limitation of Actions Act 1974 (see WT Lamb & Sons v. Rider [1948] 2

KB 331 and National Westminster Bank v. Powney [1991] Ch. 339) it follows that there is no statutory

bar to recovering interest notwithstanding that more than six years has elapsed since the judgment was

entered. There may well remain a discretion in the judge granting leave pursuant to O.47 r.24 to limit

the amount of interest recoverable on execution of the judgment, but, as McPherson JA has pointed out,

it could not be said that there was any error here in the exercise of discretion.

I agree with the orders proposed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9251 of 1996

Brisbane

Before McPherson J.A.

Williams J.

Cullinane J.

[Johnson v. Tonkin]

BETWEEN:

GRAHAM JOHNSON

(Second Defendant) Appellant

AND:

PATRICIA IRENE TONKIN

(Plaintiff) Respondent

AND:

BRIAN JAMES GUNN

(First Defendant)

REASONS FOR JUDGMENT - CULLINANE J.

Judgment delivered

I have read the judgment of McPherson J.A. and agree with the order he proposes

and with his reasons.