| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WEST -v- WOOD [2002] WADC 200 CORAM : DEANE DCJ HEARD : 16 AUGUST 2002 DELIVERED : 20 SEPTEMBER 2002 FILE NO/S : CIV 2912 of 2001 BETWEEN : GEOFFREY KENNETH BENJAMIN WEST Appellant/Defendant
AND
STEVEN JAMES WOOD
Respondent/Plaintiff
Catchwords: Practice and procedure - Appeal against decision of Deputy Registrar refusing to set aside default judgment - Whether adequate reason for failure to comply with rules - Need for defence to have a real prospect of success - Turns on own facts
Legislation: Nil
Result: Appeal allowed
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Representation:
Counsel:
Appellant/Defendant : Mr M J Walton
Respondent/Plaintiff : Mr T B Lyons
Solicitors:
Appellant/Defendant : Marks & Sands
Respondent/Plaintiff : Gibson Lyons
Case(s) referred to in judgment(s):
Evans v Bartlam [1937] AC 473
Palmer v Prince [1980] WAR 61
Parker v Transfield Pty Ltd & Anor [2000] WASCA 382; 7 December 2000
Rollond & Anor v Bank of Western Australia Ltd, unreported; SCt of WA; Library No 980498A-C; 3 September 1998
Surdex Steel Pty Ltd v Buck & Anor [1999] VSC 521
Surfer's Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited [1984] 2 Qd R 447
Case(s) also cited:
Richard Lochiel Cameron & Anor v Paul David King & Anor, unreported; SCt of WA; Library No 990089; 2 March 1999
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1 DEANE DCJ: This is an appeal by way of a hearing de novo against a decision of a Deputy Registrar of the District Court on 31 May 2002 dismissing an application to set aside judgment entered in default of entering a defence. The respondent (plaintiff) entered judgment in default of defence against the appellant (defendant) on 5 February 2002. An application dated 4 April 2002 sought an order setting aside the judgment pursuant to O 13, r 10 of the Supreme Court Rules ("the rules"). Pursuant to O 6, r 11 a notice of appeal against a decision of a Registrar in chambers must be lodged within five days of the decision being made. It can therefore be seen that the appellant was out of time with respect to lodging that notice. In an affidavit sworn 14 August 2002 the appellant concedes that he was advised of the Deputy Registrar's decision on 31 May 2002 by his solicitors, whom he then instructed to proceed with an appeal. He was advised that before they could do so his solicitors required further funds from the appellant and the urgency of the matter was stressed to him. The appellant's explanation for his failure to comply with the relevant provision of the rules is essentially that he had difficulty in obtaining and providing sufficient funds to his solicitors so that they could continue the appeal on his behalf. In the end result it is not necessary for anything further to be said about this aspect of the matter, as I do not understand the respondent to press this particular point in the context of this appeal.
2 Generally where a judgment in default of defence has been properly entered it is not to be set aside unless the party seeking such an order satisfies the Court that there is an adequate explanation or reason explaining the failure to comply with the rules and any delay in bringing such an application; Palmer v Prince [1980] WAR 61. Nonetheless the Court has an unfettered discretion to set aside a default judgment on such terms and conditions as it thinks fit; Evans v Bartlam [1937] AC 473. In exercising this discretion the Court should consider the reasons provided by the appellant for failure to enter an appearance (if that be the case), whether there has been any undue delay in commencing proceedings to set aside default judgment and whether the appellant has shown a prima facie defence on the merits; Surfer's Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited [1984] 2 Qd R 447. The matter was put in this way by Malcolm CJ in Rollond & Anor v Bank of Western Australia Ltd, unreported; SCt of WA; Library No 980498A-C; 3 September 1998: "For an application to set aside default judgment to be successful, the defendant must present a credible defence demonstrating that, if the default judgment was set aside and the
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matter was argued on its merits, the defendant would have a real prospect of success." 3 This test was effectively restated in Parker v Transfield Pty Ltd & Anor [2000] WASCA 382; 7 December 2000. 4 In an affidavit sworn 8 April 2002 the appellant sought to provide an explanation for his failure to file a defence within the required time. That document gives details of some background material which it is necessary to consider in the context of this appeal. The appellant received a writ of summons and statement of claim relevant to the action the subject of these proceedings on 17 December 2001. On that date he provided those documents to his solicitors for their consideration. At that time he was informed that his solicitors would not undertake any work with respect to the matter until they had received $3,300 in trust. This position was confirmed in a letter dated 21 December 2001 which the appellant received from his solicitors. Nonetheless at the appellant's request on 17 December 2001 his solicitors prepared and filed a memorandum of appearance giving the appellant's address as the address for service in the proceedings. The appellant's legal advisers did not at that time go on the record as his solicitors. 5 The appellant is also a plaintiff in another District Court action No 2208 of 1996 ("the second action") and he engaged the same firm of solicitors to act on his behalf as in that matter when those proceedings commenced. In relation to the second action, according to the appellant's affidavit, there have been negotiations between the appellant and his solicitors in relation to financial issues relevant to the payment of their professional fees. When the appellant attended his solicitors' offices on 17 December 2001 he did provide them with a cheque for $3,000 in relation to outstanding fees relevant to the second action. There does not appear to be any evidence before the Court in this appeal that the appellant instructed his solicitors to file a defence or provided them with the necessary information to prepare a defence in the action the subject of this appeal. 6 Between approximately 17 December 2001 and 22 February 2002 the appellant was working as a contract harvester in a number of rural locations in Western Australia. Nonetheless there is no question that he received the letter from his solicitors dated 21 December 2001. A further letter to the appellant from his solicitors dated 26 February 2002 which again explained the financial relationship between the appellant and his solicitors was not received by him until approximately 4 April 2002. The
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reason for this appears to be that the appellant ceased his work in rural Western Australia before travelling overseas on or about 12 March 2002. The appellant did not check his mail during this period of time and in fact he did not do so until his return to Western Australia in late March 2002. There does not appear to be any particular or detailed explanation in the appellant's affidavit as to why he did not check his post office box address in Kalamunda which was the address he provided to his solicitors for the delivery of all correspondence. 7 Although the appellant attended his solicitors' offices on 22 February 2002 (after default judgment had been entered) and paid them a further $4,000 being monies outstanding on his account, he claims that at that time there was a misunderstanding between him and the solicitor with whom he dealt. The appellant deposes that he misunderstood the verbal advice provided to him by that solicitor to the effect that they required further monies prior to any work being undertaken by the solicitors relevant to these proceedings. It was the appellant's understanding that despite the fact that the memorandum of appearance remained in his name the solicitors would go on the record in these proceedings. The appellant claims he remained under this misapprehension because he did not receive the letter of 26 February 2002 from his solicitors, which confirmed their earlier written advice that they would not act or provide any advice to the appellant in relation to these proceedings until he provided them with further trust funds. 8 On 4 April 2002 the Court was informed that the Sheriff attended the appellant's premises to execute default judgment as a writ of fi fa had been issued. In response the appellant immediately contacted his solicitors and provided them with instructions to file a chamber summons to set aside the default judgment entered by the respondent. 9 It is correct as the respondent contends that no real factual basis for the misapprehension claimed by the appellant is set out in his affidavit. It would appear that the appellant does not take issue with the fact that he was given certain oral advice which was confirmed in the letter of 21 December 2001 as to how matters stood between the appellant and his solicitors relevant to them acting on his behalf in these proceedings. It is the case, however, that the appellant deposes that he was not aware at the relevant time of his obligation to file a defence in these proceedings within 14 days from the last date in which the memorandum of appearance was filed on his behalf. Although I accept that the appellant was involved in other District Court proceedings at the relevant time, nonetheless I do not accept that one can necessarily infer that as a result
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the appellant was aware of time limits imposed by the rules. For that reason it cannot be accepted that the appellant necessarily was aware of the importance of complying with time limits and the sanctions of non-compliance. In all of the circumstances it might be observed that it was naïve and perhaps most imprudent of the appellant not to maintain more regular contact with his solicitors during the relevant period and not to check his mail or cause his mail to be forwarded on to him during that period but there is nothing to suggest that the appellant was behaving wilfully in this way or that he had a cavalier attitude towards his situation. To the contrary it would seem that as soon as the appellant received the writ of summons and statement of claim he immediately attempted to seek legal advice as to his position and certainly when he became aware of the consequences of default judgment having been entered against him, he once more immediately sought legal advice. In the circumstances, although the appellant's solicitors have not filed an affidavit deposing as to what advice he was given about the need to file a defence, I do not believe in the absence of such information the inference can necessarily be drawn that he was advised of the need to file a defence when the memorandum of appearance was filed. Further, the circumstances of this case in my view go somewhat beyond those in Surdex Steel Pty Ltd v Buck & Anor [1999] VSC 521 where pressure of work as an explanation for failure to defend the proceeding and failure to take steps to set aside a judgment was considered by the Court to be totally unacceptable and provided no basis for setting it aside. 10 Notwithstanding a number of fair and valid criticisms which can be directed at the appellant for failing to comply with the rules, in the end taken as a whole, the material before the Court does in my opinion provide satisfactory explanation for the delay and this ground of the appeal is therefore made out.
Defence on the merits 11 It is common ground that the respondent's claim has two parts. The first is for monies due under a written agreement entered into by the parties in December 1997 pursuant to which the appellant agreed to pay the respondent $200,000 to purchase shares in various companies. The second relates to the respondent's claim to entitlement of damages in the sum of $13,464 pursuant to a lease. As I understand it this latter claim was not dealt with by the Deputy Registrar. At the hearing of this appeal Mr Lyons, counsel for the respondent, advised the Court that the fact that default judgment was entered for $200,000 was overstated. The position
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is that if the judgment entered in default were to be maintained then the claim relevant to the sum of $13,464 falls away. If the appeal were to be successful and the default judgment overturned then both claims remain alive. 12 The appellant argues that a company called Go-Fa Pty Ltd ("Go-Fa") was created by the appellant and he is a director of the company which he claims always owned shares in General Technology Applications Australia Pty Ltd ("GTAA") and another company called Fuel Tech Australia Pty Ltd ("FTA"). It is claimed that the appellant himself never owned these shares. He says that those shares were transferred to Go-Fa at a nominal value to coincide with the execution of a particular deed which was described as a trust deed. This document was not before the Registrar at the hearing of the chamber summons but subsequently on 11 June 2002 the document was located. That trust deed, according to the appellant, sets out material relevant to the purchase of units by Go-Fa for $200,000 which it is said is the amount which the respondent alleges he is owed. 13 In an affidavit sworn 8 April 2002, which was before the Deputy Registrar, the appellant admits to a written agreement for him to purchase shares in FTA and GTAA for $200,000, although it claims that was in January 1998 which differs from material contained in the appellant's later affidavit of 14 August 2002. The appellant admits that there is an inconsistency on that point between the two documents, but claims that it can be explained by the production of the document located on 11 June 2002. The appellant argues that this now clarifies his recollection of earlier events. This is notwithstanding that in his affidavit of 8 April 2002 the appellant acknowledged that he could not recall the exact terms of the agreement and so the contents of that affidavit were based on his recollection of events at that time. It is said that in the absence of certain documentation the appellant was under a misapprehension in relation to certain aspects of his recollection. 14 Counsel for the appellant referred to the document of 11 June as the deed or trust deed and submitted that the agreement the subject of the affidavit was that deed and the transfer of shares in GTAA and FTA was as a collateral result of signing the deed and so the shares were then transferred to Go-Fa. It is claimed that the respondent's recollection or understanding of events was not based on any documentary evidence, whereas the appellant now has the benefit of the deed in support of his current recollection.
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15 A copy of that deed when it was located was provided to the respondent's solicitors, who took the view that the deed did not relate to purchase of shares but rather to purchase of units. They attached a letter dated 24 December 1997 under the letterhead of E N Stamatiou & Co to this correspondence. A copy of this is annexed to the appellant's affidavit of 14 August 2002 ("GKBW5"). This particular letter was provided to the appellant after the chamber summons was heard and after a copy of the deed was provided by the appellant to the respondent. The respondent seeks to rely on the contents of that letter which refers to a meeting at the offices of E N Stamatiou & Co between the appellant and respondent, as a result of which a firm of chartered accountants were instructed to change the shareholding structure of FTA to reflect that the appellant held 20 per cent, the respondent held 70 per cent and further that the FTA trust was no longer required as it was considered it would create complexities in the future. There is a further letter dated 27 January 1998 annexed to the respondent's affidavit of 14 August 2002 on the letterhead of Irdi & Associates addressed to the same firm of chartered accountants as previously referred to which encloses documents being the original and three duplicate copies of the trust deed for the FTA Unit Trust, ordinary unit certificate No 1 issued to the respondent as trustee for and on behalf of his family trust to be dated and sealed by Fuel Tech (WA) Australia Pty Ltd, and ordinary certificate No 2 issued to Emmanuel Nicholas Stamatiou as trustee for and on behalf of the Stamatiou Investment Trust to be dated and sealed by Fuel Tech (WA) Australia Pty Ltd. In paragraph 5 reference is made to ordinary unit certificate No 4 issued to Go-Fa Pty Ltd as trustee for and on behalf of the Go-Fa Trust to be dated and sealed by Fuel Tech (WA) Australia Pty Ltd. The appellant argues that the letter from E N Stamatiou & Co does no more than prove or at least support the contention that circumstances changed subsequently. In any event the appellant argues that even if the agreement is as contended by the respondent, the appellant nonetheless did not purchase shares or receive benefit of the transfer of any shares himself rather it was Go-Fa. Despite the contents of the letter of E N Stamatiou & Co, the appellant argues that the fact that a deed was stamped and signed leads to a clear inference that despite what was contemplated in that letter the situation changed thereafter in a significant way.
16 It would appear that there is considerable dispute concerning the parties' recollection of events in 1997 and 1998. The appellant argues that the contents of the letter from E N Stamatiou & Co in effect reinforces his contention that matters changed after 24 December 1997 and further that the respondent has not demonstrated by way of any documentation that
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the appellant received the benefit of such shares. The respondent, it is said, is unable to present the agreement it relies upon in its statement of claim. This claim according to the appellant is based solely upon the respondent's understanding of the agreement and the respondent's recollection of that agreement which the appellant contends is incorrect. 17 The appellant, relevant to satisfying the test, argues the defence is based upon the understanding of the agreement in the light of what is now termed the FTA trust deed. Having considered that deed in combination with the letters from E N Stamatiou & Co and Irdi & Associates, the appellant argues he has been able to refresh his memory as to the terms of the agreement. It is submitted that two possible defences now arise in answer to the respondent's claim. First that the agreement to which the respondent refers, based on his understanding of matters, is not an agreement for the sale of shares but rather an agreement for Go-Fa to acquire units in a unit trust. This is said to be the appellant's understanding of the agreement that was reached and it is claimed that this understanding is supported by the creation of the trust and the acquisition of the units by Go-Fa. Secondly, it is submitted that if there was an agreement of the nature that the respondent alleges, then such agreement was between the respondent and Go-Fa and not the respondent and the appellant. It is claimed that this argument is supported by the fact that Go-Fa, not the appellant, acquired the shares and that as a result the appellant has never been the owner of those shares. Relevant to the first limb of the argument the appellant says that the letter of E N Stamatiou & Co might have set out the basis of the agreement at that time but the terms of that agreement, whatever they were in detail, were superseded by the creation of the FTA trust deed. 18 As a practical consideration the appellant points out that as neither he nor his solicitors had the benefit of the E N Stamatiou & Co letter they were not able to fully consider its contents and make relevant submissions before the Deputy Registrar at the hearing of the chamber summons to set aside default judgment. Although that particular letter states that the deed was to be ignored, nonetheless the deed was stamped on 8 May 1998 and that notwithstanding what occurred at the meeting on or about 24 December 1997 a change occurred whereby the deed was thereafter executed and stamped and the deed provided for the acquisition by Go-Fa of units in the Fuel Tech trust for $200,000. 19 It is the appellant's position that in the light of the FTA trust deed being discovered and taking into account the contents both of the letter of E N Stamatiou & Co and the letter of Irdi & Associates then a
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considerable number of the problems identified at the time of the hearing of the chamber summons can now be explained and adequately addressed. The subsequent location of documentation it is said goes a good way towards rectifying the problems created by the fragility of recollection which was a problem highlighted by the Deputy Registrar in his decision. 20 The appellant concedes that his first affidavit does suffer from inconsistency when read in conjunction with his later affidavit of August this year. Nonetheless it is said that the later affidavit clarifies the position given that particular documentation has now been provided to and considered by the appellant. The later affidavit he submits demonstrates that the entity involved in all transactions involving the respondent was in fact Go-Fa. In circumstances where there are two different and competing understandings of the agreement and recollections of the events surrounding it the appellant argues that there exists a real prospect of success if he is granted the opportunity to present his defence at a trial in the event that the default judgment is set aside. 21 In an affidavit dated 13 August 2002 the respondent refers to his claim for $200,000 against the appellant which the respondent says is due under a written agreement he entered into with the appellant in December 1997. That agreement, the respondent asserts, was for the sale of shares in two associated companies being FTA and GTAA by the respondent to the appellant. The respondent makes reference to the appellant's claim that the agreement was between the appellant's company Go-Fa and the respondent. Although the respondent no longer has a copy of the agreement, he deposes that both he and the appellant were parties to the agreement and refers to the letter of E N Stamatiou & Co to the firm of chartered accountants dated 24 December 1997 pointing out that both Mr Stamatiou and Mr Palermo of the firm of chartered accountants, were shareholders in FTA at that time. He further deposes that he was present at a meeting in Mr Stamatiou's office with the appellant on 24 December 1997 and says that the letter of that date sets out the agreement reached at the meeting concerning the transfer of shares by the respondent to the appellant and the payment by the appellant to the respondent of $200,000. 22 On 4 July 2002 the respondent's solicitors advised him they had received a letter from the appellant's solicitors enclosing a deed of settlement of the FTA trust dated 22 December 1997. The respondent perused that deed and deposes that it does not relate to the agreement between himself and the appellant and further that following the meeting between himself and the appellant in Mr Stamatiou's office, the parties decided not to proceed with the FTA trust.
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23 The respondent takes issue with any suggestion that he has taken action against the wrong party and denies that such an argument is supported by the existence of the deed to which the appellant refers in argument. It is conceded that the appellant raises a number of matters in argument which require the Court to take a positive view of his credibility. It is submitted that when one considers the terms of the deed which surfaced following the chamber summons, it cannot be the agreement upon which the appellant now relies. Even accepting, which the respondent does not concede, that the document creates a trust, it is said that it fails to explain how it is that Go-Fa acquired shares in FTA and GTAA. The appellant cannot argue that it was a collateral result because there is no evidence supporting that contention. The acquisition of units under a unit trust deed is entirely different from the acquisition of shares in the two companies mentioned which is what the respondent says is the subject of the claim.
24 The statement of claim in paragraph 5 alleges "pursuant to the agreement the plaintiff, at the direction of the defendant during about December 1997 transferred 20 shares in Fuel Tech to a company called Go-Fa Pty Ltd as trustees for the Go-Fa trust and also transferred five shares in GTAA to Go-Fa Pty Ltd as trustee for the Go-Fa trust". As a result it is said it has never been suggested and it is not suggested by the respondent that the shares were transferred to anyone other than Go-Fa. It is correct that they were held in the name of the appellant but the statement of claim specifies that it was at the direction of the appellant that in fact the shares were transferred to Go-Fa. The respondent refers to the appellant's affidavit where he deposes that in about January 1998 an agreement was prepared by E N Stamatiou & Co evidencing an agreement for the appellant to purchase shares in FTA and GTAA for $200,000 but that the appellant could not recall the exact terms of the agreement nor did he possess a copy of it. In contrast with that counsel for the respondent refers to his affidavit of 15 August 2002 which annexes an affidavit sworn by the appellant in February 2001 relevant to discovery. In that affidavit the appellant makes reference to the discovery of documents relating to the agreement between himself and the respondent, pursuant to which the appellant agreed to sell and the respondent agreed to buy shares in GTAA and FTA in December 1997 and a variation made thereafter in August 1999. In paragraph 3 of that affidavit the appellant states that he has previously viewed the documents described but does not have them in his possession, custody or power. The point is made that by February 2001 the appellant deposed he had seen the agreement which evidences the transaction relied on by the respondent in the proceedings, but states that
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he no longer has it in his possession. In another affidavit of 8 April 2002 the appellant in paragraph 26 acknowledges that in about January 1998 an agreement was prepared by the respondent's solicitors, E N Stamatiou & Co, evidencing an agreement for the appellant to purchase shares in FTA and GTAA for $200,000 but he does not recall the terms of that agreement and does not possess a copy of it. 25 The deed of settlement for the FTA trust which was provided to the respondent's solicitors following the Deputy Registrar's decision is now relied on by the appellant as being the relevant agreement. The letter of E N Stamatiou & Co, however, according to the respondent, makes it plain that the agreement in question was always contemplated to be between the appellant and respondent as individuals. The respondent argues that one can readily infer this was in fact the appellant's understanding up until the hearing before the Deputy Registrar and was a matter to which the appellant had deposed to in his affidavits of February 2001 and April 2002. Later in his affidavit of 14 August 2002 the appellant in paragraph 16 deposed that he only discovered the deed on or about 11 June 2002 in conjunction with the accountant, Mr Palermo, and prior to that time the appellant was unaware of its whereabouts. Criticism is levelled at the appellant in that there is no attempt on his part to explain why the document did not emerge prior to that date and no reference is made to any enquiries made at the time that the appellant swore an affidavit of discovery. In these circumstances the respondent argues that there is little basis for accepting that this document should be treated as evidencing the agreement between the parties. Whilst it purports to create a trust and identifies proposed unit holders the respondent claims the document does not relate to the transfer of shares from the respondent. It is also unclear, according to the respondent, on the material put forward on behalf of the appellant, that the $200,000 the subject of the default judgment is in fact the same $200,000 for which he was to acquire units in the FTA trust under the deed. The appellant does not depose that he has paid those monies already or that he has paid $200,000 for the units which the respondent argues is consistent with its position that the trust simply did not proceed. 26 At the hearing of the chamber summons the appellant took the view that there were a number of reasons why he did not owe the sum of $200,000, one being that it was not his responsibility but that of Go-Fa. Contrasted with this the appellant admitted he signed an agreement pursuant to which he was to pay $200,000 for relevant shareholdings but at the same time claimed that it was agreed that he would not have to pay that sum. The end result was according to the appellant that it was Go-Fa
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and not he who acquired the shares from the respondent. Further to that the respondent understands the appellant to now say that there was never an agreement to purchase shares in FTA and GTAA but rather there was an agreement regarding the acquisition of units in a unit trust which according to the respondent is an entirely different matter. The respondent's argument if one follows this logic to its conclusion is there must be two agreements in existence. 27 Put in short form the respondent's position is when one considers all these matters there are simply too many inconsistencies in the appellant's affidavits for him to satisfy the test that the defence he wishes to raise to the claim has any merit whatsoever. The respondent argues that the material before the Court does disclose there was an agreement in existence from December 1997 whereby the respondent was to transfer shares to the appellant at his direction for $200,000. The appellant now attempts to resile from that agreement on the basis of discovery of a later document which appeared in circumstances which are not fully, or at best most unsatisfactorily explained by the appellant. That document the respondent argues is not relevant to these proceedings and no investigations regarding it have been made by way of affidavits being filed by the relevant accounting firm, from Mr Stamatiou or a representative of Irdi & Associates as to what their understanding of the arrangements were. This is an onus which lies upon the appellant and he has failed to discharge it. 28 It appears that there is a lengthy and somewhat complex history between the parties to this action. This appeal raises issues of both law and credibility. Credibility is extremely difficult to assess in the absence of hearing and observing witnesses give evidence. 29 Clearly two distinct and opposing sets of recollection and understanding of events surrounding the agreement reached between the parties exist. In my view justice requires that these be investigated fully and resolved if at all possible. On the material before the Court at this time it cannot necessarily be inferred that there were two separate and distinct agreements. The matter is complicated by the location of what has been termed the deed, subsequent to the hearing of the chamber summons. In view of the reliance that the appellant places on this document, its origins need to be carefully explored. To date there is inadequate material to fully explain the letter of E N Stamatiou & Co and the letter of Irdi & Associates and whether there is any connection between those documents. There does not appear to have been any argument in relation to this issue before the Deputy Registrar. It is also
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unclear in the absence of further evidence what, if any, changes occurred with respect to any agreement that had been reached as between the parties after the Stamatiou letter of 24 December 1997. 30 Finally, this is a claim against the appellant for a relatively significant sum of money and in all of the circumstances, notwithstanding the appellant's failure to comply with the rules and certain criticisms levelled at the deed and the circumstances surrounding its location, I consider that the defence the appellant wishes to raise has a real prospect of success, depending in large part on the ultimate findings as to credibility. I will hear from counsel as to the appropriate orders to be made. |