Australian Cedar Pty Limited v Eastown Timber Products Limited HC Wanganui CIV 2008-483-23

[2009] NZHC 2600

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2008-483-23

BETWEEN  AUSTRALIAN CEDAR PTY LIMITED Plaintiff

ANDEASTOWN TIMBER PRODUCTS LIMITED

Defendant

ANDIAG NEW ZEALAND LIMITED Third Party

Hearing:         25 November 2009

Appearances: J.N. Bierre and D.J. MacRae - Plaintiff

P. Leman and P. Heir - Third Party IAG New Zealand Ltd
No Appearance - Defendant

Judgment:      18 December 2009

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment was delivered by Associate Judge Gendall on 18 December 2009 at

12.30 pm pursuant to r 11.5 of the High Court Rules.

Solicitors:       Morgan Coakle, Solicitors, PO Box 114, Auckland

DLA Phillips Fox, PO Box 2791, Wellington

AUSTRALIAN CEDAR PTY LIMITED V EASTOWN TIMBER PRODUCTS LIMITED HC WANG CIV-

2008-483-23  18 December 2009

Introduction

[1]   The defendant in these proceedings, Eastown Timber Products Limited (“Eastown”) is pursuing the third party, IAG New Zealand Limited (“IAG”) its liability insurer, in claims for breach of contract and contractual mistake.  IAG now applies for orders:

(a)       Granting leave to apply for what is effectively defendant’s summary judgment against Eastown.

(b)       Granting summary judgment in favour of IAG against Eastown on

Eastown’s causes of action against IAG.

(c)       Alternatively, striking out Eastown’s causes of action against IAG. (d)        For costs.

[2]    Both Eastown and the plaintiff, Australian Cedar Pty Limited, (“Australian Cedar”) oppose IAG’s application.   At the hearing there was no appearance for Eastown.   Its interests here were effectively advanced by counsel for the plaintiff Australian Cedar who did appear to oppose the application.   At the outset of the hearing before me, leave for IAG to apply for summary judgment pursuant to r

12.4(3) of the High Court Rules was not opposed and was granted.

Background Facts

[3]   Eastown is a Wanganui-based company carrying on business as a timber merchant. Australian Cedar is an Australian company carrying on business as an importer and distributor of timber.

[4]    Around 2000, Eastown and Australian Cedar entered into an oral agreement (“the Agreement”) whereby Eastown agreed to supply Australian Cedar with pinus radiata decking timber.  This timber was to be treated and visually graded to a certain knot dimension/frequency as specified by Australian Cedar, and Eastown was to arrange shipping to Sydney, Australia.

[5]    In 2001, Eastown supplied Australian Cedar with decking timber pursuant to the Agreement. Some of this timber was then on-sold by Australian Cedar to The

Treated Pine Shack, a timber supplier in New South Wales. A Mr. Norman Edgar Mayes (“Mr. Mayes”) purchased some of this timber from The Treated Pine Shack and used it in the construction of a deck at his home.

[6]    Mr. Mayes suffered an injury when a piece of unfixed decking timber that he stood on broke underneath his weight.  It is accepted that, had the piece of timber been up to the appropriate standard, it would not have broken. The reason for it breaking was a large knot in the wood.

[7] Mr. Mayes issued proceedings in Australia against Australian Cedar. The New South Wales Supreme Court found that Australian Cedar had supplied the decking timber, which was unmerchantable, to The Treated Pine Shack, and was therefore liable to Mr. Mayes pursuant to Part VA of the Trade Practices Act 1974 (Commonwealth of Australia). Australian Cedar was ordered to pay damages of A$99,535.00 to Mr Mayes, together with his legal costs, later agreed at $270,000.00.

[8]    Australian  Cedar  then  issued  these  proceedings  against  Eastown  in  New

Zealand on 29 January 2009, claiming the following:

•    That Eastown breached an implied term of the Agreement:

(a)pursuant to s. 16(a) of the Sale of Goods Act 1908 and the Sale of Goods Act (NSW) because the timber supplied was not fit for its purpose; and

(b)pursuant to s. 16(b) of the Sale of Goods Act 1908 and the Sale of Goods Act (NSW) because the timber supplied was not of merchantable quality;

•That Eastown was negligent in manufacturing and supplying the timber in that it breached alleged duties to:

o Supply decking timber of merchantable quality;

o Supply timber that was safe and fit for use as decking;

o Properly inspect the timber for defects;

oWarn Australia Cedar of the risks associated with using the timber for decking.

[9]    In the present proceeding, Australian Cedar seeks damages of $369,535.00, being the damages and costs that it paid to Mr Mayes, the costs of the Australian proceedings, and interest against Eastown.

[10]  On 4 August 2009, Eastown filed an amended statement of claim against the third party, its insurer IAG.   Eastown pleaded that IAG had breached its contract with Eastown by refusing to indemnify Eastown against any liability it may have to Australian Cedar.

[11]  Eastown says that at the time in 2000 when it entered into the Agreement with Australian  Cedar,  it  spoke  to  its  insurance  broker  J  W  Manks  &  Co  Ltd  and instructed it to put in place product liability insurance to cover Eastown’s exporting of timber to Australia, and any accidental injury or damage litigation that may result from any defect in that timber.

[12] Eastown’s existing insurance policy only provided cover for liability for accidents arising in New Zealand. Following consultation with J W Manks & Co Ltd, Eastown obtained some cover for its liability for injury and damage occurring outside New  Zealand from goods sold or supplied by it through a  “Worldwide extension” to its policy which states as relevant:

“In consideration of the payment of an extra premium the indemnity expressed in this Policy (notwithstanding anything contained in Exception 5(d) or (5)(e) but subject to its terms exceptions and conditions insofar as they can apply and are not inconsistent with anything herein contained) shall extend to include liability in respect of accidental injury or accidental damage occurring anyhere [sic] in the world during any period of indemnity but not prior to the date of this extension caused or arising:

(a)  as a direct consequence of anything harmful or defective in goods products food or  drink manufactured, constructed, altered, repaired, serviced, treated, sold, supplied or distributed in or from New Zealand by the Insured

…

in connection with the Business. PROVIDED ALWAYS THAT

…

(ii)    State [now IAG] shall not be liable in respect of any liability arising as the result of the failure of any goods products food or drink to fulfil the purpose for which manufactured, constructed, altered, repaired, serviced, treated, sold, supplied or distributed.

…”.

[13] Australian Cedar and Eastown argue that Eastown’s potential liability to Australian Cedar in the present proceedings is covered by this clause. IAG has refused to indemnify Eastown on the basis that it maintains the present case falls within the proviso at (ii) (in this judgment referred to as “the efficacy exclusion”) in that Eastown’s potential liability arises as a direct result of the failure of its product to fulfil its purpose.

Summary Judgment Principles

[14] Before me, counsel focused their argument on IAG’s summary judgment application, which I will address before turning to the alternative strike out application.

[15] The former application is effectively a defendant’s summary judgment application to which Rule 12.2(2) of the High Court Rules applies.  It provides:

“12.2 Judgment when there is no defence or when no cause of action can succeed

…

(2)      The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff's statement of claim can succeed.”

[16]  An  application  for  summary  judgment  by  a  defendant  is  similar  to  an application for striking out, in that the defendant must show that all of the plaintiff’s causes of action will fail: Ferrymead Tavern Ltd v Christchurch Press Ltd (1999) 13

PRNZ 616. The summary judgment procedure should only be used where the defendant has a clear and complete answer to the plaintiff’s claim which cannot be contradicted: Westpac Banking Corp v M M Kembla NZ Ltd [2001] 2 NZLR 298, paras 62-64 (CA). The Courts have noted the difficulty in succeeding in a r 12.2(2) application where there are material disputes of fact – AG v Jones (2003) 16 PRNZ

715 (PC).

Breach of Contract – the scope of Eastown’s insurance cover

Interpretation Principles

[17]  On questions regarding the interpretation of insurance policies, the Court of Appeal has stated in Molyneux Holdings Limited v IAG New Zealand Limited [2007] NZCA 254, para 22:

“Words are to be construed in context according to their natural and ordinary meaning but with such contracts being construed contra proferentem in the event of ambiguity or there being two  meanings of equal cogency. It is also correct, as Mr Rennie submitted, that exclusion clauses are normally construed narrowly: Lobb v Phoenix Assurance Co Ltd [1988] 1 NZLR 285 (CA).”

[18]  Ronald Young J in Trustees Executors Ltd v QBE Insurance (International) Ltd HC AK CIV-2009-404-1165 9 October 2009, stated:

“[29]      The starting point is, as always, the words themselves. The words of a contract should, unless the context clearly requires otherwise, have their ordinary meaning. Assistance can be gained from the context in which the disputed words occur, including the phrase, the paragraph and the whole of the contract itself. The relevant factual matrix can also assist.

[30]The key is to ascertain objectively the common intention of the parties using the above factors. If there is ambiguity or other interpretative difficulties then an assessment of the commercial realities, common sense and a consideration of whether a particular result might lead to an unreasonable outcome are relevant.

[31]        In particular in relation to exclusion clauses:

a)the onus of establishing that an exclusion clause applies is on the insurer;

b)       exclusion clauses should be narrowly construed;

c)ambiguities are generally to be construed against the insurer if they have drafted the Policy.”

Which claims fall within the insuring clause?

[19]  IAG accepts that liability arising out of the Sale of Goods Act causes of action prima facie fall within the Worldwide extension, as they are claims based on defects in the goods supplied. IAG also accepts that the first two parts of the negligence cause of action, namely breach of duty to provide decking timber of merchantable quality, and that was safe and fit for use as decking, prima facie fall within the Worldwide extension.   IAG acknowledges they are effectively another way of framing the Sale of Goods Act claims.

[20]   Counsel for IAG submits however that the second two parts of the negligence claim, being failure to inspect and warn, do not fall within the insuring clause at all. Counsel states that this is because they are claims for breaches which are ancillary to the supply of the timber.   Any liability Eastown may have with regard to these claims is not “a direct consequence of anything harmful or defective” in the timber, instead being a consequence of Eastown’s negligence and thus not covered by the insuring clause.

[21]  In response, Australian Cedar’s position is that it is not Eastown’s liability, but the “accidental injury or accidental damage” which must arise as a direct consequence of anything harmful or defective in the timber.  Mr. Mayes suffered an injury in direct consequence of the defect in the decking board. Any liability of Eastown will be “in respect of” that injury. As such, it is said that all causes of action clearly fall within the Worldwide extension.

[22] In my view, at this early summary judgment stage of the proceeding, a reasonable argument exists here that the natural and ordinary meaning of the words as they appear in the Worldwide extension does support Australian Cedar’s interpretation,  so  that  on  their  face  all  of  the  causes  of  action  pleaded  against Eastown are prima facie covered.

Application of the Exclusion clause – “arising as a result of”

[23]  Before me, counsel for IAG went on to submit that, in any event, application of  the  Worldwide  extension  is  precluded  by  the  proviso  at  (ii),  the  efficacy exclusion.  This exclusion clause limits the scope of cover otherwise available under the Worldwide extension. IAG’s position is that the efficacy exclusion applies because Eastown’s potential liability to Australian Cedar “aris[es] as the result of” the “failure of goods” (the timber) to fulfil the purpose for which... sold or supplied…”.

[24]  Argument on this issue focused on the proper interpretation of the expressions

“failure to fulfil the purpose”; and “arising as the result of” in the efficacy exclusion.

[25]  In considering first the meaning of the words “arising as the result of”, counsel for IAG pointed to the decision in Kooragang Cement Pty Ltd v Bates (1994) 10

NSWCCRA 796, para 18, in which the Court of Appeal of New South Wales found that the words “resulting from” do not import an idea of causation limited to the immediate  proximate  cause.  On  that  basis,  given  that  there  is  little  difference between the expressions “arising as the result of” and “resulting from”, counsel for IAG contended that it will be enough for the exclusion clause to apply if the failure of the timber to fulfil its purpose was a material cause of Eastown’s liability, even if not the proximate cause.

[26]  In  putting  Eastown’s  position  in  response,  counsel  for  Australian  Cedar pointed out that the efficacy exclusion uses the specific expression “arising as the result of” and not “arising as a result of”.  He went on to argue this must require a direct causal connection between Eastown’s liability and the failure of the timber to fulfil its purpose. As to whether Kooragang applied here, counsel also pointed out that that this case involved a compensation statute, which the Court found should not be construed narrowly.  In contrast, the present case concerns an exclusion clause in an insurance policy, which it is accepted must be construed narrowly.

[27]  It follows, according to counsel for Australian Cedar, that even if the Court were to accept IAG’s interpretation of the words “failure to fulfil purpose”, the efficacy exclusion would still not apply to the negligence claim. This is because, pursuant to that claim, the direct cause of Eastown’s liability is its own negligence and not the failure of the goods to fulfil their intended purpose. In support of this interpretation, counsel referred to a decision of the Court of Appeal of New South Wales, Mutual Acceptance (Insurance) Limited v Nicol (1987) 4 ANZ Insurance Cases 61-821. In that case, the insured had supplied a power boat on which the steering later failed, causing injury. It was found that an essential part of the steering mechanism was either loose or missing at the time the boat was supplied. The insurer attempted to rely on an exclusion clause in the policy, which excluded “claims arising directly or indirectly out of any defect or deficiency in… goods sold or supplied”.

[28]  The insurer in that case argued that the claim against the insured arose from a defect or deficiency in the steering mechanism of the boat, such that the exclusion clause applied. The Court found however that there was a valid distinction between the existence of a defect or deficiency and the failure of the insured to remove it, stating at 75-049:

“There is, I think, a valid distinction between the existence of a defect or deficiency and the failure of the defendants to remove it. Thus, it may be that the condition of the cup resulted from the acts of the boat builder or some other third party. In such event, the claim against the defendant was for negligence in failing to remedy or remove it. In this sense, the claim arose out of not the defect or deficiency, but the failure to remove it…

I am conscious that the casual or collateral negligence for which the defendants were sued  took  its  significance from  the  existence of,  as  I  shall  assume, a  defect  or deficiency in the boat or, perhaps, from the fact that it resulted in the existence of it.

But the law is not unfamiliar with distinctions which, for the purposes of legislative limitations or otherwise, are drawn between liabilities of these kinds. And, in the present case, I  would categorise the claim as arising from a  collateral or casual negligence rather than from such a defect of deficiency as may have flowed from it.”

[29] Similarly, it is suggested that in the present case, Eastown’s liability for negligence would arise not as a result of the failure of the goods, but as a result of Eastown’s failure to identify and deal with the knot in the decking board which broke causing Mr Mayes injury.

Application of the Exclusion Clause – “failure to fulfil the purpose”

[30]  Turning  now  to  consider  the  meaning  of  the  words  “failure  to  fulfil  the purpose” before me counsel for IAG noted that the phrase is not defined in the policy, and similar clauses have not been the subject of detailed examination in the courts. Counsel referred to dictionary definitions of the meaning of “fulfil”, and in doing so submitted that the efficacy exclusion will apply if the product sold or supplied does not satisfy its intended function.   IAG’s position is that the timber supplied by Eastown failed to fulfil its intended purpose of acting as decking timber, because it failed to support the weight of the person using it – an essential characteristic of timber used for a deck. The timber failed to fulfil its purpose, because it broke.

[31]  In response, counsel for Australian Cedar suggests that IAG’s interpretation if correct would make the apparent cover provided by the Worldwide extension practically illusory, depriving the extension of any meaning or scope, because anything defective in goods will always render the goods unable to fulfil the purpose for which they were manufactured or sold. The Worldwide extension provides cover for “anything harmful or defective in goods”. On this counsel referred to the New Shorter Oxford English Dictionary definition of “defect” as:

1.     The absence of something essential to completeness; a lack; a deficiency

2.     A shortcoming, a failing, a fault, an imperfection.

[32]  Mr. Bierre for Australian Cedar contended that IAG has been unable to provide an example of any defect otherwise covered by the Worldwide extension which would not be excluded by the exclusion clause.   He argued before me that the examples given by IAG – injury caused by a nail in the timber, or a skin irritation

caused by a treatment substance applied to the wood – are examples of something “harmful” in the timber, rather than a defect.  At the hearing, counsel for IAG did provide an additional example of a splinter in the wood causing an injury. Counsel for Australian Cedar replied that whatever the position, the efficacy exclusion must be interpreted in a way which gives effect to the commercial purpose of the policy and the general efficacy of the Worldwide extension.

[33]  IAG’s position is that its interpretation does make commercial sense.  It notes further that the courts have been prepared to give effect to exclusion clauses which dramatically reduce the scope of cover.

[34]  In particular, IAG relies on Nittan (UK) Ltd v Solvent Fabrication Ltd t/a Sargrove Automation and Cornhill Insurance Co Limited [1981] 1 Lloyd’s Rep 633 as a case in which it was found that an exclusion clause did not deprive the underlying cover of all meaning because it left intact a limited indemnity and, while the risk of the loss to which the indemnity applied was not great, if it were, this would have been reflected in a higher premium. In the present case, the amount that Eastown paid for the Worldwide extension is not clear, although it does not appear to have been great.

[35]  In  response,  counsel  for  Australian  Cedar   argued  that  Nittan  can  be distinguished here on the basis that it is a case which prima facie provided wide cover for accidental injury “caused by or arising out of any goods sold” by the insured.  By contrast, the insuring clause contained in the Worldwide extension here is already very limited, providing cover only for accidental injury/damage arising “as a direct consequence of anything harmful or defective in goods”.  As such, while the exclusion clause in Nittan left some cover intact, the same cannot be said of the exclusion clause in the present case.

[36]  Counsel  for  IAG  also  drew  the  Court’s  attention  here  to  the  decisions  in Selected Seeds Pty Ltd v QBEMM Pty Ltd and anor [2009] QCA 286 and John Wyeth & Brother Ltd v Cigna Insurance Co of Europe SA/NV [2000] EWHC 192 as cases involving similarly wide exclusion clauses.

[37]  In addressing Selected Seeds counsel for Australian Cedar submitted it was similar to Nittan in that the prima facie scope of the cover was much wider than is

the  case  before  the  Court  here,  so  that  the  significant  exclusion  clause  did  not deprive the policy of all effect.

[38]  Turning to John Wyeth, there a drug company’s insurance policy excluded cover  for  bodily injury resulting from  a  failure of  its  products  to “perform  the function or serve the purpose intended”. The company was sued by users of the drug who complained that they suffered bodily injury caused by the side-effects of what turned out to be an addictive drug, although the drug did apparently deal with the symptoms (principally insomnia and anxiety) for which it was prescribed. The Court stated:

“Mr Slater submits that the claims in the Benzodiazepine litigation were within the

Efficacy Exclusion and so excluded from cover because:

“although they alleged causation of bodily injury by both ingestion of and withdrawal from the Benzodiazepine drugs, that injury was caused by the failure of the drug to serve its purpose – viz the alleviation of symptoms and increasing either in severity or number such  symptoms and  certainly not  causing dependency –  by  reason  of  a deficiency in the printed instructions.”

However it is presented, this submission in reality amounts to giving to the Efficacy Exclusion the effect of excluding from cover any injury on the basis that the drug has failed to serve its purpose if it should not have caused that injury and instruction could have been given to prevent it doing so. That would be to give to the clause an exclusionary effect which would emasculate much of the cover. Indeed, when pressed, Mr Slater was unable to think of many examples where cover would not be excluded if the clause had such a sweeping effect. Just as an exception to an exclusion should not be interpreted so broadly as to swallow up the exclusion, as Mr Wollan said, so also I think on ordinary principles of construction an exclusion should not be interpreted so broadly as to emasculate the cover.”

[39]  Counsel  for  Australian  Cedar  submits  that  similarly these  comments  must apply here to the interpretation IAG puts forward in the present case. In order for the Worldwide extension to be of any effect, and to give the exclusion commercial/business efficacy, counsel submits that the word “fulfil” must mean “be used for”. For example, this would mean that the efficacy exclusion clause would apply if the decking timber had a defect which resulted in injury, but the decking timber was at the time of injury being used as framing timber. Counsel submits that this interpretation does not result in any ambiguity or inconsistency, and that the contra proferentem rule applies so that if more than one interpretation is available, that least favourable to IAG should be adopted.

[40]  In conclusion, I am not satisfied that IAG has discharged its onus here of satisfying the Court that Eastown’s claim in breach of contract cannot succeed – Westpac Bank v M.M. Kembla NZ Ltd [2001] 2NZLR 298. As I have noted above, in my view Eastown has done enough to show it is reasonably arguable that aspects of this cause of action prima facie fall within the Worldwide extension.

[41]  As I see it, the interpretation advanced on behalf of Australian Cedar as to the meaning of the expression “failure to fulfil the purpose” in the efficacy exclusion is also reasonably arguable here and may be ultimately supported by relevant factual and contextual matters which can be drawn out at trial. As was similarly the case in John Wyeth, if IAG’s interpretation of the efficacy exclusion clause were to prevail, cover provided by the Worldwide extension would be extremely limited, and the word “defective” might well be deprived of most of its meaning. In my view, it is also reasonably arguable here that Australian Cedar’s interpretation of the efficacy exclusion is not inconsistent with the ordinary meaning of the words, and would also be consistent with the narrow interpretation to be given to insurance policy exclusion clauses: Molyneux; Trustees Executors.

[42]  I  am  further  satisfied  that  given  the  exacting  test  required  for  s.  12.2(2)

summary judgment applications noted by the Privy Cuncil in AG v Jones (at para.

10) Australian Cedar’s interpretation of the meaning of “arising as the result of” is to be preferred at this early point of this proceeding as consistent with the authorities and the principles of interpretation of exclusion clauses. As such, Eastown’s causes of action based on negligent failure to inspect and/or warn are arguable even if IAG’s interpretation of “failure to fulfil the purpose” were accepted.

[43]  That effectively disposes of IAG’s summary judgment application here.  For the  sake  of  completeness  however,  I  will  turn  to  consider  briefly  Eastown’s alternative contractual mistake argument which is to the effect that if the efficacy exclusion applies there was a mistake in the policy that requires rectification.

[44]  In its amended statement of claim against IAG, Eastown also pleads “mistake”. In doing so, it states that Eastown entered into the insurance contract with IAG in the belief that should the timber it was exporting to Australia be defective resulting in litigation from someone who suffered accidental damage as a result, then cover would be available.

[45]  Before me, although counsel for Australian Cedar made a helpful effort to respond to some of IAG’s arguments on this point, it was not a matter on which counsel indicated he was prepared or able to make full submissions.

[46] Counsel for IAG in his submissions however argued that there was no contractual mistake in terms of s 6 of the Contractual Mistakes Act 1977 because:

•IAG was not aware that Eastown was under any misapprehension as to the extent of the cover provided;

•If Eastown was mistaken as to the extent of the cover, this was either because it did not read the policy or the policy was misinterpreted by its broker;

•    There was no inequality in the exchange of value.

[47]  IAG also rejects the suggestion on the part of Australian Cedar that Eastown may have a claim in rectification of contract, on the basis that there is no evidence of any prior agreement between the parties that the insurance cover would be wider, and that the failure of the insurance policy to reflect that agreement is an error.

[48]  I need to say at this point that I agree with counsel for IAG that Eastown’s claim in this regard appears on its face at this stage, to be weak. However, in the context of what is a defendant’s application for summary judgment, in my view it would not be appropriate to award summary judgment on this matter (or to strike out the claim) given particularly that I have heard very limited argument. Summary judgment should not be used where it may be possible for the plaintiff to amend its claim to answer defects alleged by the defendant: Westpac Banking.

[49]  Also, there is evidence before the Court in the affidavits of Roger Murray Brasell, director of Eastown, and Lester Eyles, insurance broker, that the type of cover sought from IAG was for exactly the type of situation which has now arisen. Although there is little or no documentary evidence available at this point to suggest a prior agreement or understanding of wider cover between the parties, or of a common mistake, or of IAG’s awareness of Eastown’s mistake, these are matters which may be able to be the subject of evidence and cross-examination at trial. Inequality in the exchange of value is similarly a matter requiring further evidence and which can be resolved at trial.

Result

[50]  For the reasons I have outlined above, IAG has not discharged the onus on it of satisfying the Court here that Eastown’s causes of action against it cannot succeed. As such, IAG’s application for summary judgment against Eastown must fail.   In those circumstances, the application to strike out the breach of contract and contractual mistake causes of action must also fail, for the same reasons.   IAG’s applications for summary judgment and strike out are dismissed.

[51]  Australian Cedar bore the burden of preparing and presenting submissions in opposition to IAG’s unsuccessful summary judgment application. On that basis, Australian Cedar is entitled to costs against IAG on a category 2B basis together with disbursements as fixed by the Registrar which I now award.

‘Associate Judge D.I. Gendall’