Green v Carr
[2018] NZHC 3408
•19 December 2018
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2018-488-83
[2018] NZHC 3408
UNDER the District Courts Act 1947 IN THE MATTER
of an appeal against the decision of the District Court
BETWEEN
JESSIE MAREE GREEN
Appellant
AND
IAN RAY CARR
Respondent
Hearing: 19 November 2018 Counsel:
R C Mark for Appellant
J P Golightly and D P Reeves for Respondent
Judgment:
19 December 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 19 December 2018 at 1:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Richard Mark (Kerikeri) for Appellant
Marsden Woods Inskip Smith (Whangarei) for Respondent
GREEN v CARR [2018] NZHC 3408 [19 December 2018]
Introduction
[1] Ms Green appeals a decision of Judge Harrison in the District Court ordering her to pay Mr Carr $12,500 under an agreement to which they are both party.1
Background
[2] Ms Green is a registered proprietor of land which adjoins land owned by Mr Carr. Ms Green’s land had no viable access to the nearest road (Motukiore Road). Proceedings were initiated in the High Court to gain access to Motukiore Road, across Mr Carr’s land. Mr Carr counterclaimed. A judicial settlement conference was convened and on 23 March 2009, after lengthy negotiation, a written settlement agreement was entered into by the parties. The agreement provided, relevantly:
(a)For the granting of a right-of-way easement by Mr Carr following a route shown on a schematic plan attached to the settlement agreement.
(b)Mr Carr would construct a roadway (earthworks only) along the right- of-way. Its width was to be 4.5 metres, excluding shoulders, and the gradient would not exceed 1 in 5.
(c)The registered proprietors of Ms Green’s land would pay Mr Carr
$25,000 according to a stipulated timetable. This payment was to settle Mr Carr’s counterclaim. It related to fencing issues and had nothing to do with the easement.
(d)Ms Green and the other registered proprietors of her land were to pay Mr Carr, promptly, $5,000 upon completion of the roadway.
[3] Mr Carr (through a contractor) constructed the roadway on 24 and 25 April 2009. On 1 May 2009, Ms Green and the other registered proprietors caused their solicitors to pay the $5,000 to Mr Carr. The only reservation attached to the paying of the $5,000 was a concern about the stability of the earthworks.
1 Carr v Green [2018] NZDC 12906.
[4] At this point, I introduce Mr Green. He is Ms Green’s father. He is not a party to the dispute and he is not a registered proprietor of Ms Green’s land. However, he is the patriarch and his views and decisions are accepted as binding Ms Green as her agent. It seems clear that Mr Green and Mr Carr do not have an easy relationship. Points of dispute between Mr Green and Mr Carr arose after the roadway was constructed. These are set out in a letter dated 20 August 2009 from Webb Ross, the solicitors representing (nominally) Ms Green. The letter does not mention the dispute which is now before the Court.
[5] It is common ground that Mr Carr in constructing the roadway deviated from the route shown on the schematic plan attached to the settlement agreement. The evidence is that the deviation was on the advice of the roading contractor Mr Carr employed to carry out the work. Apparently, the planned route made it difficult to intersect the roadway with Motukiore Road without risking undermining the road. Significant retaining and battering works would have been required. Mr Carr took the advice of the roading contractor and agreed to have a roadway constructed so it met Motukiore Road at a distance downhill from the planned route where the identified problems would not arise. This involved removing and relocating a telegraph pole, the expense of which was met by Mr Carr.
[6] Initially, Mr Green took no exception to the deviation from the planned route. But later he did. As a result, Ms Green took no steps to perform obligations under the agreement pertaining to her and the other registered proprietors. In particular, the roadway was not covered with roading metal and no fences along its length were constructed.
[7] Mr Vryer, a registered proprietor of Ms Green’s land as to a one-half share, accepted the situation. He paid his half of the $25,000 which the settlement agreement provided should be paid to Mr Carr. Mr Green refused to allow Ms Green to pay the outstanding $12,500. Eventually, Mr Carr sued Ms Green for the $12,500. He was successful in the District Court. Judge Harrison found he was entitled to be paid. Mr Green does not accept Judge Harrison’s decision. He has caused Ms Green to appeal. His arguments turn on his construction of the evidence heard by Judge
Harrison and he criticises the Judge’s evidential findings. He also raises legal objections going to the proper construction of the settlement agreement.
[8] Put shortly, Mr Green contends that Mr Carr breached the contract by deviating from the planned route, that nothing in Mr Green’s subsequent conduct (as the agent of Ms Green) varied the agreement to permit the deviation and nor did his subsequent conduct affirm contractually the deviation. Accordingly, Mr Green’s position is that Ms Green need not perform any of her obligations under the settlement agreement until Mr Carr has performed his, which includes forming the roadway over the planned route.
The pleadings
[9]Mr Carr pleaded reliance on the settlement agreement:
5. The plaintiff relies on the settlement agreement (“the Agreement”) as if pleaded in full, but specifically refers to the following clauses:
11. The plaintiffs agree to pay to the first defendant the sum of
$25,000.00 in full settlement of the first defendant’s counter-claim. Payment shall be on the sale of the plaintiff’s land (including that of the second defendant) or the sale of any part of that land or at a date that is three years from 23 March 2009, namely 23 March 2012, whichever is the earlier.
13. In this agreement the plaintiff’s land means the land in Lot 1
Deposited Plan 137752 Mangamuka Survey District.
14. In the event of the plaintiffs failing to pay any sum payable in terms of this agreement to the first defendant, the unpaid sum shall attract interest from the date of 23 March 2009 (calculated with monthly rests) at the interest rate of 10.0% upon that sum being due, together with all costs of recovering the sum outstanding.
[10] Mr Carr relied on a simple breach of contract: the $25,000 became due and owing on 23 March 2012 and Ms Green failed to pay any part of it.
[11]Ms Green in her statement of defence pleaded (relevantly):2
(a)Mr Carr breached the settlement agreement by failing to construct the roadway to the agreed specifications.
2 A number of the pleadings, for example that Mr Green was not Ms Green’s agent, had fallen by the wayside by the time of trial.
(b)Construction of the roadway was a “condition precedent” to Ms Green having to pay the $12,5000, and since Mr Carr has not constructed the roadway as agreed the payment obligation has not arisen.
(c)The roadway constructed by Mr Carr, being outside the agreed specifications, means Ms Green will incur greater costs in providing access to it across her own land. Ms Green is entitled to set-off such increased costs against the $12,500 should she be found liable to pay that sum.
Approach on appeal
[12] The appeal is by way of rehearing. That means I must make my own assessment of the evidence and reach my own opinion on the issues. If there are issues of credibility, or weight, I will bear in mind that Judge Harrison had the benefit of assessing the witnesses as they gave their evidence.
Issues
[13]I find the issues on appeal to be:
(a)Did Mr Carr construct the roadway in compliance with the specifications in the settlement agreement?
(b)Did the changed route of the roadway breach Mr Carr’s obligations under the settlement agreement?
(c)If so, did Mr Green’s and Ms Green’s actions after the construction of the roadway amount to a variation of the agreement, or otherwise an acceptance of what was done?
The construction of the roadway
[14]The first three clauses of the settlement agreement are:
1.The first defendant shall construct a road formation (earthworks only) connecting Motukiore Road to the boundary of the easement area as
part shown under Option 2 in plans presented by expert engineers at the judicial settlement conference (“the settlement conference”) on 23 March 2009.
2.The specification for the work undertaken by the first defendant shall be:
§4.5m wide carriageway in earthworks (exclusive of shoulders)
§maximum grade of 1 in 5
§ends 5 metres before the easement boundary (easement to extend to meet existing easement)
3.The costs of all applications and approvals required for the construction of roading in Clause 1 shall be the responsibility of and be paid promptly by the plaintiffs.
[15]The witnesses in the trial were:
·For Mr Carr:
(a)Mr Harding – a civil and geotechnical engineer.
(b)Mr Ross – a surveyor.
(c)Mr Rintoul – Managing Director of the company which constructed the roadway.
(d)Mr Carr.
(e)Mr Vryer – the registered proprietor of a half interest in Ms Green’s land (not required for cross-examination).
(f)Mr Ambler – a civil engineer (deceased, but his affidavit in evidence).
·For Ms Green
(a)Mr Green.
(b)Mr Scanlen – a traffic roading engineer.
[16]On the issue of compliance with the specifications:
(a)Mr Harding’s opinion (including his review of work done by the deceased engineer, Mr Ambler) was the roadway was well-constructed, it should meet the Far North District Council’s requirements for an intersection with Motukiore Road, and it should not cause Ms Green additional cost to join it from her land. He conceded in cross- examination that the angle at which the roadway meets Motukiore Road (about 20°) means a truck and trailer would not be able to turn left onto the road in one movement. However, that is not very different to the situation provided for in the plan attached to the settlement agreement. The roadway intersection could be modified to conform with the attached plan “very easily”.
(b)Mr Ross was the surveyor who drew the plan attached to the settlement agreement. His view was that the deviated route was desirable and necessary to allow for the fact that when he drew the plan the roadway was to be 3m in width whereas the settlement agreement called for a 4.5m width. His opinion was that Ms Green should not incur extra cost in connecting to the as-built roadway.
(c)Mr Rintoul gave evidence the intersection of the roadway with Motukiore Road would be approved by the Far North District Council. He confirmed it was on his advice that the route was changed and that the reason was to avoid the risk the indicated route would have incurred of undermining Motukiore Road.
(d)Mr Scanlen disagreed with the above witnesses. His opinion was that the deviated route meant there would be considerable extra cost to Ms Green in finishing the roadway on her side of the easement boundary. He took some issue with the gradient.
(e)Mr Carr and Mr Green had opposing views on the effect of the deviation on the costs to Ms Green of constructing her portion of the roadway. They had opposing views of the quality of the construction of the roadway and whether it conformed to the specifications. They
had opposing views on whether Mr Green inspected and approved the roadway.
[17] Judge Harrison found, essentially, that the evidence established, to the civil standard of proof, that the roadway was constructed in compliance with the specifications in the settlement agreement. Having considered the evidence, that is also my view. In particular, relying on the evidence of the experts, the width of the carriageway (exclusive of the shoulders) and its grade, were within the clause 2 specifications.
The significance of the changed route
[18] Mr Carr was obliged to construct the roadway (earthworks only) “as part shown under Option 2 in plans presented”. The plan, a schematic plan, showed a route for the roadway under Option 2. Mr Green argues that it was a contractual obligation that the formed roadway follow the Option 2 route exactly. He says that this was a condition precedent to the payment of the $12,500. Since the roadway was not constructed in accordance with the Option 2 route, Mr Green argues he was under no obligation to pay the $12,500.
[19]Put simply, I do not think Mr Green’s view of the agreement can be sustained.
[20] The modern approach to contractual interpretation was laid out by the majority of the Supreme Court in Firm PI 1 Ltd v Zurich Australian Insurance Ltd:3
[60] … It is sufficient to say that the proper approach is an objective one, the aim being to ascertain “the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. This objective meaning is taken to be that which the parties intended. While there is no conceptual limit on what can be regarded as “background”, it has to be background that a reasonable person would regard as relevant. Accordingly, the context provided by the contract as a whole and any relevant background informs meaning.
[61] The requirement that the reasonable person have all the background knowledge known or reasonably available to the parties is a reflection of the
3 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432; endorsed by the Court of Appeal in Ward Equipment Ltd v Preston [2017] NZCA 444, [2018] NZCCLR 15 at [57].
fact that contractual language, like all language, must be interpreted within its overall context, broadly viewed. Contextual interpretation of contracts has a significant history in New Zealand, although for many years it was restricted to situations of ambiguity. More recently, however, it has been confirmed that a purposive or contextual interpretation is not dependent on there being an ambiguity in the contractual language.
…
[63] While context is a necessary element of the interpretive process and the focus is on interpreting the document rather than particular words, the text remains centrally important. If the language at issue, construed in the context of the contract as a whole, has an ordinary and natural meaning, that will be a powerful, albeit not conclusive, indicator of what the parties meant. But the wide context may point to some interpretation other than the most obvious one and may also assist in determining the meaning intended in cases of ambiguity or uncertainty.
(Citations omitted)
[21]I make two points.
[22] First, I do not think that Mr Carr was contractually obliged to construct the roadway in strict accordance with Option 2. The context of the making of the agreement is relevant. Ms Green wanted access from her land to Motukiore Road. The High Court was being asked to order such access. The Option 2 route was agreed to be a viable route. It was shown in a schematic plan and the roadway was shown to be 3m in width. The agreement was for the width to be 4.5m. The work was to be done by Mr Carr and with a price of $5,000 which included consideration for the granting of the easement. It was not envisaged to be a significant task.
[23] I do not consider that, objectively constructed, Mr Carr was required to follow the exact route of Option 2. So long as the specification of the roadway was met, so long as the price of $5,000 was all that was charged, and so long as the deviated route did not significantly increase the cost to Ms Green of forming her part of the roadway to connect with Mr Carr’s work, then Mr Carr was able to deviate from the Option 2 route.
[24] I prefer the evidence of the experts called by Mr Carr on the effect of the deviated route on Ms Green’s costs. They refuted Mr Scanlen’s evidence that it would mean significant further costs, particularly in retaining works. Their evidence was that the deviated route is materially better for Ms Green.
[25] The remaining issue is the change to the angle at which the roadway meets Motukiore Road. I accept the roadway angle of interception is more acute than the Option 2 angle of interception. This makes it more difficult for vehicles to exit the roadway and turn left onto Motukiore Road. However, from a contractual point of view, I do not see that as a breach on the part of Mr Carr. The Option 2 plan was never an exact path and cl 2 made no specification as to the angle of interception with Motukiore Road. It was a schematic plan and the agreed specification was different.
[26] Second, even if I am wrong and Option 2 did impose contractual obligations on Mr Carr, I do not think that these constituted a condition precedent such that Mr Carr’s failure to perform them meant that Mr Green was not obliged to pay him the $12,500 under cl 11 of the agreement.
[27] That is apparent from an objective and contextual reading of the agreement. Mr Green’s obligation to pay for the fencing and Mr Carr’s obligation to construct the roadway were unrelated matters. There is simply nothing in the agreement to suggest that the performance of one obligation might be contingent on the other.4 If Mr Carr had breached an obligation to construct the roadway in exact accordance with Option 2 (which he did not given this was not a contractual obligation under the agreement), Mr Green would have been entitled to claim for damages or, if the statutory criteria were satisfied, cancel the agreement under the Contractual Remedies Act 1979 (CRA), which was operative at the time. Mr Carr’s alleged breach, even if established, would not have relieved Mr Green of his obligation to pay the $12,500 under the agreement.
Variation or Affirmation?
[28] I do not need to consider these issues. But, they were argued and so I will give my conclusions on the assumption that I am wrong and Mr Carr’s failure to construct the roadway in accordance with Option 2 did relieve Mr Green of his obligation to pay the $12,500. On this basis, I now turn to consider whether Mr Green’s conduct subsequent to the breach may have changed his position.
4 See cls 1-3 at [14].
Variation
[29] Judge Harrison found that while the finishing touches were being made to the roadway, Mr Green came down to inspect it and walked along it with Mr Carr. He approved it. Mr Green denied doing any such thing. I cannot say that finding by the Judge was in error. The Judge saw Mr Carr and Mr Green give their evidence. He had regard to the prompt payment of the $5,000. Clause 16 of the settlement agreement provided:
For the purposes of clarification the sum of $5,000.00 referred to in Clause 4 shall be paid immediately upon completion of the work referred to in Clause 1 on the basis that such funds shall be held in the trust account of the first defendant’s solicitor until the legal easement over the relevant land has been created. No interest shall be payable to the plaintiffs on such sum.
[30] The Judge also had regard to the fact that the letter accompanying the payment of the $5,000 contained a reservation only about the stability of the earthworks. The route of the roadway was not raised as an issue in the letter of 20 August 2009.5 It was only later that complaint was made about the route.
[31] Finally, Judge Harrison had regard to an email Mr Carr sent his own lawyers not long after the inspection by Mr Green in which he referred to it.
[32]Mr Carr argues that by this conduct Mr Green agreed to vary the agreement.
[33] Justice Wylie summarised the law on variation in MacDonald v C1 Gloucester Street Ltd:6
[26] A contract once made can be varied by agreement between the parties. However, a unilateral change by one party without any agreement by the other party, cannot be a variation, except where the agreement provides for such a power in that party.
…
[29] Since a variation involves an alteration as a matter of contract of the contractual relationship between the parties, the agreement for variation must itself possess the characteristics of a valid contract. The parties must be ad idem and negotiations for a variation that do not result in agreement have no
5 See [4].
6 MacDonald v C1 Gloucester Street Ltd [2012] NZHC 2842.
effect. Further, any agreement for a variation must generally be supported by consideration or made by deed.
[30] When a contract is varied, it operates according to the variation. A variation may be by express agreement or may be implied by conduct, but where a contract is required by law to be evidenced in writing, it cannot be varied by an oral agreement…
(Citations omitted)
[34] The burden of proof in establishing an enforceable oral variation rests on the party alleging the variation.7
[35] In this case, Mr Carr has not persuaded me that the alleged variation has the characteristics of a valid contract. That is for the simple reason that, according to his version of events, Mr Green only voiced his approval of the alteration of the roadway after it had been constructed. It is trite law that an act done prior to a promise being made cannot constitute consideration.8
[36] However, recently there has been debate about the extent to which there must be fresh consideration for a variation. Mr Carr refers me to the following comments of Arnold J in Teat v Willcocks:9
[54] …Although the position is not yet settled, we consider that consideration in the form of a benefit “in practice” is sufficient to support a binding variation. Further, we are attracted to the alternative view expressed by this Court in Antons Trawling Co Ltd v Smith that no consideration at all may be required provided the variation is agreed voluntarily and without illegitimate pressure. This seems to us to reflect the reality of what happened in the present case – a variation was proposed and willingly accepted, and the parties proceeded on that basis. In the context of an existing agreement supported by consideration, that seems to us to be sufficient to constitute a binding variation.
(Citations omitted)
7 Conqueror International Ltd v Mach’s Gladiator Ltd [2018] NZHC 265 at [40].
8 For a recent example, see D4 Cash Investors Ltd v Advance Creative Technologies Ltd [2017] NZHC 3280 at [71] citing Eastwood v Kenyon (1840) 11 Ad & El 438.
9 Teat v Willcocks [2013] NZCA 162, [2014] 3 NZLR 129.
[37] This view has been picked up on in a number of High Court decisions.10 Justice Venning summarised the position in New Zealand Local Authority Protection Disaster Fund v Auckland Council:11
[35] Although the position is not yet finally settled in New Zealand, it may not now be necessary for consideration in the traditional sense to be provided in order for an agreed variation of an existing contract to be binding. It may be sufficient for the parties to agree to the proposed variation “voluntarily and without illegitimate pressure.” Where the parties have proceeded upon the basis of a variation that was proposed and willingly accepted, the Court may hold that to be sufficient to constitute a binding variation. The most important feature of this test for present purposes is that a variation must be proposed by one party and willingly accepted by the other.
(Citations omitted)
[38] I do not think it is necessary for me to contribute to what is still an unsettled area of law. In any case, even if I were to adopt the approach suggested by Arnold J, it would not change my decision. That is because no variation was proposed. The construction occurred and then Mr Green approved it. I do not think that assent after the fact can constitute a binding variation without more.
[39] I therefore find that Mr Carr and Mr Green did not agree to vary the contract to accommodate the actual route of the roadway.
Affirmation
[40]Judge Harrison held that Mr Carr affirmed the agreement:
[27] The Greens use the right-of-way. They did not cancel the contract because to do so would have meant they would not be able to use it because they would have had no right to cross Mr Carr’s land.
[28] I am of the view that that Greens have affirmed the contract. In Chitty on Contracts Vol 1, 31st Edn, at para 24-003 the following is stated:
Where the innocent party, being entitled to choose whether to treat the contract as continuing or to accept the repudiation and treat himself as discharged, elects to treat the contract as continuing, he is usually said to have “affirmed” the contract. He will not be held to have elected to affirm the contract unless, first, he has knowledge of the facts giving rise to the breach, and secondly, he has knowledge of his legal right to choose between the alternatives open to him.
10 See Mulholland v Hansen [2015] NZHC 895 at [25] and Baxter v Coleman [2016] NZHC 2693 at [209]-[210].
11 New Zealand Local Authority Protection Disaster Fund v Auckland Council [2013] NZHC 1858.
Affirmation may be express or implied. It will be implied if, with knowledge of the breach and of his right to choose, he does some unequivocal act from which it may be inferred that he intends to go on with the contract regardless of the breach or from which it may be inferred that he will not exercise his right to treat the contract as repudiated. Affirmation must be total: the innocent party cannot approbate and reprobate by affirming part of the contract and disaffirming the rest, for that would be to make a new contract.
[29] For the reasons given, Mr Green affirmed the changes to the agreed driveway and has in any event affirmed the change by constructing his part of the right-of-way to connect with that on Mr Carr’s land. Consequently, he has no right of set-off for any work he may have done to make the driveway fully operational, although I record Mr Carr’s view that no further work was required. Even if the alleged breach of the contract had not been affirmed, the amount claimed by way of set-off has not been proved.
[41] I agree with the thrust of Judge Harrison’s comments, but I do not think the issue of affirmation is relevant. That is because there was no purported cancellation of the contract. Under the CRA a party could cancel a contract if an essential term was broken.12 However, they were unable to do so if they had affirmed the contract with full knowledge of the breach.13
[42] In this case, there was no suggestion by Mr Green that Mr Carr had broken an essential term or that Mr Green otherwise had the right to cancel the contract. The position of both parties was that the contract remained afoot. The dispute was simply over the correct interpretation of the contract. No issue of affirmation therefore arose.
[43] I accept the Judge’s point that Mr Green, by his conduct, accepted the altered route of the roadway and the evidential findings on which he based this view. By my reading, the Judge’s broad view was that Mr Green’s subsequent conduct seriously undermined any argument by Mr Green that Mr Carr should be held accountable for his breach of contract. The Judge concluded that Mr Green affirmed the contract and therefore could not claim a right of set-off. I do not think this is an accurate application of the law of affirmation. If Mr Green had affirmed the contract, that would have prevented him from cancelling it, not from arguing that Mr Carr had breached it.
12 Section 7(3)(b) and 4(a).
13 Section 7(5).
[44] Despite this, I think the Judge had a point. But that point is more appropriately framed in terms of the doctrine of equitable estoppel.
[45] The elements of modern estoppel were set out by the Court of Appeal in Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd:14
In brief, it must be shown that:
(a)a belief or expectation by [party A] has been created or encouraged by words or conduct by [party B];
(b)to the extent an express representation is relied upon, it is clearly and unequivocally expressed;
(c)[Party A] reasonably relied to its detriment on the representation; and
(d)it would be unconscionable for [party B] to depart from the belief or expectation.
[46] In this case, Mr Green made an unequivocal representation that he accepted the altered route of the roadway. He paid the $5,000 upon its completion. He connected it to his land. He and his family have been using it for nine years. During this time Mr Green never made a claim for damages, attempted to cancel the contract, or sued for specific performance.
[47] Mr Carr clearly relied on Mr Green’s representation that he accepted the construction of the roadway. He faces detriment in the fact that Mr Green is now withholding $12,500 from him because Mr Green says he constructed the roadway incorrectly. In these circumstances, I consider it would be unconscionable for Mr Carr to depart from the representation that he accepted the construction of the roadway along the alternate route, even if Mr Carr did breach the contract.
Conclusion
[48] I have found that Mr Carr was not contractually obliged to construct the roadway along the exact route designated in the schematic plan attached to the contract.
14 Wilson Parking New Zealand Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567 at
[44] cited with approval in Pollard v Pollard [2016] NZCA 186, (2016) 23 PRNZ 229 at [33].
[49] Even if he was, his failure to do so would not justify Mr Green refusing to perform the separate obligation of paying him $12,500 for the fencing because the construction of the roadway was not a condition precedent.
[50] If I am wrong about this, I consider that Mr Green should be estopped from enforcing his rights under the contract due to his subsequent representation that he accepted Mr Carr’s breach and the other matters in [46].
Result
[51]The appeal is dismissed.
[52] Mr Carr is entitled to costs. My provisional decision is that costs are to be calculated on a 2B basis. If I do not receive prior memoranda to the contrary, that decision will crystallise in effect at 4:00 pm on 25 January 2019.
Brewer J
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