HW. J. Green, Gort, Print, Melb. IN THE HIGH COURT OF AUSTRALIA. ) REASONS FOR JUDGMENT. Judgment delivered a Oe Clore — Ot Lf & Maret 938, IN THE HIGH COURT ) U OF AUSTRALTA ADMANS Plaintiff ve CLAYTON Defendant. BEFORE HIS HONOR, THE CHIEF JUSTICE, SIR JOHN LATHAM THURSDAY, 17th MARCH, 1938, AT 10,30 A.M. E - FOURTH DAY - k (At. the conclusion of counsels%addresses, His Honor announced that an he would deliver judgment at 4.15 P.M.) JUDGMENT. HIS.HONOR: This action is based upon a contract for the sale of the Corowa Hotel at Corowa by the defendant to the plaintiff. The plaintiff claims specific performance of the contract and damages, or, alternatively damages for breach of the sontract. Negotiations for the sale of the hotel began about March 1937 and on the 14th March a preliminary contract was signed by the parties, the contract being dated 15th March. Negotiations for a mors formal contract continued and draft contracts were exchanged between the parties, It has been suggested on behalf of the defendant that the delay which took place in finally agreeing upon a form of contract was due to the plaintiff. There is, however, no evidence to this effect. The parties were trying for several weeks to arrive at a contract which would be satisfactory to each of them, The correspondence which took AR/IM/1b. 145, JUDGMENT. 17/3/38. n place between the solicitors showSthat much negotiationg was required before the form of the final contract was settled. On the 18th May, for example a letter was written referring to a draft contract and raising questions as to some five gauses contained in the draft. In this letter it is indicated that a particular clause is not acceptable to the plaintifr pecause the plaintiff may not desire a transfer to himself, his present intentions as to leasing the property being indefinite! It was, therefore, known at this date before the actual signature of the contract sued upon in this action, that the plaintiff might desire a transfer to some person other than himself. On the 10th June a letter was written by the plaintiff's solicitors to the defandant's solicitors pointing out that the next Licensing Court would sit at Corowa on Monday 5th July 1937, and that if the proposed applicants for a transfer of the licence was a Victor lay police enquiries as to his character would have to be made by the N.S.¥, Yolice through the Victorian Police Department, and that this would take from anything up to three weeks to do. Of course a transfer of the licence of the hotel was involved inthe performance of any contract that might be made. In a letter of lgth June from the plaintiff's solicitors im reference is made to tie impossibility of having the transfer of the licence completed by the 5th July, and accordingly it was suggested that a fresh date be fixed. Ina letter of the 22nd June the defendant's solicitors suggested the 3rd August 1937as the date for completion of the contract, that being the next day upon which the Licensing Court would sit at Corowa after the 5th July, In this letter, again, there is mention of the necessity of obtaining references as to the character of any proposed transferee of the licence. The contract was signed on the 30th June 1937, It provides for the sale and purchase of the hotel for the sum AR/IM/2b. 146, JODGMENT 17/3/38. £7,00U, the sale to include not only the building and land put also the licence of the hotel and the furniture in the hotel. The sale is made upon certain témsand conditions, the first of which is as follows - (1) Upon signing the Contract the Purchaser shall give to the Agent for the Vendor a cash deposit of 2500 which shall be held by the Agent as stake holder, and shall be accounted for to the Vendor upon receipt of an order fromthe Purchaser or his Solicitor authorising payment. The balance of purchase money shall be paid as follows:- In cash at Corowa free of exchange or other deduction on completion of conveyance and transfer of Licmnse which shall be effected on or before Srd August 1937," Clause 9 provides for the customary adjustments as to rates, taxes and outgoings up to the date of completion, Under a heading of "Special Conditions" there appear certain clauses "which are important in this action. Clause 16 is in the following terms;- (16) "The purchaser agrees to take alisaleable stock at = cost priced, plus freight and will pay for stock and adjustment by promissory note due three months from date of possession free of interest." Clause 17 provides:- "The Purchaser agrees to pay all commission due to the Agents L,J.Colquhoun and Coy. Albury who effected the sale." Clause 19 provides:+ "Vacant possession shall be given and taken on completion of Conveyance and Transfer of Licence which shall be effected on or before Srd August 1937." Clause 20 provides:- "The Purchaser or his nominee will attend et the Licensing Court and will do all things obtain all references sign all documents and give all notices necessary to obtain a Transfer of the Licence to himself within the time herin fixed for completion and if any Police objection is lodged, will employ a Solicitor at his own expense 2 to contest same and the Vendor will attend at the said Court to complete the said Transfer to the Purchaser or his nominee. Should the application for transfer be refused owing to objection to the Purchaser or his nominee the purchase money shall provided the purchaser shall have complied with all conditions on his part herin contained or implied be refunded to the Purchaser and thereupon this sale and agreement shall terminate! On the 9th July the Plaintiff nominated one G,C.Thomson AR/IM/3b. 147 JUDGMENT. 17/3/38 & Pa = as the person to whom he desired the licence to be transferred and sent a formal authority signed by himself for the transfer of the licence to Thomson, It was arranged, as, for example, the letter of the 12th July shows, that the solicitors for the defendant should act also for Thomson on the settlement which was to take place on the Srd August. On the 28th July a telephone conversation took place between Mr,Stewart, the plaintiff's solicitor, and Mr,McDermott a@ clerk of the defendant's solicitors, Mr, Stewart being in Melbourne and Mr.McDermott being in Corowa, 'In the course of which Mr,Stewart stated that the plaintife would not be attending the settlement personaliyy, that a bank would have aAtbury so that the settlement could take the money required in place. On the same date that conversation was confirmed in a letter and a conveyance was enclosed for pemusal and , if in order, for execution.. On the same date the defendant's solicitor wrote sending what is described as a settlement sheet showing the adjustments to be made upon the comtract,36 Tals sheet shows an amount of purchase money £7,000 less deposits held by Colquhoun 2500, to brlance £6,500; then the amount of municipal and sanitary rates is set out. An item is ineluded, apparently by error, for insurance, and a proportion of the licence fee is also entered as a charge against the purchaser, It is also noted that the purchaser pays the agents comission in full which had been fixed by all the parties including the agent at £100, showing altogether a sum payable in cash of £6,708/5/1ld . An error was made in including what I call the adjustments as items which were to be settled for by oash.. The contract is clear that these were to be paid by means of a promissory note, the plaintiff's pwomissory note { weée-1 construe that provision as meaning) at 3 months. The settlement sheet provides for telephone and electric lgght Achy and also says "Purchaser hands over order on ageent to account AR/IM/4b. 148,/ JUDGMENT. 17/3/38. for deposit: In addition purchaser pays for stock plus freight by promissory note free of interest payable three months from the Srd August 1937", On the 3lst July a converaation took place between Mr.Stewart, the plaintiff's solicitor and Mr.Leth-briag the defendant's solicitor, sadeerer Mr.Stewart stated the faa fap Commercial Banking of Sydney would act at Corowa on behalf a v\ of the plaintiff and would have the necessary money, that the bank would pay over £6,500 on receint of the title deeds and notification that the licence had been transferred to the nominees Thomson. Mr.Stewart also said that he would send the plaintiff's cheque for what were described as the adjustments within a few days, Both parties to this conversation at this time believed that the adjustments were to be in cash. They did not refer to the contract; in fact the contract had been sent to Sydney for stamping by Mr.Stewart and he did not have it in his possession at the time. The conversation was confirmed by a letter from Mr.Stewart dated 3lst July, There is a difference of recollection between Mr.Stewart and Mr.Lethbridge as to one matter relating to this conversation. Mr.Stewart says asked them (that is the defendant's solicitors) to obtain a ppomissory nots from Thomson for the amount of stock after stocktaking had taken place, and to forward it to me when I would obtain Mr.Admans's endorsement to it and return it to them, They said 'We will do this.'" Mr, Lethbridge, on the other hand, has given evidence that no reference was gixmm made to the giving of a promissory note by Thomson, and, indeed, nothing was said about promissory notes at all. JI regard this as only a difference of recollection. I have no doubt as to the honesty of either witness. aRn/IM/5b, 149, JUDGMENT 17/3/38 Mr.Stewart ts account is supportedto some extent by the Letter which he wrote on the 3lst July in which he said We shall be pleased if you will obtain the ppomissory note for stock and freight fromMr.Thomson and forward it to us, We shall then obtain our client's endorsement and return it to you". The recollection of Mr,Lethbridge, however, is different and I am impressed by the fact that Mr.Thomson gave evidence that no request had ever been made to him that he should give a promissory note to Clayton and that indeed he had never heard of any such proposal and that he was not in fact prepared to give such a promissory note. conclusion My rexwkiaxtion is that there was a misunderstandin between the parties upon this matter and that the greater probability is that Mr.stewart intended to make this arrangemer with Mr,Thomson but did not in fact make it. He regarded it as a natural and reasonable course to pursue, and looking at his letter which contains the suggsstion that it should COC 7 Ea ime come be done, not unnaturally, draws the inference that he mentioned _ 2 b the mtter in the coirse of conversation, This question, however, does not appear to me to be of very gre&t importance, It is necessary to mention that Colquhoun the agent who is described in the contract as the agent of the vendor é d\ had received the £500 deposit. He had, without any authosityy' from the purchaser 'sent £400 to the defendant's solicitors and he had retained £100 as his commission, or on account of his commission, or for the purpose of protecting his right to a commission, we On the 2nd August the plaintiff sent four cheques for £25 each to Colquhoun, one payable immediately and the others post-dated and payable at intervals of one week, Those cheques I am satisfied did not reach Colquhoun until the 4th August which was the date after the day appointed in the contract for the settlement, The position, therefore, AR/TM/6b. 150, JUDGMENT. 17/3/38, roa was that on the Srd August Colquhoun had not received from the plaintiff the comsission which the plaintiff had agreed to pay him and to which Clause 1 of the contract expressly referred. I have already said that the defendant's solicitors were acting for Thomson upon the settlement. On the Srd August Mr.McDermott the clerk of the defendant's solicitors, was in charge of the settlement on behalf of both the defendant and Thomson who was the nominee of the plaintiff. He had with him the settlement sheet which had been sent to Stewart on the 29th July. Certain difficulties arose. Mr,McDermott said he was entitled to payment in cash for the adjustments. He rang up Mr.Stewart and Mr.Stewart offered him his pessonal undertaking to provide the tecessary money for the adjustments. This undertaking was at the time accepted. Later, it is evident to me that Mr.McDermott thought he had made a mistake and considered that he was not authorised by Mr.Lethbridge to accept a personal undertaking of the plaintiff's solicitor instead of the payment in cashg mut Stock had not been taken and no promissory note signed by the plaintiff was available for payment of the "stock plus freight as it is put in the contract, or for payment of the adjustments. Clause 16 provides "That the purchaser agrees to take all saleable stock at cost price, plus freight and will pay for cost and adjustment by promissory note due three months from date of possession free of interest," The adjustments were the adjustments referred to in Clause 9. On the 3rd August there was also no order in existence from the purchaser or his solicitors authorising payment of the deposit or the balance of the deposit whter-wes-—~ namely a sum of 2100 which was all that 'fe outstanding as far as the defendant was concerned. Clause 1 of the contract provides that the deposit of £500 shall be held by the agents who is described as_{Ha AR/IM/7D— 151. JUDGMENT. 17/3/38. a stake holder, and shall be accounted for to the vendor uponreceipt of an order fromthe purchaser or his solicitor authorising payment. The obligation of the purchaser was to pay £7,0@on the Srd August. He was prepared to pay £6,500 in cash. The vendor had already received a further £400 but there was no order in existence as required by the contract authorising the payment of the further 2100 by the agents through the vendor. Further, as I have already said, the commission of £100 had not been paid to Colguhoun, the agent, and Thomson was not prepared to give promissory notes to Clayton, the defendant, for the stock or for the adjustments. Mr.McDermott, however, did not refuse to complete she contracts bet fhe obtained an adjournment from the Licensing Court to the next day of sittin;g, namely the 7th September, Each party hee' charged the other with default under the contract and negotiations ensued to see whether the parties could come together for the purpose of carrying out the contract. On the 9th August or about the 9 th August Grrr rescinded the contract under which he had purchased the hotel from the defendant; and on the 10th August the plaintifr's solicitor wrote this letter to the defendant's solicitors: "We cannot understand why we have not received a reply to our letter of the Sth inst., to you and we must insist upon you immediately adwising us of your client's attitude and intentions in respect of this sale, We have today received a letter from Mr.T.A.Kennedy Solicitor for G.C,Thompson the Purchaser of the hotel from our client, in which he states that by reason of the failure to transfer the licence to his client on the 3rd inst. his client now refuses to go on with the contract and wilisue our client for damages, Your client's unwarranted refusal to carry out this agreement has therefore already involved our client in very heavy loss, and exposed him to an almost certain lew suit. If it is your client's intention to transfer the Hotel and licence to our client, please let us know by return of mail, so that the necessary notices can be given in good time for the transfer application to be heard at the next sitting of the Licensing Court at Corowa. If not, we must issue a writ forthwith claiming spedific performance and damages for failure to perform the contract, We presyme that you will accept service," AR/IM/8b» 152. JUDGMENT. 17/3/38. It will be observed that there is a here a reference ta she/sittings of the Licensing Court at Corowa, which were appéinted to be held on the 7th September. tie. On the 12th August a telephone conversation takes place between the solicitors, and the solicitor for the defendant said that the defendant was willing to go on and complete on the 7th September, The plaintiff's solicitor said that the paiink plaintiff might not be able to seli the hotel by that date, and the defendant's solicitor asked why the plaintifr Admans should not take the licence himself, On the 14th August there was another telephone bonversation and the asfendant's solicitor again said that the defendant was willing to complete' on the 7th September. On this occasion the plaintiff's solicitr said that that was impossible because the plaintiff could not find a purchaser before that dats, a purchaser or a tenant, qnd that ahe plaintiff was issuing a writ,claiming damages and specifie performance, The plaintiff in fact obtahed a purchaser, one Longmuir, who was willing to complete by the Sth October but the contract with Mr.Dongmuir was evidently subject to the contract with Mr.Clayton going throughs Then on 1S i4tn August there-t weer telephoné! conversatio: en the agfendant's. solicitor epeats that the/ th September { the plaintiff's sqlkéitor says that that"is impossible, is willing abe complete Lan On the 14th August a letter is written by the defendant's solicitors to the plaintiff's solicitors; that letter contains a statement that the defendant has always been ready and willing to complete the contract, He says that the Licensing Court will sit on the 7th September and that his client is quite prepared to complete with the plaintifr on that day providing the plaintiff performs his part of the contract. The letter continues "We snclose a notice addressed to your client and yourself in this matter requiring your client to complete on the 7th proximo, also copy of same with receipt endorsed, We AR/IM/9D» 153. JUDGMENT. 17/3/38 giemeree should be glad if youwill kindly return the copy to us with the receipt duly signed." The letter also asks for form of application for transfer of licence and the necessary references, and states that the defendant's solicitor will do his best to expedite the matter of the transfer of licence for hearing on the 7th proximo, September. In the notice dated 14th August which was sent with that letter it is required of the plaintiff that he should A complete the purchase and to pay the telance of the purchase money and other money due under the contract at Corowa on or before the 7th day of September, and it states that such date is to be of the essence of the contract. The notice continues "I am and always have been ready and willing to complete the matter on my part. Should you fail to complete the metter as required by this notice, I shall without further notice proceed to exercise all my powsrs under Clause 11 of the contract or otherwise", In the correspondence the daintiff's soleitor had stated on several occasions that the plaintiff insisted upon his claim for damages and would not be satisfied only with performance of the contract. In a letter of the 22nd Septemeber he repeated this very explicitly and the result w of that letter was that the defendant refused to accept wor ~this- position but still maintained his own. The result of that was that the defendant alleged that the plaintiff ought to be satisfied with specific performance of the contract and ought not to proceed with his claim for damages. On the 24th September a letter was written in which the defendant defines his attitude, and fm after arguments as to who had been responsible for certain alleged delays, again states that his client is ready and willing to perform the contract, but adheres to the date of the 7th September for completion as of the essence of the contract. AR/IM/10ba 154, JUDGMENT. 17/3/36, " The letter states taat as the plaintiff is not prepared to withdraw his claim for damages the application for transfer of licence and references and an application for the transfer of the telephone are returned. Therefore the result is that at this date the defendant offers to perform Kooontract on the 7th September if the plaintiff will himself perform his part on the 7th September. There was ix fact no completion of the contract on the 7th September, and now £i it is necessary to determine the legal effect of the facts which I have stated. The contract is a contract for the sale ofa licenced hotel as a going concern and all the stock in the hotel. The date of the 3rd August is clearly fixed as the date for completion in Clause 1, and that provision is in effect repeated so far as the date, Srd August, is coneerned in Clause 19. In my opinion, in this contract time is of the essence. The sale of a hotel as a going concern is a transaction of such a nature that the parties are naturally expectedto be ready, the ons to give and the other to take possession and to complete allthe formal acts which are necessary to the ew a effective giving and taking of possession and the c of property and sbbiew, on the date fixed. The cases of Cowles V.Gale, im LiRy cnéicemrey. #12, and Lock V. Bell, /@3/ 35, Lg ED... 4e-umtt3-Tefer to considerationswhich normally lead one to the conclusion that in such a transaction as this time is of the essence of the contract. What, then, were the obligations of the parties under the contract? sree She mitter as on the date fixed for completion, the vendor was bound to convey the land and ) transfer the licence in accordance with ordinary procedure which involved an application to the Court, and he was bound to transfer the stock and to agree upon the necessary adjustment<, The purchaser was boundto pay the purchase money for the hotel, AR/IM/11b, 155. JUDGMENT. 17/3/36, ay —? Bs £7,000, by paying £6,500 and tne giving gf an order which would be effective to entitle the vendor to obtain the deposit from the agent, In this case an order daaling with the sum of £100 would yt have been sufficient. On the 3rd August the plaintiff had not prepared and had not given any order to the agent with respect to the depesit. The purchaser was also boundto pay what hee been described as the adjustments and to pay for the stock plus freight pin each case ty his own promissory note. No promissory note signed by the plaintiff or at all was available at Corowa on the Srd August, and no payment was ready or was offered in cash. The purchaser was also bourd to pay the commission of £100 to Colquhoun; otherwise, as far as the evidence goes, Colquhoun being the vendor's agent,it may be that the defendant might have been left open to an action by Colquhoun who had been employed by him, ~— aanare is in my opinion no satisfactory evidence of novation pine that the plaintiff had been substituted for the defendant in relation to the performance of any obligation to pay commission which may have existed between the defendant and Colquhoun, I am not prepared to hold that the payment of commission to Colquhoun on or before the date of settlexent was of theessence of the contract; but the other matters to which I have referred were in my opinion of the esence of the contract; that is to say the performance of them on or befor the 3rd August by the plaintiff was in my opinion of the essence of the contract. Accordingly I consider that on the 3rd August the vendor was not bound to go on with the contract. He was entitled to rescind the contract. He, however, elected not to exercise that right, and he did not rescind the contract ', on RA th on that aay oF on any of the grounds to which I have retorredy On the contrary an application was made on his behalf for AR/IM/12b. 156, JUDGMENT. © 17/3/38 an adjournment of the application for transfer of the licence to the ?th September which, as I have already stated, was the next day of sitting of the Licensing Court. Negotiations between the parties were continued. The defendant in my opinion waived the requirements to which I have referred in respect of the element of time as essential parts of the contract, He was nos longer entitled himself to repudiate the contract or to regard himself as discharged from the ~ obligatiom resting upon him under the contract by reason of the fact that the plaintiff had not performed his obligations on or before the 3rd August. The position is set out in Fry on "Specific sixth edition at pp.520-1 {His Bororquotes - immediately after the Srd August the defendant was not entitled to rescind the contract on the ground that the plaintiff had not performed his part of the contract within the specified time; but it was open to the defendant again to make time of the essence by giving appropriate notice. The law is stated in Fry at p.510. (His Honor quotes from 1 the words "Where time was not originally of the essence of the contract " down to "strictly legal right&) The notice of the 14th August was a notice which was given by the defendant in reliance upon the principle of law to which I have referred. 'The time specified by the notice must 22S econ reasonable, That is to s-ay, a using the words of the learned author éf this book "Long enough for the proper doing of the things required to be done", "Reasonable" of course means reasonable having regard to all the circumstances of the case and in Crawford V Toogood, Vol. 13 Cham. Di¥, 155 it was held by Mr.Justice Fry, as he then was (His Honpr-yuotes from the words "After a contract" AR/IM/15b. 157. JUDGMENT. 17/3/38 ® down to "as at the date when it is given".( It is therefore necessary to enquire what notice was reasonable in all the circumstances at the time when the notice was given, namely on the 14th August. When such a phrase as "In all the circumstances" is used in connection with the word "reasonable" the circumstances, however, must be limited to relevant clroumstances..Those circumstances include the nature of the contract. They may includé elements in the conduct of the parties which have been responsible for Bae anterior delay. The prineiple, however, in my opinion, is this, that the time fixed by such a notice as that to which I am referring should be sufficient to enable the puathae to whom the notice is given to do everything which has to be done by him under the contract. In my opinion, therefore, in this case, in order to determine whether the tims fixed in the notice was reasonable or not, it is necessary only to consider what the plaintiff had to do under the contract. What, then, did the plaintiff have to do in order to perform the contract on his part? He had to pay £6,500 in cash, He had to give an order on the agent for the deposit . He had to join in taking stock and to join in making the adjustments and to give promissory notes for the stoek plus freightand for adjustments. It was also a term of the contract, though, as I have said, possibly not a condition of the contract, thoughf it is not necessary for me to reach a final ppinion upon this point, that he should pay the commission to the agent. The time fixed by the defendant was the 7th September. The time was fixed on the 14th August. In my opinion this periof of three weeks and three days was ample time to allow the plaintiff to do all of those things. On the other hand it is contended that the time fixed should mMve been sufficient to allow the plaintiff to find tx a purchaser or a tenant for the hotel and that the AR/IM/14b. 1584 JUDGMENT. 17/3/38¢ & evidence shows that it was impossible for him to do this before the date fixed, the 7th September. Is this a relevant circumstance? Ought the fact that there might be, or the fact that there would be,a difficulty in the plaintiff finding a tenant or purchaser ve taken into account in determining whether or not the 4 tims fixed was reasonable> In the first place I observe that the chances of finding a purchaser or a tenant would depend upon the price that the plaintiff asked from a purchaser or the rent that he demanded from a tenant, and wouldd@epend also upon his energy in sesking a purchaser or a tenant. It appears to me that it would be very difficult indeed to define any standard of reasonableness in relation to circumstances such as those, Further, under the contract, the plaintiff was bound to accept a conveyance to himself or to a nominee, He was not, however, bound to find a nominee, He was able to perform his bbligation under the contract in this respect by taking a transfer both of the land and of the licence to himself, I am not prepared to hold that a time could not be reasonable unless it was sufficiently long to make it possible for the plaintiff to find a purchaser at a price or a tenant at a rate fixed by himself, Further, in this connection, I refer to a letter of the 10th August which was written by the plaintiff's solicitor to the defendant's solicitors at a time when Thomson had refused to go nn with his contract. In that letter the last paragraphis as follows: "If it is your client's intention to transfer the hotel and licence to our client, please let us know by return of mail, so that the necessary notices can be given ingood time for the transferapplication to be heard at the next sittings of the Licensing Court at Corowa," AR/IM/15b. 159 & JUDGMENT. 17/3/36, bem La ay 4 Those sittings were,held on the 7th September, but that letter is written on the basis that even though the plaintiff had not yet found a purchaser or a tenant the time between the 10th August and the 7th September is not an unreasonable time in which to give him the fair opportunity of finding a purchaser or a tenant, That letter is not without importance, It appears to me in determining the question of fact as to whether the time allowed was reasonable, 3) BET am not omiiiimet prepared to hold that the fixrg of the 7th September on the 14th August as the date for completion was unreasonable. On the contrary I find that it was a reasonable time to fix. The plaintiff was in default on the 7th September and therefore in my opinion the defendant is justified in regarding himself as no longer bound by the contract, Upon this view the plaintiff is plainély not entitled to specific performance of the contract. b I have already stated my view of the position which existed on the 3rd August. In my opinion the defendant was not guilty of any breach of the contract on the Srd August. It has been urged in argument that on settlement of transactions such as this there is often a good deal of give and take, and that reasonable concessions are "frequently made. That is the case, but when a Court of law has to deal with a contract it is necessary to consider the terms of the contract as the parties have actually determined them and it is not possible a to determine the obligations of the parties by asking and answering the question whether or not it would have been reasonable for a particular concession to have been made, In my opinion this litigation is the result of a unfortunate misunderstandings and mistakes between the parties, but I must construe the contract according to its terms. AR/TM/16b. 160. JUDGMENT, 17/3/38 So construing it I am of opinion that there was no breach of the contract b' the defendant on the 3rd August as alleged in the satement of claim and therefore the gaintiff has failed upon the claim for damages, The result is that the action is dismissed with costs. MR.HAM.K.C. Will Your Honor include the costsof pleadings, discovery, interpogatories, and shorthand notes, HIS HONOR: Yes. MR,SELETTO: I ask for a stay of 21 days. HIS HCNOR: Is there any objection, Mr.Ham? MR.HAM.KC,.: Only on the usual undertaking. HIS HONOR: What do you regard as the usual undertakig? That they will not dispose of their property in the meantime? MR.HAM. K.C.3 That the plaintiff will not dispose of his assets in the meantime, 1 cae, HIS HONOR: TI have always regarded it as a vague undertaking. A man has to live and spend something. Still, that is the ordinary "Neem, "Where will be a stay of 21 days upon the usual undertaking, Mr.Seletto, Will yougive that? MR.SELETTO: Yes, Your Honor. HIS HONOR: Is there any further matter arising out of the judgment? (Therewas no response. ) HIS HONOR: The Court will adjourn sine die. AR/IM/17b. 161. JUDGMENT. 17/3/38