PRESIDENT FINANCE CORPORATION PTY LTD and ANOR vy REID HOUSE PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER JJA and WADDELL AJA 5, 6 November 1990, 26 March 1991 [1991] NSWCA 225 COMMERCIAL PREMISES IN CITY — shareholding in company entitles holders to be licensees of rooms in Reid House, King Street, Sydney — City Council order requires building of fire corridors-carrying out order takes away space from some shareholders proceedings to prevent company implementing order fail, but question of valuation of loss of space referred to Master basis of Master's assessment questioned on appeal — appeal fails. FURTHER EVIDENCE — application to adduce further evidence on appeal — evidence in existence at time of first instance hearing — non availability at first instance not satisfactorily explained — not shown that it was likely to have affected result — application refused. Priestley JA The first appellant in this appeal is President Finance Corporation Pty Ltd ("President"). The second appellant is Mr M Barclay. In 1984 they became shareholders in Reid House Pty Ltd, the respondent. The respondent owned Reid House, a commercial building at 75 King Street, Sydney. Article 9 of the respondent's Articles of Association entitled the holder of a group of shares in the respondent "to occupy the unit appurtenant to that group but only if he has first executed and delivered to the company a licence agreement in accordance with" the Articles. Space on the third floor was appurtenant to President's group of shares, and on the fourth to Mr Barclay's. Pursuant to their Article 9 entitlements President became licensee of Room 306 on the third floor, and Mr Barclay of Room 406 on the fourth floor. On 24 October 1984 the Council of the City of Sydney by an order under s317D of the Local Government Act required the respondent to carry out works to improve fire safety. The respondent appealed to the Land and Environment Court against the order but on 23 October 1985 agreed to the appeal being dismissed. A number of shareholders in the company were dissatisfied with the respondent's decision to agree to the dismissal of the appeal and also with the way it intended to comply with the order. The method of compliance involved taking space to which some shareholders, including the appellants, were entitled. The shareholders' discontent came to a head in proceedings in the Equity Division in which the respondent was the plaintiff, President the second defendant and Mr Barclay the third defendant. There were six defendants in all. These proceedings were heard by Needham J. He noted in his reasons that eight issues had been formulated for him to decide. He said those numbered 1 to 7 were agreed between the plaintiff and the defendants other than the second and third defendants and that the latter added issue No 8. Issue 6 was: "6. Whether the Plaintiff is liable to pay to any person, whether a shareholder of the Plaintiff or otherwise, any damages or compensation in the event that the carrying out or completion of the said building works results in a 2 UNREPORTED JUDGMENTS loss of space in any part of the Premises, or for any other loss or damage suffered by any such person consequent upon or arising from the carrying out of or completion of the said building works." Although it seems, from the way Needham J described how the issues came into being, that the appellants did not acquiesce in the way they were originally framed, there is little room for doubt that they joined in the hearing on the basis of, and contested, the issues as framed. Their own pleading effectively raised issues to the same effect in substance as issue 6. Their amended defence and cross claim contested the appellants' right to take any of their space to comply with the s317D order. Then, in par 3(vi) and (xi) of their cross claim the appellants claimed: (vi) In the alternative, a Declaration that the Plaintiff may not carry out the said work in the manner now proposed by it without proper compensation paid to the Cross-Claimants. (xi) Damages PARTICULARS OF DAMAGE (a) Loss of space based on current market values to be assessed. (b) Costs of relocation and refurbishing, partitions, doors, carpets, repainting, electrical and telephone work and generally making good; to be assessed. (c) Loss of future income and capital gains to be assessed. Needham J made a number of findings in the respondent's favour. He did this by reference to the numbered issues. The findings for the respondent were that: the respondent was bound to comply with the s317D order; the respondent was entitled to comply with that order without the sanction of a resolution of an extraordinary general meeting of the respondent, although if such sanction were necessary it had been given by implication in a meeting of the respondent of 1 July 1985; the respondent was entitled to enter upon any part of the building to carry out the requirements of the order and was empowered to recover from each shareholder a contribution to meet all the respondent's costs relating to the building work, proportionate to shareholding; neither the respondent's non agreement to agree to pay damages or compensation to shareholders affected by the building work nor the respondent's failure to adopt an alternative method to satisfy council's requirements as to fire safety amounted to oppression; and the directors of the respondent in exercising the company's general power of management had not adopted a policy unfairly prejudicial to a minority of the members giving rise to an entitlement to relief under s320 of the Companies Code. Needham J made findings in favour of the defendants, also by reference to the numbered issues; these were: the decision of the respondent's directors to consent to the appeal against the order being dismissed amounted to a breach both of the respondent's Articles of Association and of the terms of the licence agreements made between shareholders and the respondent pursuant to their shareholdings concerning occupation of the premises; and the respondent was liable to pay to any person, whether a shareholder in the respondent or otherwise, any damages or compensation in the event that the carrying out or completion of the building works resulted in a loss of space in any part of the building or for any other loss or damage suffered by any such person consequent upon or arising from the carrying out of or completion of the building works. UARESIDENT FINANCE CORPORATION PTY LTD and ANOR v REID HOUSE PTY LTB (Priestley JA) Amongst the various orders made pursuant to Needham J's findings, the two relevant to the present appeals were: 6. The Plaintiff is liable to the Second and Third Defendants for damages or compensation in the event that the carrying out or completion of building works resulted in a loss of space in the premises or for any other loss or damage suffered consequent upon or arising from the carrying out of or completion of the building works. 11. The matter be referred to the Master for assessment of damages." In dealing with issue 6 Needham J said the case was not one of the kind where the parties had contracted on the unspoken condition that a certain state of affairs (here the area to which the shareholder was entitled) would continue. He went on: "Undoubtedly, it can be said that the plaintiff's breach of contract (constituted by article 9(1) and CL(3) of the licences) has been caused by the requirements of delegated statutory authority, but the whole subject matter of the contract is not gone. The case is merely one where some part of the benefit of the contract has been lost by the defendants." He did not examine the legal theory by which the space to which the appellants were entitled was reduced. It is evident that, because of the way the issues were contested before him he did not need to. In any event the basic elements of the legal theory were simple, and it seems probable that at this stage of the case, no-one saw any point in arguing them. Although it might be expressed in various ways, the essence of the position was that upon having some of their space taken away from them the appellants could either treat the respondent's breach of contract as so important as to justify a rescission of the contractual arrangements by them and then bring proceedings for damages for the loss of their entire spaces, or elect to stay in the remaining space, on the same contractual terms otherwise as before, and bring proceedings for damages for what was called, both in issue 6 and their own pleading, loss of space, and consequential losses. That was in fact the remedy they sought, in the event that they failed in their effort to stop any space being taken from them. The appellants elected to take that position in the proceedings before Needham J, and thereafter they could not depart from it, in the various stages of those proceedings. (I note here in case any question should be raised about the procedure followed after Needham J made his orders, that I assume the reference to the Master was pursuant to SCR Pt60 r 1A(1)(c) so that the Master carrying out the reference and making orders under it would be exercising the powers of the court. I assume also that it was on this basis that the present appeal was brought direct to this court from orders made by Master Gressier in accordance with Needham J's O.6 and O.11. No point was taken by any party or the court about this procedure.) Basic to an understanding of the present appeals is the fact that no appeal was pursued against Needham J's orders. Thus when Master Gressier embarked on assessing the appellants' damages or compensation under O.6, he and the parties were confined to two specific questions, what sums should be awarded for damages or compensation for (1) loss of space resulting from building works done pursuant to the s317D order, and (2) loss or damage consequent upon those works. The hearing before the Master, which involved detailed evidence on many points, began on 3 May 1988 and continued on four later hearing days, the last being 4 October 1988. The Master delivered his reasons on 3 February 1989. On 4 UNREPORTED JUDGMENTS 14 July 1989 the Master delivered further reasons disposing of interest and costs, and final orders were entered as at that date. The heads of the claim made by President, and what the Master decided concerning them, appear in the following list: (1) Loss of space $35,000 (2) Loss of rental income 21,000 (3) Removal of partitions = - (4) Re-carpeting - (5) Valuation fees 300 (6) Legal costs (dealt with by costs order) (7) Interest on 1 to 5 (fixed by final orders) (8) Interest on legal costs (dealt with by final orders on interest and costs) (Total) $56,300 Head (1) dealt with the loss of space question under Needham J's O.6 and the remaining heads with the consequential loss question under that order. The corresponding list in Mr Barclay's case is as follows: (1) Loss of space and rental income $35,000 (2)-(31) (All heads of consequential loss for which 39,934-75 was awarded a total of $39,934.75) (32) Legal costs on initial judgment) (dealt with by (33) Continuing legal costs) final orders (34) Interest at Supreme Court rates) on costs and on final judgment) interest) (Total) $74,934.75 Head (1) in this list was directed only to loss of space. The reference to rental income was a mistake. Head (1) thus dealt with the loss of space question under 0.6 and the remaining heads with the consequential loss question under that order. In the appeals, the principal point argued was the method by which the Master arrived at the figures for head (1) in the two claims. Argument was also addressed to the matters of interest and costs. No other matters of consequential loss were raised. Further facts arguably material to the appellants' claims before Master Gressier and relevant to the appeals were as follows. The respondent, in carrying out the council's order, took some of the space previously licensed to each appellant for construction of a fire corridor. The work done to President's Room 306 on the third floor was carried out in about November 1986. The work to Mr Barclay's Room 406 on the fourth floor began in January 1987 and was completed about late March 1987. The rooms were the same size. The area of each was reduced from 932 square feet to 703 square feet by the new corridor. Needham J made his orders on 28 November 1986. On 9 December 1986 an extraordinary general meeting of the respondent was held. The minutes indicate, somewhat obscurely, that there was a motion before the meeting to apply for approval from the Council of the City of Sydney to a plan of Reid House which might thereafter be registered as a strata plan of subdivision under the Strata Titles Act 1973. The meeting was adjourned until 16 December UARESIDENT FINANCE CORPORATION PTY LTD and ANOR v REID HOUSE PTY LTB (Priestley JA) 1986 to enable advice to be obtained on aspects of the proposal. On 16 December 1986 the motion was carried. The council issued a certificate of approval of the proposed strata plan on 19 July 1988. The argument for the appellants on the principal question of method depended on a submission that the damages to be assessed were damages for a continuing breach of the covenant of quiet enjoyment in the appellants' licence agreements with the respondent. Each licence agreement began by reciting the ownership by the respondent of Reid House, and the entitlement of the appellants as Members and by virtue of their shareholdings in the respondent, but subject to the respondent's Articles, to occupy what the agreement called in President's case Unit 3D and in Mr Barclay's case Unit 4D. Each agreement then provided: subject to the agreement the Member should be entitled to the exclusive use of the unit during the physical life of the building and the use together with other persons lawfully resorting to the building of the lifts, stairways, toilet rooms and other conveniences, (CL1); and that the respondent undertook "that until the Member loses its right so to occupy the Unit the Member will quietly enjoy the Unit to the extent set forth above without interference by any person deriving title under or through it or acting with its authority" (CL3). It was argued for the appellants that the agreement for quiet enjoyment remained on foot in regard to the whole licensed space notwithstanding the subtraction from it of the area required for the fire corridors on the third and fourth floors. Therefore, the argument continued, breaches of the licence agreements were continuing to the time of hearing and of judgment. Damages should therefore be assessed at the latest date available to the Master, the date either of the final argument before him or the date of judgment. Also involved in this argument was the proposition that the respondent would continue to be in breach of the licence agreements as long as those agreements remained on foot, which could be for the life of the building, and that the damages to be assessed should include compensation for all breaches to the date of judgment and all breaches thereafter. In my opinion the Master was right not to accept the appellants' basic submission. In the course of argument in this court the question was raised which I mentioned earlier, namely, if, as the respondent was asserting, the 229 square feet which had been in fact taken away from both rooms 306 and 406, no longer formed part of the space which their shareholding under Article 9 and their licence agreements entitled President and Mr Barclay to occupy, by what legal mechanism had this come about. The respondent answered this question in two ways. One answered the question on its own terms, in a way similar to what I have already indicated as being, in my opinion, sound, but I do not think it is necessary to examine it in the appeals. This is because I consider the other answer to be sound, and that answer was that the question posed by the appellants was one they were not entitled to raise, either in the proceedings before the Master or in the appeal. I have already explained why I think the way the case was conducted before Needham J, and the issues he decided, prevented the appellants from thereafter claiming damages or compensation for anything other than loss of space and its consequences. Stated shortly, the way the case was conducted before Needham J, and his O.6 in substance involved a rejection of the appellants' basic submission, and the appellants did not appeal against it. They thus remain bound by 0.6 and its implications. 6 UNREPORTED JUDGMENTS A related but different point was made by the respondent. Needham J's orders had been made on 28 November 1986. This was very close to the time when President lost its space. It was before Mr Barclay lost his space. The terms of Needham J's 0.6 make it clear that at the time he was considering his reasons and when he delivered judgment he was doing so on the basis that neither President nor Mr Barclay had yet lost any space. By O.11 he directed that the matter be referred to the Master, the matter being, so far as concerned President and Mr Barclay, the amount of damages or compensation in the event that the building work resulted in a loss of space to either of them. If the appellants, notwithstanding what I have already said, still had, at the time when O.6 and O.11 were made, subsisting rights under Article 9 and their licences to the whole of the 932 square feet area dealt with by those documents, 0.6 and O.11 conferred benefits upon the appellants. They provided a means by which the appellants could secure from a court of competent jurisdiction the quantification of and enforceable judgment for damages or compensation, to be paid to them by the respondent, of money for what, to the time of the making of the orders, was a loss of space to which, on this view, they still arguably had rights both under the respondent's Articles and by contractual licence. After the making of O.6 and O.11, certainly three and possibly four things happened in regard to President, and four things happened in regard to Mr Barclay. The space was lost (possibly slightly earlier in President's case), neither appellant appealed against Needham J's orders, President and Mr Barclay made use of the 703 square feet remaining to them and both appellants made the claims pursuant to 0.6 which later came before Master Gressier and resulted in orders in their favour for the payment of money. These matters in my opinion unmistakably point to an election on the part of both appellants to accept the benefits of 0.6 and O.11. Having done so, they cannot make claims inconsistent with them. However, an inconsistent claim of that kind is, in my opinion, of the essence of the appellants' submission. To assess damages for past and future breaches of a continuing covenant for quiet enjoyment of the licensed space of 932 square feet, which is what the appellants say should have been done by the Master, would have been to do something different from, and inconsistent with assessing damages or compensation for the loss of 229 square feet of space from the licensed space of 932 square feet. The latter assessment seems to me to have been required by O.6, and once the appellants had taken the benefit of that order, they cannot be heard to argue they should be compensated under it, on a basis quite different from what it contemplates. This view of the consequences of the appellants' elections is based on the authoritative exposition of the doctrine of election in Sargent v ASL Developments Ltd (1974) 131 CLR 634. In my view the appellants' basic submission was not open to them, either before the Master, or in this court. In any event, it was unsound. Against the possibility that their primary submission failed, the appellants argued that nevertheless the court should fix the date for the assessment of damages at the date of hearing or judgment rather than the date of actual loss of space. Johnson v Agnew (1980) AC 367 was relied on for the view that the court should choose the date for calculation of damages which would best secure justice between the parties. The later date was said to be fairer to the appellants because by then the rights to occupy space in Reid House were no longer dependent upon holding groups of shares in the respondent but had become the rights of registered proprietors of UARESIDENT FINANCE CORPORATION PTY LTD and ANOR v REID HOUSE PTY LTD (Priestley JA) strata lots under Torrens Title. It was said that the change in the nature of the rights had increased their value and that this increase would not have been possible without compliance with the s317D order, because without it it would not have been possible to have the Strata Plan registered. Compliance with the s317D order had meant the reduction of space of the appellants so that although their 703 square feet was more valuable per square foot than their 932 square feet had been per square foot, the shareholders in the respondent whose space had not been reduced by the building work complying with s317D had got a greater benefit out of the change to strata title than the appellants, and this benefit was, to some extent, at the expense of the appellants. I do not think this submission should be accepted. O.6 in my opinion makes it quite clear that what the Master was to assess was damages or compensation for the loss of space; this carries with it almost irresistibly the idea that the only date at which the damages or compensation could be assessed would be the date of the loss of the space, taken as being November 1986 in the case of President and January 1987 in the case of Mr Barclay. In any event, calculating the damages at the date of hearing or judgment would not cure the unfairness which the appellants contended followed from some members of the respondent not having their space interfered with and thus benefiting at the expense of the appellants. In the light of these considerations, I can see no basis for choosing any other dates for the assessment of damages or compensation than those adopted by the Master. Two other submissions were directed to what were said to be faults in the valuation adopted by the Master. There were in evidence before the Master written valuations from Mr Norris, tendered by the respondent, and Mr Aitken, tendered by the appellants. Both valuers gave oral evidence and were cross-examined. Mr Aitken's valuations were directed to a date in 1988, Mr Norris's to the dates which the Master found were relevant. The Master accepted Mr Norris's valuations. Mr Norris had arrived at his valuation of the lost space by the following steps: (i) the value of space on both the third and fourth floors of Reid House immediately before the work was done to comply with the s317D order was $150 per square foot. This figure, applied to the 932 square feet space of rooms 306 and 406, produced a value for each of $139,800; (ii) the value of the same space after the work was done was $165 per square foot, and for each 703 square foot room therefore $115,595; (iii) thus each room lost $23,805 in value, subject to steps (iv) and (v); (iv) the appellants also lost some capital gains advantage, $7,288 in each case; (v) the appellants also lost their share of the levy made to pay for the completion of the work; (vi) the addition of the figures for steps (iii), (iv) and (v) led to total damages for loss of space of $35,000 for each room (the figure accepted by Master Gressier). Counsel for the appellants, at the stage of his argument when he was contending that the valuation date should be 1988, made some criticisms of steps (ii), (iv) and (v) which, particularly in regard to (iv) and (v), may have had some cogency. However, he made it clear that those criticisms, which were to the appellants' disadvantage, were only made as part of his argument for 1988 as the proper valuation date. They were not made if the court concluded that November 1986 and January 1987 were the appropriate dates. As the respondent did not argue against the appropriateness of taking into account steps (ii), (iv) and (v), it became unnecessary for the court to consider them further. 8 UNREPORTED JUDGMENTS The first criticism of Mr Norris's valuation pressed by the appellants was that Mr Norris had not taken into account in his valuations the value attached to the potentiality of the company title changing to strata title. Mr Norris made no reference to this potentiality in his valuation. However, he based his valuations per square foot on comparable sales of space within Reid House. One of these was the purchase by Mr Barclay in October 1986 of shares entitling him to further space in Reid House on the fourth floor. It seems highly likely that purchasers of shares at about this time would have been aware of the possibilities of conversion from company to strata title and would have taken those possibilities into account in buying at the prices which they did. By taking into account figures for comparable sales at about the time to which his valuations were directed, Mr Norris was, in what seems to me to be a practical and realistic way, taking into account the value to be attached, at the relevant date, to shares in the respondent by reason of the potential for conversion to strata title. The other criticism of Mr Norris's valuations which was pursued by the appellants was that he did not take into account what the appellants said was a matter affecting the value of the space left after the work was done, over and above the simple reduction in space. It was said that the remaining space was of a very awkward shape, such that it could not be used so advantageously for business purposes, per square foot, as the larger space had been able to be used. Very much the same complaint as this had been raised before Master Gressier in support of Mr Barclay's claims under heads 24-27 and 29-30 for consequential loss. In dealing with those claims Master Gressier rejected the assertion that the shape of the remaining space was such that it could not be used, foot for foot, as efficiently as the larger space. Amongst other reasons, the Master said that the evidence consisted essentially of Mr Barclay's own assertions and did not satisfy him that any inefficiencies in the office layout in the smaller area were solely attributable to the respondent's breach of contract. I see no reason to disagree with the Master's reasons on this point. If there were anything in the argument, it would seem in any event to have been allowed for under Mr Norris's step (ii) as the $165 per square foot figure he used in that step appears to have been a figure applicable to all space on the two floors in question and not limited to the allegedly awkwardly shaped rooms of the appellants. The final matter to be dealt with on this aspect of the appeals is an application made by the appellants, in the hearing in this court, for leave to rely on further evidence. Several affidavits were filed in support of the application, containing details of sales of shares in the respondent or lots in the Strata Plan not in evidence before Master Gressier. However when the application was argued it was pressed in relation to one sale only; no doubt the strength of the rules (under s75A of the Supreme Court Act 1970 and Pt51 r13A of the Supreme Court Rules) against the reception of further evidence on appeals deterred the appellants from arguing that the court should let in evidence of the later sales. The one matter of evidence pressed concerned a sale of shares in the respondent by Goodwill Trading Company Pty Ltd to Louchris Pty Ltd. Reference to this sale got into evidence before Master Gressier in the following way. The respondent filed an affidavit by Mr Norris which was sworn on 27 January 1988. Annexed to it was a detailed valuation dated 20 January 1988. On p 4 of this valuation this paragraph appeared: "We consider the most appropriate method of valuing the subject areas is to have regard to sales of similar properties. In our opinion the best evidence of value is obtained by analysing UARESIDENT FINANCE CORPORATION PTY LTD and ANOR v REID HOUSE PTY LTB (Priestley JA) sales within the subject building. As mentioned earlier in this report the various occupancies are held under Company Title and it is our experience that Company Title properties are more difficult to sell and sell at reduced levels from comparable strata title premises." Mr Norris was cross-examined before Master Gressier on 17 August 1988. The appellants' counsel asked questions and received answers as follows: "Q. All right. You refer in your report on p 4 to comparable sales that you have relied upon. I take it those are sales of space within Reid House primarily? A. Yes, that is correct. Q. Were there any such sales which had occurred during the twelve months prior to the making of your assessment? A. Yes, I believe there were. There was a sale on the third floor from Godwill to Luhris. Q. What was the price per square foot on that sale? A. $100. Q. $100? A. Yes, that is right. Q. How much space was sold? A. 1506 square feet. Q. Did you inspect that property? A. Yes." It was said the court should receive further evidence about this sale, on the ground that it had "come to the notice of (the appellants) since the hearing before the Master that the same person was behind both sides of the transaction... Goodwill was owned by the Elsegood family and so was Louchris". If the evidence supporting this allegation were admitted, the appellants then wished to argue that it showed the sale was not at arm's length and should not have been taken into account by Mr Norris, at least without greater investigation than he apparently made. The evidence concerned matters occurring before the hearing before Master Gressier. Therefore s75A(8) of the Supreme Court Act applies to it, forbidding this court's reception of it "except on special grounds". In regard to evidence of this kind, the position consistently taken by this court is well known. In Radnedge v GIO of NSW (1987) 9 NSWLR 235, Mahoney JA summarised it: "The admission of evidence as to pre-trial facts was always seen as subject to strict requirements. Under the original English rules, pre-trial facts could be proved only with 'special leave of the court'; 0 58, r4. And the decisions subsequently given, against the background of this and other statutory provisions and rules, established the general principle that the discretion to admit this class of evidence should be exercised only if the evidence could not have been obtained with reasonable diligence for use at the trial; if there was the appropriately high degree of probability that, produced at the trial, there would have been a different verdict; and if the evidence be appropriately credible: Greater Wollongong City Council v Cowan (1955) 93 CLR 435." (at 251) No satisfactory account was given by the appellants of why the evidence was not obtained for use at the hearing. There seems to have been ample time for enquiry about the facts underlying Mr Norris's affidavit and valuation before he was cross-examined. On the day he was cross-examined addresses began, and the further hearing of the reference was adjourned to 4 October 1988. Here again was ample time for reasonable diligence to be exerted in investigating the sale. The first of the three requirements listed by Mahoney JA in Radnedge does not seem to me to have been made out. I do not think the second requirement was satisfied either. In support of the application some annual returns for the Louchris and Goodwill companies were tendered. Some of these showed that Goodwill's ultimate holding company was Louchris. Some also showed that two persons named Elsegood held one ordinary 10 UNREPORTED JUDGMENTS share each in Goodwill and that eight ordinary shares were held by Bravelo Management Services Pty Ltd. There was no evidence of the shareholding in the Bravelo Company. The shareholding in Louchris was by six persons named Elsegood. There was no material to show how many companies stood between Goodwill and Louchris, nor was there any evidence to show that the directors of Goodwill had any reason to be in breach of their fiduciary duty to the company by selling any of its property at an undervalue. The evidence, as far as it goes, would be relevant to the point the appellants wished to make, but in my opinion falls well short of demonstrating a high degree of probability, that if produced at the hearing, there would have been a different result. In view of the accepted approach to the reception of evidence of this kind on appeal, I do not think it would be right for this court to exercise its discretion to permit this evidence to be received. I would dismiss the applications to adduce further evidence, with costs. The final matters raised on behalf of the appellants were those of the correct interest rate to be applied and the costs orders made by the Master. In respect both to interest and costs, the Master's decisions were made after hearing argument and his reasons show that he took into account all relevant matters in arriving at his conclusions. The appellants have not been able to point to any error of fact or principle on the Master's part in arriving at his conclusions. The questions of both interest and costs are regarded as practice questions with which this court will not ordinarily interfere unless some clear error is shown. There does not seem to me to be any sign of that in the present case. I would not uphold the appellants' submissions on these matters. In my opinion the appeals should be dismissed with costs. Meagher JA I agree with Priestley JA. Waddell AJA I agree with Priestley JA. 1. Application to adduce further evidence dismissed with costs. 2. First and second appellants' appeals dismissed with costs. COUNSEL for the Appellant - B RAYMENT QC / W MARKS Counsel for the Respondent - P WHITE / R ANDERSON (Solicitors) SOLICITORS for the Appellant - MILES BARCLAY and CO Solicitors for the Respondent - LANE and LANE