BREEN v PLUMB SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and HANDLEY JJA 4 February 1992, 3 March 1992 [1992] NSWCA 29 APPEAL — damages — plaintiff father invites defendant daughter and de facto son to live in his cottage — arrangement that they will build second storey on cottage — defendants build their storey with money lent to plaintiff on security of War Service mortgage — defendants agree to, and make all payments of mortgage instalments and rates — family arrangement breaks down — Muschinski v Dodds — plaintiff wrongfully excluded from possession — order for possession made against defendants — damages awarded against them for wrongful exclusion of plaintiff — also for use and occupation — declared in defendants' favour that they were entitled to equitable charge over property for improvements — on appeal, questions raised about amount of charge and of damages — Held, award for wrongful exclusion sufficiently accurate, but award for occupation fee did not take into account lower rental value of defendants' part of house than plaintiff's — deduction to be made from equitable charge for present value of unpaid War Service mortgage instalments. Samuels JA I agree with Priestley JA. Priestley JA The proceedings from which this appeal comes were brought by Mr Plumb as plaintiff against his daughter Mrs Breen as first defendant and her de facto husband Mr Fuller as second defendant. The first instance trial was before Young J. The result favoured the plaintiff. The defendants have appealed to this court. Throughout his reasons Young J referred to the three as the plaintiff, the first defendant and the second defendant, and I will do the same. In 1978 the plaintiff had for some time been the registered proprietor of land at Batemans Bay on which there was a single storey dwelling in which he lived. The first defendant had been living in Canberra with the second defendant; she was separated from her husband who seemed likely to be bankrupted and it was possible that the same might happen to her. The first defendant told her father she wanted to move to Batemans Bay. An arrangement was made between the plaintiff and the defendants by which an extra storey would be added to the plaintiff's house, it would be self contained and the defendants would live in it. The arrangement was carried out. The defendants went to live in the second storey of the house and are still there. However, by January 1985 the relationship between the plaintiff and the defendants had deteriorated. On 7 January 1985, there was a clash between the plaintiff and the second defendant following which the plaintiff left the house, on the basis he could not live there while the defendants were there. Later in the year he caused a notice to quit to be served on the defendants. On 30 August 1985 the plaintiff began proceedings for possession. He also claimed damages for being excluded from the premises and, shortly before the hearing added a claim for damages for an alleged assault by the second defendant on 7 January 1985. The defendants denied the plaintiffs various claims and counter claimed that they had an equitable interest in the land entitling them to the premises or alternatively to remain there. 2 UNREPORTED JUDGMENTS The first major issue at the trial was what the parties had actually agreed on in making the arrangement that was entered into and acted on in 1978. Each of the three parties gave a somewhat different account of what had been said between them. Young J said it was clear that the plaintiff and the first defendant had very unclear recollections about it; further, what the second defendant said was contrary to what the first defendant remembered. After considering the different accounts, Young J said: "Tt is quite clear that there was some family arrangement between the parties at the very least and that it was the understanding of them all that the first defendant and her de facto husband would move down to Batemans Bay, a second storey would be built on the house with the aid of a War Service loan obtained by the plaintiff, which loan the defendants would be responsible for repaying. Care was taken not to make any legal contract because of the possible future bankruptcy of the first defendant and her then law fully wedded husband. It seems that the first defendant never was declared bankrupt, but certainly there appeared to be a possibility that she would go down with her then husband into the financial mire. Accordingly, care was taken not to give her any interest in the property and there was a will made by the plaintiff leaving the property to the first defendant on condition that she pay her brother and her sister $10,000 each. Accordingly, this is not a case where there was any common intention that the first defendant would have any interest in the house at Batemans Bay at all as a result of leaving Canberra and coming to live in Batemans Bay with the plaintiff. There was, at the most, a family understanding that assuming that all went well between the parties, the first defendant would be able to live in Batemans Bay with the plaintiff as long as she wished, and if the house was sold or the plaintiff died, then she was to have the house or the proceeds less adjustments to her brother and her sister." The loan secured by the War Service mortgage was $15,000. The defendants used this, and other, funds to pay for the building of the additions to the house. Their main case was that the plaintiff conducted himself in such a way as to give them the expectation the house would be theirs, their considerable outlay of money was on this assumption and the only way justice could be done was for an order to be made in equity that the plaintiff transfer the house to them. Young J found that the facts did not support such a claim. I need not go into the evidence concerning it or examine his Honour's reasons on the point, as I do not understand that claim to have been pursued in the appeal. Young J, having rejected the main claim, then approached the case by reference to Muschinski v Dodds (1985) 160 CLR 583, in which Deane J had said: "[W] here the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it... equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do. " (at 620) Young J was of the view that the principle stated by Deane J applied in the case of breakdown of a family arrangement and that in the case before him the principle should be applied. Given his Honour's factual findings, this seems to me to have been an appropriate approach, and, as both sides in the case asked this court to deal with the case on the same footing, I think the court should follow URJ BREEN v PLUMB (Priestley JA) 3 that course without further examination of the theory of the position. That is, I will approach the appeal in accordance with the request of the parties, on the basis that the defendants' cross claim should be dealt with as a Muschinski case, as it came to be called in argument. Young J dealt with the defendants cross claim first. Somewhat differing expert valuation evidence had been put forward by the opposing parties. The judge gave reasons for accepting the evidence of the plaintiff's valuer, Mr Lovell, in preference to that of the defendants' valuer, Mr Hanrahan. Using Mr Lovell's valuations, Young J arrived at the conclusion that the house as it was at the date in 1986 when he thought the defendant's should have left it was, in the dollars of the date of his judgment, worth $43,500 more than it had been in 1979 when the defendants began to improve it. He was of opinion that it would be unconscionable for the plaintiff to have the advantage of that figure on any sale. The work and improvements which were responsible for that increase in value were all done with the plaintiffs knowledge and approval. Subject to the result of the plaintiff's claim therefore, the defendants were entitled to an equitable charge over the property to secure $43,500. On this aspect of the case, the parties agreed in this court that adopting the trial judge's method of calculation the figure should have been not $43,500 but $29,240. As I understand it, it was agreed on behalf of the defendants that the $29,240 amount should be taken as correct, if it was right not to take into account in the defendant's favour further improvements made after the date in 1986 when the trial judge considered they should have left the premises. In regard to the period after the appropriate date in 1986 for leaving the premises, his Honour was of opinion that the defendants were not in equity entitled to any credit. He took the view that the plaintiff had effectively been excluded, and wrongly excluded, by the defendants from the premises; he also made it clear that he accepted the plaintiff's evidence that he did nothing to encourage the defendants in the expenditure of any money on the property after he himself left it. He relied on the law referred to in Lord Cranworth's statement in Ramsden v Dyson (1866) LR 1 HL 129 at 141 that if a tenant knows the extent of his interest "it was his folly to expend money upon a title which he knew would or might soon come to an end". Young J dealt separately with the amounts claimed against the defendants for the upstairs and downstairs parts of the house. In regard to the downstairs part, he held, on the evidence, that the plaintiff had been effectively excluded from occupation since 1985, for a period which he took as five years. He accepted the figure of $120 per week as the fair rental value of this part of the property in which the plaintiff had been living, this yielding a figure of $31,200. However, he took into account that the defendants had paid the rates and taxes and that what was really being awarded to the plaintiff was compensation for not being able to live in the property himself rather than for loss of income by way of rent. This led him to think it legitimate to deduct some amount as an income tax component from the figure of $120 per week. Taking these matters into consideration he reduced the $31,200 by a third to $20,800. Young J then turned to deal with the defendants having remained in occupation of the self contained upstairs part of the premises. He thought they were entitled to six months rent free occupation because they had settled down under the family arrangement to an indefinite stay in the premises. After that six- months however, he thought an occupation fee should be paid. He took the relevant period for calculation to be four and a half years. He was of the view that the 4 UNREPORTED JUDGMENTS upstairs portion had much the same rental value as the downstairs portion. Four and a half years at $120 a week was on his calculations $27,000. He reduced this by about a sixth, $4,000, to $23,000, by deducting a component for rates. He then added interest which he calculated at $10,500. These figures totalled $54,300. After considering the conflicting accounts of what happened between the plaintiff and the second defendant in the plaintiff's living room on 7 January 1985, the trial judge came to the conclusion that he should find the assault proved. He evidently did not think it caused any serious injury to the plaintiff; he commented that no evidence had been presented of any out of pocket expenses resulting from the assault nor any attempt to bring any proceedings in respect of it until the case was close to trial. There was dispute between the parties before this court on the extent to which a passage in his Honour's reasons represented a finding of fact. He had earlier said "Whatever really happened on 7 January, the effect was that the plaintiff left the house never to return". Later he indicated that he did not fully accept the plaintiff's version of what had happened. He then said: "On any version, the second defendant struck the plaintiff and broke his walking stick. Often when a man is attacked in his own living room, especially where an aged man with a walking stick is attacked by a much younger man, exemplary damages may be awarded. However, provocation will often mean that the court's inclination to award exemplary damages for the assault will evaporate." Later he made the finding I have earlier mentioned, that the plaintiff had effectively been excluded from occupation of the property since 1985, which I take to mean 7 January 1985. For the defendants it was said that the passage I have set out above was not a finding of fact, because the trial judge had made it clear that he was not accepting either version of the incident, but simply taking what was common to both stories. For the defendants it was argued that on the second defendant's account he was probably guilty of technical assault only, and that this was reflected in his Honour's finding of $20 damages. The factual basis upon which the trial judge eventually operated seems to me to be fairly clear. He did not think the assault had had any serious physical effect on the plaintiff, but he was an elderly man who had suffered the assault in his own living room and it had had the effect upon him that he felt he must move out of the premises. Being assaulted in your own home, by a younger man with whom and with whose de facto wife (and your daughter) your good relations have been getting steadily worse, is an event very likely to make you fearful that things may get worse still, with the risk of further assaults, unless you move. Young J made it sufficiently clear, I think, that it was on this sort of basis that he was dealing with the case. In my opinion, on the evidence that was before him, these were reasonable conclusions to reach. In the appeal, counsel for the defendants argued that his Honour had not been justified in allowing any figure for exclusion of the plaintiff by the defendants from the lower portion of the house. Although it was put in different ways, this argument rested upon the proposition that his Honour had not clearly found that the encounter between the plaintiff and the second defendant on 7 January 1985 had been the cause of the plaintiff's leaving, and the argument which I have already mentioned was put, that from Young J's award of nominal damages of $20 for the assault it must be inferred that he had accepted the second defendant's URJ BREEN v PLUMB (Priestley JA) 5 version. I have already indicated what I think was the substance of his Honour's factual findings about the incident, and on my understanding of them, this submission for the defendants fails. It was also put for the defendants that there had been nothing to stop the plaintiffs returning at any time to live in the downstairs part of the house. Again, however, if my view of the substance of his Honour's factual findings is correct, the plaintiff was effectively excluded from the downstairs part of the premises through his fear of what might befall him should he return while the defendants were living upstairs. The strongest indication in the defendant's favour on the point I have been discussing is that his Honour's application of the Muschinski principle which goes on the basis that the break up in the arrangement must be without attributable blame, is inconsistent with acceptance of the plaintiff's account of the assault. The answer to this is, I think, that fully spelt out, what his Honour indicated by his various findings was that in his view the arrangement between the parties had by January 1985 reached the point where it was bound to dissolve, and the incident of 7 January 1985, although not particularly serious, was enough, coming when it did, to bring the relationship to an end without attributable blame within the Muschinski principle, but at the same time, when looking at the exclusion issue, the assault in his own living room was sufficiently alarming to the plaintiff (as would appear to have been shown by his immediately moving out) to justify the finding that he was thereafter effectively excluded from the downstairs portion. This factual situation must be considered together with the fact that from 1985 the defendants were asserting that they were entitled to the whole property. On the view of the facts which I think was taken by the judge, and which I think he was entitled to take, I further think the conclusion that he reached adverse to the defendants on the question of exclusion was sound and that the attack upon it in the appeal fails. A further ground of appeal was directed to the amount Young J took as the weekly rental which he took as the starting point for the calculation that ended in the figure of $20,800 attributable to the exclusion head of the plaintiff's damages. In support of this criticism, reliance was placed upon figures supplied by Mr Lovell in a letter in evidence dated 23 October 1990 which showed his assessment of the current market rental from 1986 to 1990 of the downstairs portion of the premises. The figures for the twelve months from | March in each year from 1986 onwards were $455 per calendar month for 1986, $477 for 1987, $477 for 1988 and $542 for 1989. It was contended that any basis of looking at these figures over the period produced a figure of less than $120 per week for the whole period. In dealing with this, it is necessary to take into account the matters mentioned in my next two paragraphs. Evidence was taken and submissions heard in the case on 25 and 26 October 1990 and his Honour delivered his judgment on 13 December 1990. He took the period of exclusion of the plaintiff as being five years. He took the period for which the defendants had to pay an occupation fee as four and a half years. When he came to decide the date as at which the plaintiff was entitled to the possession of the property he declared that it was 12 January 1986. When the date from which the exclusion began, 7 January 1985, and the dates on which the proceedings were heard and decided are taken into account, it appears that the periods of five and four and a half years taken for calculation purposes were rather broad brush. No complaint was made about this in the argument before this 6 UNREPORTED JUDGMENTS court, and I mention it only because it makes it a little difficult to fix a starting date for the five year period for which Young J calculated damages for exclusion. For the purposes of testing the complaint about the weekly rental value used by the trial judge in his calculation I have taken the five year period from 1 December 1985 to 1 December 1990, shortly before the date of his Honour's judgment. Taking the figures from Mr Lovell's letter of 23 October 1990 and applying them to that period of 520 weeks, the total arrived at is $30,770. Any of the five year periods that could be taken within the time frame of his Honour's findings would bring out a figure not far away from that, which is very close to the figure of $31,200 used by his Honour. I therefore would not think it right to adopt a different basis for the calculation for the exclusion damages from the $120 figure adopted by Young J, and in my opinion the figure of $20,800 should be accepted in this court as the appropriate figure for damages for the exclusion of the plaintiff from his premises. In regard to the total use and occupation fee arrived at by Young J for the defendant's occupation of the upstairs portion of the premises, a more weighty submission was made on behalf of the defendants. Young J made his calculation on the footing that the upstairs portion appeared to have much the same rental value as the downstairs, thus basing himself on a figure of $120 a week. He took this figure for four and a half years because of his finding that six months was an appropriate time for the defendants to have remained in the premises after the plaintiff's demand for possession. Counsel for the defendants pointed out that there was no evidence to support the figure of $120 for the upstairs portion; it appeared simply to be an assumption by his Honour. This submission which leads to a proposition favouring the defendants which I accept, was associated with another one, which I do not accept and which I will deal with first. The one I do not accept assumed that the rents Mr Lovell had worked out in his letter of 23 October 1990 dealt in the column under the heading "Original Condition" with the property as it was before any improvements were made to it and that the rentals shown under the heading "As Is" were the rentals for the whole property, upstairs and downstairs, had it been available for renting from March 1985 onwards in the condition in which it was in October 1990. It was then said that for his Honour to allow $120 as the basis for working out the damages for the plaintiff's exclusion from the lower part of the premises and the same figure for calculating the use and occupation fee for the upper part of the premises was at variance with Mr Lovell's figures because the rentals shown under the "As Is" heading were only twenty to 30 per cent higher than those shown under the "Original Condition" heading. On the assumption that the "As Is" heading was dealing with rentals for the whole of the premises then clearly the figures relied on would produce either a much lower rental for the upstairs portion or a much lower figure than $240 per week as the average rental for the letting of the whole. The reason for rejecting this argument is that it seems to me quite plain, when Mr Lovell's letter of 23 October 1990 is read together with an earlier letter dated 11 October 1990 of which the letter later in date is really a continuation or extension, that the figures shown under the "As Is" heading in the letter of 23 October 1990 are dealing only with the rental value of the downstairs portion of the building. The defendants seem to be right however in saying that there was no evidence before the trial judge dealing directly with the rent of the upstairs part; the trial judge simply said, the upstairs part "seems to have much the same rental value URJ BREEN v PLUMB (Priestley JA) 7 as the downstairs". However, the description in the valuation evidence of the two premises showed that one important difference between them was that downstairs had three bedrooms and upstairs two. Looking at the position in a general way, such a difference is likely to produce a lower rental in the upstairs part of something in the order of thirty per cent. This estimation is a fairly rough and ready one, but it seems to me appropriate to adopt it in this case to avoid the further expense to the parties that would follow from having the matter enquired into by a Master or other fact finder available to the court, however appropriate. In choosing a figure of thirty per cent I have allowed for the fact that applying that figure to the end result reached by his Honour involves a slightly smaller allowance in favour of the defendants for the rates actually paid by them. On the approach indicated, the figure for use and occupation including interest should be reduced from $33,500 to $23,450. In regard to the valuation evidence, the defendants counsel submitted that the judge had not been entitled to accept Mr Lovell's opinions in preference to those of Mr Hanrahan. The plaintiff had not required Mr Hanrahan for cross-examination, and it was argued that this disabled the plaintiff from disagreeing with his evidence, and the judge likewise. In the circumstances of this case, I do not agree with these submissions. It was clear at all times that the plaintiff would urge the judge to accept Mr Lovell in preference to Mr Hanrahan; the defendants were on notice of this and I cannot see how they were disadvantaged by the plaintiff's tactics. He was the one who might have suffered from it, because he ran the risk the judge might accept Mr Hanrahan's evidence after taking into account the fact of his not being cross-examined. Where, as here, one party takes the position that he will ask the trial judge to accept expert witness A rather than the opposing side's expert witness B_ without crossexamining B, and the other side knows what is proposed, then (i) there can be no unfairness to B's side and (ii) it is open to the court to consider the different opinions, the reasoning and experience supporting them and to decide upon what the court thinks is the more persuasive. That is what happened in the present case, and this ground of appeal in my opinion fails. Ihave now dealt with the arguments which were initially put to this court. In summary, the position to this point is: (1) The amount the defendants are entitled to by way of equitable charge is $29,240. That is for the improvements effected by the defendants to the house before the breakdown of the arrangement, and is an adjusted figure from the one arrived at by his Honour, which was, he said, "in today's dollars". Had it been in 1986 dollars (that being the date his Honour took as relevant) some interest allowance on it would be necessary, but not, it seems to me in view of the way his Honour calculated the figure. (2) The figure for exclusion damages remains $20,800. (3) The figure for use and occupation fee and interest becomes $23,450 instead of $33,500. (4) The damages for the assault, $20. If the method adopted by the trial judge were exactly followed then the result would be that following from the above figures. However, a matter apparently not raised with his Honour below and not dealt with by him, is the effect upon the figures of the War Service mortgage over the premises. Under the family arrangement which his Honour found had existed between the parties the- defendants assumed liability for this mortgage. They had carried out that obligation not only till 1986 but until the time of trial. 8 UNREPORTED JUDGMENTS The amount paid to October 1990 was $10,473. This court was told, although it seems Young J was not, that the amount outstanding under the mortgage at the same date was $13,000. In the particular circumstances of the present case, I think the court should act on this extra fact. When the effect of the continuing existence of the mortgage on the accounting between the parties was drawn to their attention in the course of argument, counsel for the defendants at first was inclined to argue that since the matter had not been raised below, it would be open to the court to deal with the appeal simply by following the same method as the trial judge subject to whatever the results were of the arguments directed to various steps in that method. Tempting though this suggestion was, the court indicated to counsel for both sides that the question of the mortgage seemed to be an essential part of any adjustment of equities between the parties. Thereafter written submissions were supplied by the parties dealing with the matter. Having considered those submissions, it seems to me that the position is a fairly simple one. The arrangements between the parties having broken down and the defendants not being entitled to stay in the premises, they cannot be expected to keep up the payments on the mortgage once they go out of occupation. The trial judge, in calculating the amount of the defendants' equitable charge on the premises, treated them as having applied the whole of the loan secured by the mortgage to improvement of the property, along with moneys of their own. To the plaintiff the value of the property is diminished by the amount needed to discharge the first mortgage. It does not appear in the evidence what the term of the mortgage is, but the probabilities are that it must have a long time yet to run, because the amount owing under it has been reduced by only $2,000 after eleven years and the payment of $10,473. The amount which if now paid to the plaintiff and set aside by him for paying the instalments due under the mortgage until discharge simultaneously with the exhaustion of the fund set aside, that is the present value of all future payments due under the mortgage, is very probably much less than $13,000. It seems to me that the $29,240 figure otherwise arrived at as the value of the defendants' equitable charge must be reduced by this present value. In order to work out that present value the court would need to know, in addition to what is in evidence, the length to run of the mortgage. The court would also need to fix a discounting figure to use in the present value calculation. In the absence of the two essential matters of evidence mentioned, the court would ordinarily refer this aspect of the case for the fact finding to be done in an appropriate court, but the circumstances of the present case make it desirable to avoid the further cost and delay that would cause to parties already badly scarred by this litigation. Doing my best with the inadequate materials I estimate the present value of the instalments remaining to be paid on the mortgage at $8,000 and I propose that that sum be deducted from the $29,240 otherwise arrived at. In case either side thinks that figure is significantly wrong, I would grant liberty to apply to the Equity Division for variation of that figure, such application only to be entertained upon satisfaction of three conditions (i) that it be made within twenty-eight days of the publication of these reasons, (ii) that it be supported by credible evidence that the figure of $8,000 differs by more than fifteen per cent from the reasonable present value, (iii) that the party or parties applying for variation undertake/s to the court to pay the costs of the other party or parties if the result of the application is a present value differing by less than fifteen per cent from $8,000. URJ BREEN v PLUMB (Handley JA) 9 I therefore propose that Young J's judgment and orders be varied to read as follows: 1. Declare that the plaintiff has been entitled since 12 January 1986 to possession of the property known as 30 Vista Avenue, Batemans Bay in the State of New South Wales being the whole of the land in Certificate of Title Volume 10307 Folio 14 ("the property"). 2. The plaintiff to have leave to issue a writ of possession in respect of the property. 3. Declare that the defendants were entitled as at 7 March 1991 to an equitable lien over the property in the sum of $21,240 after giving credit for the present value of the War Service Loan mortgage over the property, assessed at $8,000. 4. Judgment for the plaintiff for $44,270 to take effect from 7 March 1991, such judgment comprising $20 damages for assault, $20,800 damages for wrongful exclusion, $23,450 for use and occupation and $1,320 for pre-judgment interest. 5. Order that the defendants' equitable lien be satisfied and discharged as at 7 March 1991 by the reduction of the judgment against the defendants by $21,240. 6. Order that the defendants pay the plaintiff the sum of $24,350 to carry interest as from 7 March 1991. 7. Order the defendants to pay the plaintiff's costs of the proceedings in the Equity Division. 8. Stay of execution for twenty-eight days. 9. Either party to have liberty to apply to the Equity Division for variation of the figure of $8,000 referred to in O.3, such application to be entertained upon satisfaction of three conditions: (i) that it be made within twenty-eight days; (ii) that it be supported by evidence that the figure of $8,000 differs by more than fifteen per cent from the reasonable present value; (iii) that the party applying for variation undertakes to the court to pay the costs of the other party if the result of the application is a present value differing by less than fifteen per cent from $8,000. 10. Appeal otherwise dismissed with costs. Handley JA I agree with Priestley JA. ORDERS AND DECLARATIONS 1. Declare that the plaintiff has been entitled since 12 January 1986 to possession of the property known as 30 Vista Avenue, Batemans Bay in the State of New South Wales being the whole of the land in Certificate of Title Volume 10307 Folio 14 ("the property"). 2. The plaintiff to have leave to issue a writ of possession in respect of the property. 3. Declare that the defendants were entitled as at 7 March 1991 to an equitable lien over the property in the sum of $21,240 after giving credit for the present value of the War Service Loan mortgage over the property, assessed at $8,000. 4. Judgment for the plaintiff for $44,270 to take effect from 7 March 1991, such judgment comprising $20 damages for assault, $20,800 damages for wrongful exclusion, $23,450 for use and occupation and $1,320 for pre-judgment interest. JOBNAME: No Job Name PAGE: 10 SESS: 1 OUTPUT: Wed Oct 24 09:20:37 2007 /reports/caseml]/case/urj/9202031 UNREPORTED JUDGMENTS © 90 10. Order that the defendants' equitable lien be satisfied and discharged as at 7 March 1991 by the reduction of the judgment against the defendants by $21,240. Order that the defendants pay the plaintiff the sum of $24,350 to carry interest as from 7 March 1991. Order the defendants to pay the plaintiffs costs of the proceedings in the Equity Division. Stay of execution for twenty-eight days. Either party to have liberty to apply to the Equity Division for variation of the figure of $8,000 referred to in O.3, such application to be entertained upon satisfaction of three conditions: (i) that it be made within twenty-eight days; (ii) that it be supported by evidence that the figure of $8,000 differs by more than fifteen per cent from the reasonable present value; (iii) that the party applying for variation undertakes to the court to pay the costs of the other party if the result of the application is a present value differing by less than fifteen per cent from $8,000. Appeal otherwise dismissed with costs. Counsel for the Appellant: D Bennett QC and I Wales Solicitors for the Appellant: Kell Heard McEwan and Lough Counsel for the Respondent: B Ralston Solicitors for the Respondent: Crossin Power and Haslim