DALEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, COLE JJA and ABADEE AJA 6, 19 September 1996 [1996] NSWCA 134 TRIAL JUDGE'S finding regarding absence of breach of lease for alleged non- repair of roads and breach of Prickly Pear Act 1987 upheld — finding of breach of Noxious Weeds Act 1993 reversed — approach to construction of obligations under that Act King v Tait (1952) 52 SR 137, applied. Clarke JA I agree with Cole JA but I wish to add a further ground for rejecting the appellant's argument concerning the alleged breach of the Prickly Pear Act 1987. (1) Section 9(1) of that Act reads: 9(1) An occupier of land which is, or becomes, free from prickly pear shall keep and maintain the land entirely free from prickly pear. (2) An occupier who contravenes subsection (1) without reasonable excuse is guilty of an offence and liable to a penalty not exceeding 20 penalty units. In my opinion that section imposes an obligation on an occupier whose land is free of prickly pear at the time it becomes the occupier, or whose land later becomes free of the pear during this occupation, to ensure that the land is kept entirely free of the pear. It is not obliged by this particular sub-section to eradicate the prickly pear. Any obligation to take that action arises under a different statutory provision. Section 9(1) predicates an existing state (freedom from prickly pear) which the occupier is required to maintain. In the present case the appellant sought to establish that in a period well before the respondent's occupation the land became free of prickly pear. Even if it had established that the property was free of prickly pear between 1984 and 1989 that would have been an insufficient basis for concluding that the respondent had breached s 9(1). That is because that finding would not have established that the land was, or had become, free of prickly pear at the time the respondent became the occupier. respondent became the occupier. Cole J Following unsatisfactory relationships resulting in much litigation, as part of a of disputes settlement between a considerable number of parties Daley Investments Pty Limited (Daley Investments) granted a lease to Melacare Industries of Australia Pty Limited (Melacare) commencing 18 August 1993 and terminating 30 June 2008 of a property known as Round Mountain near Grafton. The lease contained clause 9 which, relevantly, provided as follow: 9. REPAIRS AND MAINTENANCE 9.1 Lessee to repair structures: (a) (Duty to maintain): The lessee shall keep the Homestead, all structures on the Land and the Land and the Lessee's Fittings in good repair and at the expiration or sooner determination of the term of this lease shall yield up same in good repair, fair wear and tear accepted. 2 UNREPORTED JUDGMENTS (b) (No responsibility): The obligations of the lessee pursuant to clause 9.1(a) do not include responsibility for fair wear and tear and any damage caused by flood, fire, storm, tempest or damage caused by aircraft or articles dropped therefrom where such damage is not attributable to any act or omission on the part of the Lessee or the Lessee's Employees. It also contained clause 12.3: 12.3 COMPLY WITH STATUTES AND REQUIREMENTS The Lessee shall comply with and observe at the Lessee's own expense all statutes or requirements in relation to or affecting the Land or any Lessee's Fixtures and fittings; and/or the use or occupation of the Land from time to time. On the same date, and as part of the same settlement, there was executed on the 17 August 1993 an option granted by Daley Investments to Melacare to purchase Round Mountain for the sum of $1 million, such option to be exercised at any time before 4p.m 30 June 2008. Clause 10 of the option provided: 10. If either party- (a) fails to perform its obligations to the other party under this Deed, (f) fails to perform its obligations to the other party under the Lease, then there has been an act of default, in which event the non-defaulting party may terminate this agreement forthwith by written notice to the other. Notwithstanding the resolution of disputes in August 1993, by November 1993 there were further disputes resulting in litigation in the Commercial Division. A mediation by Sir Laurence Street resolved this round of conflict. A deed dated 26 February 1994 was executed by many parties including Daley Investments and Melacare. Clause 7 of the Deed provided: Daley Investments acknowledges that the Notice of Termination of Option, and Notice of Termination of Lease both dated 24 December 1993 served by Daley Investments on Melacare are invalid and of no effect and that they are both withdrawn and that the Lease is and remains valid and enforceable and that there are no subsisting breaches. The deed of settlement also provided for certain variations to the lease and variation to the option agreement. The rental under the lease was increased, and the purchase price pursuant to the option was escalated by consumer price indices. Notwithstanding this settlement in February 1994, on 24 July 1994 Daley Investments served on Melacare a notice purporting to terminate the option. That resulted in Melacare commencing proceedings seeking a declaration that the option remained valid and binding. Daley Investments sought contrary declarations by way of cross-claim. The notice of termination of option stated: "Without prejudice to the grantor's right to rely upon any grounds available to it the grantor draws the grantee's attention to the fact that the grantee has become insolvent and that the grantee has failed to perform its obligations to the grantor under the lease, in particular (but without limitation) its obligation pursuant to clauses 7, 9 and 12 of the lease." Hodgson J heard the proceedings and, relevantly, found (a) Regarding an alleged failure to maintain roads contrary to clause 9.1 of the lease said to constitute a breach of clause 10(f) of the option: I do accept that there were significant potholes and ridges in the roads after February 1994, and that there were problems negotiating the roads in other than four-wheel drive vehicles when the roads were wet from rain; and also that nothing was done about this between 26th February 1994 and 19th July 1994. UWRLEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTB (Cole J) (Cole J) However, I do not have evidence upon which I can confidently rely as to the extent of this problem and as to the seriousness of it, in particular as to whether it could possibly pose any risk of damage to the roads which could not be restored by ordinary reasonable maintenance procedures. There are no photographs of the roads in evidence, and no dispassionate evidence from any person with expertise as to what is reasonably required to maintain roads of this nature. There is no suggestion of unreasonable use of the roads: such damage as was caused was the result of reasonable use within the use of the land permitted by the lease, and to an extent exacerbated by such things as floods or storms. I am inclined to accept Mr Walker's submission that the exception of fair wear and tear would not permit the lessee to withhold reasonable maintenance in respect of aspects of the property liable to be destroyed by reasonable use, and I accept that Melacare's approach to maintenance, as displayed by Mr Martin, leaves much to be desired; but even accepting all that, the evidence does not enable me to find an actual breach of an obligation to provide reasonable maintenance to the roads.! It was common ground at the trial that the obligation to maintain roads fell within the purview of clause 9.1. (b) Regarding non-destruction of prickly pear said to constitute a breach of s.9 Prickly Pear Act 1987 and so of clause 12.3 of the lease, and thus a breach of clause 10(f) of the option, Hodgson J found no such breach of the Act. Section 9 Prickly Pear Act 1987 provides: 9.(1) An occupier of land which is, or becomes, free from prickly pear shall keep and maintain the land entirely free from prickly pear. (2) An occupier who contravenes subsection (1) without reasonable excuse is guilty of an offence and liable to a penalty not exceeding 20 penalty units. His Honour said: However, in order to establish a breach of s.9, the onus lies on Daley Investments to establish, as a matter of fact, that Round Mountain did at some time become free from prickly pear. The evidence from Mr Ajani that he treated the whole of the prickly pear which he had seen in 1984, and the evidence of Mr and Mrs Daley that thereafter they did not see any prickly pear until after the 1989 floods, is some evidence that the land was free from prickly pear for some period prior to the 1989 floods. However, I have no expert evidence as to what is required, as a matter of fact, for land which has once been infested with prickly pear to become free from prickly pear. I have no evidence as to how long seeds may lie dormant in the ground, now long roots or plant fragments in the ground may remain there before shooting and appearing above the ground, and no evidence of how long small prickly pear plants may exist above the ground without being readily noticeable, except perhaps to an expert closely and specifically examining the ground with a view to detecting small plants. In those circumstances, particularly where persons who may have been able to give that evidence were called and not questioned on those matters, I do not think I can be satisfied by the evidence of Mr and Mrs Daley that Round Mountain did, as a matter of fact, become free from prickly pear. I accept that in the years prior to the 1989 floods, they did not notice prickly pear, and that they did on a number of occasions, substantially visit every part of the property; but for the reasons I have indicated, I do not think that is enough.? 1. Appeal Book, pp. 1007P-1008P. 2. Appeal Book, pp. 10 141L-1015N. 4 UNREPORTED JUDGMENTS (c) Regarding the existence of noxious weeds again said to constitute a breach of clause 12.3 of the lease and thus clause 10(f) of the option, Hodgson J found that there was a breach of s. 12 Noxious Weeds Act 1993, and thus a breach of the lease. Sections 9 and 12 of the Noxious Weeds Act provide: 9. The action required to be taken under this Act to control a noxious week for which a particular control category is specified is the action set out below in relation to that control category: 1. For a W | noxious weed, the presence of the weed on the land must be notified to the local control authority and the weed must be fully and continuously suppressed and destroyed. 2. For a W2 noxious weed, the weed must be fully and continuously suppressed and destroyed. 3. For a W3 noxious weed, the weed must be prevented from spreading and its numbers and distribution reduced. 4. * For a W4 noxious weed, the action specified in the declaration must be taken in respect of the weed. 12. An occupier of land (other than a public authority or a Iocal control authority) must control noxious weeds on the land, as required under the control category or Categories specified in relation to the weeds concerned.3 Groundsell bush is a W2 noxious weed. His Honour found: However, independently of any notice, s.9 and s.12 of the Noxious Weeds Act impose obligations on occupiers which, in relation to W2 weeds including groundsell bush, involves the weed being fully and continuously suppressed and destroyed. The evidence is that groundsell bush spreads mainly by seed, and that it does not flower until the autumn of its second year. There is no evidence that, at material tomes, any groundsell bush has been allowed to flower; but there is evidence of a number of groundsell bushes in their second year of growth, which would have flowered in early 1995. Furthermore, I accept Mr Daley's evidence that he told Mr Martin in March 1994 that there was groundsell bush on the property which needed to be dealt with. In my view, Melacare was the occupier of Round Mountain for the purposes of s.9 and s.12, and that in these circumstances it did not control groundsell bush by fully and continuously suppressing and destroying it. It follows that there was a breach of the Noxious Weeds Act; and in my view, that did amount to Melacare breaching the requirement of the lease that it comply with and observe all statutes in relation to or affecting the land.4 Having found a breach of the lease which he regarded as "slight and fleeting", his Honour then addressed the question of the construction of clause 10(f) of the option. His Honour posed the question: Whether clause 10(f) was intended to be triggered by any breach of any term of the lease, however slight and fleeting, and irrespective of whether it is waived by the lessor. His Honour's answer was: With some hesitation, I prefer the view that what is required to satisfy the requirement of failure to perform the lessee's obligations under the lease is more than a slight and fleeting breach of one term of the lease. In my view, these words would be satisfied when events had occurred which justified termination of the lease; that is, where s. 129 of the Gonv~yancing Act had been complied with, or 3. Appeal Book, p1018 K-S. 4. Appeal Book, pp.1020H-1021D. UWRLEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTB (Cole J) (Cole J) there was a breach in payment of rent justifying termination. I am had been complied with, or there was a breach in payment of rent justifying termination. I am inclined to think also that the provision would be satisfied if there was a breach in circumstances where, although termination was precluded by s.129, nevertheless the breach was sufficiently serious as to amount to a substantial failure of the lessee to perform the lessee's obligations. His Honour accepted that his approach introduced an element of uncertainty into the meaning of clause 10(f) but nonetheless concluded that the wording was not "apt to catch every breach of every obligation in the lease, however fleeting and slight. If that had been intended, then the clause could have been worded along the lines of "fails in any respect to fully perform any of its obligations". His Honour was of the view that the "relatively minor breach of clause 12.3 arising out of a minor breach of the Noxious Weeds Act, could not in my view fairly be described as failure by the lessee to perform its obligations to the lessor under the lease. In those circumstances his Honour declared that the option had not been validly terminated. Although it was unnecessary to do so, his Honour expressed the view that, had it been necessary, he had jurisdiction to grant relief against forfeiture of the option but, for reasons he gave, indicated the view that he would not have regarded it as unconscionable for Daley Investments to have insisted on its strict rights, and, accordingly, would not have granted such relief. On appeal Daley Investments argued that his Honour was in error in relation to his findings regarding roads and breaches of the Prickly Pear Act. In addition it argued that his Honour was in error in his construction of clause 10 of the option and that the found breach in relation to the Noxious Weeds Act should have resulted in the termination of the option being upheld. Had it been necessary to do so Daley Investments argued there was no right to grant relief against forfeiture of the option. By way of cross-appeal, Melacare contended that Hodgson 7's findings regarding roads and prickly pear should be sustained, that the finding of breach of the Noxious Weeds Act was in error and, accordingly, no question of interpretation of or breach of the option agreement arose. If it did, it contended that there was a power to grant relief against forfeiture of the option and that his Honour was in error in indicating a view that such relief should not be granted. This Court was invited to exercise its own discretion in that regard. It is convenient to consider the correctness of the findings regarding roads, the Prickly Pear Act, and the Noxious Weeds Act because, depending upon the outcome of those considerations, the remaining issues referred to may become irrelevant. Roads There was debate between the parties regarding the proper construction of clause 9.1(a) and (b). The appellant contended that if damage to the roads was caused by use by the lessee or its employees the concluding words of subclause (b) negated the effect of the fair wear and tear exception in clause 9.1(a), assuming they applied to the first obligation in that clause to "keep" the road in good repair. The respondent contended that the obligation to "keep" the roads, being gravel roads on a 1500 acre rural property, in good repair subject to fair wear and tear, imposed an obligation at appropriate times to do maintenance. It did not mean a daily grading or filling of the roads or potholes. The requirement 6 UNREPORTED JUDGMENTS to keep the roads in good repair involved a judgment concerning the work necessary to effect that, and whether the obligation was being performed. Hodgson J was disposed to accept the appellant's contention that the lessee was not entitled to permit deterioration from reasonable use in reliance upon the fair wear and tear exception. Nonetheless his Honour found, as a fact, that there was not adequate evidence to satisfy him concerning the seriousness of the alleged deterioration, or whether ordinary maintenance procedures would restore the roads to a good state of repair. The appellant had not discharged the onus of establishing breach. Whilst it was contended that his Honour's earlier recording of the evidence of Mr and Mrs Daley concerning the poor condition of the roads, the existence of potholes and the incapacity to drive to the homestead should have led to a finding of breach, that evidence was not accepted. His Honour weighed that evidence with the evidence of Mr Martin, had regard to the history of maintenance works, was not satisfied regarding Mr Daley's evaluation of the state of the roads, and concluded as a matter of fact that breach of the obligation to "keep" the roads in good repair had not been established. No error in that finding of fact has been demonstrated. As that finding of fact was made with the adoption of the appellant's preferred construction of clause 9, there is no cause to express a concluded view regarding construction of the clause. cause to express a concluded view regarding construction of the clause. Prickly Pear The argument of the appellant was that because Mr Ajani, an inspector of the Prickly Pear Destruction Commission, inspected and treated the mountain area of the property for prickly pear in 1984, and because, since that date, Mr and Mrs Daley had driven over the whole of the property and not seen prickly pear on the propertyprior to the 1989 floods, it should be held that the land was, prior to 1989, free from prickly pear. Accordingly, s.9(1) Prickly Pear Act 1987 required the occupier to "maintain the land entirely free of prickly pear". Undoubtedly after 1989 there was prickly pear on the property. Mr Daley saw prickly pear on sections of the property and drew it to the attention of the lessee in March 1994. In July 1994 there was evidence that there were prickly pear plants up to 1.5 metres tall and thus approximately 3 years old. Mr Emmett QC, for the appellant, accepted that it was necessary to establish that, at some point of time, the land was free of prickly pear. As a matter of logic it does not follow that because Mr Ajani inspected and treated portion of the property in 1984, and thereafter prior to 1989 Mr and Mrs Daley did not see prickly pear on the property, that in fact the property was free of prickly pear. The evidence made clear that Mr Ajani did not inspect or treat the whole property but only the mountain portion. Whilst Mr Emmett argued that the evidence was that Mr Ajani had only inspected the Whilst Mr Emmett argued that the evidence was that Mr Ajani had only inspected the mountain portion of the property because prickly pear does not grow where land is waterlogged, that is not a proper summary of the evidence. The evidence was that, apart from the mountain portion, the balance was low lying and prone to flooding, but not that it was waterlogged, and thus a place where prickly pear would not grow. Whilst Mr Emmett contended that his Honour's comments regarding the absence of evidence concerning dormancy of prickly pear seeds, root fragments and the like was irrelevant, in circumstances where experts in prickly pear were called but not questioned regarding when a property could be regarded as free UWRLEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTD (Cole J) (Cole J) from prickly pear, in questioned regarding when a property could be regarded as free from prickly pear, in my opinion his Honour was correct to hold that mere absence of sightings of prickly pear by Mr and Mrs Daley did not establish that the property was at some time'prior to February 1994 free from prickly pear. Noxious Weeds The obligation imposed by a combination of ss.9 and 12 of the Noxious Weeds Air 1993 was to "control" the noxious weeds, here being groundsell, in the manner required for W2 noxious weeds. That meant that the weed must be "fully and continuously suppressed and destroyed". Having regard to the evidence of Inspectors Scott and Lynch to the effect that groundsell bush has a capacity to spread 20 kilometres away by its seed being dispersed by wind and flood waters up to, and in consequence that it is not possible to stop it spreading from neighbouring properties, the obligation to "fully and continuously suppress and destroy" groundsell cannot mean that immediately a seed lodges and strikes, the occupier must find it within the 1500 acres and immediately destroy it. Rather, there must be procedures for the control of the weed by a reasonable system of reasonable and regular inspection with destruction of discovered weeds. It follows that the mere existence of groundsell on the property does not constitute either an offence under s. 12, or a breach of the lease. Particularly is the latter so bearing in mind the term in the deed of settlement of 26 February 1994 the latter so bearing in mind the term in the deed of settlement of 26 February 1994 whereby the lessor acknowledged there was no existing breach of the lease. The evidence of Inspectors Scott and Lynch was that, although there was groundsell bush present when they inspected the property at the request of Mr Daley in July 1994, and notices under the Act calling upon the occupier to carry out obligations to control groundsell were issued, they were satisfied that on the return visit to the property in October 1994 the minor infestation previously found had in part been eliminated, and that proper management procedures for the control of the groundsell were in place. Inspector Lynch said that on his first inspection on 4 July 1994 the groundsell pointed out to him by Mr Daley could not properly be described as "patches of groundsell" but rather merely as "scattered plants of groundsell bush", which were of "no significant size", and would take less than one hour to eradicate at a cost of $58 being the minimum charge for such work for one hour. On his return visit in October, when asked if those plants which he had observed had been eliminated, he said: "some were. Some had been eliminated. It was such an isolated infestation on such a large property, that it is just purely a management type thing that you keep going. It just keeps going on and on, the whole situation". And later: Q. You said it was a continuous management situation and you were satisfied that is how the property was being treated so far as the noxious weeds were concerned? A. Yes. It is thus clear that the Inspectors were satisfied that there were reasonable and effective measures to control groundsell being implemented. Nonetheless, in the passage which I have quoted from his Honour's judgment, his Honour found that because Melacare was the occupier of Round Mountain, the existence of groundsell bushes in their second year of growth meant there was a breach of s. 12, and thus of the lease. 8 UNREPORTED JUDGMENTS Any question of breach of the lease must commence from 26 February 1994 when the lessor acknowledged there was no existing breach. Accordingly the question is whether between 26 February 1994 and 20 July 1994 the existence of groundsell found by Inspector Lynch on 4 July 1994 constituted a breach of s. 12, and thus of the lease. Hodgson J did not have the advantage of being referred to King v TaitS. There the Full Court construed the obligations found in the Pastures Protection Act 1934 imposing upon an occupier a duty to "fully and continuously to suppress and destroy..." noxious animals. Here the obligation is to "fully and continuously suppress and destroy" noxious weeds. It is to be noted that the obligation in s. 12 is to "control" such weeds, not to eradicate them. Street CJ rejected an argument similar to that advanced by the appellant in these proceedings. His Honour said: The appellant argued that, upon a proper interpretation of the language of s.81, the obligation cast upon a land owner was absolute and unqualified so far as the destruction of rabbits was concerned, and he also submitted to the Court that any occupier of land must be found guilty of an offence under the section if there is on that occupier's land at any time any rabbits, or even a single rabbit. He argued that the section made an occupier of land liable if rabbits, or even a single rabbit. He argued that the section made an occupier of land liable if there were in fact any rabbits on it, and had to be read as requiring every occupier to destroy every rabbit on his land, and should he fail to do so then an offence under the Act has been committed. I do not think that this is the real meaning and intention of the section. It commences by describing a duty, namely, to suppress and destroy rabbits, and then it imposes a penalty if the occupier fails fully and continuously to discharge that duty. The word "duty" as used in the occupier fails fully and continuously to discharge that duty. The word "duty" as used in the section, implies something in the nature of continuing action in discharge of a legal obligation to suppress, and this word "suppress" also involves something of the nature of a regular to suppress, and this word "suppress" also involves something of the nature of a regular activity in order to put down or quell or cause a present state of rabbit infestation to cease to exist. The suppression and destruction of rabbits involves not a single act, but a continuous exist. The suppression and destruction of rabbits involves not a single act, but a continuous process. It requires the performance of a regular and systematic series of operations following a definite course and directed to the accomplishment of a definite result, namely, the ultimate elimination of all rabbits from the land. Rabbit destruction is a continuous operation which the Act requires to be performed continuously and thoroughly, with the ultimate aim and object of the complete suppression of all rabbits which are then or may at any time come upon the land. It implies a beginning, the duty being entered upon when a rabbit is found on the land, and it implies also a continuous effort in order to progress to the desired conclusion, which would be the complete destruction of all rabbits on the land in question. Their eradication cannot be effected instantaneously and miraculously by a single act, but only by the persistence in a course of conduct and effort, and the use of methods appropriate to the conditions affecting the particular land which is subject to infestation by rabbits. To suggest that the mere presence of a rabbit makes the occupier of the land upon which the rabbit is found an offender is, in my view, to attribute to the Legislature an intention, the absurdity of which compels 5. (1952) 52 SR 137. UWRLEY INDUSTRIES PTY LTD v MELACARE INDUSTRIES OF AUSTRALIA PTY LTB (Abadee AJA) (Abadee AJA) inquiry as to whether this is the true meaning of the section; and the situation which compels inquiry as to whether this is the true meaning of the section; and the situation is even more absurd, if the appellant's argument be correct, when it is sought to apply the same principles to a noxious bird, as for instance, a crow or an eagle hawke. I think that what the Legislature intended was to cast an obligation upon all occupiers of land to do everything which a reasonable man could reasonably be required or expected to do on the particular land in question for the purpose of destroying rabbits, applying and using current and approved methods for that purpose. The process must be carried out fully, that is, thoroughly, and continuously, that is, in manner characterised by continual effort having regard to the object to be achieved. Complete and instantaneous success in the destruction of every rabbit upon this be achieved. Complete and instantaneous success in the destruction of every rabbit upon this 5,700 acres of land in the Molong district is so far outside the bounds of all reasonable practicability that I am confident that the Legislature never intended the section to bear the meaning which the appellants sought to put on it. The test to be applied is an objective, and not a subjective one. So also the mere fact that there are some rabbits or rabbit warrens or rabbit burrows on the land is not conclusive evidence that the occupier has failed in his duty under the Act, although long continued and heavy infestation may be evidence to be taken in to account on the long continued and heavy infestation may be evidence to be taken in to account on the question whether or not he has discharged the obligation cast upon him by the section. These words are equally apposite here. The evidence of the inspectors makes clear that there were merely isolated plants in July 1994. The appellant acknowledged there was no breach of the lease, and thus no breach of the Act, as at 26 February 1994. By October 1994 proper steps had been taken with regard to known plants. As Inspector Lynch said, the process is a continuous management process. There was no evidence to suggest that, in the sense construed in King v Tait, the occupier had breached the provisions of the Act. It follows that the finding by the trial judge that there was such a breach based upon the existence of a few plants in July 1994 was in there was such a breach based upon the existence of a few plants in July 1994 was in error. His Honour should have found that there had been no breach of the obligations under the Noxious Weeds Act. It follows, in my view, that the appellant failed to establish the any breach of the lease which could trigger the operation of clause 10(f) of the option deed. That means lease which could trigger the operation of clause 10(f) of the option deed. That means that the remaining issues do not arise for consideration. The appeal should be dismissed and the cross-appeal upheld. The appellant should pay the respondent's costs of the and the cross-appeal upheld. The appellant should pay the respondent's costs of the appeal. Abadee AJA I agree with the reasons for judgment of Cole JA and the orders proposed by him. Appeal dismissed Cross-appeal upheld. Counsel for the appellant: A R Emmett QC, S Climpson and R Weber Counsel for the respondent: D F Jackson QC with F G Lever 10 UNREPORTED JUDGMENTS Solicitor for the appellant: Gadens Ridgeway Solicitor for the respondent: Andrew Thorpe