New South Wales Supreme Court CITATION : Lakatoi Universal Pty Ltd & Ors v LA Walker & Ors [2000] NSWSC 562 FILE NUMBER(S) : SC 50035/98 HEARING DATE(S) : 29/05/00 JUDGMENT DATE : 21 June 2000 PARTIES : Lakatoi Universal Pty Ltd & Ors v Langley Alexander Walker & Ors JUDGMENT OF : Einstein J VRW Gray (Plaintiff) COUNSEL : BR McClintock SC, R Hollo (Mr Walker) P Kerr (Walker Consolidated) RJ Powell (Remaining Defendants) Gye Associates (Plaintiff) SOLICITORS : Minter Ellison (Mr Walker) Allen Allen & Hemsley (Walker Consolidated) Perkes & Stone (Remaining Defendants) CATCHWORDS : Practice and Procedure - Jurisdiction to review or rehear issues Autodesk Inc v Dyason [No.2] 1992 176 CLR 300 Baden's Trust Deeds [1971] AC 424 Bahr v Nicolay [No 2] (1988) 164 CLR Coulls v Bagot (1967) 119 CLR 460 Coulton v Holcombe (1986) 162 CLR 1 Gulbenkian's Settlement Trusts [1970] AC 508 Hadley v Baxendale [1854] 9 Exchequer 341: 156 ER 145 CASES CITED : Hely Hutchinson v Brayhead Ltd [1968] 1 QB 549 Humble v Hunter (1848) 12 QB 310, 116 ER 885 Leek (deceased) [1968] 1 All ER 1160 Lloyds v Harper (1880) 16 Ch D 290 Suttor v Gundowda Ltd (1950) 81 CLR 418 Trident General Insurance Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Vanderpitte v Preferred Accident Corporation of New York [1933] Appeal Cases 70 Wilson v Darling Island Stevedoring and Lighterage Company (1956) 95 CLR 43 DECISION : Final Orders to be brought in THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION - COMMERCIAL LIST EINSTEIN J Thursday 1 June 2000 - ex tempore Revised 21 June 2000 50035/98 - LAKATOI UNIVERSAL PTY LTD AND ORS v LANGLEY ALEXANDER WALKER AND ORS. JUDGMENT on the claims sought to be advanced by Mr Walker The earlier judgments 1 A reserved judgment was delivered in these proceedings on 10 March 2000 ["the March judgment"]. 2 Pursuant to the leave reserved to the parties to address further submissions on a number of issues, the parties addressed and later a supplementary judgment was delivered on 25 May 2000 ["the May judgment"]. The May judgment deals with the question of costs of the proceedings and with a number of specific issues requiring decision in order for short minutes of order to be brought in. 3 Following the March judgment and on the occasion when the proceedings were first before the court for the taking of further submissions [10 May 2000], Mr Kerr of Allen Allen & Hemsley announced his appearance for Walker Consolidated in order to indicate that Walker Consolidated would be seeking leave to file a cross-claim against Mr Walker. Mr Ulman of Minter Ellison indicated that his firm had now been instructed by Mr Walker. This aspect of the proceedings was stood over for the taking of general further submissions later in May. As part of those submissions Mr Kerr who was only heard and permitted to address in relation to the proposed cross-claim issue, put forward submissions in support of the proposition that the Court should grant leave to Walker Consolidated to file such a cross-claim. Mr McClintock SC for Mr Walker who was only heard and permitted to address in relation to the proposed cross-claim issue, addressed the Court opposing the granting of such leave. On 24 May 2000 an ex tempore judgment was delivered dismissing the application by Walker Consolidated with costs. Proceeding to Short Minutes 4 The proceedings were again before the court on 29 May 2000 for the purpose of the plaintiffs bringing in proposed short minutes of order to reflect the May judgment. The plaintiffs had prepared and circulated draft short minutes of order. 5 When the proceedings were called on 29 May, Mr Gray announced his appearance for the plaintiffs, Mr McClintock SC and Mr Hollo sought leave to appear for Mr Walker and Mr Powell of counsel announced his appearance for all defendants otherwise than Mr Walker. Mr McClintock was granted leave to file in court a notice of change of solicitor recording the appointment of Minter Ellison as new solicitors on the record on behalf of Mr Walker 6 Submissions were taken first from Mr Gray and from Mr Powell as to the orders which were appropriate following the delivery of the March and May judgments. A number of matters were clarified through those submissions and a short judgment dealing with some amendments to the form of short minutes of order sought to be propounded by the plaintiffs was delivered. Subject to the matters which are referred to below that short judgment should serve to permit final short minutes to be brought in and to permit final orders to be made. Leave to address new submissions 7 Mr McClintock however sought to be permitted to put a set of submissions which if accepted, would it was submitted, lead to the orders identified in paragraph 68 of the May judgment, being orders made only against Walker Consolidated and not against Mr Walker. Walker Consolidated has an obvious critical interest in relation to this matter. 8 When the proceedings came on again today for final submissions in relation to Mr McClintock's submissions, Mr Kerr solicitor announced his appearance on behalf of Walker Consolidated but only for the purposes of dealing with the new issues sought to be raised by Mr McClintock. Mr Kerr was granted leave to address the court on that basis and produced a Notice of Change of Solicitor form which has not been formally filed but which can be taken as permitting Allen Allen and Hemsley to represent Walker Consolidated on the issues sought to be raised in terms of the matters put by Mr McClintock. 9 During the course of the address Mr Gray of counsel sought leave to amend the fourth amended summons in two ways. The first was by substituting additional words into paragraph E (5) of the relief. The amendment if allowed would result in sub paragraph E (5) reading "Lakatoi, Ensile, Highfield Grove and Mr Hogarth claim: An order that Mr Walker pay to Mr Hogarth, Lakatoi, Ensile and Highfield Grove damages". 10 The second section of the application for leave to amend sought to introduce a new paragraph. I shall I refer to it as paragraph 27A which would fit between paragraphs 27 and 28 in the contentions. That paragraph would read on the application: "Mr Hogarth holds the benefit of the Heads of Agreement upon trust for Lakatoi, Ensile and Highfield Grove". 11 Submissions were taken in relation to the application for leave to so amend. Mr McClintock opposed the application for leave. Mr Kerr opposed the application for leave. Mr Powell who continues to represent presently all defendants on this issue otherwise than Mr. Waker and Walker Consolidated, also opposed leave to amend. 12 In my view the leave to amend should be granted. I propose as part of the balance of the judgment to deal with that issue. For present purposes I order that the fourth amended summons be so amended. The threshold question 13 The obvious threshold question which falls for consideration is as to the basis upon which Mr Walker, by his new legal advisers, now asserts at the last moment before final orders are made following a very lengthy hearing and following the handing down of two judgments, an entitlement to be heard on what may be thought to be matters appropriate to have been put to the court during the hearing of proceedings, including the several opportunities for the making of submissions by the defendants or by some of them. It is absolutely plain that the question of Mr Walker's separate interests as against those of Walker Consolidated, if not previously appreciated by Mr Walker and/or by Walker Consolidated, (as to which matter no evidence has been addressed), was so appreciated at least by the time when Mr Kerr first indicated his instructions, that is to say by 10 May 2000 14 In deference to Mr McClintock's readiness to address detailed submissions in relation to why the subject orders should not be made against Mr Walker, the Court has taken the approach of permitting those submissions to be made and of reserving for further consideration, the general question of the proper formal approach to the submissions. 15 Mr McClintock took the Court to the following passage appearing in the judgment of Mason CJ in Autodesk Inc v Dyason [No.2] 1992 176 CLR 300 at 302: "These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law….However, it must be emphasised that the jurisdiction is not to be exercised for the purpose of re agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases." [emphasis added] 16 Mr McClintock submitted that it was necessary to closely examine the pleadings which would make good the proposition that an order that Mr Walker pay damages to Lakatoi, Ensile or Highfield Grove could not be made. To impose such a liability, on Mr McClintock submissions, would be: (a) to make Mr Walker liable for breaches of contracts in respect of which he was never a party (b) to make Mr Walker so liable to entities by which he has never been sued (c) to make Mr Walker liable for losses never claimed against him in the proceedings. 17 Mr McClintock submitted that there was never a suggestion in the pleadings that Mr Walker was liable to the plaintiff companies for any breaches of the Heads of Agreement. 18 Mr McClintock submitted that there was never a suggestion in the pleadings that Mr Walker was liable to the plaintiff companies for any breach of the HUTA . 19 Mr McClintock submitted that neither the pleadings nor the findings in any of the judgments, justified the making of an order that Mr Walker pay damages to Lakatoi, Ensile or Highfield Grove in the form contemplated by the plaintiffs in the proposed Short Minutes of Order. The order in question would be: "Order that Langley Alexander Walker and Walker Consolidated Investments Pty Ltd pay to: (a) Lakatoi Universal Pty Ltd $7,681,162 (b) Ensile Pty Ltd $3,991,000 (c) Highfield Grove Pty Ltd $350,000" The new arguments 20 Mr McClintock submitted that there were only two parties named as parties to the Heads of Agreement and these were Mr Hogarth and Mr Walker. At one level and upon the assumption that these parties were personally bound by the terms of the Heads of Agreement, the submission was that any breach of the Heads of Agreement by Mr Walker, was a breach in respect of which he could only be liable to the other contracting party, namely Mr Hogarth. Yet Mr McClintock submitted, the subject short minutes of order now sought to be propounded by the plaintiffs, sought to impose liability for any breach by Mr Walker of the Heads of Agreement, in favour, not of Mr Hogarth, but of his companies, Lakatoi, Ensile and Highfield Grove. 21 At another level Mr McClintock took the court to paragraph 341 of the March judgment and in particular to the penultimate sentence reading: "Bearing in mind the fact that the earlier document was a Heads of Agreement document, I infer that the personal signatories to the Heads of Agreement signed in a representative capacity intending to generally represent their respective relevant corporate interests". 22 As I understood the submission at this level, it was that the finding was that except insofar as the Heads of Agreement clearly imposed a personal obligation upon Mr Walker and Mr Hogarth, these persons entered into the Heads of Agreement in a representative capacity on behalf of the companies which ultimately became parties to the HUTA. In short the submission was that a breach, for example by Mr Walker, of the best endeavours covenant in the Heads of Agreement, was in fact a breach by Walker Consolidated [being on Mr McClintock's submission, the entity represented by Mr Walker in entering into the Heads of Agreement, at least insofar as it imposed a best endeavours obligation]. Mr McClintock's submission was then, as I understood it, that it was clearly inappropriate for the court having reached the finding said to be set out in paragraph 341, to then make an order against Mr Walker personally for damages for breach of the best endeavours covenant in the Heads of Agreement. 23 Mr McClintock's close examination of the relevant sections of the pleadings was said to be in aid of the proposition that the court is shown to have apparently proceeded according to a misapprehension of the facts in this case, those facts being, as I understood Mr McClintock, the suggested state of the pleadings. 24 Mr McClintock conceded that he had not personally exhaustively examined the extensive transcript of submissions before the Court during the hearing and that his junior had only selectively examined that transcript. Hence insofar as the submissions put to the Court by the parties during the proceedings were concerned, it does appear that Mr Walker's new legal representatives do not have an entirely full or exhaustive understanding of the content of those submissions. 25 The relevant sections of the pleadings to which Mr McClintock took the court involved so much of the Fourth Amended Summons as sets out the claims to relief in the first several pages. Also to so much of the summons as involved particularly contentious paragraphs 26, 27, 28, 30, 31A, 32, 35, 36, 37, 38, 39, 48, 49 and 50 26 As to paragraph 31A , this paragraph pleaded that: "It was a term and condition of the Heads of Agreement that Mr Walker would promptly procure or, alternatively, would use his best endeavours promptly to procure, rezoning of the Ensile Land so as to enable the residential subdivision and development of the Lady Carrington Estate". 27 As to paragraph 32, this paragraph pleaded that: "In pursuance of the Heads of Agreement Mr Hogarth caused Ensile and Lakatoi and Mr Walker caused Walker Consolidated to enter into a deed bearing date 6 April 1994 with Ibenmore known as the Helensburgh Unit Trust Unit Holders Agreement ("the HUTA"). The Plaintiff craves leave to refer to the deed when produced." 28 As to paragraph 37, this paragraph pleaded that: "Under the HUTA Walker Consolidated and Lakatoi covenanted and agreed that the purpose of Ibenmore (now called Rosamond) was to carry out the Project and each of them covenanted and agreed to do all things necessary desirable or ancillary to the carrying out and fulfilment of the Project in accordance with feasibility studies which included those reports and studies previously prepared for and on behalf of Lady Carrington Estates Pty Ltd and any further feasibility studies carried out by Walker Consolidated and/or or Rosamond." 29 As to paragraph 48, this paragraph pleaded that: "In addition to and/or in furtherance of the agreement between Mr Hogarth and Mr Walker shortly prior to 2 to November 1993 referred to in paragraph 26 above, Walker Consolidated covenanted with Lakatoi in clause 7.3 of the HUTA to provide its expertise at cost to promptly secure rezoning or to use its best endeavours to promptly secure rezoning of the Ensile Land and to pursue and develop the Project therein referred." 30 As to paragraph 49, this paragraph pleaded that: "(a) Mr Walker and Walker Consolidated respectively have acted in breach of each of the agreement and covenant referred to in paragraphs 26, 31A and 48 in that each of them failed to procure the rezoning of the Land promptly and/or failed to use their best endeavours to procure promptly or at all the rezoning of the Ensile land and in particular the Lady Carrington Estate so as to enable the residential subdivision thereof as promised; and (b) Walker Consolidated has acted in breach of the covenant referred to in paragraph 37 above and has failed to do all things necessary or desirable or it or ancillary to the carrying out and fulfilment of the project as therein provided." 31 As to paragraph 50, this paragraph pleaded that: "The breach by each of Mr Walker and Walker Consolidated has caused serious loss and damage to Mr Hogarth and Lakatoi and Ensile ". [emphasis added] 32 The particulars to paragraph 50 include the following: "(ii) By reason of the said agreement and breach thereof Mr Hogarth has lost or Ensile and his other associated companies have lost the benefit of opportunities to develop the said land in other respects (iii) Lakatoi and indirectly Mr Hogarth has failed to gain the benefits that it or he would otherwise have obtained from the prompt securing of the rezoning of the said land and thereby the benefits of the joint venture (iv) Alternatively to (ii) Ensile has lost the opportunity to have the Ensile option exercised in accordance with its terms and the benefits including the sum of $20 million it would have received thereunder." 33 In so far as the claims to relief are concerned, the Further Amended Summons includes the following: "E Lakatoi and Mr Hogarth claim (5) An order that Mr Walker pay to Mr Hogarth and Lakatoi damages" The March judgment 34 Turning to the 10 March judgment, the best endeavours case is detailed in Part 4 in Volume 4. 35 Paragraphs 1063-1068 record a statement of the manner in which the best endeavours case was clearly litigated. 36 Paragraphs 1073 and 1075 set out the findings as to the implied terms held to form part of the Heads of Agreement and of the HUTA . 37 One then moves within the judgment to the examination of the breaches of covenants found to have taken place in paragraph 1403 and following. 38 Paragraphs 1404, 1405 and 1406 are self-explanatory. 39 Questions which may arguably arise in terms of differentiating between Mr Walker's obligations and those of Walker Consolidated are dealt with in the judgment at paragraph 1407 and following. Here again it does not seem necessary to repeat these paragraphs. Importantly the approach taken in the judgment to causation seems to me clear. The last sentence in each of the two sub-paragraphs forming part of paragraph 1443 sets out the finding that both Mr Walker and Walker Consolidated are jointly liable for the plaintiffs proven loss of chance. 40 Ultimately a close examination of Mr McClintock's submissions includes the proposition that the plaintiffs omitted to include in the claim to relief E (5) set out above, any reference to the plaintiffs Ensile or Highfield Grove. This matter is now remedied by the amendment allowed to the claim to relief. Hence to my mind Mr McClintock's attack on the judgment grounded upon the pleaded claims to relief , must fail. The failure to put this case before 41 No submission was ever advanced at any time in the proceedings up until Mr McClintock sought to take the point on 29 May 2000 to the effect that the pleadings did not include any basis for a claim by Lakatoi or Ensile to sue Mr Walker directly for breaches of the Heads of Agreement to which Lakatoi and Ensile were not parties. Nor had any submission been previously advanced to the effect that the pleadings could not sustain a claim by Lakatoi or Ensile, as part of the plaintiff group of companies, to receive damages sustained by the breaches of the best endeavours covenants. The omissions, if omission they be, do not reflect the manner in which the proceedings were litigated. The principle is that parties "must be bound by the conduct of their case at the trial". [see Coulton v Holcombe (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan, & Dawson JJ page 7 & 8] It is too late for this objection to now be pursued as an objection of substance. However, the matter having been raised and for more abundant caution, the Court has determined to grant leave to the Plaintiffs to bring the pleadings into line with the manner in which the pleadings were first litigated. 42 It is particularly important to note (i) that this matter may have been raised by Mr Walker's legal representatives during the proceedings proper (ii) that this matter may have been raised by Mr Walker's new legal team more recently when separate representation obviously followed his seeking of separate legal advice (iii) that the whole approach taken by the joint group of defendants during the proceedings and later during the submissions which led to the May Judgment, was quite inconsistent with that now sought to be taken by Mr Walker's new legal representatives. Indeed it was the several defendants, including Mr Walker, who during the most recent submissions leading to the May Judgment, actively submitted that at least in important part, Ensile and Ensile only, was the proper plaintiff for relevant purposes. 43 Insofar as the Highfield Grove question is concerned this was a matter which was, as I understood it, conceded by the defendant's during the bracket of submissions immediately prior to the May judgment, in terms of the identity of Highfield Grove as the relevant plaintiff. I said as much in the May judgment at paragraph 68. It will be recalled that although Highfield Grove was not a party to the HUTA, that document in clause 7.1(b) expressly imposed an obligation upon Walker Consolidated to pay the Further Contribution to Highfield Grove. 44 To my mind the application by Mr McClintock is misconceived and importantly seeks to undermine the public interest in the finality of litigation constituting, as it seems to me, in effect an application to the court to rehear an issue without there being good reason for the court to consider that in its earlier judgment it has proceeded on any misapprehension as to the facts or the law. Mr McClintock's submission that the exercise of the special jurisdiction referred to by Mason CJ in Autodesk is here enlivened, is simply without substance. To my mind this is simply a backdoor method by which an unsuccessful litigant seek to reargue its case. 45 I have however taken the view that to set out Mr McClintock's submissions in detail is appropriate bearing in mind the importance that a proper record be kept of each point taken at any time up until final orders are pronounced. And in deference to the issue I propose to deal with it by way of detailed reasons which follow. 46 Before however turning to that analysis it is important to record the crucial significance as it seems to me of not permitting any party without very good reason indeed to seek to reopen considered findings set out in a detailed judgment following a contested hearing. In this regard Mr McClintock has also addressed submissions in support of the proposition that the plaintiffs never put the case the subject of the findings in the March judgment in the two sub-paragraphs under paragraph No 1443. The submission was that the findings in these two sub-paragraphs went outside what was open to the court to determine on the pleadings and that Mr Walker ought now to be permitted to agitate this finding. To my mind and for the reasons generally given in this judgment no such special reasons for permitting any such review or rehearing of issues has been shown. At the highest Mr McClintock's analysis has led to careful attention being given to the precise wording of the orders which would flow from the manner in which the proceedings were litigated. Whilst it was not, it seems to me, strictly necessary, for the plaintiffs to seek or for the court to grant leave to make the subject amendments, the course of granting that leave was simply taken in order to ensure that the manner in which the parties litigated the proceedings is reflected in the pleadings. 47 That there was no application by any of the defendants, all of them opposing the granting of leave to amend, for time within which to plead to the new amendments, seems to me to simply make the point. The matter treated by the amendment is in truth merely a way of more precisely ensuring that the record accords with the manner in which the litigation was actually conducted during the very extensive hearing. Analysis Privity 48 The essential point of substance sought to be raised by Mr McClintock goes to the doctrine of privity of contract. The proposition for which the compendious phrase 'privity of contract' is taken to stand was stated by Barwick CJ in Coulls v Bagot (1967) 119 CLR 460 at 478: "[i]t must be accepted that according to our law, a person not a party to a contract may not himself sue upon it so as directly to enforce its obligations". 49 I do not take the judgments of Mason CJ and Wilson and Toohey JJ in Trident v McNiece (1988) 165 CLR 107 to affect the general correctness of that proposition. 50 The proposition which Mr McClintock sought to sustain as a matter of principle, leaving the state of the pleadings to the side for the moment, can be simply stated as follows: "Lakatoi and Ensile were not parties to the Heads of Agreement and so cannot sue for the breach of the best endeavours obligation owed to Mr Hogarth by Mr Walker" Agency 51 As already pointed out Mr McClintock took the Court to paragraph 341 in Volume 2 of the March judgment which contained the following finding: 'I infer that the personal signatories to the heads of agreement signed in a representative capacity intending to generally represent their respective relevant corporate interests.' 52 Mr McClintock SC submitted that this amounted to a finding that Mr Walker entered into the Heads of Agreement as an agent for Walker Consolidated. Accordingly, so it was put, he should not be liable at all. 53 On the evidence before the court during the proceedings, of himself, Mr Walker had no actual authority to execute the Heads of Agreement on behalf of Walker Consolidated. Thus, Mr McClintock's submission must be, it would seem, that he had implied or ostensible authority: see Hely Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 583 per Lord Denning MR, at 587 per Lord Wilberforce, at 593 per Lord Pearson. It may be said at once however, that the Heads of Agreement itself is inconsistent with this. The Heads of Agreement expressly record an agreement between 'LW' for Mr Walker and 'RMH' for Mr Hogarth and casts obligations on each personally. 54 To my mind in relation to the agency issue the following written submissions of Mr Gray should be accepted as of substance. Mr Walker's Personal Liability Under the Heads of Agreement Mr Walker's contention is understood to be that he cannot be personally liable in damages for breach of the Heads of Agreement because he signed the Agreement in a personal capacity. It is submitted that there are two reasons why this contention cannot be accepted, namely: (a) Mr Walker admitted in his pleadings that he was a party to the Heads of Agreement; (b) the contention is irreconcilable with the principle in Humble v Hunter (1848) 12 QB 310, 116 ER 885. [I interpolate that Humble v Hunter is authority for the proposition that where a person contracts with another, representing that they have all the capacities of a principal, they cannot be later heard to say that they contracted as agent]. If Mr Walker admitted in his pleadings (as he did - see second further amended defence paras 9B, 9D, 9E and 9F) that: (a) he signed the Heads of Agreement (b) a relationship of joint venturers existed between Mr Hogarth and himself, then it is impossible for Mr Walker now (when the evidence is closed) to assert that he was never a party to the Heads of Agreement. Mr Walker has not applied for leave to amend his defence to withdraw these admissions and, if such an application were now to be made, it is submitted that it would not be granted. The express provisions of the Heads of Agreement are inconsistent with Mr Walker not being personally bound by its terms. Mr McClintock T 25.05.00 p. 15/33 concedes this. On any basis, if Mr Waker signed the Heads of Agreement as trustee for unidentified corporate entities, Mr Walker is personally liable on the contract. If Mr Walker signed the Heads of Agreement as agent for an undisclosed or unidentified principal, then Mr Hogarth is entitled to regard Mr Walker as personally liable on the contract irrespective of the position of Mr Walker as agent vis-a-vis his principal…. Therefore any denial by Mr Walker that he was personally bound by its terms would be inconsistent with the parol evidence rule and is inadmissible. Humble v Humble supra. Furthermore, the question whether Mr Walker signed the Heads of Agreement "in a representative capacity" and not so as to become personally bound by the provisions of that Agreement is a matter upon which evidence might have been given, e.g. as to contemporaneous expressions of intention by Mr Walker. Therefore, now that the evidence in the case is closed, Mr Walker cannot be permitted to raise for the first time an issue on which relevant evidence might have been given at the trial. Suttor v Gundowda Ltd (1950) 81 CLR 418 at 438 55 However, to the extent that Mr McClintock's submission is that the Heads of Agreement was made with other parties in mind, it is surely correct. Those other parties were the companies which were to enter into the Joint Venture which was ultimately, as has been seen, constituted by the HUTA. It was never intended that Mr Hogarth and Mr Walker would personally enter into the Joint Venture, but that they should cause their relevant corporate interests to do so. Thus, the best endeavours obligation cast upon Mr Walker, which on my finding is to be implied into the Heads of Agreement, is a contractual promise which can only and can only have been intended to redound for the benefit of those companies which Mr Hogarth was to cause to enter the formal joint venture agreement. Alternative Analyses 56 Mr Gray ultimately approached his detailed submissions on two alternative approaches. The first involves a submission that Mr Hogarth personally was entitled to the benefit of an order "that Mr Walker is liable to pay to Mr Hogarth $12,072,162." 57 The reasoning was as follows:- "Mr Walker's submissions (re-formulated and modified at different points in the transcript) appear to be (in effect): (a) Mr Hogarth suffered no loss attributable to Mr Walker's breach of the Heads of Agreement and therefore cannot recover damages from Mr Walker on account of that breach. Lakatoi Universal, Ensile and Highfield Grove were not parties to the Heads of Agreement and therefore cannot recover from Mr Walker damages for his breach of that Agreement. Mr McClintock T29.05.00 p. 8/38; 11/43; 17/20 (b) Mr Walker signed the Heads of Agreement in a representative capacity and therefore has no personal liability for any breach of that agreement. Mr McClintock T 29.05.00 p. 12/58; 17/28 It is submitted that neither of these contentions can be accepted. Mr Walker's Liability In Damages For Breach Of The Heads Of Agreement There is no doubt that Mr Walker was sued by Mr Hogarth for damages for breach of Mr Walker's obligations under the Heads of Agreement. See 4th amended summons para. E5 and Contentions paras 31A, 49A Mr McClintock T 29.05.00 p. 6/20 The Court found that Mr Walker had breached his obligations to Mr Hogarth under the Heads of Agreement. See judgment 10 March 2000 paras 1442, 1443. If there had been no HUTA then there could be no question but that Mr Walker would be liable to Mr Hogarth in damages representing the loss which Mr Hogarth would have sustained by reason of that breach. On the Court's findings, that loss would have been 20% of the return which would have been derived had the contemplated development of the land proceeded. The Court has found that that loss amounted to $12,072.162 (taking into account the $2.7 million already paid by Walker Consolidated Investments to Highfield Grove as the Initial Contribution under the HUTA). Judgment 25.05.00 para 68 p. 24 Absent the HUTA, this loss would have flowed through the joint venture structure contemplated by the Heads of Agreement (whatever form that structure ultimately took) directly to Mr Hogarth. Therefore, in these hypothetical circumstances, Mr Hogarth would have been entitled to judgment against Mr Walker for that sum. The question is: what has happened to change that position? Specifically, how does the HUTA operate to deprive Mr Hogarth of that damages entitlement? It is submitted that HUTA does not deprive Mr Hogarth of that damages entitlement in any way. The correct analysis is that: (a) from 1 December 1993 to 6 April 1994 the only contract regulating the mutual rights and obligations of the parties was the Heads of Agreement; Judgment 10.03.00 para 341 (b) from 6 April 1994 onwards, there were two contracts which created rights and obligations of different parties which two contracts co-existed and gave enforceable rights to the different parties against other parties, and a breach of each contract gave rise to liabilities on the part of the defaulting party to the innocent party (parties) under each of the contracts. Specifically, if damages payable by Walker Consolidated Investments under the HUTA are paid to the parties entitled under the contract., i.e. Lakatoi Universal, Ensile and Highfield Grove, then Mr Hogarth will, through those parties, recover all the loss he will have suffered by reason of the breach by Mr Walker of the Heads of Agreement. (This is why Mr Walker's liability to Mr Hogarth in damages for breach of the Heads of Agreement must take account of the $2.7 million paid by Walker Consolidated Investments to Highfield Grove on account of the Initial Contribution. If this sum had not been paid by Walker Consolidated Investments, Mr Walker's liability to Mr Hogarth would be increased by this amount.) But if Walker consolidated Investments were insolvent so that it could not pay the damages to which the corporate plaintiffs were entitled to compensate them for the losses they respectively suffered by reason of Walker Consolidated Investments' breach of its obligations under the HUTA, it would follow that the loss suffered by Mr Hogarth by reason of Mr Walker's breach of the Heads of Agreement would not in fact be recovered by Mr Hogarth per medium of the corporate plaintiffs' recovery of those damages from Walker Consolidated Investments. On the other hand, if Mr Walker pays to Mr Hogarth the damages which Mr Hogarth suffers by reason of Mr Walker's breach of the Heads of Agreement (i.e. $12,072.162) then it would follow equally that Walker Consolidated Investments cannot be required to pay the same damages to the corporate plaintiffs (because that would give Mr Hogarth double compensation). It therefore follows that the correct analysis of the rights and obligations of the parties flowing from the findings made by the Court is that: (a) Mr Walker is liable to pay Mr Hogarth $12,072.162; (b) Walker Consolidated Investments is liable to pay Lakatoi Universal, Ensile and Highfield Grove the various amounts totalling $12,072.162 set out in para 68 of the Court's reasons for judgment dated 25 May 2000; (c) Total or partial satisfaction of either judgment (a) or judgment (b) will operate as pro tanto satisfaction of the other judgment. Therefore the correct result should be that the Short Minutes should be amended to give effect to the preceding paragraph 23 of these submissions. 58 The alternative approach was put in terms of the trust of a promise and reflects the amendment now allowed to the Contentions. This involves the submission that Mr Walker is liable to Mr Hogarth in his capacity as trustee for Lakatoi, Ensile and Highfield Grove. 59 As to the first approach, Mr Gray submitted that the approach of Mr McClintock contained two assumptions, the correctness of both of which he disputed. First, that Mr Hogarth suffered no loss attributable to Mr Walker's breach of the Heads of Agreement. Second, that Mr Walker signed the Heads of Agreement as an agent on behalf of Walker Consolidated. 60 The second assumption has already been dealt with. In support of the first, Mr Gray as has been seen, postulated that had no HUTA ever been executed Mr Hogarth's loss for breach of the Heads of Agreement would not be different from the loss that the plaintiffs considered cumulatively, suffered. There would, it was said, still have been a loss of 20 percent chance of securing the profit attendant upon rezoning. In the result, Mr Gray submitted that the proper order is that Mr Walker is liable to Mr Hogarth for the full amount and Walker Consolidated is liable to Lakatoi, Ensile and Highfield Grove for the full amount, but satisfaction by either Mr Walker or Walker Consolidated of the judgment is pro tanto, satisfaction of the other. 61 It is useful to recall the basic rule for the award of contractual damages to be found in Hadley v Baxendale [1854] 9 Exchequer 341: 156 ER 145. The first limb of the rule is that damages may be awarded for loss "as may fairly and reasonably be considered either [as] arising naturally, that is according to the usual course of things from such breach of the contract itself." There is strength to the point made by Mr McClintock SC that under this limb Mr Hogarth may not be shown to have suffered a precise loss: he did not personally own the land to be transferred to the joint venture vehicle or intend to enter the joint venture himself. However, it would be erroneous to stop there. 62 The second limb of the rule in Hadley v Baxendale refers to damage "such as may reasonably be supposed to have been in contemplation of both parties, at the time they made the contract, as the possible result of the breach." To my mind, it would have been in the reasonable contemplation of the parties at the time of contract that Mr Hogarth would suffer some damage as a result of the breach of the Heads of Agreement. However, it would never have been in the contemplation of the parties that the loss would be at the same precise quantum as suffered by Lakatoi, Ensile and Highfield Grove. This is because, as I have said previously, Mr Hogarth never intended to enter the joint venture personally. Any profit to be realised by Mr Hogarth and any loss thereby suffered by breach of the best endeavours obligation was, on the evidence, always to be channelled through and perhaps diffused within the corporate structure of the Hogarth interest. The quantum of his loss would, therefore, depend upon matters of evidence treating with the corporate structure and its general position at the time of the Heads of Agreement. No evidence on these matters is before the court. However, it is sufficient to meet Mr Gray's submissions to say that Mr Hogarth's loss would not be, or would not necessarily be, precisely the same as that of Lakatoi, Ensile and Highfield Grove. Trust of a promise made for the benefit of a third party 63 That a contract can be made between A and B which is for the benefit of C is undoubted: Re Schebsman Deceased [1944] Ch 83. That C (outside of the possible exception for contracts of insurance: see Trident General Insurance Co Ltd v McNeice Bros Pty Ltd, supra) cannot sue on the breach of that naked contractual promise, is also undoubted. But as Fullagar J said in Wilson v Darling Island Stevedoring and Lighterage Company (1956) 95 CLR 43 at 67 , equity can and does 'intervene in many cases by treating the promisee as a trustee of the promise made for the benefit of a third party and allowing the third party to enforce the promise, making the promisee trustee, if necessary, a defendant in the action against the promiser.' Du Parq LJ in Re Schebsman Deceased (supra, at 104) was of the view that the Court 'ought not to be too astute' to discover a trust in circumstances where a contractual promise is made for the benefit of a third party. Mr McClintock SC referred the court to Vanderpitte v Preferred Accident Corporation of New York [1933] Appeal Cases 70 for the same proposition. However, consistent with the sentiments of Fullagar J in Wilson v Darling Island Stevedoring and Lighterage Company Limited, this has however given way in more recent times to a more liberal attitude. In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (supra) Mason CJ and Wilson J said (at 121) - ' ... the courts will recognise the existence of a trust when it appears from the language of the parties, construed in its context, including in the matrix of circumstances, that the parties so intended. We are speaking of express trusts, the existence of which depends on intention. In divining intention, from the language which the parties have employed the courts may look to the nature of the transaction and the circumstances, including commercial necessity in order to infer or impute intention .: see Eslea Holdings v Butts (1986) 6 NSWLR or on 175 at 189) ' [emphasis added] 64 Deane J said (at 147) '[i]n the context of such a contractual promise, the requisite intention should be inferred if it clearly appears that it was the intention of the promisee that the third party should himself be entitled to insist upon performance of the promise and receipt of the benefit and if the trust is, in the circumstances, the appropriate legal mechanism for giving effect to that intention.' Deane J goes on to say (at 148) that it would be 'difficult to envisage a class of contract in which the creation of such a trust would be more readily discernible than' a policy of liability insurance indemnifying both parties to a contract and others designated persons. The comment of Deane J is, perhaps, a specific expression of an idea more generally expressed in the statement of Fry J, approved by the Court of Appeal in Lloyds v Harper (1880) 16 Ch D 290, and quoted by Dawson J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (supra, at 156) - ' ... where a contract is made for the benefit and on behalf of a third person, there is an equity in that third person to sue on the contract and the person who has entered into that contract may be treated as a trustee for the person for whose benefit it has been entered into.' [Emphasis added] 65 This view is in substantial accord with the view of Mason CJ and Dawson J in Bahr v Nicolay [No 2] (1988) 164 CLR at 618 - 619: '[i]f the inference to be drawn is that the parties intended to create or protect an interest in a third party and the trust relationship is the appropriate means of creating or protecting the interest or of giving effect to the intention, then there is no reason why in a given case an intention to create a trust should not be inferred.' Finding as to trust of contractual promise 66 To my mind, it is clear that when Mr Hogarth and Mr Walker formed the Heads of Agreement, it could not have been otherwise then intended that Mr Hogarth hold the best endeavours obligation on trust for the companies which he was to cause to enter into the joint venture. In the absence of this intention, the best endeavours obligation makes no sense. It will be recalled that the best endeavours obligation was to use best endeavours to secure rezoning of the land. As it was never intended that Mr Hogarth personally would enter the joint venture and thus would ever benefit directly from the best endeavours obligation, the obligation only has content if it was intended to be held on trust for whomever of Mr Hogarth's companies he would cause to enter into the joint venture In the event the companies were Lakatoi and Ensile. To my mind, the matrix of circumstances in which the obligation is to be found clearly point towards it being held on trust by Mr Hogarth for the companies which were to enter into the joint venture. Certainty of trust power 67 At this stage a problem may be thought to arise for it may not have been certain at the time of the creation of the Heads of Agreement, or been known to Mr Walker, which of those companies Mr Hogarth would cause to enter into the joint venture. The evidence is silent on the point. However, it was never contemplated that there should be no Hogarth company which would enter the formal joint venture agreement. Accordingly, the correct analysis appears to be that Mr Hogarth was invested by the Heads of Agreement with a trust power; that is to say the Heads of Agreement imposed a clear duty on Mr Hogarth to appoint one of his companies to the subject property, which property consisted of the contractual promise of best endeavours: Re Leek (deceased) [1968] 1 All ER 1160. Although the matter cannot be free from doubt (see Meagher and Gummow, Jacobs Law of Trusts, 5th Edition, p43), the better view would appear to be that a trust power is sufficiently certain if it can be said of any given person whether they are or are not within the trust: Re Baden's Trust Deeds [1971] AC 424. Even if it would not have been possible to list the companies which were potentially to be caused to enter into the joint venture by Mr Hogarth at the time the Heads of Agreement was executed into, and even if it was not known which would, (see Re Gulbenkian's Settlement Trusts [1970] AC 508), one could say with certainty that Lakatoi and Ensile were within that class. 68 If this analysis be correct, then Mr Hogarth, as he did, is entitled to sue for the breach of the best endeavours obligation and is entitled to recover the loss sustained by the beneficiaries, Lakatoi and Ensile, but will hold those damages on trust for Lakatoi and Ensile. In Trident General Insurance Ltd v McNeice Bros Pty Ltd (supra, at 138) Brennan J said: '[w]here damages are the appropriate remedy for a breach of a promise to pay money to the promisee for the benefit of a third party, the promisee may recover the whole of the amount promised where the promisee is a trustee for the third party.' To a similar effect (at 147) Deane J said: 'Where the benefit of a contractual promise is held by the promisee as trustee for another, an action for enforcement of the promise or damages for its breach can be brought by the trustee. In such an action, the trustee can recover on behalf of the beneficiary, the damages sustained by the beneficiary by reason of the breach.' 69 The position is a fortiori insofar as the Highfield Grove is concerned. The obligation to pay the further contribution was of course to be found in both the Heads of Agreement as well as the HUTA. Returning to the pleadings 70 One matter which is quite clear is that the relevant term in the Heads of Agreement and in the HUTA was clearly pleaded [Contentions paragraph 31A], the alleged breaches by Mr Walker of the Heads of Agreement and by Walker Consolidated of the HUTA were clearly pleaded [Contentions paragraph 49(a)] and the Amended Summons clearly pleaded that these breaches caused serious loss and damage to Mr Hogarth and to Lakatoi and to Ensile [Contentions paragraph 50]. Importantly as it seems to me, the particulars to paragraph 50 of the Contentions, properly construed, pleaded that the subject breaches by Mr Walker and Walker Consolidated of their respective covenants to use best endeavours included in the contracts to which they were respectively parties, caused damage or loss to Mr Hogarth, to Lakatoi, alternatively to Ensile, and generally to Mr Hogarth's "associated companies". 71 The particulars reflect, as it seems to me, the manner in which the proceedings before the Court were actually litigated. It was always clear during the hearing of the proceedings that claims were being made to a relevant loss of the benefits which the plaintiffs, as a group, submitted that they would otherwise have obtained, had the best endeavours covenants been honoured. It was always clear during the hearing of the proceedings that the essential measure of this alleged loss was put by reference to the benefits of the joint venture in terms of its opportunities to develop the land. 72 The particulars to Contentions paragraph 50 in my view included the following: That the breaches by Mr Walker and by Walker Consolidated of their best endeavours covenants: (a) caused loss to Lakatoi and indirectly to Mr Hogarth in terms of the failure to gain the benefits that Lakatoi or indirectly Mr Hogarth would otherwise have obtained from the prompt securing of the rezoning of the land and from the consequential benefits of the joint venture (b) caused loss to Ensile of the opportunity to have the Ensile option exercised in accordance with its terms, this being a reference to the benefits including the sum of $20 million which Ensile would have received under that option 73 In consequence it cannot be submitted it seems to me that the pleading fell short of at least alleging that Lakatoi and Ensile claimed an entitlement to recover damages said to have been occasioned by the breaches of the best endeavours covenants to be found in the Heads of Agreement and in the HUTA. At its highest the point now sought to be made by Mr McClintock amounted to an arguable defect in the pleading in failing to bridge the gap, in terms of making plain just how by appropriate analysis, Lakatoi and Ensile asserted a right to damages (i) for breach of a contract [the Heads of Agreement], to which neither Lakatoi nor Ensile were parties, (ii) as against a party to those Heads of Agreement, Mr Walker. 74 There was for example, no express pleading to the effect that the Heads of Agreement were made for the benefit and on behalf of Lakatoi and Ensile, and that Mr Hogarth, in having entered into the Heads of Agreement was and may be treated as a trustee for Lakatoi and Ensile. One presumes that such a pleading may have squarely asserted that Mr Hogarth held the benefit of Mr Walker's best endeavours contractual promise, upon trust for Lakatoi and Ensile . 75 In my view and bearing in mind the manner in which the proceedings were actually litigated, there is now and at this stage no entitlement in any of the defendants to seek to submit that the pleadings are defective in this way. The submissions during the hearing of the proceedings never sought to differentiate between the several plaintiffs and the differing positions which they may have had in terms of locus standi to pursue particular claims, for example grounded upon breaches of terms to be found in the Heads of Agreement or in the HUTA. It was simply taken as accepted as I understood the submissions through the whole of the case and the approaches taken by both parties through the whole of the case, that the plaintiffs were being treated en globo, as the entities entitled to the benefit of such breaches of the best endeavours covenants as may be established in relation to the Heads of Agreement or the HUTA or both. And during the submissions following delivery of the March judgment, the question of damages was treated as of complex and somewhat abstruse academic interest. The defendants as earlier noted, actively submitted that Ensile was the logical plaintiff to recover on the best endeavours case. 76 There was moreover a finding in the March judgment that the personal signatories to the Heads of Agreement signed in a representative capacity intending to generally represent their respective relevant corporate interests. This is a finding which the defendants are not now permitted to revisit. It is a finding which clearly supports the proposition that Mr Hogarth held the benefit of Mr Walker's contractual covenants to use best endeavours, as trustee for Lakatoi and Ensile who were proven to be Mr Hogarth's relevant corporate interests having signed the HUTA. The finding reflects the manner in which the proceedings were actually litigated. If it be that to correct the record and to ensure that the pleading in terms alleges this, it is entirely appropriate to permit the formal pleading to be amended . Leave to make this amendment has now been given. And it is unnecessary to closely consider the ramifications of the other side of the equation namely whether, as would appear logically to follow, the same finding also clearly supports the proposition that Mr Walker held the benefit of Mr Hogarth's personal contractual covenants in the Heads of Agreement upon trust for Walker Consolidated. The fact is that there was no claim advanced for determination to the effect that Mr Hogarth was liable for any suggested breach of his personal contractual covenants in the Heads of Agreement. 77 Nor could it be suggested for example, that a close examination had not taken place of the point in time antecedent to entry into of the HUTA, when the plaintiffs alleged that a best endeavours covenants contained within the Heads of Agreement had not taken place [See for example transcript 3 December 1999 at pages 401-407]. 78 Finally there is the question if there be shown to have been some misapprehension of the facts (by which Mr McClintock suggests a misapprehension of the manner in which the matter was pleaded), as to whether that misapprehension may be attributed solely to the neglect or default of Mr Walker who presently seeks the rehearing [Cf Autodesk, supra]. I do not accept that the decision of the defendants to retain through the whole of the proceedings, a common set of solicitors and counsel, prevents it being said that any misapprehension of the type in question is to be attributed solely to the neglect or default of Mr Walker. It is one thing for a case to be litigated in a particular way even albeit that a fuller pleading may have more clearly explicitly exposed what was implicitly accepted as given during the hearing. It is another thing altogether for a party following the handing down of extensive reasons for judgment on more than one occasion, to then and only then, seek to take an approach which, in the way in which I view the manner in which the proceedings have been conducted and litigated, is antithetic to that conduct of the matters litigated. 79 Mr Gray further submitted, and I accept, that had Mr Walker wanted to make any case to the effect that he should have no personal liability for damages for breach of his obligations under the Heads of Agreement, the time to make that case was in defence to the summons and at the trial. 80 Mr Gray submitted, and I accept as of substance, that the failure therefore of Mr Walker to raise at the trial the contention now sought to be raised was a matter which must fall within the description of a matter overlooked because Mr Walker neglected to raise it at the appropriate time, that is, when the issue of damages was addressed in submissions. This, so Mr Gray submitted, must fall within the description of a matter not brought to the court's attention at the appropriate time as the result of fault on Mr Walker's part. 81 Now that Mr Walker's new legal representatives have seen fit to take the pleading point, it seemed reasonably clearly appropriate to permit the plaintiffs to amend in the way that they have indicated they wish to amend. The net result will be that Lakatoi and Ensile through their trustee Mr Hogarth, obtain precisely the same damages which otherwise they would have obtained in terms of orders against Mr Walker personally. This will presumably require an amendment to the previously sought to be propounded form of order 1. A number of ancillary declarations to make the position clear will also be required or may also be required.: 82 I note that this is the type of case in which in relation to the subject point now being taken in all of its precision and ultimately properly analysed in terms of the subject trust relationship earlier referred to, there is a particular relevance to the way in which the Amended Summons had always claimed in the section dealing with relief in paragraph I as follows: "All the Plaintiff's claim: All such equitable relief (including but not limited to equitable compensation) as may be just" 83 In my view the plaintiffs have an entitlement to submit that that through this subparagraph in the original claims to relief, it was always entitled to overcome a point such as that now raised by Mr McClintock. The complexity of the proceedings, the complex interrelationship between relevant parties and their groups of companies, the difference in parties entering into different agreements and the number of claims pursued in the several sets of proceedings, makes it all the more important for the court to ensure that the ultimate findings and orders are consistent with the manner in which the proceedings were litigated. If it is necessary for the plaintiffs to now rely on this general claim to all such equitable relief as may be just, then that may be a way of viewing the manner in which the point now raised by Mr McClintock is appropriately dealt with. 84 In conclusion I note that to the extent that Mr McClintock, Mr Kerr and/or Mr Powell submitted that in opposition to the leave to amend the pleadings, the court should take into account the suggestion that the leave would lead to or ought to have permitted additional other evidence to be adduced by the parties, that submission is rejected. 85 Further, in so far as the submissions of Mr McClintock and/or Mr Kerr and/or Mr Gray sought from time to time through this complex analytic maze to procure a result which would by definition in any fashion undermine any finding in the March judgment, it has seemed to me particularly important to protect those findings for the reasons above given. At one level the approach taken by Mr Gray in paragraph 23 of his written submissions and in particular in relation to subparagraph (c) of paragraph 23 of his written submissions, would have undermined the joint liability finding to which I have referred, being the finding in paragraph 1443. 86 In those circumstances gentlemen, the approach the court would adopt is to now leave it to the plaintiff to bring in its, subject to the Ensile maintenance proceedings issue being quarantined, final orders on all matters in these proceedings. 87 The following orders and declarations seem to be appropriate to reflect the above reasons: 1 Declaration that Walker Consolidated is liable to Lakatoi in the sum of $7,681,162 2 Declaration that Mr Walker is liable to Mr Hogarth in his capacity as trustee for Lakatoi in the sum or $7,681,162 3 Declaration that the liability of Walker Consolidated and of Mr Walker the subject of declarations 1 and 2 is a joint liability 4 Declaration that Walker Consolidated is liable to Ensile in the sum of $3,991,000 5 Declaration that Mr Walker is liable to Mr Hogarth in his capacity as trustee for Ensile in the sum of $3,991,000 6 Declaration that the liability of Walker Consolidated and of Mr Walker the subject of declarations 4 and 5 is a joint liability 7 Declaration that Walker Consolidated is liable to Highfield Grove in the sum of $350,000 8 Declaration that Mr Walker is liable to Mr Hogarth in his capacity as trustee for Highfield Grove in the sum or $350,000 9 Declaration that the liability of Walker Consolidated and of Mr Walker the subject of declarations 7 and 8 is a joint liability 10 Order that Walker Consolidated and Mr Walker pay to: (a) Lakatoi $7,681,162 (b) Ensile $3,991,000 (c) Highfield Grove $350,000 I certify that paragraphs 1 - 87 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 1 June 2000 and revised on 21 June 2000 ___________________ Susan Piggott Associate 21 June 2000 Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.