SUNBIRD PLAZA PTY LTD v MALONEY

166 CLR 245
77 ALR 205

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(Judgment by: MASON CJ)

Between: SUNBIRD PLAZA PTY LTD
And: MALONEY

Court:

Judges:
Mason C.J.Deane J.
Dawson J.
Toohey J.
Gaudron J.

Subject References:
Contract

Judgment date: 17 March 1988

Canberra

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Judgment by:
MASON CJ

The facts of this matter are set out in the reasons for judgment prepared by Gaudron J.

I agree, for the reasons given by Gaudron J., that in the circumstances of the case the balance of the purchase price did not become a debt payable by Boheto Pty Ltd ("the purchaser") to the appellant vendor. The general rule, stated by Dixon J. in McDonald v. Dennys Lascelles Ltd (1933) 48 CLR 457 , at p 476, is that a vendor of land cannot sue for the price before the contract is completed by conveyance, unless the price is expressed to be payable on a fixed day, not being the day fixed for completion. Here the balance of the purchase price was payable "upon settlement". Settlement has not taken place and there has been no conveyance of the property sold. Once this is accepted, the appellant is faced with a daunting task in making good the submission that the respondent guarantors are liable under their joint and several guarantee to pay the balance of the purchase price and interest thereon, notwithstanding the absence of an accrued liability on the part of the purchaser to make the payment.

Discussion of the question must begin with the proposition, established by the cases on s 4 of the Statute of Frauds 1677 (UK) that a contract of guarantee is, subject to any qualifications made by the particular instrument, a collateral contract to answer for the debt, default or miscarriage of another who is or is contemplated to be or to become liable to the person to whom the guarantee is given: Re Conley; Ex parte the Trustee v. Barclays Bank, Ltd [1938] 2 All ER 127 , at pp 130-131; Yeoman Credit Ltd v. Latter (1961) 1 WLR 828 , at pp 830-831; [1961] 2 All ER 294 , at p 296; Total Oil Products (Australia) Pty Ltd v. Robinson (1970) 1 NSWR 701, at p 703. Such a promise was required by s 4 of the Statute of Frauds to be evidenced in writing, unlike a contract of indemnity, which stands outside the statutory requirement: see Lakeman v. Mountstephen (1874) LR 7 HL 17, at pp 20-23. An indemnity is a promise by the promisor that he will keep the promisee harmless against loss as a result of entering into a transaction with a third party: Yeoman, at pp.830-831; p 296 of All E.R.; Total Products, at p 703; Davys v. Buswell [1913] 2 KB 47 , at pp 53-55.

In their endeavours to distinguish between a guarantee and an indemnity the courts have emphasized the difference between the guarantor's secondary liability and the indemnifier's primary liability: see, for example, the comments of Lord Esher M.R., in Baynton v. Morgan (1888) 22 QBD 74, at pp 77-78. There is an element of ambiguity in this distinction unless the reference to primary liability is understood to mean ultimate liability. Once default has occurred, the party having the benefit of the guarantee can call on the guarantor to honour his promise before calling on the principal contracting party to perform his obligation, but the guarantor, having honoured his promise, can hold the principal contracting party to account by virtue of the doctrine of subrogation. The distinction is also blurred by the different distinction which has been made in discussing breach of contract, notably by Lord Diplock in such cases as Lep Air Services Ltd v. Rolloswin Investments Ltd (reported sub nom Moschi v. Lep Air Services Ltd) (1973) AC 331, at pp 349-351, between the primary and secondary obligations of a party to a contract. And, just to add to the confusion, guarantees are sometimes expressed so as to impose a primary liability on the guarantor .

Because many guarantees are given in relation to the payment of debts, it is common to speak of the parties to the relationship as creditor, guarantor and principal debtor. However, the payment of a debt is but one instance of the wide range of obligations the performance of which may be made the subject of a guarantee. Just as I may guarantee the payment of a debt so I may guarantee the performance of a contractual obligation which does not involve the payment of money.

So it is that a creditor's rights against a guarantor depend on the terms of the guarantee and the nature of the obligation, performance of which is guaranteed. If the subject of the guarantee is payment of a debt or a sum of money which has accrued due, the creditor may, on default by the principal debtor, sue the guarantor instead of the principal debtor for the debt or sum of money, his claim being for a liquidated amount. If, on the other hand, the subject of the guarantee is the performance of some other obligation, then the person having the benefit of the guarantee may, upon default, sue the guarantor for damages for breach of contract.

In Moschi Lord Diplock stated (at p 348) that by the beginning of the nineteenth century the contractual promise of a guarantor to guarantee the performance by a debtor of his obligations to a creditor arising out of contract gave rise to an obligation on the part of the guarantor "to see to it that the debtor performed his own obligations to the creditor". According to his Lordship, it was because the guarantor's obligations took this form that the guarantor is not entitled to notice from the creditor of the debtor's default and that the creditor's cause of action against the guarantor arises at the moment of that default. This chain of reasoning led Lord Diplock to conclude (at p 348) that the obligation of the guarantor:

"... is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something; and that the creditor's remedy for the guarantor's failure to perform it lies in damages for breach of contract only."

Lord Simon of Glaisdale was of the same opinion, at p 352. See also Degmam Pty Ltd v. Wright (1983) 2 NSWLR 348, at pp 350-352.

It may be that as a matter of history the view that the guarantor has an obligation "to see to it" that the debtor performs his obligation explains why the guarantor is not entitled to notice of the debtor's default and why the creditor's cause of action arises on that default. But the view certainly does not accord with the nature of the guarantor's obligation as it is understood today. Rarely do guarantors have control of, or a capacity to influence, the principal debtor such that they would willingly assume an obligation to ensure that he performs his primary obligation. It is fictitious and quite unrealistic to suggest that this version of the guarantor's undertaking, rather than a promise to "answer for" the debt or default of the debtor, is the true nature of the guarantor's obligation. And it may be doubted whether that view takes sufficient account of what has been said over the years in the long line of cases on s 4 of the Statute of Frauds.

The fact that at common law the creditor sued the guarantor in special assumpsit gives some support to the view that the guarantor's cause of action is for damages for breach of contract. However, the modern view that the guarantor promises to answer for the debtor's debt or default has led to the practice of suing the guarantor for the money sum which the debtor has failed to pay, a practice which may well have been adopted on the introduction of the Judicature Acts.

My own view of the matter accords with that expressed by Lord Reid in Moschi (at pp.344-345) where his Lordship rejected the notion that there was a common rule applicable to all guarantees and acknowledged that the parties are at liberty to make such agreement as they choose. There are, however, two common classes of guarantee of the payment of instalments by the principal debtor. The first is an undertaking by the guarantor that if the debtor fails to pay an instalment he will pay. This is a conditional agreement. The guarantor's obligation to pay arises on the debtor's failure to pay. The second is an undertaking by the guarantor that the debtor will carry out his contract. Then a failure by the debtor to perform his contract puts the guarantor in breach of his.

It is significant that subsequently to Moschi the House of Lords in Hyundai Heavy Industries Co. Ltd v. Papadopoulos (1980) 1 WLR 1129 ; [1980] 2 All ER 29 affirmed a summary judgment given for the plaintiffs on a guarantee for the recovery of an instalment due but unpaid when the plaintiffs exercised a contractual power to terminate the principal contract. That contract was a contract to build and sell a ship, the buyer agreeing to pay by instalments. The first limb of the guarantee was expressed in these terms (at p 1151; p 46 of All E.R.):

"... we ... guarantee the payment in accordance with the terms of the contract of all sums due or to become due by the buyer to you under the contract."

This, it was said, was a promise falling within the second class already mentioned. But the second limb of the guarantee continued (at p 1151; p 47 of All E.R.):

"... and in case the buyer is in default of any such payment we will forthwith make the payment in default on behalf of the buyer."

That was a conditional agreement to make any payment in default and fell within the first class of guarantee. Thus Hyundai Industries v. Papadopoulos demonstrates that some guarantees are enforceable otherwise than by an action for damages for breach of contract. Street J. expressed a similar view in Re Standard Insurance Co. Ltd (In Liquidation) and the Companies Act 1936 (1970) 1 NSWR 392, observing (at p 395):

"The terms of the guarantee given by Standard extended to 'the due payment of all moneys which shall become payable hereunder by way of principal and interest by the borrower to you.' ... The guarantor is both in terms and in substance sued upon the obligation of the principal debtor, this being the obligation the performance of which the guarantor has underwritten by the guarantee. It is the due fulfilment of this obligation that the creditor is entitled to enforce against the guarantor."

The appellant's argument is that the respondent guarantors were promising to pay a sum of money if the purchaser did not complete the contract. The terms of the guarantee do not support the argument. The respondents guaranteed "THE PERFORMANCE ... OF ALL THE TERMS AND CONDITIONS of the Contract including the payment of all moneys payable ... by the ... Purchaser". The respondents' promise was that the purchaser would perform its contractual obligations including the payment of all moneys payable under the contract. The promise falls within the second class discussed above, except, perhaps, in so far as the promise relates specifically to the payment of all moneys payable. In that respect the promise might well fall within the first category. Accordingly, if the balance of the purchase price had become payable, and had not been paid by the purchaser, the vendor might well have been entitled to sue the respondents for a liquidated amount, rather than claim damages for breach of contract. As it is, the balance of the purchase price did not become payable.

The appellant contends that this interpretation of the guarantee fails to give effect to the purpose which the guarantee must be taken to have served. The object of the guarantee was, so the argument runs, to enable the vendor to recover the price irrespective of the position between the vendor and the purchaser. The short answer is that the terms of the contract of sale, the guarantee and the matrix of circumstances in which the contract was entered into do not support this sweeping assertion. As we have seen, the terms of the guarantee are specific and clear upon this point. The respondents guaranteed performance of the terms and conditions of the contract, "including the payment of all moneys payable" under the contract. No doubt a promise by a purchaser to pay the balance of the purchase price "upon settlement" gives less protection to a vendor than a promise to pay on a date fixed for settlement. But this circumstance cannot justify reading the promise to pay "upon settlement" of the associated guarantee otherwise than according to its terms.

The appellant points to recent English decisions which appear to establish that in some circumstances a guarantor may be liable for the payment of instalments by the debtor which would have been recoverable by the debtor, had he paid them, from the creditor by way of relief against forfeiture: see Hyundai Shipbuilding & Heavy Industries Co. Ltd v. Pournaras (1978) 2 Lloyd's Rep 502, at p 508; Hyundai Industries v. Papadopoulos, at pp 1142-1143, 1152; pp 40-41, 47-48 of All ER These decisions turn on the terms of particular transactions and the circumstances in which they were entered into. They are not decisions which can influence the construction of the respondents' guarantee in this case.

The appellant also cites Ross v. Gilmer & Gilmer (1932) NZLR 507 and Western Dominion Investment Co. Ltd v. MacMillan (1925) 2 DLR 442. Ross is plainly distinguishable on the ground that the guarantor who was held liable had guaranteed the punctual payment of all purchase moneys, such moneys having become payable pursuant to a default provision in the contract, there being default on the part of the purchaser in the payment of an instalment. Likewise, in Western Dominion Investment, where the guarantors were also held liable, the purchase price was held to be a debt due by the purchaser under the contract of sale (at pp.444-445, 447). Accordingly, neither Ross nor Western Dominion Investment has any relevance to this case.

The appellant's submission that the judgment which it obtained at first instance can be supported as an award of damages for breach of contract encounters several difficulties. First, the appellant's claim was never litigated as an action for damages. It was argued and dealt with as a claim for the balance of the purchase price and interest. Secondly, so long as the order for specific performance remained on foot, the appellant was unable to bring the contract to an end. Thirdly, it has not been established that , even if it could bring the contract to an end, the appellant took the necessary steps to do so. And, finally, in order to succeed in an action for damages, the appellant must show that the contract is at an end. These points, with the exception of the first, require some elaboration .

There is a line of English authority to support the proposition that a plaintiff who has obtained an uncompleted order for specific performance cannot accept the defendant's subsequent repudiation of the contract and treat it as at an end: Halkett v. Earl of Dudley (1907) 1 Ch 590, at p 601; Johnson v. Agnew (1980) AC 367, at pp 393-394; Austins of East Ham Ltd v. Macey (1941) Ch 338; and see Sudagar Singh v. Nazeer (1979) Ch 474, at p 480. These decisions and the proposition for which they stand have been strongly criticized: see Meagher, Gummow & Lehane, Equity - Doctrines & Remedies, 2nd ed., 1984, par.2053, at pp.504-507; but see Jackson, "Chimerical Heresies" (1981) 97 Law Quarterly Review 26. The criticism rests largely on the reasoning in the judgment of Gibbs, Mason and Jacobs JJ. in Ogle v. Comboyuro Investments Pty Ltd (1976) 136 CLR 444 . There the Court refused to follow Public Trustee v. Pearlberg [1940] 2 KB 1 which held that a party who has commenced proceedings for specific performance cannot be allowed to rescind without first discontinuing his action for specific performance.

Gibbs, Mason and Jacobs JJ. said (at pp.460-461):

"Legal rights are not affected at law by the mere existence of an action for specific performance though they are affected by the election involved in its institution. However, in equity a party would not in certain circumstances have been allowed to rescind a contract if his action for specific performance was still pending. That is the effect of the decision in Warde v. Dixon (1858) 28 L J Ch 315. It is a very understandable rule of equity ..."

Later, with reference to the rule established by Public Trustee v. Pearlberg, their Honours said (at p 461):

"But is this a rule applicable to all cases where an action for specific performance is or has been pending? ... It seems to us that it is not. If a party has by his conduct shown and continues to show an intention never to complete the contract, especially where his conduct by express act or by implication is not consistent with an intention to perform the contract pursuant to any judgment for specific performance, then it must be open to a vendor to rescind even if there is current an action for specific performance. If there is a further breach of an essential term or some further conduct amounting to a repudiation while the action for specific performance is pending, the existence of the action will not then prevent the vendor electing to rescind ..."

These comments fall distinctly short of overruling the much earlier decision of this Court in Facey v. Rawsthorne (1925) 35 CLR 566 . There Higgins J. (at p 588) expressly accepted the statement of Parker J. in Halkett v. Earl of Dudley (at p 601) that "after a decree of specific performance, a defendant purchaser cannot repudiate ... the contract without the leave of the Court". Knox C.J. and Isaacs J. acquiesced in accepting the propriety of the procedure adopted in that case, namely, an application to the court for leave to repudiate, a decree for specific performance having been made previously. In more recent decisions in New South Wales it has been accepted that the leave of the court is necessary for rescission after an order for specific performance: JAG Investment Pty Ltd v. Strati (1981) 2 NSWLR 600; Stevter Holdings Pty Ltd v. Katra Constructions Pty Ltd (1975) 1 NSWLR 459. In the light of the existing authorities, particularly Facey v. Rawsthorne, there being no argument challenging their correctness, we should continue to apply the proposition that rescission after an order for specific performance requires the leave of the court or, more appropriately, the vacation of the order. These authorities proceed on the footing that once a plaintiff has obtained an order for specific performance of a contract, he cannot be permitted to act inconsistently by rescinding it so long as the defendant is required by order of the court to complete the contract.

The consequence is that the appellant cannot rely on having brought the contract of sale to an end by accepting a repudiation by the purchaser. And, even if the appellant might have brought the contract to an end in this way without the leave of the court or without vacating the order for specific performance, the evidence does not warrant a finding that the appellant has done so.

Loss of bargain damages are recoverable only if the contract is at an end. Once termination due to the defendant's wrongful conduct is established the plaintiff is entitled to damages for loss of bargain: Dominion Coal Co. Ltd v. Dominion Iron & Steel Co. Ltd (1909) AC 293, at p 311. Barwick C.J. suggested in Ogle, at p 450, that termination is not an essential element in an action for loss of bargain damages, except in the case of anticipatory breach, but the preponderant opinion in Australia and England is against his view: see Ogle, at p 458, per Gibbs, Mason and Jacobs JJ.; Progressive Mailing House Pty Ltd v. Tabali Pty Ltd (1985) 157 CLR 17 , at p 31, per Mason J. (with whom Wilson and Deane JJ. agreed generally, and Dawson J. agreed); Photo Production Ltd v. Securicor Ltd (1980) AC 827, at pp 844-845, 849.

It is impossible to see how loss of bargain damages, had they been recoverable, would have equalled the amount of the judgment awarded to the appellant at first instance. As the appellant would have retained the property, its loss of profit would not have equalled the purchase price less the deposit which had been paid, this amount being the foundation of the judgment awarded by the primary judge. The value of the property would certainly have exceeded the amount of the deposit so that the profit element would have been a lesser amount than the balance of the purchase price.

However, this conclusion does not in itself justify judgment for the respondents in the action. There was a claim for damages, though it was not litigated. The respondents argue that they are entitled to judgment on the ground that letters of notice given by the purchaser on 25 June 1982 validly terminated the contract, notwithstanding that the ground assigned in the notice, the appellant's failure to comply with sub-ss.(1), (2) and (3) of s 49 of the Building Units and Group Titles Act 1980 (Q.) was held as between the appellant and the purchaser to be without substance in the appellant's action for specific performance. The respondents, not being parties to that action, are not bound by the finding that the purchaser did not validly terminate the contract for sale.

The respondents submit that the purchaser's termination was effective because the appellant was in breach of its obligations under cll.4 and 5(b) of the contract. For the reasons given by Gaudron J. I agree that the appellant was not in actual breach of cll.4 or 5(b) of the contract.

There remains for consideration the question whether the purchaser's termination of the contract can be sustained on the footing that the appellant's failure to bring about an appropriate amendment to the by-laws of the body corporate, so as to secure to the purchaser on or before 25 June 1982 the exclusive use of the relevant car parking space, amounted to an anticipatory breach by the appellant of its obligation under cl.3(a) to settle by that date. Clause 4 required the vendor to bring about such an amendment to the by-laws "prior to settlement". The date fixed by the contract for settlement was 25 June 1982, time being, as cl.10 provided, "of the essence" in this respect. A resolution providing for an appropriate amendment of the by-laws was passed on or before 25 June, but it was not lodged for registration until 29 June and was not registered until 13 July 1982. An amendment to the by-laws is of no effect until registered: s 30(3) of the Building Units and Group Titles Act.

Shepherd v. Felt & Textiles of Australia Ltd (1931) 45 CLR 359 stands as authority for the general proposition that a termination of a contract may be justified by reference to any ground that was valid at the time of termination, even though it was not relied on at the time and even though the ground actually relied on is found to be without substance. This Court applied the principle of Shepherd v. Felt & Textiles to a case of anticipatory breach arising from the vendor's inability to complete a contract for the sale of conditional leases: Rawson v. Hobbs (1961) 107 CLR 466 , at pp 480, 491. And subsequently the Court treated the principle as capable of having application to anticipatory breach arising from repudiation and renunciation: D.TR Nominees Pty Ltd v. Mona Homes Pty Ltd (1978) 138 CLR 423 , at pp 431-433. We are not concerned with earlier and inconsistent English decisions on the question. It is sufficient to note that in Universal Cargo Carriers Corporation v. Citati [1957] 2 QB 401 Devlin J. (at pp 443-446) expounded the principles as this Court has expressed them, observing (at p 446) that a party who has terminated on an incorrect ground can justify his termination if the other party had "become wholly and finally disabled" from performance at the time "at which the inability must exist".

But it does not follow that a party who attempts to terminate on an incorrect ground can always support his termination by reference to an anticipatory breach by the other party existing at the time of termination. The circumstances in which the attempted termination takes place may be such as to amount to a repudiation or at least to an absence of readiness and willingness to perform the contract on the part of the party seeking to terminate the contract: see the discussion in D.T.R. Nominees, at pp.433-434. This was not the case in Rawson v. Hobbs or D.TR Nominees.

In Brien v. Dwyer (1978) 141 CLR 378 Jacobs J. considered (at p 403) that in some circumstances a party would not be entitled to rescind under this principle for breach of an essential condition which has been cured before the party became aware of it. His Honour was dealing specifically with the late payment of a deposit under a contract for the sale of real estate which made the payment of the deposit on the signing of the contract an essential condition. The purchaser subsequently purported to terminate the contract on a ground which could not be sustained, without being aware at that time that the deposit which had then been paid had been paid late. Jacobs J. thought that it was unfair or inequitable that a party could terminate the contract for breach of an essential condition, when at the time of discovery of the breach that party was obtaining all that he was entitled to get under the contract (at p 404). However, Jacobs J. was in dissent, the majority of the Court (Barwick C.J., Gibbs, Stephen and Aickin JJ.) holding that the termination was effective because the deposit was paid late. See also Streatfield v. Winchcombe Carson Trustee (Canberra) (1981) 1 NSWLR 519, at p 523, where Wootten J., though expressing his preference for the approach taken by Jacobs J., followed the majority decision.

I doubt whether it is entirely accurate to speak of the breach as one which is "cured" in cases of this class. The fact is that the breach is remedied in the sense that the substantial obligation, payment of the deposit has been performed. Nonetheless the party has performed the obligation in such a way as to commit a breach of an essential condition of the contract. The question then is whether a court in such a situation will relieve against the innocent party's right to terminate for breach of essential condition. Legione v. Hateley (1983) 152 CLR 406 establishes that in exceptional circumstances the Court will grant relief against forfeiture for unconscionable conduct. There may be other situations in which the breach of a term expressed to be an essential condition is so trivial and insignificant that an attempt to take advantage of it for the purpose of terminating the contract would violate the dictates of fair dealing or would amount to unconscionable or inequitable conduct and give rise to a case for relief. That is a complex question. It would involve an examination of such cases as Panchaud Freres SA v Et. General Grain Co. (1970) 1 Lloyd's Rep 53 and Berg v. Vanden (1977) 1 Lloyd's Rep 499. But as things stand, especially as the question has not been debated in argument, we should apply Brien v. Dwyer and approach the matter on the footing that an anticipatory breach by the vendor would have supported the purchaser's termination on 25 June 1982.

Anticipatory breach may occur by reason of repudiation or renunciation of contractual obligations or by reason of inability to perform them. Here the respondents argue that the appellant was unable to procure registration of the amended by-laws on or before 25 June and that this inability amounts to an anticipatory breach. But, as we have already seen, the obligation to amend the by-laws under cl.4 was to be performed "prior to settlement", not before the date fixed for settlement by the contract. The existence of an anticipatory breach for inability to perform is accordingly to be determined at settlement, whenever that takes place, not at the date fixed for settlement. The purchaser, by terminating the contract on 25 June on an unsustainable ground and not attending on settlement on that day, effectively ensured that 25 June was not the day of settlement, thereby bringing about a situation in which the appellant had more time in which to perform its obligation to secure registration of the altered by-laws. By its own act in refusing to attend on settlement the purchaser deprived itself of the right to terminate for breach of cl.4. On this aspect of the case I agree with the reasoning of Connolly J. and that of McPherson J., speaking for the Full Court of the Supreme Court of Queensland in Dainford Ltd v. Juana Pty Ltd (1986) 1 QdR. 396. This conclusion is reinforced by the comment of Devlin J. in Citati, at p 446, to which I referred earlier, namely, that the party asserting termination must show that the other party was "wholly and finally disabled" from performance on the date "at which the inability must exist". That was the date of settlement, not the date fixed for settlement . Accordingly, the termination by the purchaser cannot be justified on the ground of anticipatory breach.

The ultimate question for consideration is: what form of order should the Court now make? I have already referred to the appellant's outstanding claim for damages. That alone requires that the matter be remitted to the Supreme Court. But there are two other possibilities to be mentioned. First, the appellant may decide that specific performance is no longer possible, that the order for specific performance should be vacated, that it should seek to have the proceedings against the purchaser brought on again with the present proceedings or to join the purchaser as an additional defendant in the present proceedings so that it might seek damages against the purchaser as well as the existing defendants: see The Judicature Act 1876 (Q.), s 4(8); see also Johnson v. Agnew, at p 394. Alternatively, the appellant may decide to take steps which might entitle it to maintain against the respondents an action on the guarantee for the balance of the purchase price as a debt then due and payable. If the appellant were to tender to the purchaser a registrable transfer of the unit, the purchaser might then come under a liability to pay the balance of the purchase price. And in that situation, in the event of non-payment by the purchaser, the respondents would come under a like liability. It would be a mistake to frame an order disposing of the issues argued in the present case without taking into account this possibility. An order finally disposing of the case should be moulded in such a way as to determine, as far as possible, the entirety of the controversy between the parties. However, in the absence of argument upon the questions just raised, it would be inappropriate for this Court to make any declaration as to the rights of the appellant against the respondents. In all the circumstances it is preferable that we should allow the appeal and remit the matter to the Full Court of the Supreme Court to be dealt with in accordance with the judgment of this Court and on the footing that it will be in a position to frame a declaration, if it be appropriate, and an order, after hearing argument from the parties: see Rawson v. Hobbs, at p 485.

I would set aside the judgment of the Full Court of the Supreme Court except to the extent that that judgment set aside the judgment of the trial judge. I would remit the matter to the Full Court to be dealt with in accordance with the judgment of this Court. In view of the fact that the appellant has failed on the main point of the appeal to this Court but has succeeded in having the judgment of the Full Court set aside, there should be no order as to the costs in this Court. The costs of the proceedings in the Supreme Court can be left to be dealt with by the Full Court.