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Fiji Law Reports |
COURT OF APPEAL OF FIJI ISLANDS
WESTPAC BANKING CORPORATION LTD
v
ADI MAHESH PRASAD
[COURT OEAL, 1999 (Tika(Tikaram, Barker, Sheppard JJA) 8 January]
Glandore Pty Ltd v. Elders Finance and Investment Co Ltd
&##160; &##160; [1FCA 4>; hrefp://www.paclii.org.vu/cgi-bin/Lbin/LawCitawCite?cite?cit=%281=%281984%2984%29%2049%204%20FC%20FCR%20130" title="View LawCiteRecord">(1984) [1984] FCA 407; 4 FCR 130
Graham v. Commonwealth Bank160;#160;Australia [1988] ATPR 49,753
Harvey v. McWatters 1948)R (NS3
p>Inglis v. Commonwealth Trading Bing Bank of Australia (1972) 126 CLR 161
Midland Montagu Australia Ltd v.217;Connor (1992) 109 FLR 285
C.B. Young for the Aant
M.A. Kha. Khan forRespondent
;
Judgmf the Cour Court:
Th an approm ament of t of the High Court (Sadal J) in which he refused to dissolve an ex paex i160;injunction grantehim ahim against ac Ba Corporation Limi Limited (“the bank”). He rest restrained it from exercising
its power of sale said to have arisen underrtgagd over property orty owned by the respondent, Mr Prasad. Thd. The respondent has
brought an action against three defendants in the High Court, one of which is the bank. The appeal is not concerned with the causes
of action brought by the respondent against the defendants other than the bank. In brief it is said that it failed to maintain the
payment of premiums due under a policy of insurance whereby the building the subject of the respondent’s loan was insured against
fire. The property was destroyed by fire and was not covered by insurance. In the action against the bank the respondent seeks to
recover the sum of $60,000 being the amount to which he would have been entitled under the policy had it been in force. He seeks
to set off the amount owed by him to the bank under the mortgage against this amount. The amount owing is approximately $40,000 so
that, if he succeeds, he will be able to pay out the mortgage and will have a surplus over.
The mortgage given by ehe respondent to the appellant was executed on 11 April 1991 and registered with the Registrar of Titles on
18 April 1991. As the appellant submits, there is nplaint by the respondent about any misunderstanding of the the contents of the
mortgage. Clause 5 of the mortgage provides that the mortgagor, ie tspondwnt, will insure and and keep insured such of the mortgaged premises as are of an insurable nature against such risks of loss
or damage as the bank may from time to time require for the full insurable value in some insurance office approved by the bank and
in the name of the bank. The clause contains the usual provisions about punctual payment of premiums and of other sums necessary
for effecting and keeping up the insurance. It includes an obligation on the part of the respondent to hand to the bank every policy
and receipt relating to the property and the policy is to be held by the bank as a further security for the payment of the moneys
secured by the mortgage.
Clause 23 of the mortprge provides that the bank shall be at liberty from time to time, without further authority to debit and charge
the account of the mortgagor (the respondent) wll costs, charges and expenses mentioned in the clause. The. The clause defines the
expression “costs, charges and expenses”. It includes any premiums for insurance.
So fart is relevant to t to the case made by the respondent against the bank, the respondent’s re-amended statement of claim
filed on 15 August 1995 alleges that at all material times the relahip of banker and customer omer existed between the bank and the
respondent. Paragraph 21 of the statement of claim refers to the mortgage about which there is no issue. Paragraph 22 refers to clause
5 which we have earlier set out. Paragraph 23 alleges that, on or about 28 June 1991, the respondent caused the premises, the subject
of the mortgage, to be insured as required by clause 5 of the mortgage. It is said that the policy had endorsed upon it the bank’s
interest as mortgagee. Paragraph 24 alleges that, by virtue of clauses 22 and 23 of the mortgage, the bank had the power vested in
it to pay insurance premiums in respect of the policy. We have not referred to clause 22. It is a general provision to the effect
that, if the respondent should make default in duly performing or observing any covenant or agreement on the part of the respondent
contained or implied in the mortgage, it will be lawful for, but not obligatory upon, the bank, without prejudice to any other right,
power or remedy under the mortgage to do all things and pay all moneys necessary or expedient in the opinion of the bank to make
good or attempt to make good such default to the satisfaction of the bank. Clause 23 is a more specific provision dealing, inter alia, with insurance.
Paragraph 25 of theementement of claim alleges that the respondent had agreed with the bank through the bank&#s manager, Rakesh Prasad
(also known as Rakeshwar Prasad), that during the currency of the the mortgage, the bank would pay all premiums in respect of the
renewal of the policy and debit the respondent’s account in respect of such payments. Paragraph 26 alleges that some time in
the month of June 1992 the insurance company, ie The New IAssa ance Company pany Limited, the first defendant in the respondent’s action, sent a renewal notice dated 11 June
1992 to the bank requesting payment ofpremir the renewal of the policy. Paragraph 27 allegesleges that that the bank, in breach of
its agreement with the respondent, failed to respond to the renewal notice referred to and failed to pay the premium due in respect
of the renewal of the policy of insurance for the period 28 June 1992 to 28 June 1993. In the alternative, paragraph 28 alleges that,
in all the circumstances, the bank owed a duty of care to the respondent to ensure the respondent’s premises remained fully
insured during the currency of the mortgage.
Paragra alleges that, oat, on or about 13 July 1992, the respondent’s house erected on the land the subject of the mortgage
was destroyed by fire. The insurance company had denied liability on the ground that the house was not covered by the policy because
it had not been renewed. Paragraph 30 of the statement of claim alleges that, if the policy of insurance was not renewed, such failure
to renew was the result of a breach by the bank of its contractual obligations to the respondent and/or the result of its negligence
and failure to use due care and skill as a banker.
Appended to paragraph 30 are some particulars which complain that the bank failed to pay the premium and was thus in breach of the
oral agreement the resnt had made with Mr Prasad. It is also alleged in the particulars that the bank failed to i to inform the respondent
of the receipt of the renewal notice and failed to exercise due care and diligence by not exercising its rights under clauses 22
and 23 of the mortgage “when coupled with its agreement with [the respondent] to renew the said policy of insurance during
the currency of the said mortgage”. The particulars further allege that the bank failed to inform the respondent that it would
not pay the premium for renewal of the policy. As mentioned, the amount claimed against the bank is $60,000 together with interest.
We have not found amongst the papers any amended defence filed by the bank after service of the re-amended statement of claim. It
had filed a statement of defence on 22 June 1994 in which it said that the bank admitted paragraph 14 of the original statement of
claim. That pleaded the mortgage and there is no issue about that matter. The balance of the defence says that the bank denies paragraphs
15, 16, 17 and 18 of the statement of claim and further says that it did not assume any obligation or duty to pay the premium under
the policy. It further says that the respondent, as the mortgagor, was obliged under the mortgage and the terms of the loan to ensure
that the policy was in force.
Presumably it is the bank’s intention to use the defence filed to the original statement of claim as its defence to the re-amended
statement of claim. This is a permissible courser the rules, but the paragraphing of the re-amended statemeatement of claim is very
different from the paragraphing of the original statement of claim. Furthermore, more paragraphs are pleaded in the re-amended statement
of claim than were pleaded in the original statement of claim. Apart, therefore, from its general denials, the bank has not really
answered, unless an amended defence has been omitted from the record, the re-amended statement of claim. We do not think anything
turns on this because it is clear that the bank intends to defend the action and denies the essential allegations made against it.
On 18 October 1994,mmonummons was issued on behalf of the bank seeking an order that the proceedings against the bank be struck out
on the grounds the action was frivolous or vexatious or an abuse of the process of the Court. The applicatlication was supported
by an affidavit of one Chandra Kishor sworn on 30 September 1994. He said that he was the assistant manager of the bank’s branch
at Lautoka. He had read the amended writ of summons and statement of claim. He asserted that the bank did not owe a duty to pay the
insurance premiums as claimed and had been informed by the respondent that “he would hold off paying insurance as he was finalising
the sale of his house”. He referred to the mortgage and particularly to clause 5 thereof.
On 16 January 199e resp respondent swore an affidavit referring to Mr Kishor’s affidavit and asserting that the bank was obliged
to pay therance premiums due under the policy. The respondent also said that he had made all arrangemangements with the bank’s
manager, Rakesh Kumar, who had agreed that all insurance premiums would be paid by the bank as long as the property remained mortgaged.
On 21 February 1995 Mr Rakeshwar Prasad swore an affidavit in which he said that he was the manager of the bank’s branch at
Nadi. He said that he had read the respondent’s affidavit sworn on 16 January 1995. He also said that, at the material time,
to his knowledge, there was no one by the name of Rakesh Kumar employed by the bank as a manager, or in any other capacity, in Lautoka
or elsewhere in Fiji. He said that, at the material time, he was the manager of the bank’s Market Branch, which is apparently
at Lautoka. He said that he did not make arrangements with the respondent to the effect that the bank would pay the respondent’s
insurance premiums so long as the mortgage was held by the bank.
<1 May 1995 the respondentndent swore a further affidavit in which he referred to his earlier affidavit. He said that he had made all the arrangements with Mr Rwar Prasad who was, at the time, the manager of the banknk’s Market branch, Lautoka, and who was “commonly known as Rakeshwar Prasad”.
The bank’s application to strike out the proceedings was dealt with in a judgment of Lyons J delivered on 13 October 1995. The
bank’s summons along with a similar summons taken out on behalf of the first defe was dismissed.
The evidence in supof t of the application for an injunction included a copy of an advertisement placed in the Fimes on 7 Dece December 1996 adve advertisement advertised a mortgagee’s sale of residential property. The propers the property
the subject of the mortgage. The sale was to be by tender made in writing. Tng. Tenders were to be lodged by 23 December 1996.
The summons wasrnable oble on 19 December 1996. It was not served on the bank which was given no notice of the application. The hearing
of the application for ex parte&relief was was held in chambers. No reasons appear to have been given for it. That course is not unusual provided the matter is
brought back into the list within as short a time as possible athe making of such an orderorder. The terms of the order were that
the bank be restrained from exercising the power of sale or any other powers under the mortgage and from selling or transferring
the land in question. It was also ordered that the application be called on 31 January 1997, that is some six weeks after the making
of the order. The respondent’s undertaking as to damages was accepted and noted in the order. It would appear that, in making
the order, Sadal J relied on the affidavit of the respondent sworn on 17 December 1996. It does not appear that he was referred to
the earlier affidavits to which we have referred.
It should be said at tois point that this was not a case for the making of an ex pai> order. The The application for the injunction should have been made on notice to the bank. The application was dealt with
on 19 December, four days befendersed. Notice of the application should have been reen required to be given even though it woit would
have had to be short. Instead, the case proceeded ex part so that thet the bank was not served with notice of it and was not given any opportunity of making any submissions in relation
to it. Authorities to be referred to show that it is an extremely serious step to interfere withexercise of a mortgageeRe’s
power of sale. The authorities show that it is quite unusual to grant an interlocutory injunction, let alone an ex parte#160;injunction,tion, to restrain the power except in very special circumstances. The original order should not have been
made without notice to the bank. Indeed, there is, as we shall show in a moment, a real question whether it should have been made
at all.
Although subsequent s hnts have overtaken what occurred so that our criticism is no longer relevant to the matters we need to decide,
we emphasise what we have said so that it may be taken into account in future rs. We add that, if in any any case, whether it be
a case involving a restraint on a mortgagee’s power of sale or a different kind of case, the Court sees fit to grant an ex parteex parte;should not not be continued. When the matter comes back into the list, it will not be for the defendant to establish why the injunction
should be dissolved. Iries no onus. Instead, the plaintiff has the task of persuaersuading the court that the circumstances of the
case are such as to require the injunction to be continued.
We return to ouount of t of the history of the matter. On 27 January 1997 there was taken out on behalf of the respondent an inter
partes summons in which an order was sought that the interim injunction grann 19 December 1996 be extenextended until the final determination
of the action or until further order. The Court dealt with the matter on 31 January 1997. All parties were represented. It was ordered
and directed that the interim injunction granted on 19 December 1996 be extended until 28 February 1997.
On 17 ary 1997 Mr GurudGurudayal Sharma swore an affidavit which was filed on behalf of the bank. In the affidavit he said that he
was the manager, Loans Management West, of the bank. He referred tomortgage, to the fact that that the respondent was in arrears
with his payments under the mortgage and said that the bank was exercising its power of sale because of the respondent’s default.
The balance of the affidavit is argumentative and we do not refer to it.
On 9 Apri7 the respondepondent filed a further affidavit in which he referred to Mr Sharma’s affidavit. Some of the history
of the matter is repeated in that affidavit and there is reference to the judgment of Lyons J delivered on 13 October 1995 refusing
to strike out the case against the bank.
In the meantime thter hter had come into the list on 28 February 1997 and had been further adjourned, this time to 11 April 1997 when
it was fixed for hearing. On 25 April 1997, J delivered a ruling. The ruling refers to the fact that that the application to be
deal with is an application for the dissolution of the injunction granted
“There are rstters that need to be tested by presentation of evidence. Courts are reluctant to interfere with the rights of
the mortgagee uthe mortgage terms but here I feel there are matters that should be resolved at the trial. In these circumss Ices I am not prepared to dissolve the injunction which is to continue until the hearing and final determination
of this actio221; > It is clearhe authoauthorities that if the present case be regard one in which the mortgagor’s real claim against the mortgagee
is for damages only, ily, interlocutory relief should be granted only terms that the amount of t of the mortgage debt is paid into
court. The general rule referred to in Inglis’ case wapply in such a case.case. But if it be not regarded as such a case, it is open to the court to grant the relief sought upoh
terher than payment of the full amount of the mortgage debt into court as the court ourt thinkthinks appropriate.” &##160; #160; n&##10;& ҈
) the respt dent does noes not prosecute the principal proceedings with due
diligence; ҈ـt҈& &ــ&600; &160; ; (b0; (b) the cthe case case case is n is not fixed for a final hearing
so as to commence on a date earlier thany 199
The Court record dot diot disclose precisely what was said before Sadal Jdal J. It does show that he was referred to the ruling made
by Lyons J on 13 October 1995. Lyons J said that the authorities suggested that the Court should not make an order to strike out
a proceeding unless it was shown that the statement of claim or the proceeding was unsustainable or was hopeless. Otherwise, the
order should not be made. He said that it was more than obvious that, whilst the respondent’s claim might not appear to be
the strongest and would certainly need some hard evidence to support it, the statement of claim was far from one which could be described
as unsustainable or hopeless. He added that the mere fact that a case appeared to be a weak one was not of itself sufficient to justify
the striking out of the action. He also said that the power to strike out should only be exercised in plain and obvious cases where
no reasonable amendment could cure the alleged defect. He said that it was obvious to him that there were matters of contest in the
evidence that would be led in the matter and that the respondent must be given the opportunity to give evidence before Court by way
of a hearing. He thought, accordingly, that the application should be dismissed.
We do not consider the the principles which apply in relation to an application to strike out proceedings or a pleading are necessarily
the same as those which apply in relation to whether or not an interlocutory injunction should be granted. Subject to some special
considerations which apply in relation to an application to restrain the exercise of a mortgagee’s power of sale, the principles
are those propounded by the House of Lords in American Cyanamiv Ethicothicon Ltd [1975] UKHL 1; [1975] AC 396. The caseell kand we do not refer to it in detail. It is enoughnough to say that Lord Diplock who deliverlivered the judgment of
the House of Lords made it clear (at 407) that the Court must be satisfied that the claim made by the plaintiff for the relief ultimately
sought is not frivolous or vexatious; in other words, it should be satisfied that there is a serious question to be tried. If there
is, the question becomes a matter of the balance of convenience.
Here we are satisfied that there is a serious question to be tried. We do not reach this conclusion in relation to each of the matters
of defence raised by the respondent. It may be ct to say that a number of them have no likely basis for suor success. But in two
respects, we think the respondent has met the initial hurdle. Firstly, he relies on a conversation he had with an officer of the
bank in which the officer is said to have told him that the bank would thenceforth pay the premiums under the policy and debit the
amount of them to the respondent’s account. The second basis upon which the respondent may succeed - and we express no concluded
view about this - is that he contends - and his evidence is to this effect - that the bank received notice of the renewal of the
policy on payment of the premium. The respondent claims that the bank did not communicate notice of the receipt of the renewal to
him so that he knew nothing about it. Eventually the evidence may show that this is unlikely because the renewal notices went either
to the respondent or to both the respondent and the bank. But that is by the way at the moment. All will depend upon the evidence
led at the trial.
Nheless, in a case of t of this kind, the respondent faces another problem. It stems from considerations such as are discussed by
the High Court of Australia in Inglis v Commonwealth Tr Bank of Australiaa (1972) 126 CLR 161. The casauthority for the prhe proposition that, as , as a general rule, an injunction will not be granted restraining
a mortgagee from exercising powers conferred by a mortgage and, in particular, a power of sale, unless the amount of the mortgage
debt, if this is not in dispute, is paid, or unless, if the amount is disputed, the amount claimed by the mortgagee is paid into
court. The rule will not be departed from merely because the mortgagor claims to be entitled to set off an amount of damages claimed
against the mortgagee.
The judgme a judgment oent of Walsh J sitting at first instance. His judgment was upheld by the Full Court of the High Court of Australia
which approved his reasons (126 CLR at 168-9). The Full Court deed no separate reasons of i of its own.
In the course ofjudgmendgment, Walsh J referred (at 166-7) to a number of English authorities. It was upon the principles which he
derived from these that he based his judgment. We do not find it necessary touss the various authoritiesities to which he referred
except to say that they plainly suggest the conclusion to which he came.
In addition to these authorities, Walsh J referred (at 164) to Halsbury’s Laws ol England 3rd ed, vol 27 at here it i it is said that a mortgagee will not be restrained from exercising his power of sale because the amount
due is inute, cause the mortgagor has commenced a redemption acon action, or because the mortgagor objectbjects to the manner in
which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court, that is the
amount which the mortgagee swears to be due to him, unless, on the terms of the mortgage, the claim is excessive. Walsh J also said
(at 164-5) that, if the debt had not actually been paid, the Court would not, at any rate as a general rule, interfere to deprive
the mortgagee of the benefit of his security, except upon terms that an equivalent safeguard was provided to him by means of the
plaintiff bringing in an amount sufficient to meet what was claimed by the mortgagee to be due. He added that the benefit of having
a security for a debt would be greatly diminished if the fact that a debtor had raised a claim for damages against the mortgagee
were allowed to prevent any enforcement of the security until after the litigation of those claims had been completed. Walsh J thought
that the fact that such claims had been brought provided no valid reason for the granting of an injunction to restrain, until they
have been determined, the exercise by a mortgagee of the remedies given to him by the mortgage.
This matter arlier been been the subject of a decision by Sugerman J (later President of the NSW Court of Appeal) of the NSW Supreme
Court i0;Harvey v McWatters (194 SR (NSW) 173. Sugermanerman J said that, where a mort mortgagor sought an interlocutory injunction to restrain his mortgagee
from selling, there was a distinction with respect to the terms that would be imposed as to payment into court between a case in
which the power of sale was admittedly exercisable and the only dispute was as to the amount due or the mode in which the mortgagee
proposed to exercise the power, and a case in which the very matter in dispute was whether the power of sale was exercisable at all.
Sugerman J said 76) tha) that the real dispute in the case before him was whether the power of sale was presently exercisable at all.
The plaintiff’s claim was that she had already paid more than sufficto satisfy the instalments ents which had become due upon
the terms that it was to be set-off in discharge of those instalments as they became due and that there was therefore no default.
That claim was disputed and the amount was said by the defendant to have been paid on another account. His Honour said that the real
nature of the dispute was not what amount was payable, there being an undisputed default, but whether a case for the exercise of
the power of sale had arisen at all. After referring to some additional authorities, Sugerman J decided that he should require a
lesser payment into court than would have been required if the ordinary rule had applied.
In Australia this problem has arisen since the decision in Inglis. The matter was dealt with by Morling J, sitting as a Judge of the Federal Court, in Glandore Pty Ltd v Elders Finance and Investmenttd [1984] FCA 407<#160;[1984] FCA 407; (1984) 4 FCR 130. His Honour discusse 133) th3) the decision in In/u> and referred rred also to some other authorities including
Thisions of the High Cogh Court in Inglis and of Morling J 60;Glan>Glandore were disd by Jenkinsof the the Federal Court of Australia in Cunning National Australstralia Bank Ltd&#/u> (1987) 15 FCR 495 where his Honour nguished&#hed Glandu> anlied Inglis..
Harvey v McWatters, Inglis and Gla#1re byed by Kearney rney J of the Supreme Court ofrt of the Northern Territory in MiMidlanddlantagu Ausu Australia Ltd v O’Connorhref=://wwlii.org.vu/cgi-bin/LawCite?cit=%281992%1992%29%2029%20109%2109%20FLR%20285" title="View LawCiteRecord">(1992) 109 FLR 285 at9. Ke J referred, in t in t in the course of his discussion of the matter, to a decision of French J of the Federal Court, Grv Comalth Bank of Aust Australia [1988] ATPR 49,753 at 49,757, 49,758. There, French J considered that that the applicants in that case had shown aous case to be tried and nond
noted that a forced sale was likely to be disastrous for them. French J thought that each case was to be judged on its own facts
despite an inability on the part of the mortgagor to pay the mortgage debt into court. It needs to be noted that the judgments of
the Federal Court may have been affected by views concerning the provisions of the Trade Pras Act #160;1974 (Aust). Neithe dehe decision in Harvey v ters, whichwhich preceded
The present case has a as a history which extends over several yearsshallsometabout tout that in a moment. Subject to that matt matter,
this case would appear to be gove governed by Inglis and b English aities to whio whio which Walsh J referred in his judgment in that matter. If it were not for that history and one
were dealith ttter afresh, we would have little doubt that the appropriate course would have beve been toen to refuse to grant interlocutory
relief. That is because, no matter what view one takes about the cases which have come after I, this is a case whse where the mortgagee’s power of sale is not in question. It is a case where the respondent seeks to bring
a case against the bankdamages for its failure to insure the property which was thas the subject of the mortgage. In ordinary circumstances
it would not have been a case for interlocutory relief.
The accounthe facts ands and circumstances of the case which has been given shows that the proceedings were commenced in 1992. The
application for interlocutory relief, albeit misconceived as an appropripplication to make 0;ex pai>, was dealt ealt with at the end of 1996, some two years ago. We were informed during the hearing of the appeal that it is
likely that the action will be given a final hearing in the early months of next year. It is not clear to us that the point now so
strongly relied upon by the bank was raised before Sadal J when the matter came into the list on 11 April 1996. Of course, it may
have been, but we have not the benefit of a complete record and there is no suggestion in the submissions of the parties that the
point was taken. The grant of interlocutory relief is a discretionary matter. The question we have to decide is whether his Lordship’s
discretion miscarried. Objectively speaking, it may have done. But, in the absence of a clear indication that the point now relied
upon was taken before him, we would not be prepared to take the view that it was. In other words, Sadal J did not have the assistance
that we have had.
The questionave to dete determine is whether his decision was in error. Upon the basis of the matters that appear to have been argued
before him, it was not. Applying the pples which usually apply to applications for interlocutory tory relief, this was a case where
it was open to his Lordship to hold that there was a serious question to be tried and that the balance of convenience favoured the
respondent. Adding into the equation the fact that the matter will probably have a final hearing within the next three or four months,
we think that the appropriate course is the dismissal of the appeal. But we propose to vary the orders made by Sadal J by reserving
leave to the bank to apply to a Judge of the High Court for an order dissolving the injunction in the event that any one of the following
circumstances should arise:
dditiy, weose to direct the Regi Registrar of the High Court to take stepssteps to f to fix a date for the hearing of the principal
proceedings as early as poe and certainly no later than 30 April 1999.
Subject to variations,ions, the the appeal will be dismissed. The costs of the appeal will abide the outcome of the trial of the
principal proceedings.
In summary, the orders of the Court are:
&#/p>
(1)   e orders made by Sadal adal J on 19 December 1996 be varied by adding thereto the following further orders:
;#1600; &##60;&< n&##10;& i) Leav Leave be r be reserved to the respondent bank to apply to a Judge of the High Court for an order dissolving the injunction in the event that any one of tllowircumss should arise;
>
ټ&1160; < ټ&##60;&< < n&#(a)   respondentndent does does not prosecute the principal proceedings with due diligence;
&ـ҈ &##1160600;  &160;&160; #160; ; (b0; (b0; (b))) case t fixed ford for a fina final hearing so as to commence date er thMay 1999; >
;
#160; < &##10;& ʔ&160;&160;   & ټ (c))   the bansicors, upon the bahe basis of evidence filed on its behalf, that the value of the land, the subject of the mortgage, is declining.;
2)҈ The appe othe dise dismisssmissed.>
 
;(3) &##16;& The costs of s of the appeal be costs in tincipoceedings.
(4) e Regrstradibe dire dire directed cted to take steps to fix a date for the hg of rinciroceediceedings angs as early as possible but no later than than 30 April 1999.
(Orders of High Court varied; appeal dismissed.)
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