State, Davis and Bux v Barker [1979] PGLawRp 658; [1979] PNGLR 53 (19 March 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 53 - The State, Richard H Davis and Dennis Bux v Stanley Barker 

[1979] PNGLR 53

SC144

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE GOVERNMENT OF PAPUA NEW GUINEA, RICHARD H. DAVIS AND DENNIS WILLIAM BUX

V

STANLEY BARKER

Waigani

Raine DCJ Greville Smith Andrew JJ

1 December 1978

19 March 1979

JUDGMENTS AND ORDERS - Validity - Trial judge entering what appeared, on face, to be alternative verdict - Action for conversion - Assessment of damages - Indication that in event of appeal greater damages assessed should be entered - Alternative verdict a nullity.

In an action for conversion of a sailing vessel, launched in 1974 and converted in 1974, the trial judge assessed damages at K23,200 and added:

“On the basis that the point has come when further delay in satisfaction of judgment should not be tolerated — I would consider half of the additional amount, namely K13,821, should be added to the verdict in the event of further delay caused by an unsuccessful appeal by the defendants — so that the verdict would then be for K37,021.

There should therefore be a verdict of K23,000 in the plaintiff’s favour against each of the defendants at this stage.”

On appeal therefrom:

Held

N1>(1)      There being no authority or sanction in law for the addendum to the trial judge’s findings in the form of an alternative verdict, such addendum is to be regarded as a legal nullity, not of itself affecting the validity of the judgment for K23,000 if otherwise valid.

N1>(2)      In the circumstances the verdict of K23,000 damages for conversion was properly assessed and entered and should be confirmed.

Appeals

These were appeals and cross-appeals against a judgment and verdict in damages in an action for conversion of a sailing vessel.

Counsel

J. P. Hamilton, for the first and second appellants.

D. W. Kendell, for the third appellant.

P. J. Moss, for the respondent.

Cur. adv. vult.

19 March 1979

RAINE DCJ: This was an action for conversion of a catamaran type yacht at Lae. In the case of one defendant both conversion and negligence was alleged. A default judgment was obtained against all defendants so that the learned trial judge had only to consider the question of damages, which he did. All the defendants appealed.

There were a number of grounds of appeal but only the first two were relied upon, although the others were not formally abandoned. But they were not pressed.

There was a cross-appeal by the respondent plaintiff, who complains that his Honour assessed damages as at the date of conversion in 1974, rather than as at the date of the hearing of the action in 1978. I will first deal with the cross-appeal.

The facts are that the defendants moved the yacht from its mooring and took it some distance away to a water skiing area for use as a platform in the water. Prior to the conversion the yacht had suffered some damage but his Honour denied the suggestion of the defendants that prior to conversion the vessel was no more or less than a broken down hulk of little if any value. It certainly achieved this condition after it had been towed to and secured at the skiing area. This is a case of conversion by destruction, with the exception of a few moveables that were salvaged.

His Honour made it perfectly clear that he was aware that in a proper case he could have assessed damages as at 1978. That he could have done so I have no doubt. Thus, in Butler v. Egg and Egg Pulp Marketing Board[lvi]¹ Menzies J. said: “There is no hard and fast rule that the value of the goods at the time of a conversion is always the measure of the damages to be assessed for the conversion.... The true rule is, I think, that stated by Bramwell B. in Chinery v. Viall[lvii]², viz. that the plaintiff is entitled to recover no more than the real damage he has sustained.”

N1>The trial judge seems to have rather leant towards 1978, but then, having indicated this, without giving reasons, fixed on 1974.

N1>In the absence of reasons this gives us a much freer hand. However, an examination of the transcript does not lead me to conclude that the learned trial judge fell into error. I say this because the facts here are a little unusual.

N1>I should firstly observe that the measure of damages in this case was accepted by all as not to be approached by a consideration of a loss in market value, for all agreed that the vessel really had no market value at Lae prior to destruction for reasons then peculiar to Lae. Thus, attention was only directed to the actual value on a cost basis of the yacht, and the difference between this and its “value” as a hulk.

N1>It was a “home-made” catamaran. I do not say that in a derogatory way. The plaintiff, from the age of his sons, was a mature man. He lectured at the University in Architecture and Building. He came from a ship-building family, this, plus his academic qualifications, meant that he was capable of building this fairly large boat. In fact, he designed it. At the present time he is in fact involved in shipbuilding in Australia. In the project he was assisted by a professor of electrical engineering and two others.

N1>The boat was intended for use by the family, it was not intended for commercial use. Construction commenced in mid-1971 and the boat was launched in January 1974, and did a trial, which seems to have gone off well enough.

N1>The reasons I feel that it is not proper for me to conclude that the trial judge was wrong in fixing on 1974, are the above matters taken in conjunction with several other matters that I consider to be of great importance, particularly when one remembers that the plaintiff bore the onus of proof. These matters are:

N2>1.       The plaintiff was not going to sail the boat in New Guinea waters, for his time was nearly up, as he put it, time was running out.

N2>2.       He said he thought he would come back in July 1974 to sail her back south. But how sure can he be that this would have occurred, for this meant flying back to Lae from Tasmania, an expensive business for a man who agreed he had used up all his savings on the boat and needed, by employment down south, to get a cash flow going, as he put it? Indeed, he admitted that only a month or so after the launching he was in a state of desperation, and he had contemplated a sale just to get his bare costs back. He had actually discussed this with a possible buyer, but the thing fell through.

N2>3.       He conceded that he had to get a job in Australia so as to get his family of four children and his wife settled.

N2>4.       There is no evidence, if there is, it is not such as to persuade me, that the plaintiff would have used the boat for pleasure in Tasmania, even had he ever got it there. Also, who would have comprised the crew on the trip south?

N2>5.       The plaintiff had the onus. The learned trial judge was entitled to take the view that had the tragedy of the conversion not occurred, and had the plaintiff managed to sail it to Tasmania, that he would have sold her for what he could get. The odds are that this would not have given him a great profit, or any profit at all.

I am strongly of opinion that the cross-appeal must fail, and I would dismiss it.

I now turn to the appeal by the respondents. The notices of appeal, filed by two separate solicitors, were obviously drawn or settled by the one counsel. As I indicated at the outset, grounds other than the first two were not pressed. Those first two grounds read:

N2>1.       That his Honour erred in assessing damages against the defendants on an alternative basis depending on whether any of the defendants appealed or not.

N2>2.       That his Honour’s action in assessing damages on such a basis as set out in the previous ground was an action unknown to the law and contrary to public policy.

In order to understand these grounds fully it is necessary to set out fully what the learned trial judge said on the last two pages of his judgment. It reads:

“I consider that a fair estimate of the cost of replacement in 1974 would be between these two figures. I propose to assess the damages therefore at the figure of $27,840, reduced to Kina gives K23,200.

The cost of a replacement as at 1978 would be calculated at a figure now of K1,500 per foot (after similar adjustments for ten percentage down, engine not supplied (say K7,000) and items recovered (say K208) — some K50,842. On the basis that the point has come when further delay in satisfaction of judgment should not be tolerated — I would consider half of the additional amount, namely K13,821, should be added to the verdict in the event of further delay caused by an unsuccessful appeal by the defendants — so that the verdict would then be for K37,021.

There should therefore be a verdict of K23,000 in the plaintiff’s favour against each of the defendants at this stage.” (The emphasis is mine.)

With very great respect no authority is needed for me to assert that his Honour was clearly not entitled to take the course that he appears, on the fact of it, to have done. I know of no authority that supports such a course. It is true that it is quite common for a trial judge, finding a verdict for a defendant, to indicate that had he found for the plaintiff he would have awarded damages of KXXX. But this is not done in the sense that an alternative verdict is entered if the appeal succeeds, it is purely a helpful observation by the trial judge, an indication, and no more, to the appellate court. And it is a useful procedure, for it often results in damages being fixed in the appeal court, if the appeal succeeds, and saves a new trial limited to damages only. Possibly this is what the trial judge had in mind, see the word “would” emphasised by me above.

But here his Honour is said to have gone much further and appears to have purported to bring in an alternative verdict. There have been tremendous delays in this case, largely caused by interlocutory applications that were utterly doomed to failure.

I suspect that these delays, not unreasonably, weighed upon the trial judge’s mind, and led him to express himself, possibly “per incuriam”, in such a way that his Honour would, on reflection, immediately realise was incorrect.

At the least the undoubted error was threefold. Firstly, although I am sure this could not have been intended, the “verdict” smacked of an “in terrorem” approach. Secondly, as I said “in arguendo”, how could such a “verdict” be enforced? How could the plaintiff’s attorney draw up an appropriate final order? If he purported to do so, how could the registrar settle the form of final judgment? I have no doubt that the “verdict” cannot stand in its present form. The plaintiff’s attorney apparently recognised this for he only filed a draft final judgment for the sum of K23,200 in the registry. Thirdly, I might add that even were it permissible to do what his Honour did, or purported to do, it seems to me that it would be nigh on impossible to quantify what the larger damages, Mr. Hamilton would call them the penal damages, could be, for the trial judge could not know when the appeal, if any, would come on, nor whether judgment would be extemporary, or reserved for some months. As an example, in a recent appeal on which I presided, where judgment was reserved, judgment was delayed for about two to three months longer than would have been necessary had not firstly one appeal judge, then another, become victims of the then prevalent fever that laid so many low in this city.

What flows from the error? It is submitted by Mr. Hamilton that the whole trial is vitiated and that there should be a new trial. I cannot conceive that this is correct.

As I see it his Honour entered a perfectly good verdict for the plaintiff for reasons that are not now really attacked at all, and then tacked something to that verdict, in a way that I believe is unknown to the law, and impermissible. The additional matter is a “non est”, it does not, in any event, qualify the basic verdict for K23,200, whatever it might purport or seem to do. In my opinion the “addition” can be simply ignored.

No question of “functus officio” arises. Indeed, Mr. Hamilton only mentioned this in passing. The question of “functus” conceivably might have arisen had the trial judge, as I suggested during argument, entered a verdict of K37,021, reducible to K23,200 in the event of no appeal.

Finally, this is not a case where the form of the verdict indicates that the trial judge has misapprehended what were the true issues for trial. Indeed, had his Honour not tacked on the additional and alternative amount in the event that there was an unsuccessful appeal, then we would not have had an appeal at all.

As I have said, the error that I respectfully believe was made by the trial judge, was not, when one reads his Honour’s reasons, serious enough to taint the actual judgment, as Mr. Hamilton suggests.

In my opinion the appeal should be dismissed.

I have read the judgment of my brother Greville Smith “qua” costs. In broad terms I agree with what his Honour says. It may be that we are not in complete agreement so far as emphasis is concerned. However, as I have said, we are in broad agreement. I have also discussed this with my brother Andrew.

In my view the appellant Bux was forced to join in the attack on the trial judge’s judgment and verdict because had he not done so and the other appellants succeeded, he would have been left with a verdict and judgment standing against himself alone.

I find myself not in complete agreement with my brethren as to one of the orders for costs that they propose. I would propose that the order for costs should be as follows:

N2>1.       That the first-named appellant, The Government of Papua New Guinea, should pay the respondent’s costs of the appeal.

N2>2.       That the appellant Davis should receive no costs of the appeal.

N2>3.       That the appellant Bux should be paid one half of his costs of the appeal by the first-named appellant.

GREVILLE SMITH J: The matter now before this court arose out of an award of damages in favour of the respondent against the appellants collectively for the total destruction of a catamaran type sea-going vessel, as a result of the conversion of the vessel by the appellants in the year 1974. The award was obtained by way of a default judgment against the appellants followed by a determination by the learned trial judge confined to the question of “quantum” of damages.

Following the entry of judgment in default of appearance by the respondent there were applications by the appellants to be let in to defend, which were refused, and then an appeal against such refusal which was unsuccessful.

When the matter last year came before the learned trial judge for assessment of damages the appellants sought an apportionment between themselves of whatever sum might be awarded. Counsel for the first-named two appellants pressed this application with insistence and at some length and made it plain that his submission would be that the first-named two appellants should bear a comparatively minor share of the responsibility for the damages suffered by the respondent. The learned trial judge declined to make any such apportionment or to allow any evidence to be adduced directed towards apportionment.

In giving judgment the learned trial judge stated “inter alia”:

“The plaintiff submits that the cost of replacement should be calculated as at present rather than at the actual date of conversion ...

It is clear that an assessment on 1974 values would not produce a sum which would now allow a replacement craft to be built. It would seem that a more just verdict would be to award an amount appropriate to 1978 costs of construction. Looking at the course this action has taken as I have mentioned above, one sees that the defendants have delayed finality of the proceedings by various interlocutory applications for over two years. But the plaintiff himself delayed commencing his action for one year, and thereafter he does not appear to have moved the action along with any degree of celerity. The whole of the increase in the cost of replacement since the date of conversion could not therefore be attributed to the defendants. My mind has wavered on this point. There is a lot to be said in favour of award of a 1978 figure (Greening v. Wilkinson[lviii]³; Sachs v. Miklos[lix]⁴ ).

N1>On the whole I have decided that the verdict now to be entered should reflect the cost of replacement in 1974. But I consider that if completion of this action is further delayed by a defendant’s appeal which is unsuccessful, then the verdict should be increased up to an amount appropriate to that by which costs of replacement have been increased in a period of two years ...

N1>I consider that a fair estimate of the cost of replacement in 1974 would be ... K23,200.

N1>The cost of a replacement as at 1978 would be ... some K50,842. On the basis that the point has come when further delay in satisfaction of judgment should not be tolerated — I would consider half of the additional amount, namely K13,821, should be added to the verdict in the event of further delay caused by an unsuccessful appeal by the defendants — so that the verdict would then be for K37,021.

There should therefore be a verdict of K23,200 in the plaintiff’s favour against each of the defendants at this stage.” (The ellipsis points in the above excerpt are, of course, mine.)

The appellants rely upon the following grounds:

N2>1.       That his Honour erred in assessing damages against the defendant on an alternative basis depending on whether any of the defendants appealed or not.

N2>2.       That his Honour’s action in assessing damages on such a basis as set out in the previous ground was an action unknown to law and contrary to public policy.

There is also a cross-appeal by the respondent. In support of the cross-appeal the respondent says that the award should have been in a sum of K50,842 which was the learned trial judge’s assessment of the cost of producing in 1978, the year of the award of damages, such a vessel as the one destroyed.

I shall deal with the cross-appeal first, and I shall do so on the basis that the learned trial judge awarded a sum of K23,200 which in the respondent’s submission his Honour did, and which in my view he did.

I think it is safe to say as a matter of law that where his property has been totally destroyed a plaintiff is in the first instance entitled to restitution for the loss of its value to him and to say that usually, but depending on the circumstances, this loss amounts to the cost of replacement. Often, also, as a matter of justice and common sense this must be the cost of replacement at the time of judgment.

I note from the transcript of proceedings (p. 206) that the learned trial judge remarked “in arguendo” during the trial as follows:

“... if I give him a verdict now based on 1974 figures it would be useless (sic) to him because of inflation.”

Why, then, did his Honour not award the cost of replacement at the time of judgment? His Honour does not say why, but two reasons suggest themselves. Firstly, from the foregoing judgment excerpt it is clear that the learned trial judge regarded the respondent as having been responsible for some default in duly carrying forward his claim and therefore entitled to an allowance for part only of the replacement cost increase which occurred between the time of conversion and the time of judgment. Secondly, though the learned trial judge made no reference to this aspect of the matter in his judgment, it is equally clear that the value of the vessel to the respondent at the time of conversion fell far short of the cost of its actual construction. This arose from the following facts.

The respondent arrived with his family to live in Lae in February 1971 and in June 1971 commenced construction of the vessel which was completed, and the vessel launched, in 1974. The purpose of the construction was to provide a vessel in which the respondent and his family consisting of his wife and two sons and two daughters could, during their stay in this jurisdiction, explore the coasts of Papua New Guinea, as it was their desire to see as much of the country as possible whilst resident herein. The vessel was designed and constructed in accordance with that purpose, and was of a type that was not available for purchase. It was a highly individualised vessel.

It would seem from the fact that such a project was embarked upon and carried through at the very considerable cost involved that the respondent anticipated a stay in Papua New Guinea of at least some years after the date of completion of the vessel. In the event of such a stay the actual cost of construction of the vessel might well have been taken to represent its money value to the respondent at the time of its destruction. However such anticipation was not to be fulfilled. By the time of completion of the vessel the respondent’s plans had altered radically. It had become necessary for him to return to Australia with his family to live, and this he did shortly after the launching of the vessel in January 1974, taking up residence in Tasmania. He had intended upon departure to sail the vessel to Australia but was prevented from doing so at that time by cyclonic weather, and went to Australia leaving the vessel moored at Lae in the care of a friend, with a request to several other friends to “keep an eye on the vessel”. The care of the first mentioned friend was, apparently, to be rendered gratuitously except for permission to use the vessel from time to time. The respondent said that his later intention was to return in July or August of the same year to sail the vessel to Australia, but it appears from the evidence that his circumstances were such that it is doubtful whether he would have been able to do so.

There was no market for the vessel in Papua New Guinea and it was not shown or suggested by the evidence that there would have been any market in Australia. There was no evidence as to what might have been the use or value of the vessel to the respondent in Tasmania. At one stage, shortly before his departure from Papua New Guinea, the respondent had been willing to sell the vessel for as low a price as K9,400 which would have covered only the cost of the materials incorporated therein during construction.

The onus on the cross-appeal is on the respondent and I am not satisfied that such matters escaped the attention of the learned trial judge or that he did not have them duly in mind at all relevant times or that he did not appreciate their proper bearing upon the award he was called upon to determine. I am not satisfied that the learned trial judge did not arrive at the sum of K23,200 as a proper award not simply because that was the actual construction cost and not because he thought it the money value of the vessel to the plaintiff at the time of conversion but because he considered it about the amount that the plaintiff should receive in 1978 as just compensation for the loss of the vessel in 1974 taking into account the very much depreciated value, for the reasons mentioned, of the asset to the respondent in 1974, as against the actual construction costs, but also on the other hand, the proportion of the increase in construction costs between 1974 and 1978, with a corresponding depreciation, which could be regarded as fairly attributable to the delay in the matter coming to trial occasioned by the conduct of the appellants. I am not satisfied that his Honour did not consider each of these two elements and take the view that they cancelled one another out.

An evaluation of such opposing elements would of necessity because of the imponderables involved have had to be in the broad, and on the evidence that the learned trial judge expressly accepted and the evidence which although not expressly accepted he was entitled to accept I am not satisfied that such a cancellation out was not open.

I am conscious of course, in respect of the foregoing, that not only does the learned trial judge not say that the cost of construction in 1974 was not, as such, the proper measure of damages but that on the face of the judgment excerpt reproduced herein his Honour might appear to have concluded that it was, though such a conclusion would be inconsistent fwith other observations set out by his Honour. However, it is plain beyond question that a major, if not the main, concern of the learned trial judge at the time that the foregoing excerpt from his judgment was formulated, apart from arriving at a just figure (which I do not doubt was his Honour’s overriding aim) was that the appellants should not embark upon an unwarranted appeal which his Honour must have considered foreshadowed, probably on the basis “inter alia” of his refusal to enter upon the question of apportionment, and I am not satisfied that such preoccupation, of which I shall say more later, does not sufficiently account for the inconsistencies which undoubtedly exist between the terms of some parts of the said judgment excerpt and the occurrence of the proper process of thought to a proper conclusion that I have outlined.

In all the circumstances I am not satisfied that his Honour did not rightly assess the damages that the respondent should receive. In my opinion the cross-appeal should fail.

I now turn to the appeal itself. The appellants have submitted that the learned trial judge rendered a judgment in the alternative, the second alternative being subject to a contingency, and that such a judgment in the alternative is a creature unknown to law and therefore totally invalid. With this, with due respect, I do not wholly agree. In my opinion the learned trial judge pronounced a valid judgment for the plaintiff in the sum of K23,200 to which judgment he then appended what in effect was an expression of view that in the event of the appellants or any of them appealing against the judgment then being delivered then the appellate court should penalise whomever appealed, in the event of the appeal being unsuccessful, by increasing the judgment against that party by a sum of K13,821. I use the word “penalise” because his Honour made no attempt to relate the sum he mentioned to any additional loss that might accrue to the respondent, as indeed he was in no position to do.

As it is almost unnecessary to say, the learned trial judge had no authority or sanction in law to append to his award the said addendum and in my opinion such addendum is a legal nullity and cannot, merely of itself, affect the validity of the judgment for the plaintiff in the sum of K23,200 validly pronounced. In my opinion it is inoperative and severable surplusage.

However, that is not the end of the matter. The appellants further say that the course that the learned trial judge took, involving as they submit an “in terrorem” attempt to deter the appellants from appealing, was to use the words of Mr. Hamilton, counsel for the first-named and second-named appellants, “so misguided and profoundly wrong” and so “tainted” the whole judgment that such judgment should not be permitted to stand.

There is, in my opinion no gainsaying that the learned trial judge made an attempt to deter the appellants from appealing, or that such attempt, no matter how well intentioned so far as the ends of justice were concerned, was not only without foundation or sanction in law, as has already been remarked and as his Honour must undoubtedly have realised, but misguided in other respects. It was indeed, with respect, a very wrong thing for his Honour to do, and it is most unfortunate that his Honour should have allowed himself so to overstep his proper function and authority. It is also most unfortunate that it did not occur to his Honour that his very act designed to deter might well defeat its own purpose by supplying the appellants with substantial grounds of appeal where there were none otherwise. So in fact has it turned out. These things are plain, and there is nothing to be gained by labouring the point further. The consequences that should flow from them are not so plain.

The submission that the judgment is so tainted that it should not be permitted to stand means, as I understand it, that the learned trial judge manifested such a disregard for fundamentals or such an absence of sound judgment, that certain consequences should follow, the first being that the underlying assumption upon which appeals ordinarily proceed, namely that the trial judge was on any point right unless shown to have been wrong, could not apply. In pursuance of this it was argued that as the learned trial judge’s assessments of credibility, though on the specific record they might appear unimpeachable, could not be accepted by this court, and that as there had been at the trial substantial conflicts of evidence upon important points this court had nothing upon which to form its own view as to the sum that should have been awarded, either for the purpose of testing the learned trial judge’s assessment of damages or of making an award of its own in substitution, so that the only proper course open was to order a new trial.

Secondly, it was said that the error of the learned trial judge was such that whether justice had been done or not the appearance of justice having been done as required by s. 59 of the Constitution was absent and that, once again the situation could not be remedied by this court substituting its own verdict because this would involve reliance on the learned trial judge’s findings as to credibility of witnesses.

As to the first suggested consequence I am not satisfied that the error of the learned trial judge is of such a nature as necessarily to import error, or as to import probable error, where such error is not otherwise apparent, in other parts of his Honour’s judgment or to render those other parts unreliable. The onus is on the appellants and in my opinion in this respect that onus has not been discharged.

As to the second suggested consequence, that is a rather different matter and to my mind there is much to be said for clearing the air, so to speak, by a retrial. However, there are countervailing considerations. The respondent is resident outside the jurisdiction and may not be in a position to return for a retrial, or may not be able to afford a retrial, or may not be able again to assemble his witnesses. Or he may simply feel overborne by the prospect of still further litigation and just give up. I should think such a result of an order for retrial by no means unlikely. Over all, and after anxious consideration, I am not satisfied that the ends of justice or the appearance of justice having been done would be served by an order for a retrial.

In my view the learned trial judge’s award in the sum of K23,200 should be confirmed, and the appeal allowed only to the extent of striking out the surplusage. The respondent had, before the hearing of this appeal, taken out a judgment order in the usual form in the sum of K23,200 and in my view such order should be confirmed.

That brings me to the question of costs and in respect of this question I think there are special and unusual considerations.

I think it probable that if the first-named appellant, the Government of Papua New Guinea, had not pursued this appeal there would have been no appeal from the other two appellants and there would have been no appeal from the respondent. Counsel who appeared for the first-named two appellants submitted that it would be “extremely dangerous” if the judgment of the learned trial judge were permitted to stand and I think it probable that, in addition to other considerations, the first-named appellant considered it its duty to appeal on the basis of a public obligation to ensure that an award in the form complained of should not be permitted to stand as a precedent. I would not dispute the existence of such an obligation, but I do not think that the respondent should be caught up in expenses arising out of discharge of such a public responsibility.

Furthermore the appeal in my view, as already appears, should succeed only in a technical sense and should fail substantially.

In addition, the error that gave rise to this appeal and upon which the cross-appeal was based was not one which could by any means be categorised as falling within the ordinary and reasonably foreseeable hazards of litigation. It was an error by a member of the judiciary and of course the judiciary is an arm of the National Government. Also I am disposed to accept as well founded the learned trial judge’s impression that an unwarranted appeal was foreshadowed, substantiated as that now is by the fact that there were in the first-named two appellants’ notice of appeal no less than nine other grounds of appeal set out, none of which was pursued at the hearing and one of which was that the learned trial judge was in error in declining to make an apportionment. The first-named appellant must therefore, in my view, bear as litigant a measure of responsibility for the error into which the learned trial judge was drawn. It is true that the third-named appellant’s notice of appeal is, so far as the grounds of appeal stated therein are concerned, in identical terms and that neither did that party pursue the additional grounds, but I think that the impression received at the trial by the learned trial judge was received from counsel at the trial of the first-named and second-named appellants and that of these two the first-named appellant was decidedly the dominant partner and the prime mover.

In my opinion, so far as concerns costs, justice would in all the circumstances most closely be achieved should the second and third-named appellants each have his costs against the respondent in respect of the appeal and the cross-appeal and the respondent have his costs of the appeal and the cross-appeal against the first-named appellant, including all costs of the second and third-named appellants awarded against him.

I would allow the appeal to the extent indicated and amend the learned trial judge’s verdict accordingly, confirm the order taken out by the respondent, dismiss the cross-appeal, and award costs as indicated.

ANDREW J: I have had the advantage of reading in draft form the judgments of the Deputy Chief Justice and of my brother Greville Smith. In my view also the learned trial judge gave a valid verdict for the plaintiff in the sum of K23,200. I would dismiss the appeal.

For the reasons so fully set out I am also of the view that it has not been shown that the trial judge was in error in his assessment of the damages and that the cross-appeal should fail.

I agree with the order for costs proposed by Greville Smith J.

Appeal and cross-appeal dismissed. Verdict of K23,000 confirmed. Orders for costs of trial confirmed. By majority, the second and third-named appellants each have his costs against the respondent in respect of the appeal and the cross-appeal, and the respondent have his costs of the appeal and the cross-appeal against the first-named appellant, including all costs of the second and third-named appellants awarded against him.

Solicitor for the first and second-named appellants: C. Maino-Aoae, State Solicitor.

Solicitors for the third-named appellant: McCubbery, Train Love & Thomas.

Solicitor for the respondent, plaintiff in appeal and cross-appeal: Craig Kirke & Wright.

R>

[lvi][1966] HCA 38; (1966) 114 C.L.R. 185, at p. 192.

[lvii](1860) 5 H. & N. 288; 157 E.R. 1192.

[lviii](1825) 1 Car. & P. 626; 171 E.R. 1344.

[lix] [1948] 2 K.B. 23.