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Nishi v Nishi [2021] TOSC 71; CV 28 of 2020 (17 May 2021)

IN THE SUPREME COURT OF TONGA

CIVIL JURISDICTION

NUKU’ALOFA REGISTRY


CV 28 of 2020


BETWEEN:


‘ANA TUPOU NISHI Plaintiff


-and-


KUMAZO NISHI Defendant


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN QC
Appearances: Mr W.C. Edwards SC for the Plaintiff
Mrs P. Tupou KC for the Defendant

Date of trial: 28 January 2021, 4 and 5 March 2021 and 16 April 2021

Date of judgment: 17 May 2021


Background

  1. The Plaintiff and Defendant were married on 24 August 2018. On 25 August 2018, various koloa Tonga were presented at the parties' wedding as part of the cultural exchange of gifts between the bride and groom's family. Relevantly, the koloa included mohenga foaki, being mats and tapa gifted by the bride to the groom's family and mohenga ma’u, being those retained by the bride as part of her personal belongings which also included palangi gifts such as bedding and household appliances. After the presentation, all the koloa and other gifts were taken to the Defendant's family home, where the Plaintiff and Defendant initially occupied a bedroom before later moving to a guest house on the property.
  2. On 6 September 2019, the parties separated.
  3. Between 10 December 2019 and 14 January 2020, the parties exchanged text messages and emails in relation to the Plaintiff's requests for her belongings to be returned to her, including “both mohenga faka-Tonga & mohenga faka-Palangi”.[1]
  4. On a number of occasions, the Defendant stated that the Plaintiff's “mohenga fakatonga”, which had been placed in a container at his family's property, would be ready for collection on specified dates.
  5. By 7 January 2020, the Plaintiff's belongings had all been returned except for her mohenga fakatonga which she described for the first time that day as “Launima pepa, Fala fihu uongokumi, Fihu fatufa (fute 42), Fala tofua uongokumi, Fala tut ‘ila, Fala tutu ‘ila uongokumi and Fala fefeka paongo (15 x 2)”.[2]
  6. The same day, the Defendant replied that he would need time to look for those items during the following week and that he would let the Defendant know the day before they were ready for pick up from his family's quarry.
  7. On 9 January 2020, the Defendant informed the Plaintiff that he had not had time that week to look for her mats but that he would definitely have all her things ready by the following Friday. The Plaintiff asked that that date be brought forward to Wednesday, 15 January 2020.
  8. On 14 January 2020, the Plaintiff emailed the Defendant "a gentle reminder" about the collection of her belongings the next day. The Defendant responded that he would not be able to have them ready by the next day or the Friday as planned, that he had spoken with his sister, Telumi, who was going to be busy that week with other commitments, but that he would organise a time with her to look for the Plaintiff's belongings the following week.
  9. On 16 January 2020, Mr Edwards, on behalf of the Plaintiff, wrote to Mrs Tupou, on behalf of the Defendant, complaining about the Defendant continually deferring the return of the Plaintiff's belongings.[3] Somewhat presciently, he stated that it would be “a waste of time to institute proceedings to recover her belongings because they should be able to amicably resolve". Nonetheless, he stated that if a firm answer was not received by the next day, the Plaintiff would have no option but to issue proceedings for recovery and costs.
  10. On 21 January 2020, Mrs Tupou replied that the Defendant was not aware of the details of the koloa the Plaintiff was claiming. According to the Defendant, the Plaintiff had left the koloa in the house without her taking care of it and storing it away and that she should have taken it with her when she decided to leave. Eventually, it was put away by a Fiji maid at the Defendant's family house. Further, the koloa listed by the Plaintiff in her email was more than was hers and so she would need come to the Nishi house to identify the koloa she claimed, some of which had been stored away in a container to prepare their home for visitors.

The claim

  1. On 25 May 2020, the Plaintiff commenced these proceedings. She seeks an order that the Defendant return her "mohenga faka-Tonga”; alternatively, payment of its value in the sum of $21,500. No specific cause of action was pleaded.
  2. The items and amounts claimed are particularised as:
No.
Description
$ value claimed
1
Launima pepa
3,200
2
Fala fihu uongokumi
2,800
3
Fihu fatufa (fute 42)
4,500
4
Fala tofua uongokumi
2,500
5
Fala tutu’ila
2,500
6
Fala tutu’ila uongokumi
1,500
7
Fala fefeka paongo (15)
1,500
8
Fala fefeka paongo (15)
1,500
9
Fala Tu’u’anga
1,500


TOTAL
21,500

  1. For the sake of brevity, hereinafter, I will refer to each of the mats or tapa by their number above.

The defence

  1. In his Statement of Defence, the Defendant denied liability for the Plaintiff’s claim on the basis that he never personally received the items claimed or had possession or use of them. He further alleged that:

Quantum not disputed

  1. It is convenient to note here that by the time the trial first commenced, the Plaintiff had not filed any evidence as to the value of the items claimed. As a result, the trial was adjourned part heard. Subsequently, the Plaintiff discovered receipts for the purchases and further photographs of the items claimed. She also called evidence from:
  2. None of that evidence was challenged by the Defendant, nor did the Defendant call any contradictory evidence in relation to quantum.
  3. On that basis, quantum of the alternative claim is not in dispute.

First order for joint inspection

  1. Based on the pleaded defence, on 12 June 2020, I directed that the parties conduct an inspection of the Defendant's residence, accompanied by their lawyers, to identify which, if any, of the items claimed by the Plaintiff were in the Defendant's possession.
  2. On 26 June 2020, Mr Edwards emailed Mrs Tupou a number of photographs of the items claimed for the purposes of the inspection.
  3. On 29 June 2020, Mrs Tupou informed Mr Edwards that the Defendant was residing at Tofoa whereas the koloa was presented and kept at the Defendant’s parents’ home at Utulau and that his parents would not permit any inspection of their home until their daughter, Telumi, was back in Tonga when the borders reopen. Further, the Nishi family Tongan artefacts were said to be stored in a container at the parents’ residence which may or may not also have contained those belonging to the Plaintiff.
  4. In those circumstances, on 3 July 2020, Mr Edwards filed a memorandum advising that any inspection of the Defendant's residence at Tofoa would be a "waste of time".
  5. On 6 July 2020, Mrs Tupou filed a memorandum in response which largely confirmed the position as described above. She added that while the Defendant was actually housesitting at his parents’ residence while his sister was in New Zealand, he did not know the particulars of the Plaintiff's mats and tapa being claimed and could not allow her to take anything.
  6. When these matters were advised to the court during a directions hearing on 24 July 2020, Mr Latu, who then appeared for the Plaintiff, did not make any application for identification and/or preservation of the subject matter of the Plaintiff's claim. Mrs Tupou advised that photographs had been taken of the koloa when it was presented at the Defendant's parents’ residence.
  7. As the attempt to assist the parties resolve their dispute by what was expected to be a relatively straightforward exercise, had been frustrated, further directions were made for the matter to proceed to trial.
  8. Discovery produced numerous photographs of various koloa presented at the wedding and thereafter. A number of them turned out to be pivotal at the trial.

Evidence

Plaintiff

  1. Beyond the uncontroversial background recounted above, the Plaintiff gave the following evidence,[4] in summary:
26.4 During an inspection on the afternoon of 25 September 2020, the Defendant produced several items[6] but none of them were accepted by the Plaintiff as her mohenga ma’u. She regarded them as part of the mohenga foaki gifted to the Defendant's family, which are not what the Plaintiff is claiming.[7]
26.5 In her brief of evidence in reply,[8] the Plaintiff referred to her mohenga fakatonga as being depicted in photographs P26 pg24 to P33 pg31. The first of those showed numerous mats spread out and stacked at the presentation, and which by all accounts, also included items of mohenga foaki. That photograph therefore did not discreetly identify the Plaintiff’s claimed mohenga ma’u. The Plaintiff said in evidence that her mohenga ma’u was located (but not seen in the photograph) underneath two dark coloured cushions wrapped in plastic shown in the lower foreground of that photograph. The balance of the series of photographs showed mats unfolded and laid out with their descriptions and values inserted corresponding to mats 1 to 8 of the claim.
26.6 In the amendments to her brief of evidence, the Plaintiff sought to identify the items claimed by reference to a number of other discovered photographs. For instance, she referred[9] to P49 pg46 as showing her mother and some of her mohenga ma’u. Unfortunately, the Plaintiff’s supplementary discovered photographs did not contain any marked P49 pg46. They did contain a photograph marked P48 pg46 and another marked P49 pg47. The mats depicted in each photograph were clearly different in number, size and design.
26.7 However, during her viva voce evidence at trial, the Plaintiff confirmed that her mohenga ma’u were depicted in photograph P25. That document was a montage of four photographs. In landscape view, the top two photographs were identified by the Plaintiff as depicting her mohenga ma’u underneath a variety of palangi gifts such as blankets, bedding, pillows and other household appliances. A larger version of the photograph was found at page 19 of the Defendant's trial book with a typed description of what the Defendant (and presumably his sisters) believed was the Plaintiff’s mohenga ma’u. To the naked eye, the side edges of the mats depicted in P25 indicated a total of five. During her evidence, the Plaintiff suggested that there were more mats inside those mats.
26.8 In answer to a question from the Bench, the Plaintiff said that she saw her mats unfolded when she first bought them but thereafter, from when they were presented at the wedding, she only ever saw them folded up as per photograph P25.
26.9 Other photographs relied upon by the Plaintiff said to depict her mohenga ma’u included P1 pg1 and 2. They showed the inside of the back of a truck with a number of mats and other gifts stacked on top of a bedframe. Again, to the naked eye, those photos showed some 11 mats including five brown mats. Other photographs depicting the scene at the rear of the truck when mats were being loaded into (or unloaded from) it were included at pages 22 and 23 of the Defendant's trial book. It was not disputed by the Plaintiff that that those photographs showed both mohenga ma’u and mohenga foaki.
  1. During her evidence, Lady Fielakepa was asked to compare the designs on the launima ngatu pepa depicted in photograph P27, with its detailed painted geometric design, which the Plaintiff claimed as hers, with what could be seen of the only mat in the stack shown in P25 with a detailed painted pattern, being a design featuring, among other things, a type of bird. Lady Fielakepa described P27 as "a little different" to P25. She added that if the mats claimed by the Plaintiff were prepared by her mother as part of the bedding to start her marriage, they should have all been kept together.

Defendant

  1. The Defendant gave the following evidence, in summary:
  2. Sharlene Havea is the Defendant’s second eldest sister. She appeared during the trial by video link from New Zealand and gave the following evidence, in summary:
  3. During cross-examination, Sharlene said that she was not actually present at the inspection and that her evidence was only of what she had been told. In fact, it transpired that most of her ‘evidence’ was what she had been told by the Defendant.
  4. During re-examination, Sharlene said that she did not see the koloa depicted in photos P27 to P29 and P31 to P36 either at the wedding presentation or after all the koloa was taken to the Nishi family home. She did see P30 after the wedding presentation. It was part of the mohenga gifted to her family. So too were the mats depicted at P1 pg3 being loaded into (or unloaded from) the truck.
  5. Importantly, Sharlene confirmed that, consistent with Tongan custom, the mat at P30 was among a number which were effectively re-gifted to other family members.

Second order for inspection

  1. At the close of the evidence, and in light of the relative confusion created by the various references to the array of photographs, the parties were ordered to undertake a joint inspection of the container at the Nishi family property, with their legal representatives and any other persons who had first-hand knowledge of the koloa presented at the wedding and/or what had happened to it since. Directions were also given for closing submissions.
  2. At the final hearing, counsel reported that at the joint inspection on 10 March 2021, all the packages in the container were labelled and their contents were examined. As a result, mat 1 (ngatu launima pepa) and mats 7 and 8 (the two fala fefeka paongo) were identified and accepted by the Plaintiff as part of her mohenga ma’u. They were also among the mats the Defendant had previously offered the Plaintiff. They are therefore no longer in dispute.
  3. There were two other items of the mohenga foaki which were found in the container and were offered to the Plaintiff as replacements for the other two items the Defendant contends made up the total of the mohenga ma’u. The Plaintiff did not accept those.
  4. The balance of the Plaintiff’s claim therefore was $15,300.

Submissions

Plaintiff

  1. Mr Edwards submitted, in summary:
  2. When asked to identify the evidence which he considered best identified the Plaintiff’s claimed mohenga ma'u, Mr Edwards referred to photograph P1 pg1. That photo, it will be recalled, showed all the koloa in the back of a truck on top of a bed frame with other palangi gifts stacked on top and in front. It will also be recalled that, as best one can see, there were no fewer than 11 mats and tapa in the two stacks on the bed frame.

Defendant

  1. Mrs Tupou addressed the Plaintiff’s claim as one in detinue. Having regard to the available evidence and the principles of tort law in relation to that cause of action,[15] Mrs Tupou submitted, in summary, that:

Consideration

  1. The common law provides three causes of action in tort where a person has wrongfully been deprived of goods: trespass for a wrongful taking of goods; detinue for their wrongful detention; and trover for their wrongful disposal. Although tortious in form, detinue and trover were and are primarily concerned with the protection of proprietary interests in goods.
  2. Trespass lies where there is an unlawful taking or damaging of a personal chattel.
  3. Detinue is of earlier origin than trover. The essence of detinue is the unlawful failure to deliver up goods when demanded. The cause of action lies when a person wrongfully detains the goods of another, or improperly parts with possession of them. It also lies when a bailee loses goods and cannot show that the loss was without default on his or her part. It is the appropriate form of action when the return of title deeds or other specific chattels is required. It does not afford a remedy when a bailee restores goods in a damaged condition, nor where the bailee misuses goods without causing loss or destruction.[19]
  4. A wrongful detention also gives rise to an action for detinue.[20] The normal method of establishing wrongful detention is to show that the Plaintiff made a demand for the return of the goods and that the Defendant refused, after a reasonable time, to comply.[21] An unjustified refusal to deliver after a valid demand enables the owner to sue immediately in detinue and is evidence of conversion.[22] Wrongful detention consciously adverse to the rights of the owner is the essence of the cause of action in detinue.[23] In order to establish a wrongful detention, it is usual to prove that the person entitled to the goods made a demand for their return, and that the person in possession or control refused or failed after a reasonable time to comply with that demand.[24] An unqualified and unjustifiable refusal to deliver up the goods entitles the owner to sue in detinue,[25] and is evidence of conversion in an action of trover.[26] Detinue lies against the person who wrongfully detains the goods of another and also against the person who has had possession of them but has improperly parted with possession.[27] Thus the cause of action also lies against a bailee who has allowed goods to be lost or destroyed in breach of duty to the bailor.[28] The burden of proof of reasonable care is on the bailee.[29] Seemingly, this is the only instance of detinue which is not also conversion.[30]
  5. Trover, a form of trespass on the case, arose to provide a remedy which was more extensive than detinue, eventually coming virtually to supersede it. It is the form of action used when one person is guilty of the conversion of the goods of another.
  6. Conversion derived its name from the fiction that the Defendant had found the goods and afterwards converted them to his or her use.[31] The word “conversion” has accordingly acquired a technical meaning. It applies where one person has wrongfully appropriated the goods of another to his or her own use or to the use of another; or has wrongfully deprived the owner of the use or possession of them permanently or for a substantial or indefinite time; or has destroyed them or changed their quality.[32]
  7. A demand and refusal is sufficient evidence only if at the time of the demand the party who refuses has it in his or her power to deliver up the article in the condition in which the article is demanded. Thus, there is no liability for conversion if a bailee is unable to deliver because he or she has allowed goods to be lost or destroyed in breach of duty to the bailor.[33] A qualified or justifiable refusal to deliver up the article demanded is neither detinue nor evidence of conversion.[34]
  8. A demand and refusal is not the only way of establishing an unlawful keeping.[35] For example, there may be a conversion of a chattel by using it in a manner inconsistent with the rights of the owner.[36] Any other wrongful disposition or delivery of goods which has the effect of depriving the owner of the use of them permanently or for a substantial or indefinite time is conversion. Thus, the tort is committed where a person hands them over to someone other than the true owner.[37]
  9. Mere negligent loss or destruction is not conversion, whereas if the bailee has intentionally disposed of the goods to another then he or she is liable for that earlier disposal.[38] The bailee cannot justify or excuse his failure to comply with the demand merely by proving that the chattel is no longer in his control or custody, or in that of any one over whom he can exercise control, if he parted with it without just excuse, or negligently lost it or allowed it to be destroyed.
  10. In general terms, a Plaintiff in an action for conversion or detinue is entitled to be put in the same position as he or she would have been in had the tort not been committed. The measure of damages in conversion is normally the value of the goods at the time of conversion,[39] together with any consequential damage flowing from the conversion which is not too remote to be recoverable in law.[40] The measure of damages is subject to an allowance for any increase in the value of the goods due to expenditure or work on them by the Defendant.[41] Recoverable consequential damages may include aggravated damages,[42] exemplary damages,[43] and damages for inconvenience or loss of enjoyment,[44] in addition to consequential monetary losses.[45] If the goods have been restored to their owner after a conversion, the owner must give credit for their value and his damages must accordingly be reduced by that amount.[46] In an action for wrongful detention of goods the measure of loss is generally considered to be the same as that for conversion.[47]
  11. There having been no submissions on behalf of the Plaintiff as to the cause of action upon which she sued or the legal principles or elements of that cause of action to be established, and as the submissions on behalf of the Defendant accorded, to a large extent, with the principles outlined above, I turn to the real issue in dispute, namely, the identification by the Plaintiff and proof of her actual mohenga ma'u.
  12. The Plaintiff bears the legal onus and evidentiary burden of proving her claim. As indicated to counsel during the trial, the reliance upon a variety of photographs taken at the time of the wedding presentation, some taken thereafter and of various mats and tapa not at those times but said to represent the items claimed by the Plaintiff and offered by the Defendant tended to obscure rather than illuminate the real issue.
  13. The task was a simple one: to identify those mats and tapa which were presented at the wedding, but which were to be retained by the Plaintiff bride as her mohenga ma'u thereafter. Despite that, the evidence presented at trial was a mishmash of stacks of mats in different combinations laid out during the wedding presentation, then sorted into different piles for transporting and sometime thereafter individually laid out disparately as either purported evidence of one or more items comprising the claim or mats or similar to those claimed.
  14. However, the Court must do the best it can with the evidence before it. Accordingly, and bearing in mind the Plaintiff’s onus as described above, I make the following findings:

Result

  1. For those reasons, there will be judgment for the Plaintiff in the sum of $7,300.
  2. The balance of the Plaintiff’s claim is dismissed.
  3. Given the limited extent of the Plaintiff’s success, I will hear the parties on costs.


NUKU’ALOFA
M. H. Whitten QC
17 May 2021
LORD CHIEF JUSTICE

[1] Plaintiff’s discovery, P4, pg 9.
[2] Plaintiff’s discovery, P14-15, pg 15.
[3] Plaintiff’s discovery, P22, pg 19.

[4] Brief of evidence dated 21 August 2020; brief of evidence in reply dated 20 November 2020 and amended brief of evidence dated 15 February 2021 (i.e. during the course of the trial).
[5] Plaintiff’s discovery, P1, pg6.
[6] As depicted in the Plaintiff’s supplementary discovered photographs P50 pg47 and P52 pg49 (although the actual photographs filed were marked P49 pg47 and P51 pg49).
[7] Amended brief [12].
[8] [6]
[9] [11]
[10] Also shown at pages 19 and 20 of the Defendant’s trial bundle.
[11] The copy filed only ran to page 29. The ngatu launima at page 27 is the same as P50.
[12] Defendant’s trial bundle page 19 and 20, photo 0756.
[13] Brief of evidence at [21].
[14] Defendant photo 0756.
[15] Referring to Salmond on Torts, 14th edition, Sweet & Maxwell, 1965, London, pg. 164.
[16] As shown at page 28 of the Defendant’s trial book.
[17] The fala tofua uongokumi, fala tutu’ila and fala tutu’ila uongokumi.
[18] Citing Clayton v Le Roy [1911] 2 K.B 1031.
[19] It seems that detinue was originally an action chiefly used against bailees: 3 Holdsworth's History of English Law 324. It was formerly considered an action ex contractu but was later reckoned as an action founded on tort: see Bryant v Herbert [1878] UKLawRpCP 48; (1878) 3 CPD 389 (CA) and Ballett v Mingay [1943] KB 281 (CA).
[20] Clements v Flight [1846] EngR 1084; (1846) 16 M & W 42; 153 ER 1090; EE Mcardy Ltd v Postmaster-General [1959] NZLR 553 at 556.
[21] Miller v Dell [1890] UKLawRpKQB 182; [1891] 1 QB 468 (CA); Clayton v Le Roy [1911] UKLawRpKQB 114; [1911] 2 KB 1031; Cuff v Broadlands Finance Ltd, infra, at 346; NZ Breweries Ltd v Grogan [1931] GLR 412 at 417, EE Mcardy Ltd v Postmaster-General [1959] NZLR 553 at 556; General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 (CA).
[22] Howard E Perry & Co Ltd v British Railways Board [1980] 2 All ER 579 at 583.
[23] EE Mcardy Ltd v Postmaster-General, infra.
[24] General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd, infra.
[25] Clayton v Le Roy [1911-13] All ER Rep 284 (CA). See, however, Baud Corporation NV v Brook (1973) 40 DLR (3rd) 418, suggesting that proof of demand and refusal may be unnecessary in an action for detinue where the defence discloses a claim which is so adverse to that of the Plaintiff that it is obvious that any demand would have been refused.
[26] Pillot v Wilkinson [1863] EngR 532; (1863) 2 H & C 72; 159 ER 31 (affirmed (1864) 3 H & C 345; 159 ER 564).
[27] Harris v Lombard New Zealand Ltd [1974] 2 NZLR 161 at 166.
[28] Houghland v RR Low (Luxury Coaches) Ltd [1962] 2 All ER 159 (CA).
[29] Port Swettenham Authority v TW Wu & Co (M) Sdn Bhd [1978] 3 All ER 337 (PC).
[30] Howard E Perry & Co Ltd v British Railways Board, ibid.
[31] Marshall v Dibble [1920] NZGazLawRp 52; [1920] NZLR 497 at 500; Cooper v Chitty [1756] EngR 130; (1756) 97 ER 166, Gordon v Harper [1775-1802] All ER Rep 95 and Burroughes v Bayne [1860] EngR 449; (1860) 157 ER 1196. “Trover” was an old French word meaning “to find”. “Trover” is the name of the form of action, and “conversion” the name of the tort. In the United Kingdom, the fictitious allegations of loss and finding were abolished by the Common Law Procedure Act 1852 (UK), which substituted an allegation that the Defendant converted to his own use or wrongfully deprived the Plaintiff of the use and possession of the Plaintiff's goods.
[32] Cuff v Broadlands Finance Ltd [1987] NZCA 93; [1987] 2 NZLR 343 (CA); 100 Investments Ltd & Ors v Registrar of Companies [2020] NZHC 880.
[33] Alicia Hosiery Ltd v Brown Shipley & Co Ltd [1969] 2 All ER 504.
[34] Jones v Hough (1879) 5 Ex D 115 (CA).
[35] Continental Car Services (Wellington) Ltd v O'Regan (High Court, Wellington, A 271/82, 17 December 1984, Savage J).
[36] Model Dairy Pty Ltd v White [1935] ALR 432; Milk Bottles Recovery Ltd v Camillo [1948] VLR 344.
[37] Powell v Hoyland [1851] EngR 124; (1851) 155 ER 456; Singer Manufacturing Company v Clark [1850] EngR 304; (1879) LR 5 Exch 37; Winter v Bancks (1901) 17 TLR 446; Helson v McKenzies (Cuba Street) Ltd [1950] NZGazLawRp 70; [1950] NZLR 878 (SC and CA); Wilson v New Brighton Panelbeaters Ltd [1989] 1 NZLR 74.
[38] General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 2 All ER 314 (CA).
[39] Aitken Agencies Ltd v Richardson [1967] NZLR 65.
[40] General and Finance Facilities Ltd v Cooks Cars (Romford) Ltd, ibid.
[41] Blenheim Borough and Wairau River Board v British Pavements (Canterbury) Ltd [1940] NZLR 564.
[42] Mafo v Adams [1969] 3 All ER 1404 (CA) at 1410.
[43] Cook v Saroukos(1989) 97 FLR 33.
[44] Harris v Lombard New Zealand Ltd, ibid.
[45] Strand Electric & Engineering Co Ltd v Brisford Entertainments Ltd [1952] 1 All ER 796 (CA).
[46] Brandeis Goldschmidt & Co Ltd v Western Transport Ltd [1982] 1 All ER 28 (CA) at 34
[47] Mrs Eaton's Car Sales Ltd v Thomasen [1973] 2 NZLR 686 at 692 and 693.

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