SENSATION YACHTS LTD V THE WORLD OF INTERIORS LTD (IN LIQUIDATION) HC AK CIV 2006-404-1355

SENSATION YACHTS LTD V THE WORLD OF INTERIORS LTD (IN LIQUIDATION) HC AK CIV 2006- 404-1355 5 October 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-1355BETWEEN SENSATION YACHTS LTD Appellant AND THE WORLD OF INTERIORS LTD (IN LIQUIDATION) Respondent Hearing: 29 June 2006 Counsel: P D Sills for Appellant R B Hucker for Respondent Judgment: 5 October 2006JUDGMENT OF HEATH JThis judgment was delivered by me on 5 October 2006 at 4.00 pm pursuant to Rule540(4) of the High Court Rules. Registrar/ Deputy RegistrarSolicitors: Bell Gully, Auckland Hucker & Associates, Auckland Counsel: P D Sills, AucklandIntroduction[1] Sensation Yachts Ltd (Sensation) appeals against a judgment delivered in the District Court at Auckland on 23 February 2006 in which damages totalling $157,308 were awarded against Sensation on a claim by The World of Interiors Ltd (In liquidation) for breach of a management contract. Interest and costs were also awarded, though interest was ordered to run from the date of judgment rather than the date of breach. [2] The appeal raises complaints about the way in which the District Court Judge approached quantification of World of Interiors' loss, judgment on liability having previously been entered in the District Court and upheld on appeal to this Court.The nature of the transaction in issue[3] The appeal concerns a common situation. Company A wishes to secure the services of a nominated individual to manage all or part of its business. The individual does not wish to enter into an employment agreement, preferring to contract with company A through his or her management company, Company B. Company B agrees to procure the services of the named individual for a specified fee. [4] For all practical purposes, the nominated individual carries out the management functions for which Company A has contracted, as if he or she had an employment agreement or a contract for services with Company A. [5] There are advantages for Company A in entering into this type of arrangement. Because it is contracting with a corporate entity, no employment agreement is created which subjects the parties to the jurisdiction of the Employment Relations Authority or the Employment Court in the event of an "employment problem" arising: see s6 of the Employment Relations Act 2000 and Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SCNZ).[6] A disadvantage to Company A is that, should Company B breach the contract, Company A's rights will, generally, be restricted to a claim against Company B. A rare exception to that general rule may arise if a claim can be brought on the basis described in Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 (CA). [7] From the nominated individual's point of view there are also advantages. Those advantages include the ability to deduct expenses from the gross income received by Company B and to determine how its profits should be distributed. It is common for a salary to be declared for the named individual which equates to something approximating what would otherwise be the company's taxation liability. Sometimes, to achieve further tax advantages, salaries will be declared for both the nominated individual and his or her spouse or partner.The facts[8] In mid 2000, an approach was made by the Managing Director of Sensation, Mr Erceg, to World of Interiors. Mr Erceg sought to secure the services of Mr Sutch to manage the business affairs of Sensation. In August 2000, Sensation forwarded a job description to World of Interiors. Subsequently, a draft agreement was provided. [9] On or about 15 September 2000, Sensation and World of Interiors entered into a written management agreement. [10] Sensation agreed to engage World of Interiors "to deliver the services of [Mr Sutch] to [it] for the purposes of managing the business affairs of" Sensation. The services of Mr Sutch were to be available to Sensation "over a period of 48 weeks per annum". Four week leave was to be taken, at a time to be agreed between Sensation and World of Interiors. [11] World of Interiors agreed to procure Mr Sutch's services so that he could take responsibility for stock, debtors and creditors (to be maintained to agreed budget levels), to supervise sale of goods (including the conduct of individual employees), to be responsible for purchasing products, to liaise with Sensation's joinerydepartment to ensure all products were delivered on time and to carry out and comply with "all lawful directions" given to World of Interiors by Mr Erceg and to ensure that Mr Sutch carried out those directions. For all practical purposes, so far as decision making was concerned, World of Interiors was Mr Sutch's alter ego. [12] The management contract was expressed to enure for three months from 15 September 2000, renewable thereafter for further periods of two years by agreement between Sensation and World of Interiors. [13] In return for procuring Mr Sutch's services, Sensation agreed to pay to World of Interiors a fee of $120,000 plus GST, payable monthly in arrears upon a tax invoice being raised. Payment was to be made forthwith upon receipt of that invoice. [14] Sensation agreed to pay, directly, all business-related overseas and domestic travel expenses incurred by World of Interiors and to reimburse World of Interiors for all business related expenses incurred by it in the course of management of Sensation's affairs. [15] World of Interiors promised not to engage or be concerned in the conduct of any other business, except with the written consent of the Managing Director of Sensation. [16] The District Court Judge found, based on the conduct of the parties, the parties agreed, on 15 December 2000, to extend the contract for three further years from that date. [17] On 18 July 2003, Sensation terminated the agreement. Following negotiations between the parties, the shareholders of World of Interiors (Mr and Mrs Sutch) decided to place their company into liquidation. [18] World of Interiors remains in liquidation, though no creditors have lodged proofs of debt.The District Court judgment[19] Originally, World of Interiors brought proceedings against Sensation on an application for summary judgment. On 19 October 2004, Judge Mather entered judgment for liability in favour of Sensation. The Judge directed that questions of quantum be tried. [20] Sensation appealed against that order, contending that summary judgment for liability ought not to have been ordered. On 17 May 2005, its appeal was dismissed by Baragwanath J. The proceeding was remitted to the District Court to hear evidence on questions of quantum. [21] The quantum trial was heard by Judge Gittos over two sitting days, on 7 and 8 February 2006. In addition to affidavits that had been filed on an application for summary judgment, the Judge heard evidence from three witnesses of primary fact, including Mr Sutch and Mr Erceg. Two accountants were called to give expert evidence, Mr Hussey on behalf of World of Interiors and Ms Bingham on behalf of Sensation. [22] The Judge did not form a favourable view of the reliability of Mr Erceg's testimony. He considered that many of his answers werewordy and evasive and all too frequently couched in terms of what he "would have" or "would not have" done, or said in respect to this or that, The Judge found that Mr Erceg's approach suggested that he had reconstructed events rather than evidencing a clear recollection of what happened. Judge Gittos preferred the evidence of Mr Sutch to that of Mr Erceg where conflict existed. [23] Calculation of loss was dependent upon whether the Judge adopted the approach to quantum issues favoured by Mr Hussey or Ms Bingham. [24] In reviewing Ms Bingham's evidence, the Judge recorded her view that the corporate structure had been used to minimise Mr and Mrs Sutch's exposure to any taxation liability. In particular, she gave evidence that "shareholder salaries [had]been declared" for the purpose of extinguishing taxable profit, resulting in no or minimal tax being paid during the company's lifetime. [25] Ms Bingham opined that, taking World of Interiors' accounts at face value, the company had not made a profit from its management contract. Therefore, loss of the contract could not have resulted in loss to World of Interiors, as opposed to Mr Sutch. [26] In dealing with the question of salary, Ms Bingham suggested that a notional salary, to reflect real market dynamics, ought to be included in the accounts of World of Interiors. She suggested that a salary of $65,000 for Mr Sutch's services ought to be allowed, working by analogy with the scales of pay appropriate to the position of a project manager in accordance with material published by the Auckland Chamber of Commerce in 2005. [27] On that basis, Ms Bingham identified a loss of $3206, on the assumption (as the Judge subsequently found) that the contract had three years to run. That figure took into account amounts totalling $10,000 and a "holiday pay" payment, both of which had been deducted in the accounts of World of Interiors. [28] Mr Hussey took issue with Ms Bingham's approach, particularly in relation to the question of expenses. He pointed to provisions in the management contract which entitled certain expenses to be paid directly by Sensation with others being reimbursed to World of Interiors by Sensation. Mr Hussey took the view that many of the expenses incurred by World of Interiors should properly be characterised as discretionary expenses which the company chose to incur for its own purposes. [29] As the Judge recognised, that amounted to a suggestion that "while Mr Sutch may have got away with claiming these items as deductible expenses, they were really perquisites for the benefit of the shareholders". The provision of an expensive motor vehicle, for the use of Mr Sutch, fell into that category. [30] Mr Hussey also disagreed with Ms Bingham's approach to the allocation of a notional salary. Mr Hussey suggested that, if a notional salary were to be allowed, itought to recognise the existence of a contract between World of Interiors and Mr Sutch which would have entitled Mr Sutch to sue World of Interiors if Sensation had terminated its contract with World of Interiors. [31] Mr Hussey expressed the opinion that the notional cost to World of Interiors of compensating Mr Sutch for the loss of his employment ought to be factored into the calculation. Basing his calculations on alternative figures for a notional salary ($65,000 or $100,000) Mr Hussey calculated that up to $244,000 would have been lost over the relevant three year term. [32] The Judge accepted that both accountants were independent and that their opinions were supportable by reference to the evidence before him. The Judge, with some modifications, preferred Mr Hussey's approach to that of Ms Bingham. [33] Judge Gittos concluded:[33] Looking at the evidence overall, I am of the view that Ms Bingham's strict and taxation-focused approach to the matter of expenses does not accord with the realities of the plaintiff's position, nor with the broad principle of restitutio et integrum, in that it equates a profit for tax purposes with the measure of the plaintiff's loss. What the Court must do is to determine what, if any, benefit the plaintiff has lost as a result of the defendant's breach of contract. That is a wider enquiry than looking at the issue of whether or not the company declared a taxable profit. Indeed, Ms Bingham's own calculations recognise the distortions in the plaintiff's accounts that result from accounting practices which have been directed principally to minimising taxation. If, as I find to be in the case, the plaintiff was able to direct income deriving from the contract to tax deductible benefits for its alter ego Mr Sutch, then in my view the ability to continue to do so is a benefit that the company has lost with the cancellation of the contract. One may perhaps analogise with the position of a company formed for charitable purposes, which may show no taxable profit from its enterprises because its earnings are directed to the support of its charitable objectives. [34] I accordingly adopt Mr Hussey's approach to the analysis of the company's expenses.[34] His Honour then considered specific evidence dealing with the assessment of a salary for Mr Sutch for the purpose of determining World of Interiors loss. The Judge concluded:[36] Mr Hussey's figures appearing as Table 2 (Paragraph 43) of his evidence show a figure for loss over the three year period of the contract of$87,245 before compensation to Mr Sutch is considered. While I adopt this calculation in general, I note that it is derived after deduction of the sum of $11,846 already paid in lieu of notice and a portion ($5063) of the money paid under the head of holiday pay. It is clear in my view that the payment in lieu of notice should be so deducted, but not the "holiday pay" which I shall deal with separately. I consider therefore that Mr Hussey's base figure for loss should increase to $92,308. To this should be added the loss arising from the need to compensate Mr Sutch for the loss of salary for a 12 month period at $65,000 yielding a final figure for the plaintiff company's loss of $157,308.[35] On a separate issue involving "holiday pay"; Judge Gittos said:[37] Payment of the sum of $11,846 ($10,000 plus GST) was made after the breach and clearly intended to be compensation for loss of the contract. That should accordingly be deducted from the plaintiff's claim and has been so deducted in the foregoing calculation of loss. [38] The payment made for holiday pay is not in this category. It derives from the parties' recognition that although the defendant was entitled to receive from the plaintiff management services for only 48 weeks during the term of the contract, the plaintiff in fact supplied services for a greater period than that. The parties agreed that the plaintiff was entitled to be remunerated for that additional service on a pro-rata basis. On the evidence before me that arrangement was a separate, collateral and executed contract for remuneration in respect of the additional services rendered. The monies paid to the plaintiff under that head do not therefore need to be brought into consideration in calculating damages arising from the premature termination of the contract by breach.[36] As a result of those findings, Judge Gittos entered judgment in favour of World of Interiors in the sum of $157,308.Competing submissions[37] I provide a short, and necessarily incomplete, summary of the positions taken on appeal. I deal more fully with the appeal points raised when analysing the competing submissions. [38] Mr Sills challenged the Judge's finding that the extension of the agreement was for three years rather than a period of two years to which Baragwanath J referred on appeal from the summary judgment decision.[39] First, he contended that Judge Gittos erred in relying upon the same "course of conduct" to reach a different conclusion from that reached earlier in this Court. Alternatively, he submitted that the finding was made on the basis of hearsay evidence wrongly admitted by the Judge. [40] On the quantum issue, Mr Sills, as a point of principle, submits that it was inappropriate for the Judge to have regard to losses suffered by Mr Sutch as a result of the termination of the management contract. He submitted that the expenses incurred by World of Interiors were relevant to assessment of loss, whether undertaken on a wasted expenditure or loss of profit basis. However, he submitted that the balance of the losses, including the holiday pay issue, were losses suffered by Mr Sutch personally. [41] Second, Mr Sills submitted that the Judge incorrectly based his figures on Mr Hussey's analysis. He invited me to reconsider the appropriate approach, submitting that I was in as good a position as Judge Gittos had been to evaluate the competing expert evidence. Mr Sills urged me to accept Ms Bingham's approach, based on an assessment made by reference to historical financial statements of World of Interiors. [42] Third, Mr Sills developed an argument which was designed to demonstrate that no loss had been suffered by World of Interiors. That argument was based on a proposition that, because it had put itself into liquidation (even though there were no creditors) World of Interior had "mitigated" its loss. [43] Mr Sills relied upon British Westinghouse Electric and MFG Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 (HL) at 689 to support that submission. Viscount Haldane LC said:[W]hen in the course of business [the plaintiff] has taken action arising out of the transaction, which action has diminished his loss, the effect in actual diminution of the loss he has suffered may be taken into account even though there was no duty on him to act.[44] Fourth, Mr Sills challenged the Judge's findings on the "holiday pay" issue, submitting that there was no basis on which this issue could have been resolved in favour of World of Interiors.[45] In general, Mr Hucker supported the conclusions of the Judge, largely for the reasons he gave, on the basis of Mr Hussey's evidence. [46] Mr Hucker submitted that the Judge had not erred in taking account of the financial consequences of the termination of the management agreement to Mr Sutch personally when assessing damages payable to World of Interiors. [47] Mr Hucker put forward two reasons to support that submission. Both can be fairly labelled as "substance over form" arguments: a) First, the substance of the relationship should be gleaned from the terms of the management contract, which closely align obligations of World of Interiors to those of Mr Sutch. b) Second, because the relationship so closely resembled an employment agreement, it was appropriate to view the transaction as one involving Mr Sutch, even though World of Interiors was the contracting party. Mr Hucker relied on s6 of the Employment Relations Act and Brysonat 735, paras [31] and [32]. [48] Mr Hucker criticised the basis on which Ms Bingham had undertaken her analysis of loss, particularly in relation to her assessment of a notional salary. Mr Hucker submitted that it was for shareholders to determine how net income was to be disbursed. Therefore, it was inappropriate to take into account any salary that ought to have been paid. [49] Mr Hucker submitted that one cannot conclude a contract is unprofitable simply because no profit has been distributed to a company's shareholders. Mr Hucker urged me to apply Mr Hussey's analysis of the position. [50] On the "holiday pay" issue Mr Hucker submitted that the evidence supported Judge Gittos' conclusion.Cross appeal[51] Leave to bring a cross appeal has been sought. The cross appeal concerns the refusal of the Judge to allow interest from the date of breach, only from the date of judgment. Mr Sills opposes the grant of leave, even though the failure of the Judge to award interest has meant that World of Interiors has not been compensated for the time it has been out of money now awarded to it. [52] The prima facie rule is that interest should be awarded from the date of breach of a contract to compensate a plaintiff adequately: see Day v Mead [1987] 2 NZLR 443 (CA) at 463 and Junior Farms Ltd v Cavendish Real Estate Ltd(CA218/04, 12 April 2006), at para [89]. Accordingly, I grant leave to cross appeal out of time and consider the issue later.Analysis of competing submissions(a) Structure of analysis[53] I deal with the issues raised in the following sequence: a) The challenge to Judge Gittos' finding as to the term of the management contract. b) Submissions on the quantum appeal. c) Whether pre-judgment interest should have been awarded in favour of World of Interiors.(b) The finding on extension of the agreement[54] I do not accept Mr Sills' submissions on the contract extension point.[55] While the Judge expressed himself as finding that the renewal was for a term of three years from 15 December 2002 "by course of conduct", it is clear from his earlier comments that he was, in fact, finding a discrete agreement giving rise to a three year extension. That is clear from his prior discussion of evidence given by both Mr Sutch and Mr Erceg on this topic and is reinforced by the fact that the relevant finding is contained in the same paragraph of the judgment that resolves credibility issues in favour of Mr Sutch. [56] Nor do I consider there is anything in the evidential point. In my view, the hearsay evidence of what was said to Mr Sutch by an employee of Sensation was admissible, not as truth of the content of what was said but as background to what was subsequently said and done by Mr Sutch. [57] Similar evidence, intended to be given by Mr Erceg of discussions with the same person, was not admissible because Mr Erceg, unlike Mr Sutch, was not discussing issues with an authorised representative of an opposing party. That evidence was correctly rejected by the Judge. [58] I am satisfied that the evidence was sufficient for the Judge to conclude that the contract had been extended for three years from 15 December 2002. I find against Sensation on that issue.(c) Quantum issues[59] Since Salomon v A Salomon & Co Ltd [1897] AC 22 (HL) it has been settled law that a company is a distinct entity from those responsible for its incorporation. That principle was reinforced when the Companies Act 1993 was enacted. That statute was the first occasion on which legislative recognition was given to the possibility that a company could exist with only one shareholder. [60] There are limited circumstances in which a person dealing with a company can go behind the corporate veil: Trevor Ivory Ltd v Anderson. There are good reasons for that approach. Those who deal with a company, knowing that it is alimited liability company, ought not generally to be able to sue the individual who has elected to enter a commercial venture with the protection of limited liability. [61] Correspondingly, an individual who has elected to take the benefit of limited liability ought not to be permitted to sue for losses suffered personally. An exception to that general rule is where the loss claimed can be analysed as one suffered by the company (even though the proceeds of a claim will be distributed to shareholders rather than to creditors) as opposed to the individual concerned: seeChristensen v Scott [1996] 1 NZLR 273 (CA) at 280. [62] In this case, Mr Sutch deliberately structured the contractual relations with Sensation to gain the benefits that flow from the use of a corporate structure: generally, see paras [5] and [7]. In those circumstances, I reject Mr Hucker's submission that the Court should treat losses suffered by Mr Sutch as subsumed within those suffered by World of Interiors. World of Interiors is entitled to claim only for losses suffered by it. [63] Although Mr Sutch was the human being who carried out obligations of World of Interiors, those who use a corporate entity to procure beneficial outcomes cannot later be heard to say that they should be entitled to recover losses that the corporate entity cannot lawfully claim. [64] The situation is analogous to those who settle family trusts for estate planning or other taxation purposes, yet expect to be treated as if the trusts had not been established when they find the structure works to their disadvantage. In Cox v Cox[1992] 1 NZLR 390 (CA) at 394, McGechan J, delivering the judgment of the Court of Appeal, said: Those who agree an estate planning or tax avoidance bed may well end up lying in it. ... We agree with Fisher J that the appellant made a decision for prospective estate planning advantages, with perhaps some thought towards income tax advantages, knowing that if the marriage broke up the respondent would be entitled to retain that share. He did not actually expect the marriage to break up. The advice which he received at the time may not have been as emphatic as in hindsight would appear ideal. Nevertheless, his action was informedand deliberate, with a view to gain. The mere fact things have not worked out as expected does not, in those circumstances, dictate some rescue by reversal. .[65] In my view, the claim must be analysed on conventional principles, ignoring any loss that Mr Sutch may have suffered independently of World of Interiors but taking account of expenses legitimately incurred by the company. [66] When a claim for breach of contract is brought a plaintiff is entitled to recover the loss it has suffered as a result of the defendant's breach. Although expressed in a multitude of ways in the decided cases, the fundamental principle is that damages must be tailored to the true loss suffered. [67] Damages are required to do no more than to put the plaintiff into the same position as would have pertained had the breach not occurred: Maori Trustee v Clark[1984] 1 NZLR 578 at 584 (CA). As one of the earliest of the leading cases makes clear: where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. (Robinson v Harman(1848) 1 Exch 850; at 855 per Parke B)[68] I conclude, respectfully, that the Judge erred in assessing damages. Put simply, His Honour's attention was deflected from the true legal issue: what loss did the plaintiff company suffer? The error manifested itself through the inclusion, within company losses, of benefits designed to flow from World of Interiors to Mr Sutch. [69] The point can be tested. If World of Interiors had contracted with Sensation to procure the services of a person who was not a director or shareholder of World of Interiors, it would be necessary for World of Interiors to calculate any lost profits by first deducting all operating expenses, including salary payable to those who work for the company. If the services of the person recruited by World of Interiors were no longer required by Sensation, due to World of Interiors' breach of contract, that person would have a claim against World of Interiors for breach of his or hercontract with that company. In my view, Mr Sutch is not entitled to be in any better position than an arm's length third party. [70] A notional salary of $65,000 was suggested by Ms Bingham (see para [26] above) but was not incorporated by Mr Hussey into his original calculation. [71] Ms Bingham's view was that a distinction between losses suffered by World of Interiors and Mr Sutch ought to be maintained. Mr Hussey disagreed with making an allowance for notional salary because he did not accept that distinction was necessary. Mr Hussey said:Ms Bingham's distinction between [World of Interiors] and Mr Sutch is, of course, technically correct. Ms Bingham makes allowance for a notional salary to Mr Sutch, thus creating the financial distinction between Mr Sutch and [World of Interiors]. I do, however, have trouble with the concept that flows from this that [World of Interiors], in effect, cannot suffer material loss from the loss of the Sensation contract.[72] With respect, Mr Hussey's reason for taking a contrary position lacks any rational basis. No reason is given by Mr Hussey to explain, in accounting terms, why the distinction made by Ms Bingham ought to be disregarded. I have already articulated why, legally, Mr Hussey's view is unsupportable. [73] Mr Hussey provided an alternative calculation of loss which assumed a notional fair market salary of $65,000 being paid by World of Interiors to Mr Sutch. That calculation incorporated the $65,000 salary as an operating cost of the company which, having been taken into account, resulted in a loss of $87,245 being suffered by World of Interiors. Mr Hussey then made further allowances for what he regarded as "compensation to Mr Sutch". The Judge added to the loss of $87,245 the sum of $65,000 in order to compensate Mr Sutch for his losses. For the reasons I have given, that additional compensation cannot be justified. That means that the base loss, subject to any further adjustment, must be $87,245. [74] I agree with the approach adopted by Judge Gittos to the "holiday pay" issue. The amount to be paid by Sensation to World of Interiors was fixed having regard to the leave Mr Sutch was entitled to take. What arrangements were made between Mr Sutch and World of Interiors were of no relevance to the contractual obligationsarising between Sensation and World of Interiors. The reasons given by Judge Gittos in para [38] of his judgment also support the conclusion that no allowance should be made for "holiday pay" issues. [75] The figure of $87,245 given by Mr Hussey should be adjusted upward to reverse the effect of a deduction made by Mr Hussey (in his alternative calculation) of a portion of the "holiday pay" money, $5,063. That will make the amount for which World of Interiors is entitled to judgment $92,308. [76] It follows that the appeal, on quantum issues, succeeds.(d) Pre-judgment interest[77] The authorities to which I refer in para [52] above make it clear that interest ought to be awarded from the date of breach of a contract rather than from the date of judgment. [78] There are no countervailing circumstances in this case. Accordingly, interest ought to have been allowed from the date of wrongful termination of the agreement, 18 July 2003. The cross appeal must succeed on that basis.Result[79] For the reasons given: a) Sensation's appeal is allowed to the extent that the entry of judgment for $157,308 is set aside and, in lieu thereof, judgment is entered in the sum of $92,308. b) Leave to cross appeal out of time is granted. The cross appeal is allowed by entering judgment for interest on the sum of $92,308 from 18 July 2003 to 23 February 2006 (the date of judgment in the District Court). Thereafter, post interest judgment accrues in the usual way.Costs[80] The entitlement of World of Interiors to costs and disbursements in the District Court, to be fixed on a 2B basis, remains. [81] So far as costs in this Court is concerned, both parties have been successful, though Sensation has achieved a better outcome overall than World of Interiors. To reflect that outcome, I award Sensation 50% of the costs that would otherwise have been fixed for the appeal on a 2B basis, together with reasonable disbursements. Costs and disbursements shall be fixed by the Registrar. [82] I thank counsel for their assistance. I regret the delay in delivery of judgment. Unfortunately, the priorities that I have had to afford to other, more urgent, judicial duties have rendered the delay unavoidable. ___________________________ P R Heath J Delivered at 4.00pm on 5 October 2006