Appoo v Battersby [1996] QCA 287

IN THE COURT OF APPEAL [1996] QCA 287 SUPREME COURT OF QUEENSLAND Appeal No. 392 of 1996 Brisbane [Appoo v. Battersby] BETWEEN: SEAN COLLIN APPOO as Executor of the Estate of NOEL COLLIN APPOO and Executor of the Estate of IRENE EVELYN APPOO (Plaintiff) Appellant AND: OWEN LESLIE BATTERSBY (Defendant) Respondent McPherson J.A. Davies J.A. Ambrose J. Judgment delivered 23 August 1996 Separate reasons for judgment of each member of the Court each concurring as to the order. APPEAL DISMISSED WITH COSTS. CATCHWORDS: CIVIL - Damages for breach of contract - dispute as to nature of contractual terms agreed between the parties - evidence - whether trial judge erred in excluding from evidence correspondent between the parties - privilege attaching to negotiations to settle dispute. Counsel: Mr. J. Given for the appellant Mr. G. Crow for the respondent Solicitors: Morton & Morton for the appellant Paul Hollihan & Co. for the respondent -- 1 of 19 -- Hearing Date: 22 July 1996 -- 2 of 19 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 392 of 1996 Brisbane Before McPherson J.A. Davies J.A. Ambrose J. [Appoo v. Battersby] BETWEEN SEAN COLLIN APPOO as Executor of the Estate of NOEL COLLIN APPOO and Executor of the Estate of IRENE EVELYN APPOO (Plaintiff) Appellant AND OWEN LESLIE BATTERSBY (Defendant) Respondent REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 23rd day of August 1996 In 1990 Mr Noel Appoo and Mrs Irene Appoo, both now deceased, owned a house at Ovens Street, Bundaberg, which was subject to a mortgage in favour of ATSIC. The mortgage payments and rates were in arrear and the owners were being threatened with imminent eviction by the mortgagee. According to his evidence at the trial, the defendant Owen Battersby, who was Mrs Appoo's son, came to the rescue. He was employed at Blackwater and at the time was receiving what he described as a "reasonable" salary. He offered to buy the property. A written contract dated 28 September 1990 (ex 2) was drawn up and signed by the parties. It is in standard REIQ printed form, and provided for payment at completion on 26 October 1990 of the balance of purchase price of $55,000, after allowing for a deposit already paid in the sum of $1,495, in return for possession and transfer free from encumbrance. Rates -- 3 of 19 -- 4 and outgoings to the date of possession were to be paid by the vendors. By cl.23 of the general conditions, time was to be of the essence. Although those were terms of the written contract signed by the parties, there was, according to the evidence of the defendant at the trial, an earlier agreement with his parents that they, or the survivor of them, should have the right to reside in the house for life provided that they paid the rates. On 24 October 1990, which was after the contract had been returned by the Stamps Office but before settlement, two additions, which were incorporated as Special conditions 1 and 2, were made to ex 2. They are as follows: "1. It is hereby acknowledged by the purchaser that the vendors or the survivor of them shall have the right to reside in the said dwelling house during their lifetime free of charge with the exception of rates. 2. The balance of purchase money shall be paid in calendar monthly payments of $250-00 to commence in January, 1991 free of interest." These two Special conditions were prepared by the solicitor acting for the parties. They were inserted in the contract, and initialled by all of them on 24 October 1990. The contract was settled on the completion date 26 October 1990, and the defendant has since been registered as proprietor of the land. At or immediately before settlement, the property was still subject to the mortgage to ATSIC, on which some $10,315.75 was owing, and there was also another security in favour of AGC, to which some $2,000 was owing. In addition, arrears of rates totalling $8,443.77 were claimed by the Bundaberg City Council. By the terms of the written contract, the vendors were contractually bound to discharge those liabilities in order to transfer a title free from encumbrance, but they were not in a position to do so. To enable them to complete, the defendant obtained a loan of $22,000 from the National Bank, to be secured on the property, which he used to pay out the arrears of rates and existing secured liabilities due to ATSIC and AGC. -- 4 of 19 -- 5 In this way some $20,000, together with the deposit, was paid by the defendant for or on account of the property. The precise figure does not matter for present purposes. Some time after settlement a dispute arose between the parties because, the defendant said, the rates had not been paid in accordance with Special condition 1. His mother had died by that time; but, for his part, Mr Appoo claimed that the defendant had not been paying the balance of purchase money by monthly instalments of $250, as stipulated in Special condition 2 of the contract. On 28 July 1993, which was some months after Mr Appoo's death in January 1993, the executors gave notice under s.72 of the Property Law Act 1974 requiring payment of $7,750 as the total amount of overdue instalments alleged to have fallen due between 1 January 1991 and 1 July 1993, failing which, it was said, the contract would be terminated. It may be doubted whether, after registration of the transfer, it was open to the vendors or their executors to take that course; but, if it was, they did not persist with it, because on 7 September 1992, the executors issued the plaint in this action claiming $35,261.88 as damages for breach of contract. That amount of $35,261.88 was alleged to be the balance owing under Special condition 2 of the contract after deducting the payments made by the defendant at settlement. The contract, however, contained no provision for acceleration in the event of default in payment of the monthly instalments of $250 specified in that Special condition. At the time when the plaint issued, only some 33 such instalments would have fallen due between 1 January 1991 and 22 September 1993. To claim, as the plaintiffs did, the full amount of the balance of $35,261.88, even as damages for breach of contract, appears, on one view of it, to be consistent with an intention to affirm the contract rather than to determine or put an end to it. It is, however, not necessary to reach a final conclusion about that matter, because, as Mr Crow for the defendant submitted on appeal, the plaintiffs' claim that the defendant was in breach of contract effectively leaves out of account the payment of approximately $20,000 made -- 5 of 19 -- 6 by the defendant at settlement in order to clear off the existing encumbrances and discharge arrears of rates. An amount of that order ($20,000) represents approximately 80 payments of $250, which, at the agreed instalment sum payable each calendar month, would have satisfied all instalments falling due for a period of at least six years to come, starting from 1 January 1991. What was required by Special condition 2 was payment by monthly instalments of the "balance of purchase money". Properly interpreted, that expression must be taken to refer to the "balance of purchase price" identified in printed condition cl. 2, which was payable in return for "a transfer ... capable of immediate registration ... free from encumbrances". In the context of the written contract, the balance of purchase price in printed cl.2 plainly means the balance after payment of the specified deposit of $1,495. Having found it necessary at settlement to pay some $20,000, to clear off encumbrances and arrears of rates (which were not his contractual responsibility) in order to obtain the title agreed to be transferred to him, the defendant became entitled to appropriate the amount of that outlay to the series of instalments falling due from him under Special condition 2 beginning on 1 January 1991. Indeed, the presumption based on the rule in Clayton's Case, is that, in the absence of a contrary intention (of which there was no indication here), the amount of $20,000 would naturally fall to be applied first in meeting the instalment debts under Special condition 2 in the order or sequence in which each of them arose and became due. It follows that, the defendant is to be regarded as having made what was in substance a pre-payment of that amount in advance to satisfy the first 80 or so instalments as and when they fell due. At the time the plaint issued, he was therefore substantially in credit under the obligation in Special condition 2 to pay monthly instalments of $250 each. Legally speaking, this represents a sufficient answer to the plaintiffs' claim based as it is on an alleged breach of contract by the defendant. In a practical sense, however, it ignores the -- 6 of 19 -- 7 real nature of the transaction between the parties. Considered in the light of the circumstances disclosed by the evidence at the trial, it is apparent that the parties approached the written contract ex 2 simply as a formality or device for carrying out the true agreement which they had previously entered into. The underlying purpose was that the defendant should help his indigent parents, who were facing eviction, by paying out the rates and encumbrances, and taking title to the property himself. On this footing, what remains to be considered is the status of the balance of purchase price, originally fixed by the contract at $55,000, over and above the $22,000 or more, inclusive of deposit, which the defendant had admittedly paid at or before settlement. The explanation given by the defendant in evidence at trial was that he and his parents had agreed that he would never have to pay that remaining balance of the purchase money. It was, he said, "just agreed, when I paid all that money out, that was the full amount; the house was mine". By "all that money out", he meant "the Aboriginal mob, and paid the rates, the back rates, and the AGC". Throughout his evidence he referred to ATSIC as "the Aboriginal mob". From this it is clear that the agreement he was asserting was one by which, on discharging the specified liabilities, he was to receive the full legal and beneficial title to the property subject only to the right of his parents to continue residing in the house for the term of the survivor's life. Their right so to reside would have constituted an interest enforceable against him in equity (Bannister v. Bannister [1948] 2 All. E.R. 133), which, in the event, came to an end on the death of the survivor Mr Appoo in January 1993. Expressed in legal terms, what he agreed to purchase was the remainder in fee simple in the land subject to a life tenancy, after discharging existing encumbrances and arrears or rates. On this and other factual questions the learned trial judge accepted the defendant's evidence. On appeal the plaintiffs challenged his findings to that effect. Ground 2(f) of the notice of appeal contests the "conclusions in relation to the existence of an agreement -- 7 of 19 -- 8 containing terms contrary to [the written contract] ex 2". The defendant's testimony was uncontradicted; but it was given after the only other parties to the transaction had died, and it therefore called for careful scrutiny. The trial judge's findings were, however, based on his impressions of the defendant as a witness at the trial, and the appellants are in the end therefore confronted with the difficult task of persuading an appellate tribunal that his Honour's conclusions on credibility are erroneous. There are, as it happens, certain letters in evidence from the defendant's late mother to members of the family that go some way to corroborating the account of the transaction given by the defendant at trial. In one such letter (ex 14) she explained to the other children: "There has been a change in our will. We do not own Ovens St house. Now we sold it to Owen Battersby. He payed it out and payed for the rates. We live there for the rest of our life. So there is no house to be sold and the money divided between you all as before as there is nothing to be sold ...". The letter, it may be said, does not go the length of identifying the price paid or payable for the house; but it speaks of the defendant's having paid it out, and, in some other material respects, it serves to confirm his evidence about the existence of an oral agreement outside the terms of the written contract. As can be gathered from the date on which the letter was written, which was 13 October 1990, it describes an arrangement that was made some time before the two special conditions were incorporated in the written contract on 24 October 1990. The arrangement was also disclosed by Mr and Mrs Appoo to Mrs Wimbis, a married sister of the defendant, who was told about it some time before her mother died. According to other evidence of the defendant , which was also accepted by the trial judge, the defendant was talking to his mother "face to face" when she said that the balance was never to be paid. "That's only in there", she told him, " to look good for the banks". He confirmed that it was agreed with both his mother and stepfather that he "would never have to repay the balance of the purchase moneys". -- 8 of 19 -- 9 It was the solicitor, who was acting for both parties, who advised that the two Special conditions be inserted and initialled. It is a possible explanation, although the evidence does not go so far, that $55,000 was nominated as the notional price because it was only a little more than double the amount which the defendant was intending to borrow from the bank to discharge the rate arrears and encumbrances. No evidence of the value of the property was given at the trial, and it is therefore not possible to draw any inference that the defendant paid much less for it than it was really worth. In any event, its value to an independent buyer would necessarily have depended on an assessment of how long the survivor of the two parents would live to enjoy the right of residence for life. As events turned out, both parents had died by early 1993; but the effect would have been very different if one of them had survived for many years. In that event, the defendant might well have had reason to regret his purchase of the house at the price he in fact paid for it. His motive in entering into the transaction was, however, not to make a bargain, but, as the trial judge found, to help his parents to keep a roof over their heads. It follows that none of the findings of credibility or fact made by the trial judge are open to review on any of the conventional grounds on which a court may legitimately intervene on appeal. The plaintiffs as appellants nevertheless submitted that, in the course of the trial, the primary judge had wrongly excluded certain documentary evidence which might have led him to a different conclusion. The material in question consisted of documents numbered 27, 29, 30, 31, 32 and 33 in a book or bundle which was admitted, although only provisionally, into evidence at the trial. They begin with a letter dated 20 March 1991 from the solicitors for the parties, which was written to the defendant communicating instructions from Mr Appoo that he was "prepared to reduce the amount owing to $18,000" payable at $300 monthly for 5 years. The defendant's response, dated 18 June 1991 from different solicitors, whom he had by then engaged, was that Mr Appoo had refused to pay the rates. The letter does not in terms -- 9 of 19 -- 10 contradict the assertion that monthly instalments were payable, but simply passes it by, and demands that the rate arrears be paid on pain of eviction. The reply dated 26 June 1991 protested that Mr Appoo had never before been requested to pay the rates, and directed that, because of the threat of eviction contained in the letter under reply, payments now be made to the credit of Mr Appoo's account with a named bank. The defendant's solicitors replied on 10 February 1992, inquiring whether Mr Appoo would accept $18,000 "in full payment of loan monies owing to him" (document 30 or ex 5). It seems that this is a mistake for owing by him; but, whether or not that is so, Mr Appoo responded with a handwritten letter dated 22 February 1992 rejecting the defendant's proposal; he referred once again to the contract, and demanded that the arrears of monthly instalments be paid. It was followed by a further letter from solicitors for the defendant dated 26 February 1992, which referred to the "life tenancy" granted by the defendant over the property, and said that "as you are no longer residing in the home our client wishes to sell the property. He proposes that from the sale proceeds he will pay to you the sum of $18,000 in full settlement of the monies owing by him to you". The documents in question are plainly capable of supporting the plaintiffs' contention that Special condition 2 meant what it said. In his reasons for judgment, however, the learned trial judge ruled that the documents were not admissible. He did so on the ground that, having been written in a genuine attempt to settle a dispute between the parties over the contract, they were privileged and ought to be excluded from evidence as forming part of a series of communications in the course of "without prejudice" negotiations with a view to settlement. The plaintiffs' submission on appeal is that, at the time, there was in fact no dispute capable of being the subject of settlement negotiations between the parties, and that they were accordingly entitled to rely on the documents in question as amounting to an admission by the defendant that there was an obligation on his part to pay the instalments stipulated for in Special condition 2 of the contract. It is, of course, not open to a party to litigation to exclude -- 10 of 19 -- 11 from evidence admissions against his interest by simply conjuring up a dispute and claiming that he was trying to settle it. However, the privilege which attaches to such negotiations "is a matter to be raised by objection to the admissibility of the evidence", and in the present case appropriate objection was taken. In Field v. Commissioner for Railways (1957) 99 C.L.R. 285, at 292, in which the passage last quoted appears, the High Court went on to say that "for the purpose of deciding such an objection the judge may take evidence on the voire dire". Effectively that was what was done in the present case, although a ruling on the question was for convenience postponed until the delivery of judgment in the action. In a trial without a jury there can ordinarily be no complaint about that. In the portion of his reasons in which this question was later considered, his Honour said that he accepted the evidence that there was a dispute, which had been given by both the defendant himself and the solicitor who had been acting for him in writing the letters. He also said he accepted the testimony of the defendant given in cross-examination to the effect that he was "sick and tired of the dispute", wanted to sell, and was prepared to proffer $18,000. In the end, the judge concluded that, in the light of that evidence, the passage particularly relied on by the plaintiffs in document 30 (ex 5) did not amount to an admission. No basis has been shown for upsetting the finding to that effect. It would not have been surprising if, after his mother's death, the defendant had wished to be quit of a transaction which, once his stepfather Mr Appoo had moved out of the house, was no longer serving the original purpose for which it had been intended. In effect, if not in form, he was offering his stepfather a sum of money as the price of his surrendering his life tenancy or right to reside in the house for life. The competing evidence is not so cogent as to require or permit this Court to interfere with the judge's conclusion on that question. -- 11 of 19 -- 1 That being so, there is no proper basis on which it could be held that the judgment in favour of the defendant should to be set aside. Essentially the decision accorded with the trial judge's impression of the defendant as a witness, and, in accepting his evidence, his Honour is not shown to have erred. He found that the true agreement of the parties was in the terms deposed to in evidence by the defendant. The Statute of Frauds was not relied on by the plaintiffs; and it is always legitimate by parol evidence to show that both parties to a document adopted the form they did as a disguise, in which event the true intent and not the form will prevail. See Gurfunkel v. Bentley Pty. Ltd. (1966) 116 C.L.R. 98, at 114. The appeal should be dismissed with costs. -- 12 of 19 -- 2 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 392 of 1996 Brisbane Before McPherson J.A. Davies J.A. Ambrose J. [Appoo v. Battersby] BETWEEN: SEAN COLLIN APPOO as Executor of the Estate of NOEL COLLIN APPOO and Executor of the Estate of IRENE EVELYN APPOO (Plaintiff) Appellant AND: OWEN LESLIE BATTERSBY (Defendant) Respondent REASONS FOR JUDGMENT - DAVIES J.A. Judgment delivered 23 August 1996 This is an appeal from a judgment in the District Court dismissing a claim for $35,261.68. The claim was for damages for breach of a contract for the sale of the house property. The plaintiff is the executor of the estates of each of the late Mr. and Mrs. Appoo. Mrs. Appoo died on 27 November 1990 and Mr. Appoo died on 6 January 1993. The defendant, the respondent to this appeal, is Mrs. Appoo's son and Mr. Appoo's step-son. Pursuant to a Memorandum of Transfer executed on 17 October 1990, registered on 28 November 1990 the Appoos transferred the house property to the -- 13 of 19 -- 3 respondent. The appellant alleges that this was pursuant to a contract in writing dated 28 September 1990 for the sum of $55,000 payment of which was to be $1,495 by way of deposit, $30,000 upon the completion of the contract and the balance by way of $250 per calendar month to commence in January 1990 free of interest. Two written documents, in the Real Estate Institute contract form, both dated 28 September 1990 were tendered in evidence. Each was for the sum of $55,000. Neither provided for the terms of payment alleged by the appellant. It was not disputed that the first of these documents was executed on 28 September 1990. It provided for a deposit of $1,495 and for the balance of the purchase price, that is $53,505, to be paid on 26 October 1990. The second, it was common ground, was a signed copy of the first which had added to it, some time after 28 September, two special conditions in the following terms: "1. It is hereby acknowledged by the purchaser that the vendors or the survivor of them shall have the right to reside in the said dwelling house during their lifetime free of charge with the exception of rates. 2. The balance of purchase money shall be paid in calendar monthly payments of $250 to commence in January 1991 free of interest." It was then sent to the respondent for initialling on 24 October. It was initialled by all parties. No other changes were made to it. It is plain from the submissions made by the appellant that it is this second written document in contractual form which he says was the contract pursuant to which the house property was transferred. On the other hand the respondent alleges that the contract pursuant to which the property was transferred was one which was partly in writing and partly oral. That part which was in writing was the second written document in contractual form dated 28 September 1990, apparently to the extent that it was not inconsistent with the oral agreement. That part which was oral involved agreement that the -- 14 of 19 -- 4 respondent would pay debts on the property for mortgage arrears, rates and in respect of a loan to the Appoos by Australian Guarantee Corporation totalling $22,000 and that those payments together with the performance by the respondent of his obligations under special condition 1 would be the total consideration passing from the respondent for the transfer of the house property to him. Because of the death of the vendors Mr. and Mrs. Appoo the only direct evidence of what took place in conversations between the parties was given by the respondent. However it was not in dispute that the respondent did pay a total sum of $22,000 to ATSIC, the local authority and AGC on behalf of Mr. and Mrs. Appoo and that, in order to do that, he obtained a loan from National Australia Bank some time in October 1990. And there was some evidence other than that of the respondent which indirectly supported his evidence. It is convenient to defer consideration of the evidence on the central question in dispute and the learned trial Judge's finding of fact until after consideration of the first ground of appeal which concerned the exclusion by the learned trial Judge of some letters passing between the parties or their solicitors on the basis that they were part of without prejudice negotiations between the parties. The first of these letters, dated 20 March 1991 is one from the Appoos' solicitors to the respondent offering, on behalf of the Appoos, to "reduce the amount owing to $18,000 which amount is to be paid ... at the rate of $300 per calendar month over a period of 5 years." Between that and the second letter the subject of the claim was a letter of demand by the respondent's solicitors upon Mr. Appoo dated 18 June 1991 for payment of rates due to 30 June 1991. The second letter the subject of the claim, dated 26 June 1991, from the Appoos' solicitor to the respondent referred to that letter and to the terms of special conditions 1 and 2; and it requested payment in terms of condition 2. The third letter is one dated 10 February 1992 from the respondent's solicitors to the Appoos' -- 15 of 19 -- 5 solicitors saying that the respondent intended to sell the property and inquiring if the Appoos were prepared to accept $18,000 in full settlement of monies owing. The fourth letter is one dated 22 February from Mr. Appoo to the respondent's solicitors saying that the offer was unacceptable and referring to the fact that no payments of $250 had ever been paid. The final letter in the chain is one dated 26 February 1992 from the respondent's solicitors to Mr. and Mrs. Appoo again proposing that $18,000 be paid when the respondent sold the property, that sum to be in full settlement of any monies owing. With the exception of the second letter dated 26 June 1991 these letters appear on their face to be either making an offer to settle a dispute between the parties or rejecting such an offer. And none of them is inconsistent with the existence of the dispute which was ultimately litigated. Indeed the probability is that they were in the course of settlement of that dispute. His Honour was therefore plainly correct in excluding them. The letter dated 26 June 1991 appears merely to assert rights under special condition 2 of the second document in contractual form. And it is in reply to a letter in respect of which privilege was not claimed. I am therefore inclined to think that it was not privileged. However, because it was no more than an assertion by the appellant of the rights he now asserts its admission could not have affected the result in this case. For some months prior to September 1990 the respondent had been paying monthly payments on the mortgage to ATSIC on behalf of the Appoos. That was, he said, to make their lives easier. Initially he was not aware that the mortgage was in arrears. When he became aware of that he had some discussion with his mother, he thought in September or October, about his paying out the arrears. It was agreed, he said, that when he paid these out the house would be his. He told them, the Appoos, that they could stay rent free in it provided they paid the rates. He bought the house, he said, to give -- 16 of 19 -- 6 his mother a house to stay in. At that time ATSIC was threatening to "sell them up". All of this appears to have occurred, on the respondent's evidence before he initialled the additional special conditions. He was told before he did this that, in effect, clause 2 was put there "to look good for the banks". Who the banks were was not made clear or for that matter why any bank would have wanted such a clause in lieu of the original obligation to pay the balance on settlement. However it does seem that the contractual document in its original form was submitted to National Australia Bank and then, later, the amended document was submitted to it; and that it was only after receipt of the amended document that it advanced the loan monies to the respondent. Nor is it clear why the respondent signed the first document in contractual form when it was inconsistent with the arrangement which he either had already discussed and agreed upon with his mother and stepfather or at least had in mind. However the impression one has from his evidence is that he did not take much notice of the written documents; what mattered to him was what had been discussed with his mother and stepfather. Had it not been for the relationship between the parties, the respondent's version of the agreement between them may have seemed fanciful, particularly in the light of the written documents either as originally executed or as altered. However, as the learned trial Judge rightly recognized, the relationship between them and the financial plight of the Appoos render the respondent's version of the agreement credible. At the time this agreement was said to have been made, the Appoos were at risk of being evicted from their home by ATSIC. The effect of the agreement was to ensure that, for payment of rates, they would have the home to live in for as long as they lived. Moreover as the respondent contended, and the learned trial Judge recognized, a letter written by Mrs. Appoo to her family on 12 October 1990, supported the respondent's evidence. It explained -- 17 of 19 -- 7 to them, as the reason for a change in Mr. and Mrs. Appoo's wills, that they did not own the house property but had sold it to the respondent, that he had "paid it out" and paid the rates and they were to live there for the rest of their lives. The result was, she said, that there was no house to be sold and no money to be divided between them as before. This was written before the respondent initialled the second document. The learned trial Judge accepted the respondent's version of the contract and no satisfactory basis has been shown for interfering with his findings in that respect. Once that point was reached, no legal reasons were advanced for allowing the appeal. There is, in any event an additional reason why this appeal must fail. The contract sued on by the appellant was the altered contractual document. That required the respondent to pay a deposit of $1,.495, which he did, and the balance, $53,505 by calendar monthly instalments of $250 commencing in January 1991 free of interest. In consideration of the payment by the respondent of the deposit and the promise by him to pay those instalments the Appoos were obliged by that document, if it was the contract, to convey the house property to him free of debt. It is common ground that the respondent paid the Appoos an additional $22,000 to enable them to discharge the debts on the property. The respondent submitted, correctly in my view, that, if that was the contract, he was, to the extent of that payment, discharged from his obligation to pay calendar monthly instalments of $250 from January 1991. In consequence, even if the appellant was correct in his contention as to the contract between the parties, there would have been no money owing by the respondent to the appellant under that contract when this action commenced and no other relevant breach of that contract. In my opinion the appeal should therefore be dismissed with costs. -- 18 of 19 -- 8 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 392 of 1996 Brisbane Before McPherson J.A. Davies J.A. Ambrose J. [Appoo v. Battersby] BETWEEN: SEAN COLLIN APPOO as Executor of the Estate of NOEL COLLIN APPOO and Executor of the Estate of IRENE EVELYN APPOO (Plaintiff) Appellant AND: OWEN LESLIE BATTERSBY (Defendant) Respondent REASONS FOR JUDGMENT - B.W. AMBROSE J. Judgment delivered : 23/08/1996 I have had the advantage of reading the reasons for judgment of McPherson JA and Davies JA which sufficiently set forth the facts and issues argued on appeal. I agree that the appeal ought be dismissed for the reasons given in those judgments which fully deal with the various matters canvassed upon the appeal. -- 19 of 19 --