Capricornia Electricity Board v John M Kelly (Builders) Pty Ltd [1990] QSC 285

--·~ __ ..,.,_,.,. ___ ,,.,,,.,.._,, """' ...,, ........... ,,. .. ~...------,,• ---. ~ ii!::'/Ls:=o :.~c~r:.ll~S iS~~LiF~'.i f J Court Reporting Bureau \1 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION j Date: :sci! 2 I 9o i ~~, ..... _-;i::,::. ..... ~..,_,,;,.,.-~~'.:"·.....V-.- 10 20 BEFORE MR. JUSTICE BYRNE ROCKHAMPTON, 14 AUGUST 1990 No. 19 of 1989 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: THE CAPRICORNIA ELECTRICITY BOARD -and- JOHN M. KELLY (BUILDERS) PTY. LTD; JUDGMENT HIS HONOUR: The plaintiff ("the Board") is an Plaintiff Defendant Electricity Board constituted pursuant to Division II of 30 /Part III of the Electricity Act 1976 - 1989. It is the registered proprietor of land situated at Bolsover Street Rockhampton. By a written agreement dated 28 October 1987 the Board agreed to sell the land to the defendant ("Kelly") for $1,750,000. The agreement provided for a deposit of 40 50 60 $5,000 to be paid to the Board's solicitors. That was done. The document also contemplated completion by 30 January 1989. The parties agreed to extend that date until 6 February 1989. Kelly declined to complete. A fortnight later, the Board commenced these proceedings for specific performance of the agreement. The defences are that the contract (1) is unenforceable because it was not made in accordance with s. 251(9) or (10) of the Electricity Act; and (2) has been determined in reliance on an entitlement to do so conferred by the -Govt. Printer, Qld. 1 10 20 30 40 50 60 -- 1 of 18 -- 10 20 30 40 50 60 contract's express words. s. 251 provides: (1) an Electricity Board may enter into any contractfor any of the purposes of this Act applicable to an Electricity Board. (2) a contract entered into by an Electricity Board shall be made as follows: (a) a contract that, if made between private persons, wou la~ be required to be in writing and under seal, shall be made by the Electricity Board in writing and under its seal; (b) a contract that, if made between private persons would by law be required to be in writingsigned by the parties, may be made in writing signed by the General Manager;(c) a contract that, if made between private persons, would by law be valid although not reduced to writing, may be made without writing by the 20 General Manager. 3. A contract so made as aforesaid shall be effectual in law and shall bind the Electricity Board and all other parties thereto and may be varied ordischarged in the manner in which it is authorised to be made ... 8. Before an Electricity Board attempts to dispose of land ... it shall offer it to the Minister for Lands for acquisition on behalf of the Crown in right of the state or a Crown instrumentality and 30 if the Minister for Lands ... 9. Before any contract - (a) For the execution of any work or the furnishing of any goods or material to the amount of $100,000 ... (b) (c) For the sale of land is entered into by an Electricity Board, it shall, thee week at least before entering into the contract, notify it intention to make and invite tenders for the 40 contract by public notice published in such newspaper or newspapers and in such manner and to such extentas, in the opinion of the Electricity Board will ensure that the notification of intention to enter into a contract is likely to be seen by as many people as possible who are likely to tender. (10) The procedure referred to in subsection 9 may be dispensed with - (a) Where the commission certifies that an emergency exists or special circumstances exist... 50 (e) Where tenders for a particular project are being invited by the Electricity Board from registered tenderers who were so registered by the Electricity Board pursuant to an advertisement inviting such registration .... ll(a) In respect of a sale of land ... an Electricity Boardmay, in lieu of complying with subsection 9, comply w'th thissub-section, · (b) An Electricity Board may sell any land ... 60. -Govt. Printer, Qld. 2 -- 2 of 18 -- by public auction or private contract, but no such sale shall be made by private contract unless and until the land ... have been offered for sale by publ'c auction and not sold ... (12) Save in the case of a sale of land, the provisions of subsections ".(9), (10) and (11) do not apply to any contract or arrangement made by an 10 20 30 40 Electricity Board with the Crown ... " The.Board did not comply with the tender procedures envisaged by ss. (9) and (11) but has sought to support the sale as one satisfying ss. 10 (a) and (e).Alternatively, the Board submits that a failure to comply with the procedures specified by ss .. (9) and (10) does not necessarily mean that the Kelly contract is void or otherwise unenforceable. The facts are not in dispute. As early as January, 1985 the Board began to consider the construction of a new building to provide for additional office accommodation in Rockhampton. An initially considered option was the disposal of the Board's land and buildings at 152 and 156 Bolsover Street. From the outset the Board envisaged inviting expressions of interest from prospective tenderers who were to be encouraged to consider several ways in which the Board's general aim might be achieved. Much of the initiative in putting together suitable proposals was to be left to prospective tenderers. This approach and the flexibility it involved meant that the usual tender procedures might prove inappropriate. So the Board decided so not to call for tenders, but instead to encourage expressions of interest from those wishing to advance tentative proposals for the Board's consideration. The Board intended to select from among those expressing interest a few registrants whose proposals seemed the best .. The best 60 -Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 18 -- 10 20 30 were to be asked to tender. An advertisement was placed in July 1986 inviting "Interested parties to register their interest in the development of a new head office building in Rockhampton." The advertisement mentioned some of the desired characteristics. It spoke of the building comprising not less than 6,000 square metres of useable floor area, exclusive of car parking. It indicated that general information on the Board's intentions in relation to the project were available on request. 41 responses were received. The Board then set about making a choice of project concepts and tenderers in the way anticipated by the brochure made available to the prospective tenderers. The brochure said that the Board would determine a short list of up to five organisations to be invited to provide submissions in accordance with a design brief to be supplied by the Board. Five "alternative schemes" (as the brochure described them) were mentioned as proposals the Board would consider. The brochure said also: "Each of the above proposals may include a furtheralternative to allow for the transfer of the 40 Board's Bolsover Street properties to the developer as part payment." 50 60 -Govt. Printer, Qld. 4 10 20 30 40 50 60 -- 4 of 18 -- 10 30 40 The Board was concerned that proceeding in this innovative way might not strictly satisfy the requirements of s.251. By letter dated 15 July, 1986 (exhibit 17) the Board raised this possibility with the Queensland Electricity Comm:Lssion ~- _The. ..f?o.a_rd, . acting throughout in good faith, made full disclosure to the Commission and to the Government of its intentions with respect to the development and of its reservations concerning whether what was proposed complied with the Act. Satisfied that the Board intended to act "in the interests of electricity consumers, the Board and Queensland" (see exhibit 18), the Commission encouraged the Board to implement its proposals. On 22 September 1986 the commission wrote to the Board in these terms (exhibit 21): "The Commission is pleased to see the manner in which the Board is proceeding with the tendering procedures in respect of this project. I now formally advise that it is not the function of the Commission to concur with the Board's choice of invitees to tender, but indicate that it is satisfied that the Board will be observing the provisions of s.251 (10) (e) of the Electricity Act 1976-1986 if it proceeds in the manner it proposes." One of the five registrants invited to tender was J.M. Kelly (Project Builders) Pty. Ltd. After the State Government declined an invitation to purchase the Board's Bolsover Street property - an offer required by s.251(8) - the Board advised J.M. Kelly (Project Builders) Pty. Ltd. of the acceptance of its tender to construct a new building on other land for about 7 million dollars subject to Cabinet 10 20 30 40 50 50 60 approval. On 1 September, 1987 the Commission advised the Board (see exhibit 35) as follows: "I am directed to advise that Cabinet, on 31 August 1987, approved that the Capricornia Electricity Board undertake a project to construct a new administration building in Rockhampton. ·Pursuant to s.252(1) ... the -Govt. Printer, Qld. 5 60 -- 5 of 18 -- 10 20 30 40 50 60 Commission's approval is hereby given for the Board to enter into two contracts with J.M. Kelly (Builders) Pty. Ltd. to: (a) construct a building on allotment 1 on 0 RP11090 ... for a fixed lump sum price -of ·71050,600 and (b) sell s11b-division one of ,allotmen't 2,"and, sub-division two of allotment 1 of s.43 Parish of Rockhampton County of Livingston for a price of $1,750,000." The property referred to in paragraph (b) is the subject of the Kelly contract. As events transpired, however, it was finally decided that the land would not be purchased by J.M. Kelly (Builders) Pty. Ltd. but instead by the defendant, an associated company of the successful tenderer. (Kelly did not register interest in response to the advertisements in July 1986, but J.M. Kelly (Builders) Pty. Ltd. had done so). With the Commission's approval, the Board executed the contract with Kelly on 20 October 1987. This contract provides for the sale of the two parcels of land in Bolsover Street for the price approved by the Commission·in its letter of 1 September 1987. This brings me to the legal contentions said by Kelly to require that the contract is either (i) unenforceable because it is prohibited by the statute; or else (ii) has been determined by Kelly in reliance on clause 22 of the contract. The evident intent of s.251 is to assure, in the public interest, the integrity and the fairness of decisions by electricity boards to dispose of land and to enter into other contracts of the classes specified. Land is specially treated, for example, by ss. (8) which provides that lands of electricity boards cannot be sold until rights -Govt. Printer, Qld. 6 10 20 30 40 50 60 -- 6 of 18 -- 10 of pre-emption accorded to the State Crown are exhausted. See also ss. (11). The terms of ss. (9) have been mentioned. That sub-section establishes the primary rule. As I have said, there. ha_s n()t b~_en compliance with ss .. (9); nor h.as the alternative of public auction provided for by ss. (11) been adopted. It is in these circumstances that the question arises whether paragraphs (a) or (e) of subs.10 have been satisfied. For only if the answer is in the affirmative might the procedures required by ss. (9) be taken to have been lawfully "dispensed with". The procedure contemplated by paragraph (10) (e) was not implemented. The Board, having registered expressions of interest from prospective purchasers, did not then invite tenders from all of them. The Board was selective, seeking 30 tenders from only five of the registered tenderers. The Board in proceeding in that way acted bona fide, with the informed consent of the Queensland Electricity Commission and the State Government. And the agreement negotiated with Kelly was consistent with the public policy considerations 40 which find expression in the rule ss. (9) expresses. But it is not enough that the Board's arrangements conform to the spirit of the legislation. And because not all "registered tenderers" were asked to tender, the letter of s.251 has not been satisfied. 50 60 The ss. (10) (e) procedure requires the Board to advertise a general invitation to prospective tenderers to record an interest in making a tender in respect of a formulated scheme which, if implemented, would involve the making of a contract of a class referred to in ss. (9)~ The -Govt. Printer, Old. 7 10 20 30 40 50 60 -- 7 of 18 -- 10 20 30 40 50 60 Board's proposal must be sufficiently defined that it answers the description "particular project", and that project must be so described by the advertisement calling for expressions of interest as to attract requests for registration by prospective :tend.erers ... §S. (lO)(E;!L.envisag~s that where there are expressions of interest by more than one "registered tenderer'', all those registered tenderers must be invited to tender. The mischief to which ss. (9) and (10) (e) are directed cannot be adequately addressed unless such an interpretation of paragraph (10) (e) is adopted. Moreover, the sub-section speaks of the Board's inviting tenders from "registered tenderers", not from one or more of them. This language is consistent with the construction of paragraph (e) of subs.lo suggested by the policy considerations mentioned. In this case, as I have said, not all the registered tenderers were invited to tender and the agreement for sale was made with someone other than a registered tenderer. The requirements of ss. (10) (a) have not been satisfied either. S.251(10) (a) permits the ss. (9) tender procedure to be "dispensed with" where the Commission certifies that "an emergency exists or special circumstances exist." What is anticipated is that electricity boards will, where an exemption is sought under paragraph (a), make application to the Commission for the Commission to certify that "special circumstances exist" before concluding a contract of a class specified in ss. (9). It is inherent in the Legislative scheme that such a certificate be granted before the relevant contract is entered into; -Govt. Printer, Old. 8 10 20 30 40 50 60 -- 8 of 18 -- ,,-··. !, 10 30 40 In this case the Commission did not certify that special circumstances existed before the contract was made. The Board, however, points to a letter (exhibit 33) written by the Secretary of the Commission on 8 February 1989. This letter refers to the Commission's letter of 1 s,epte,mber 1987 notifying approval (Exhibit 35) and continues, "Such approval was granted on the understanding that special circumstances existed in regard to the sale of the two Bolsover street properties and therefore the provisions of s. 251 ( 10) ( a) of the Electricity Act 197 6 - 1986 had effect and obviated the need to comply with the provisions of s. 251 (9) of that act." This letter does not suggest that, before the contract with Kelly was concluded, the Commission actually certified as to special circumstances. The Commission may perhaps have formed the opinion that such circumstances exi$ted. But that is not enough. The requirement that the Commission so "certifies" makes it plain that some formal record of that determination must be made. This post-contract communication from the Secretary, if the letter can be regarded as evidencing that the Commission has relevantly certified, is not what the Act requires. As I have said, the language of s. 251 reveals an evident legislative intent that the Commission must so certify "Before any contract" - the opening words of ss. (9) - is made. The next question is whether the failure to comply with s. 251 ss. (9) means that the agreement between the 50 Board and Kelly cannot be enforced. This inquiry essentially 60 is a matter of ascertaining from the language and purpose of the statute whether non-compliance with ss. (9) means that the agreement with Kelly was (1) beyond the Board's actual powers or (2) if not ultra vires, otherwise illegal or -Govt. Printer, Old. 9 10 20 30 40 50 60 -- 9 of 18 -- 10 20 30 40 50 60 unenforceable: cf.Australian Broadcasting Corporation v. Redmore Pty.Ltd. (1989) 166 C.L.R. 454. The problem arises because the Act does not distinctly state the consequences which, so far as the contract with Kelly are concerned, attend non-compliance .. Unhappily, this kind of problem is common. The difficulties •in its satisfactory resolution are evidenced by the differences of judicial opinion often provoked by such questions of statutory interpretation. Redmore is a recent illustration. Attorney-General (Ex Rel Scurr) v. Brisbane City Council [1973] Qd.R 53 contains reference to many earlier cases where the question whether statutory schemes regulating contracts by public athorities were mandatory or else merely directory have been considered: cf. Hunter Brothers v. Brisbane City Council [1984] 1 Qd.R 328, a case decided on subordinate legislation. There is no reason to doubt the Board's power to enter into the Kelly contract. Bys. 102 (1) (b) of the Electricity Act, each Electricity Board is capable in law of "(iii) any taking, acquiring, holding, dealing with and disposing of real and personalproperty and,•(iv) doing and suffering all such acts and things as bodies corporate may by law do and suffer." s. 251 does not state the impact, if any, on contracts concluded in contravention of ss. (9). If the Parliament intended that contracts not made in strict compliance with the section were to be affected, that could easily have been expressed. The author of that Act was familiar with language apposite to indicate an intention that a contract formed in circumstances involving non-compliance should be ineffective. s. 172 deals with agreements between an Electricity Authority and a consumer for the supply of electricity on special terms. A draft of such a proposed agreement is required to be submitted to the Commission. By subsection (2), the agreement, "Shall not be entered into unless and until the Commission has approved of the price -Govt. Printer, Qld. 10 10 20 30 40 50 60 -- 10 of 18 -- 10 30 payable for the electricity and. the other terms and conditions of such agreement." By s . 1 7 2 ( 3 ) :"an agreement entered into in contravention of subsection (2) ~s void and of-no effect whatsoever." Part VII of the Act, in which.s. 251 finds its place, contains no such provision. Nor does the Act elsewhere prescribe the civil consequences of a non-compliance with s.251. Therefore, ifs. 251 (9) has the effect contended for by Kelly, as Mason, C.J., Deane and Gaudron,J J. said in Redmore (at p. 457) of legislation requiring the ABC to obtain prior Ministerial approval for contracts under which the Corporation was to pay more than $500,000, it must be by reason of a legislative intent to be discerned in the words of the section construed in the context of the Act as a whole. Section 251 (9) is in that part relating to "Contracts by and authority for works of Electricity Boards." Section 251 is included in Division I of that Part VII. Division I is headed, "Contracts by Electricity Boards." The controls for which ss. (9) and the latter sub-sections of s. 251 10 20 30 40 40 50 60 provide are therefore co-located with provisions mentioning power to contract (ss.1) and regulating the manner and form of its due exercise: see ss.2. These considerations are some slight indication that ss. (9) may have been intended to confine the power to contract. Yet Part VII is not the exclusive repository of an Electricity Board's power to contract. s. 102 (1) (b) (iii) is in Part III. It confers power on a Board to deal with and to dispose of real and personal property. Accordingly, the mere fact that ss. (9) is in close proximity toss. (1) and (2) does not afford much -Govt. Printer. Qld. 11 50 60 -- 11 of 18 -- 10 20 30 40 50 60 assistance in deciding whethe.r ss. ( 9) is a constraint on capacity to contract as distinct from a provision regulating the manner of exercise of power to contract. Ss. (9) regulates the exercise of the power to contract in respect of sales of land and it does not confine the .. content of -the power. It follows that the sale to Kelly was not ultra vires. But the issue still remains whether the effect of the non-compliance is that the contract made (albeit in good faith) in contravention of s. 251 (9) is void or otherwise unenforceable. -Gnvt. Printer1.. Qld. 12 10 20 30 40 50 60 -- 12 of 18 -- 10 Again, discerning the legislative intent requires the Court to express the unexpressed. However, the Act's proper construction is assisted by these considerations. Firstly, s.172 reveals that the draftsmen could have deployed language apposite to deny enforcement in the civil courts - -~- were it intended to prohibit the making of contracts involving non-compliance with subs.9. Next, the practical consequences of the construction for which Kelly contends may be considered. They are curious : such that the Parliament is unlikely to have intended them. This case affords an illustration. Assume that instead of asking five of the 41 registered tenderers to tender, the Board had invited 40 of them omitting, by oversight, someone without the slightest prospect of actually securing the contract. If the contention advanced for Kelly is correct, a contract 30 with one of the 40 must be unenforceable. Take another possibility. In this case, if the Commission had, as plainly it would have been entitled to do, formed the opinion that there were special circumstances justifying the contract, but failed so to certify before the contract was made, again 40 the contract would, if Kelly is right, fail. That is an absurd result. An intention to achieve it should not quickly be imputed to the Parliament. These and other not fanciful possibilities afford a substantial reason for declining to regard ,as unenforceable a ·contract made in good faith without I 50 60 compliance.with ss. (9). Not only is there no express prohibition on the making of the contract to be found in ss. (9) but also,as I read the provision, there no is implied prohibition. The statute stipulates for sanctions for non-compliance with s.251. They -Govt. Printer, Old. 10 20 30 40 50 60 -- 13 of 18 -- 10 20 are criminal. By s.419, non-compliance exposes a liability to the general penalty. In short:~. there ifs :not to o~, discerned. from the language of the Act or a consideration of its objects, a prohibition on the Kelly contract. This brings me to the second defence. It is based on the contract. Clause 22 provides: "The vendor warrants that all provisions of 'The Electricity Act 1976-1980' which affect this sale andpurchase (and in particular the provisions of s.251 of such Act) have been complied with and that all necessary approvals required to be obtained by the vendor pursuant to the said Act have been contained." In view of my conclusions that: .there was a relevant:·· non-compliance .. with s:251 (9), - if.· clause 22 is an essential term the breach of which entitled Kelly to elect to determine the contract, fail. this action mtist - 10 20 30 30 Is clause 22 an essential term? In this case, there being no evidence of surrounding circurnstances to affect the matter, the answer .depends on whether the contract demonstrates that Kelly would not have entered into the contract unless assured of performance of the Board's 40 40 50 60 promise that s.251 had been satisfied. In D.T.R Nominees Pty. Ltd. v. Mona Homes Pty. Ltd. (1978) 138 C.L.R. 423, at page 341, Stephen, Mason and Jacobs JJ. applied the approach of Sir Frederick Jordan in Tramways Pty. Ltd. v. Luna Park (N.S.W.) LTD. (1938) 38 S.R. (N.S.W.) 632 at page 641-2 in deciding whether a term of a contract is essential or not. His Honour had there said: "The test of essentiality. is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to thepromisee that he -Govt. Printer, Old. 14 50 60 -- 14 of 18 -- 10 30 40 would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the pro~isor ... If the innocent party would not have entered into the contract unless assured of a strict and literal-performance .,of the.,. promise, he may in general treat himself as discharged upon any breach of the promise, however slight." Plainly,· clause 22 is for the purchaser's benefit. It is designed to ensure that the vendor has the requisite statutory authority to contract. This matters particularly to the time between the making of the contract and the date of registration of the transfer (when registration will confer ~ndefeasibility of title on the purchaser) . The Board's warranty minimises the risk of challenges~ to the efficacy of the contract from the Board itself, the Commission or some other third party (for example, the State Government or a disaffected registered tenderer). The clause seems to serve no purpose after registration of a transfer of title. The main consideration tending to support Kelly's contention that clause 22 has the status of a condition is that the clause is not enforceable by an award of other than nominal damages. A purpose for which the clause might therefore have been inserted is -the protection of the purchaser by according a right of termination for breach of the warranty. This factor tends to favour the view that the warranty was intended to be so basic that any breach justified Kelly's rescinding; But there are counterveiling factors. In Ankar Pty. Ltd. v. National Westminster Finance (Australia) 10 20 30 40 50 50 60 Ltd. (1987) 162 C.L.R. 549 Mason ACJ., Wilson, Brennan and Dawson JJ. (at page 556), having adverted to Tramway's Advertising v. Luna Park and to other decisions, said: "In deciding whether a promise has the status and effect of a condition, courts are not too -Govt. Printer, Qld. 15 60 -- 15 of 18 -- 10 20 30 40 50 60 ready to construe a term as a condition and, at least where other considerations are finelybalanced,will hold that a term is of such a kind that breach of it does not give rise to an automatic right to rescind. This approach is explained by a preference for .. a construction that.will,.encourage performance rather than avoidance ofcontractual obligations." There are matters·tend:Lng to suggest.that: Clause 22~was not intended by the parties to have the status of a condition. Firstly, it is expressed only in the languages of warranty - a choice of words which traditionally wou:d be taken to suggest damages rather than resc,ission as a remedy for breach. Next, Clause lB contains some express matters on which the performance by the parties of obligations to perform the contract is expressed to depend. By Clause lB the agreement is "subject to and conditional upon" the execution by the Board and J.M. Kelly (Project Builders) Pty. Ltd. of an agreement to the design and construction of the new administration building and the builder's "bringing the new administration building to the stage of practical completion ... ". Clause 22 was not included as a term to which the performance by Kelly of its obligations under the agreement was expressly subjet:L:·_. Nor does clause 22 contain words distinctly suggesting that it was intended that a breach of the warranty would justify an election to rescind. Yet those who executed the contract had elsewhere used words sufficient to indicate that a right was accorded to determine for non-satisfaction- of a party's obligation. -Govt. Printer, Old. 1 6 ', .. 10 20 30 40 50 60 -- 16 of 18 -- 10 30 40 Clause . 1:-2-· :.of the · cont_ract .:_deals ·with> the ·, obtaining of statutory consents. It goes on to provide that if such a consent is refused or not granted by the completion date, "then either party may by notice in writing to the other terminate this contract .•.. " -No •such provision is made with respect to Clause 22. Such protection as clause.22. affords is not needed after registration of the transfer. · This .is·. ~- another factor favouring the view that Clause 22 does not have the status of a condition. And, as I have said, there is no clear indication in the clause's choice of words that the promise it contains was intended to be fundamental to the obligations the parties assumed under the contract. The preferable construction of Clause 22 is that it is not an essential term. The defence based on Clause 22 also fails. There should, therefore, be a decree of specific performance. Short minutes of order have been brought in by the Board. They have not been criticised. I propose therefore to make orders in accordance with the minutes as follows: it is this day adjudged and declared that the agreement between the plaintiff as vendor and the defendant as purchaser be specifically performed and carried into execution. And upon the plaintiff by its counsel undertaking to lodge with the Registrar the relevant Certificates of Title 50 60 Volume 622 Folio 183 and Volume 387 Folio 103, it is ordered that: (1) an inquiry be had as to the amount to be paid by the defendant to the plaintiff, including interest, provided for in the said Agreement. -Govt. Printer, Qld. 1 7 10 20 30 40 50 60 -- 17 of 18 -- 10 20 30 40 50 60 (2) within 7 days of the Registrar's having determined the amount to be paid by the defendant to the plaintiff the defendant shall pay the said sum into Court. (3) upon the said sums being paid into Court, the Registrar, in exchange for such payment, shall be empowered to and shall hand to the defendant's solicitors the aforesaid Certificates of Title. (4) the plaintiff shall be entitled to the deposit provided for in the said agreement and all interest that has accrued thereon from 30 January 1989. (5) the defendant shall pay the plaintiff's costs of the action to be taxed. (6) each party shall have liberty to apply. -Gqyt. Printer, Old. ,. ·18 ' I ' 10 20 30 40 50 60 -- 18 of 18 --