Turner v Leda Commercial Properties Pty Ltd [2002] ACTSC 49 (31 May 2002)

Last Updated: 11 June 2002

IAN ROBERT TURNER and LYNETTE SHIRLEY TURNER v LEDA COMMERCIAL PROPERTIES PTY LIMITED [2002] ACTSC 49 (31 May 2002)

CATCHWORDS

REAL PROPERTY - leases - Magistrates Court of the ACT - jurisdiction - whether Magistrates Court has jurisdiction to hear dispute about arrears of rent - Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), s 12.

REAL PROPERTY - leases - Tenancy Tribunal of the ACT - jurisdiction - dispute about a lease - meaning of dispute - Tenancy Tribunal Act 1994 (ACT), s 6, s 7.

CORPORATIONS- company in liquidation - directors of company cannot initiate litigation in relation to company without consent of liquidator or leave of court - Corporations Act 2001 (Cth), s 471A.

Corporations Law, s 459H

Tenancy Tribunal Act 1994 (ACT), s 3, s 6, s 7, s 36

Commercial and Retail Leases Code of Practice, cl 123

Rules of the Supreme Court, O81 r 6

Corporations Act 2001 (Cth), s 471A

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), s 12

Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (unreported, Miles CJ, [2000] ACTSC 13, 10 February 2000)

Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Limited [2000] FCA 389; (2000) 171 ALR 17

Walwyn Pty Limited v Kabcon Pty Limited [2000] ACTSC 19, 16 February 2000, Gallop J

Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853

Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271

Peate v Federal Commissioner of Taxation [1962] HCA 64; (1964) 111 CLR 443

Timbarra Protection Coalition Inc v Ross Mining NL (CA) [1999] NSWCA 8; (1999) 46 NSWLR 55

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 54 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 31 May 2002

IN THE SUPREME COURT OF THE )

) No. SCA 54 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: IAN ROBERT TURNER and

LYNETTE SHIRLEY TURNER

Appellants

AND: LEDA COMMERCIAL PROPERTIES PTY LIMITED ACN 008 613 447

Respondent

ORDER

Judge: Gray J

Date: 31 May 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

1. This is an appeal from a decision of a Magistrate dismissing an application to set aside a consent judgment.

The Magistrates Court Proceedings

2. The proceedings in the Magistrates Court relate to a special claim filed on 14 April 1998 which claimed monies due under a Sublease (the Sublease) commencing on 1 September 1994 for a term of five years between Leda Commercial Properties Pty Limited (Leda) (also referred to as the respondent) as lessor and Classic Gourmet Sausages Pty Limited (Classic) as lessee and Ian Robert Turner and Lyn Turner as guarantors (the appellants) under the Sublease. A consent judgment in those proceedings dated 10 March 1999 was filed in the Magistrates Court on 19 July 1999.

3. That consent judgment formed the basis of a statutory demand against Classic pursuant to s 459H of the Corporations Law. An application was made to the Supreme Court to set that statutory demand aside. That application was dismissed by Chief Justice Miles on 10 February 2000 (Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (unreported, Miles CJ, [2000] ACTSC 13). Matters concerning the entry of the consent judgment were in issue in those proceedings. The dismissal by Chief Justice Miles provides the basis for the Magistrate finding in the present case that the appellants and Classic are estopped from raising on the application before her to set aside the consent judgment the matters concerning that judgment that might otherwise have caused it to be set aside.

The Tenancy Tribunal Proceedings

4. At a time before the proceedings had been instituted in the Magistrates Court, a dispute had been notified in the Tenancy Tribunal concerning the Sublease and in particular that Leda had engaged in unconscionable conduct in respect of it. That notification to the Tenancy Tribunal occurred on 3 March 1998.

5. Section 6 of the Tenancy Tribunal Act 1994 (ACT) (the Tenancy Tribunal Act) sets out the disputes to which the Act applies. In particular, subsection 6(1)(b) of the Tenancy Tribunal Act provides that the Act applies to:

"(b) a claim by a party to a lease that another party to the lease has engaged in harsh and oppressive conduct towards the first mentioned party (whether that conduct is unconscionable or not); ..."

6. In determining whether conduct is harsh and oppressive, subsection 36(1)(d) and (f) of the Tenancy Tribunal Act provides:

"(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the tenant or a person acting on behalf of the tenant by the owner or person acting on behalf of the owner in relation to the lease; ...

(f) the extent to which the owner's conduct towards the tenant was consistent with the owner's conduct in similar lease transactions between the owner and other like tenant; ..."

The conduct here in question was particularised in the notice of dispute referred to the Tribunal as merely by reference to "subsection 36(1)(d) and (f)" of the Tenancy Tribunal Act.

7. The proceedings in the Tenancy Tribunal were taken by Ian and Lyn Turner trading as Classic Gourmet Sausages. Those proceedings were summarily dismissed on 17 December 1998. An appeal against that summary dismissal to this Court was dismissed by Higgins J on 19 July 1999. It was on this day that the consent judgment was entered in the proceedings in the Magistrates Court, it having been held by Leda's solicitors until "a decision on the appeal in the Supreme Court is delivered dismissing your client's appeal".

Appeal to the Federal Court

8. However, an appeal to the Federal Court was instituted against Higgins J's dismissal of the appeal from the Tenancy Tribunal and was upheld by Gallop, Hill and Gyles JJ on 3 April 2000 (see Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Limited [2000] FCA 389; (2000) 171 ALR 17). The Federal Court was of the view that the Tribunal erred in exercising a power of summary dismissal (Gyles J also doubting the basis for exercising such a power).

9. Importantly for these proceedings, the court recognised that Classic, not Mr and Mrs Turner, should have been the proper appellant to the Supreme Court (and to the Federal Court). Although Mr and Mrs Turner had conducted the proceedings in the Tenancy Tribunal, and were the directors of Classic, they were not the tenant under the lease. Section 3 of the Tenancy Tribunal Act defines tenant as:

"a person who has the right to occupy premises under a lease, and includes -

(a) a sub-tenant; and

(b) any heir, executor, administrator or assign of a tenant; and

(c) a prospective tenant."

It may also be noted that "party" for the purposes of the Tenancy Tribunal Act is defined:

"(a) in relation to a lease, means -

(i) the owner; or

(ii) the tenant; ..."

10. In relation to the appeal, the Federal Court accordingly ordered:

"(1) [Classic] Gourmet Sausages Pty Ltd be added as party to the appeal.

(2) The appeal of [Classic] Gourmet Sausages Pty Ltd be allowed.

(3) The Notice of Dispute be remitted to the ACT Tenancy Tribunal to be heard in accordance with law.

(4) The appeal so far as it is brought by Mr and Mrs Turner be dismissed."

The liquidation of the company

11. The appeal was heard on 18 November 1999 and determined on 3 April 2000. The proceedings in respect of the setting aside of the statutory demand had been heard on 15 October 1999 and determined on 10 February 2000. The application to set aside the consent judgment was heard on 31 July 2000 and determined on 29 June 2001. However, before the application to set aside consent judgment was heard, on 17 April 2000 a liquidator was appointed and Classic Gourmet Sausages Pty Ltd was wound up.

The parties to the present proceedings

12. Misapprehension as to the proper parties seems to have continued when the application for the consent judgment to be set aside was heard and seems to have also infected these appeal proceedings.

13. When this present appeal was called on Mr R Killalea, who appeared for the appellants and who had also appeared in the Federal Court appeal, sought that Classic Gourmet Sausages Pty Ltd (in liquidation) be joined as a respondent. This same order had been earlier sought in these appeal proceedings. On 12 October 2001, Higgins J heard a notice of motion for this purpose. It was said that the application to Higgins J was "incompetent" or that the order that he had made was. The order had been made by consent of all the parties and on the application of his client, Mr Turner.

14. The action in which the consent judgment had been filed, and which is the subject of this appeal, named Leda as plaintiff, Classic as first defendant and Ian Robert Turner and Lyn Turner as second and third defendants respectively. The parties had all been appropriately named and designated in those proceedings. The particulars of the plaintiff's claim upon which the consent judgment was founded claimed arrears of rent from the first defendant and indemnity in respect thereof on the part of the second and third defendants.

15. The application to set aside the consent judgment was treated by the Magistrate as having been made by all of the defendants to the action although at the time that the application to set it aside was heard, Classic was in liquidation as a consequence of the failure to comply with a statutory demand based on the consent judgment.

16. The original notice of appeal in these proceedings, for some reason which was not explained, named only Ian Robert Turner as appellant. Leda was named as first respondent, Classic and Lyn Turner as second and third respondents respectively. As such, if it is assumed that only Ian Robert Turner was appealing at that stage, the appeal purported to comply with Rules of the Supreme Court O 81 r 6(1) which provides:

"Each person shall be joined as a respondent to an appeal who -

(a) appeared or was granted leave to appeal before the Tribunal at the proceeding in which the decision was made; and

(b) would be effected by the order sought by the notice of appeal, or is interested in maintaining the decision."

17. By Rules of the Supreme Court O 81 r 6(3), the court may order the addition or removal of any party in respect of an appeal. At the interlocutory hearing before Higgins J on 12 October 2001, the liquidator appeared for Classic. It was appropriate for Classic to be removed if Classic did not wish to be a party either as appellant or respondent. It was also appropriate that Mrs Turner be named as an appellant. These were the orders that Higgins J made, as I have said, by consent. The Magistrate's reasons for her decision recites that it was an application by Classic Gourmet Sausages Pty Ltd and its directors, Ian Robert Turner and Lyn Turner; Classic Gourmet Sausages Pty Ltd had, in fact, been placed in liquidation before she heard the matter. The company took no part in the proceedings before the Magistrate and I do not think can be said to have "appeared" in the Magistrates Court for the purposes of O 81 r 6.

18. What seems to have been overlooked in these proceedings up until now is that Classic Gourmet Sausages Pty Ltd (in liquidation) could not have been an applicant on the application to set aside the consent judgment without the consent of the liquidator. Section 471A of the Corporations Act 2001 (Cth) provides:

"(1) While a company is being wound up in insolvency or by the Court, a person cannot perform or exercise, and must not purport to perform or exercise, a function or power as an officer of the company.

(1A) [Limit to application of subs(1)] Subsection (1) does not apply to the extent that the performance or exercise, or purported performance or exercise, is:

(a) as a liquidator appointed for the purposes of the winding up; or

(b) as an administrator appointed for the purposes of an administration of the company beginning after the winding up order was made; or

(c) with the liquidator's written approval; or

(d) with the approval of the Court."

As was evident from the liquidator's appearance before me, neither Mr nor Mrs Turner, the directors of Classic, had the approval of the liquidator to conduct proceedings on behalf of Classic (in liquidation) at the time the application to set aside was made, or now.

19. Accordingly, I saw no reason to disturb the consent order that Higgins J made on the interlocutory application or to now require that Classic be a party to this litigation.

20. That would seem to render the present proceedings before me nugatory as I understand that the purpose of these proceedings is to set aside the foundation upon which the statutory demand was made that put the company into liquidation. Any decision that I might make on this appeal could not set aside the consent judgment against the company. Nor do I consider that it would be appropriate to make any declaration to that effect in these proceedings.

21. Nevertheless, the proceedings before me were pressed on the basis that the consent judgment in the Magistrates Court was null and void and if I should find that it is so with respect to the appellants Mr and Mrs Turner, other proceedings might be taken to seek "to annul the appointment of the liquidator". It is said that unless the company is taken out of liquidation, the order made by the Federal Court remitting the notice of dispute for hearing in the Tenancy Tribunal will not be able to be prosecuted.

22. Without going into the efficacy to the appellants of any decision I might make, I turn to consider the only substantive argument that the appellants in effect put, namely that the Magistrates Court had no jurisdiction to enter the consent judgment against them.

This appeal

23. The Magistrate's decision dismissing the application to set aside the consent judgment proceeded upon the basis that, the issues raised by the appellants were precisely those that were raised in the proceedings before the Chief Justice on the application to set aside the statutory demand.

24. The appeal in these proceedings claimed that:

"The learned Magistrate erred in law in holding that "all defendants are estopped from now seeking to re-litigate those issues in this court"."

25. In submissions, the scope of this ground was narrowed to assert that there had been no express finding by the Chief Justice in the proceedings before him to set aside the Statutory Demand, that gave rise to an estoppel in respect of the issue of the Magistrates Court having jurisdiction in the matter of the special claim. It was then submitted that the Magistrates Court did not have such jurisdiction and that the consent judgment could therefore have no effect and should be set aside. It was this submission that the appellants identified as the error of law to support their appeal from the Magistrate's decision.

The jurisdiction of the Magistrates Court

26. Leda's claim in the Magistrates Court was against Classic for arrears of rent and for the indemnity given by the appellants in respect thereof. The claims arose from Classic's occupancy of the premises under the Sublease. Both claims are personal actions at law not exceeding $50,000.00 within the jurisdiction of the Magistrates Court (s 5 Magistrates Court (Civil Jurisdiction) Act 1982).

27. Reference was made to the complementary provisions of s 7 of the Tenancy Tribunal Act and s 12 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) which provide respectively:

"The Magistrates Court has no jurisdiction in relation to a dispute to which this Act applies."

and,

"The court has no jurisdiction in relation to a dispute to which the Tenancy Tribunal Act 1994 applies."

28. The disputes to which the Tenancy Tribunal Act applies are set out in s 6 of that Act. Subsection 6(1) provides:

"Subject to section 8, this Act applies to the following disputes:

(a) a dispute caused by an alleged breach of a mediated agreement;

(b) a claim by a party to a lease that another party to the lease has engaged in harsh and oppressive conduct towards the first mentioned party (whether that conduct is unconscionable or not);

(d) a dispute about key money in relation to a lease or to negotiations for the entering into of a lease;

(e) a dispute about a multiple rent review clause or a ratchet clause in relation to a lease;

(f) a claim by a party to a lease that another party to the lease has breached or is breaching the code, other than a claim that relates to key money, a multiple rent review clause or a ratchet clause;

(g) a dispute about a lease, being a dispute prescribed by the code as suitable for resolution under this Act;

(h) any other dispute about a lease or negotiations for the entering into of a lease."

Section 8 of that Act provides for the transitional application of the Act to the disputes referred to in s 6.

29. As I have said, Leda's claim in the Magistrates Court was against Classic for arrears of rent and for the indemnity given by the appellants in respect thereof. Of themselves, those claims are not disputes to which s 6 of the Tenancy Tribunal Act applies. However, paragraphs 6 and 7 of the grounds of defence filed in the Magistrates Court state:

"6. In answer to the whole of the Claim, the Defendants say that they are entitled to set-off, against the sum claimed by the Plaintiff, such sums as are payable to the Defendants by the Plaintiff by way of compensation arising from the conduct of the Plaintiff in refusing to give the First Defendant time in which to pay arrears of rent and re-entering the premises on 6 March 1998 without adequate warning.

7. In further answer to the whole of the Claim, the Defendants say that the Plaintiff has purported to distrain for rent in respect of the Defendants' fixtures and fittings in the premises and any outstanding rent obligation has been thereby wholly satisfied or, in the alternative, such distrain was wrongful by reason of the re-entry and the Defendants are thereby entitled to damages and to set off against the sum claimed by the Defendants the amount of such damages."

30. The Magistrate dealt with the jurisdiction argument in the following way:

"As to whether the proceedings were illegal for either being contrary to section 12 of the Magistrates Court (Civil Jurisdiction) Act 1982 or section 7 of the Tenancy Tribunal Act 1994, I am of the view that they were not. In all the material put before me there is nothing that satisfies me there was in fact a dispute about whether the arrears of rent were payable or not. Further, in relation to the second and third defendants, I agree with the submissions of counsel for the plaintiff that the plaintiff's action was in relation to a guarantee and not a lease. Accordingly, for these reasons, I am of the view that the case of Walwyn Pty Limited v Kabcon Pty Limited [2000] ACTSC 19 can be distinguished."

31. In the case referred to by the Magistrate, Walwyn Pty Limited v Kabcon Pty Limited [2000] ACTSC 19, 16 February 2000, Gallop J took the view that a claim for rent allegedly owing under a lease which was denied on the ground that the defendant had assigned their interest in the lease with the plaintiff's consent, was a dispute about a lease and fell within the jurisdiction of the Tenancy Tribunal.

32. Gallop J's decision is predicated on s 6(1)(g) and (h) of the Tenancy Tribunal Act being "about a lease". Section 6(1)(g) of that Act refers to a dispute about a lease, "being a dispute prescribed by the code as suitable for resolution under this Act". The code of practice approved under s 75 of the Tenancy Tribunal Act does not specifically prescribe any dispute as suitable for resolution. Clause 123 of the code does provide for "any unresolved dispute between parties to a lease" to be resolved "in accordance with the process of mediation and referral of disputes to the Tenancy Tribunal set out in the Tenancy Tribunal Act 1994" but arguably that is not the prescription to which s 6(1)(g) refers. If it is, it may be only otherwise confirmatory of the matters enumerated in s 6 of the Tenancy Tribunal Act. Section 6(1)(h) of the Tenancy Tribunal Act refers to "any other dispute about a lease". That provision may be limited by reference to the immediately preceding paragraph or paragraphs in s 6 of that Act. I do not consider that I need resolve these issues as the central aspect of his Honour's reasoning was this:

"The dispute became identifiable when the defendants put on a defence denying any indebtedness in the arrears of rent under the lease. The gravamen of their defence was the assignment of the lease to a third party. The whole context of the dispute was the lease and as a matter of ordinary language, I think that the dispute was about the lease."

33. In the present case, there is no defence denying any indebtedness in the arrears of rent under the lease or as to the liability of the appellants to indemnify Leda in respect of those arrears. Rather, what is put here is that there is a set-off. As far as the set-off is concerned, as to one part, it is based upon a dispute which falls within s 6(1)(b) of the Tenancy Tribunal Act, being a claim by a party to a lease that another party to the lease has engaged in harsh and oppressive conduct towards the first-mentioned party. As to the other part, it concerns distraint for rent as being within s 6(1)(h) of the Tenancy Tribunal Act as arguably being "any other dispute about a lease". Neither of these matters put in issue the question of indebtedness as to the rent arrears or the indemnification of them.

34. Like the Magistrate, I do not see that the claims for arrears of rent and indemnity which are not the subject of contest other than by way of set-off are disputes that fall within the enumerated paragraphs of s 6 of the Tenancy Tribunal Act. The fact that the Magistrates Court does not have the jurisdiction to determine the matters claimed by way of set-off does not of itself mean that it does not have jurisdiction in relation to the claims for arrears of rent and indemnity unless those claims fall within the "disputes" to which s 6 of the Tenancy Tribunal Act refers.

35. There is a distinction that may be drawn between a claim and a dispute. That distinction is clear from the terms of s 6 of the Tenancy Tribunal Act, where two instances of a claim in described aspects are treated as a dispute (see s 6(1)(b) and (f) of the Tenancy Tribunal Act). A claim for arrears of rent or indemnity in respect of those arrears is not of itself a dispute to which s 6 applies. If the claim is disputed by an issue going to the heart of the claim, it may become so as the case of Walwyn Pty Limited v Kabcon Pty Limited (supra) shows. It is not until that point is reached that the question of jurisdiction arises.

36. In the present case, it is said that the dispute as to the arrears of rent was manifest from the proceedings taken in the Tenancy Tribunal by notice of dispute dated 3 March 1998. I have earlier pointed out that notice only complained of unconscionable conduct generally and merely made reference to the provisions of the Tenancy Tribunal Act, in particular s 36(1)(d) and (f). The proceedings for arrears of rent and indemnity were instituted in the Magistrates Court on 14 April 1998. However, it was not until 23 September 1998, on the same date as the grounds of defence were filed in the Magistrates Court, that by document entitled "Particulars of Dispute" filed in the Tenancy Tribunal, it was alleged that Leda "refused to give the applicants time in which to pay arrears of rent". It was not until this time that it could be said that there is a circumstance which might indemnify a dispute about a matter. It is then a question of whether what is constituted by that circumstance is a dispute within the description of s 6 of the Tenancy Tribunal Act.

37. As can be seen both from the Particulars of Defence filed in the Tenancy Tribunal and the grounds of defence filed in the Magistrates Court, what is said to be in dispute is not the arrears of rent but the "refusal" to give time in which to pay them.

38. In these circumstances, I am quite unable to see how there is any dispute about the arrears of rent or any indemnity given under the lease in respect of those arrears so as to say that there is a dispute about a lease which concerns those matters. The claims for arrears of rent and indemnity do not give rise to a dispute to which s 6 of the Tenancy Tribunal Act applies.

The appellants as parties to the lease

39. I am also unable to see how the appellants, as opposed to Classic, can take advantage of an asserted dispute that falls within s 6(1)(b) of the Tenancy Tribunal Act. Section 6(1)(b) makes a "claim" about its subject matter a dispute (cf s 6(1)(a), (d), (e), (g) and (h) which all refer to "dispute"). However, the claim must be by a party to the lease and I am satisfied that the appellants are not parties to the lease. It was put that s 3 of the Tenancy Tribunal Act defines "party" in relation to a lease as the owner or the tenant, and "tenant" as meaning a person who has a right to occupy premises under a lease (including a prospective tenant). It was then said that because the guarantee and indemnity provision in the lease inter alia provided that "The Lessor may treat the Guarantor as a primary debtor and contractor jointly and severally with the Lessee", the appellants, as guarantors, were prospective tenants. That provision is concerned with how a lessor may treat the guarantors, it is not concerned with a right to occupy the premises in prospect. They do not become prospective tenants by reason of that provision in the lease.

40. The argument put to me that the appellants were in fact parties to the lease, was not put to the Federal Court in Turner t/as Classic Gourmet Sausages v Leda Commercial Properties Pty Limited (supra). However, for the reasons that I have just expressed, I am satisfied that it would not have affected the finding implicit in that decision that the present appellants were not parties to the lease. They do not have a claim under s 6(1)(b) of the Tenancy Tribunal Act.

Privity of interest

41. The appellants took up the respondent's written submissions as to there being a "privity of interest" between the appellants as directors and shareholders of Classic, Classic being said to be their alter ego. The respondent's submission related to the appellants being privies of Classic for the purposes of the asserted estoppel (referring to Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 935 and Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271 at 276). That submission does not detract from the treatment of a company as a distinct entity from its members (cf Peate v Federal Commissioner of Taxation [1962] HCA 64; (1964) 111 CLR 443 at 478-81).

42. In any event, I cannot see how that argument avails them. The question of jurisdiction in this case is dependent upon the proper construction of s 6 of the Tenancy Tribunal Act. All the normal rules of statutory construction apply (Timbarra Protection Coalition Inc v Ross Mining NL (CA) [1999] NSWCA 8; (1999) 46 NSWLR 55). Unless s 6 of the Tenancy Tribunal Act is construed so as to bring the claims for arrears of rent and the given indemnity therefor within the ambit of "disputes" referred to in the section, the Magistrates Court will have jurisdiction to deal with those matters. It matters not that the appellants have the same interests as does Classic if the proper construction of the terms of the statute does not include them.

Conclusion

43. For the foregoing reasons, the Magistrates Court had jurisdiction in relation to the claims in respect of which the consent judgment was entered.

44. The appeal is dismissed with costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 31 May 2002

Counsel for the appellant: Mr R Killalea

Solicitor for the appellant: Darryl Perkins

Counsel for the respondent: Mr C Whitelaw

Solicitor for the respondent: Mallesons Stephens Jaques

Date of hearing: 12 April 2002

Date of judgment: 31 May 2002