D & M Pelle Holdings Pty Ltd v Cottrell Pty Ltd [2005] ACTSC 67 (5 August 2005)

Last Updated: 11 August 2005

D & M PELLE HOLDINGS PTY LTD v COTTRELL PTY LTD

[2005] ACTSC 67 (5 August 2005)

DAMAGES - breach of lease - exclusivity clause - commercial lease giving exclusive right to trade in specific goods in shopping centre.

DAMAGES assessment of past and future trading loss - no issue of principle.

The Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64

No SC 47 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 5 August 2005

IN THE SUPREME COURT OF THE )

) No SC 47 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: D & M PELLE HOLDINGS PTY LTD ACN 073 624 790

Plaintiff

AND: COTTRELL PTY LTD

ACN 062 400 837

Defendant

ORDER

Judge: Connolly J

Date: 5 August 2005

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $799,656, plus costs.

1. This is a claim for damages arising from the breach of a lease of commercial premises in a shopping centre development at Kaleen in the Australian Capital Territory known as Kaleen Plaza (formerly Kaleen Village Centre). The plaintiff company held the lease on a serviced delicatessen operation, trading under the name "Deli Planet" at Kaleen Plaza since it opened in 1987. The lease contained a clause which granted the plaintiff the exclusive right to operate a serviced delicatessen business in the centre. It is common ground that this was complied with until April 2002, when a new supermarket opened in the centre, with an extensive serviced delicatessen. The defendant admits that this was in breach of the lease. The real contest at the trial of this matter was accordingly the measure of damages.

2. The plaintiff's case was that, although the serviced delicatessen business generally was difficult, the nature of the particular lease, granting exclusivity, meant that the plaintiff's business had traded strongly and profitably until the competing business opened, and that since that time the plaintiff's business had ceased to be profitable.

3. The defendant's case was that the plaintiff company had not made real efforts to compete and had not improved or upgraded the fit out of the delicatessen. Extensive expert evidence was lead concerning the nature of the retail industry, and the efforts that must be made for a specialist delicatessen business to successfully compete with a major supermarket that also operates a serviced delicatessen. Much of this evidence, it seems to me, did not really assist the defendant's case. Mr Dominic Pelle, the principal of the plaintiff company, acknowledged that over the years the serviced delicatessen business generally had been in decline. Indeed, he had previously been involved in a number of serviced delicatessen businesses in major retail centres, but had got out of those businesses because, in his view, they were in long-term decline. The plaintiff's case was that the unusual nature of this lease meant that, so long as the exclusivity clause was complied with, the business had been profitable, but that as soon as a larger serviced delicatessen opened in the supermarket offering the same but more lines at a lower price, the plaintiff's business ceased to be viable.

The Nature of the Plaintiff's Business

4. Mr Pelle has had considerable experience in various retail operations in Canberra for many years and during the 1970's had interests, by himself and with his brother-in-law, in a number of serviced delicatessen businesses around Canberra in suburban shopping centres. It is common ground that in the negotiations between the plaintiff and the defendant for the grant of this lease, Mr Pelle sought and obtained an exclusivity clause, stating that the plaintiff was granted the exclusive right to operate within the centre as a serviced delicatessen.

5. At the time the business opened, the principal tenant, referred by various experts in retailing as the "anchor tenant" was Jewel Supermarket. This tenant operated a discount supermarket operation, which included the sale of delicatessen items on a non-service basis, and this was expressly permitted in the exclusivity clause in the plaintiff's lease. Patrons could purchase pre-sliced and sealed hams, smallgoods and cheeses from the Jewel Supermarket, but patrons who wanted service delicatessen items would obtain them from the Deli Planet.

6. The lease was for an initial period of three years, with a three-year option. Clause 7 provided:

The Lessee shall use the premises as a delicatessen (including the sale of fresh and cooked chickens but not cooked chips) and shall not use or suffer the premises to be used for any other purpose or activity without the prior written consent of the Lessor. The Lessor covenants that the Lessee shall have the exclusive right to operate within the Kaleen Group Centre as a serviced delicatessen provided that the Lessee acknowledges that the sale of delicatessen lines on a non-serviced basis at the supermarket and that the proper conduct of the permitted use of the butchers premises, the take-away food premises and the coffee shop premises within the Kaleen Group Centre shall not constitute breaches of the exclusivity hereby conferred.

7. It is common ground that the plaintiff traded successfully as a delicatessen throughout the life of this lease. A new lease was negotiated and executed on 27 September 1996 for a period of five years with two five-year options. Clause 54 of that lease contained an exclusivity clause in the following terms:

EXCLUSIVE RIGHTS

54 The Tenant shall have the exclusive right to operate within the Kaleen Shopping Centre as a serviced Delicatessen provided that the Tenant acknowledges that the sale of the Delicatessen lines on a non-service basis at the Supermarket and the proper conduct of the permitted use of the Butcher's premises and the Take Away Food premises and the restaurant in the Centre shall not constitute breaches of the exclusivity rights granted to the Tenant by the Owner.

8. Mr Pelle gave evidence that during the 1990's his other delicatessen businesses, which operated in other centres without the benefit of an exclusivity deal, were finding trading conditions increasingly difficult as major supermarket operators such as Woolworths and Coles began opening and expanding full service delicatessen operations within their supermarkets. Mr Pelle got out of the delicatessen business at the major town centre shopping complexes at Woden and Tuggeranong, and commenced a new business as a restaurant. This business trades under the name "Zeffirelli", originally at Dickson and later also at Belconnen, and remains a successful business. Mr Pelle said that he made the business decision that, in the face of increasing rents and competition, the delicatessen business at the major shopping complexes did not present as favourable a business opportunity as a restaurant, but that at the Kaleen Plaza the Deli Planet, with the benefit of the exclusivity clause, continued to trade profitably and strongly. The financial records support this claim.

9. Mr Pelle said that in January 1999 he raised with the defendant's managing agent concerns that the Jewel Supermarket would be sold and that new owners might operate a different format of retail operation including a full service delicatessen. He reminded the defendant of the exclusivity clause.

10. In March 1999 the former Jewel Supermarket reopened under the name of Supabarn, but the supermarket did not operate a serviced delicatessen. The plaintiff's business continued to operate profitably, although 1999 was a lower year than previous years. The plaintiff again raised concerns with the defendant in November 2000 that Supabarn was planning to open a competing serviced delicatessen. Mr Pelle said that he would normally have undertaken an extensive refit of his store in about 2000 or 2001, and did obtain some preliminary quotes for this work, but he did not make the investment because he had ongoing concerns that the operators of Supabarn would refit their store to include a competing serviced delicatessen.

11. In July 2001 the plaintiff exercised the first five year option to renew the lease with the exclusivity clause. Mr Pelle says that by early 2002 he was concerned that Supabarn, which had purchased and expanded into the premises of a former adjoining fruit shop, was undergoing a refit that appeared to include "a huge deli counter. It was double ours, if not more". He said that when this opened in April 2002 there were "8 or 10" staff working on this serviced delicatessen area. He said that his business went into almost immediate decline because of his business selling less products, and having higher levels of wastage, being pre-sliced unsold products that would have to be disposed of at the end of the trading day. This is supported by the financial records.

12. He said that the delicatessen in the supermarket began aggressively discounting products, particularly hams and chickens. He said that he noticed that the supermarket would heavily discount cooked chickens late in the trading day, and sell them at a price lower than his cost price. He said that he had always operated his business on a reasonable margin, seeking to maintain profit by volume, which gave him limited scope to cut prices, but that he did seek to compete on price, only to find that the supermarket would further discount.

13. I accept the truth of what Mr Pelle said in relation to this, and it is reflected in the books of his business, which reveal a marked decline following the opening of the competing business. This is not to criticise the conduct of the supermarket. It was not constrained by its lease terms as granted by the defendant, and it was simply doing what any trader is free to do in the marketplace, that is, use a superior market position to maximise its own position in a market place and give consumers wider choice and lower prices. Mr Pelle gave evidence that former customers had expressed the view that they now shopped at the supermarket because it was both cheaper, and more convenient to do all their shopping at the one place.

14. But for the exclusivity clause in the lease giving rise to this action against the landlord, the plaintiff would have no legal basis for challenging the conduct of the supermarket, which, it seems to me, was doing no more than other modern food retailers in seeking to provide a full range of food products, including a full service delicatessen, for its customers.

Did the Plaintiff fail to mitigate loss?

15. Having conceded that the defendant was in breach of the exclusive lease term, the defendant's arguments at the hearing were principally confined to disputing the extent of the claimed loss, by way of arguing that the plaintiff ought to have been able to mitigate the loss by competing more effectively with the supermarket delicatessen.

16. The defendant called evidence from Mr Francis Loughran, an experienced expert in retail operations around Australia and internationally. His report set out an overview of the nature of the Kaleen Plaza shopping centre, which commenced with a discussion of the "ACT Retail Hierarchy". The report states:

The ACT retail network comprises:

* The city centre, Civic, plus 3 major suburban shopping centres located in town centres (Belconnen, Woden and Tuggeranong).

* 18 Group Centres comprising typically of a major supermarket (Coles/Wooloworths) and a selection of specialty stores and services.

* Approximately 75 Local Centres comprising a small independent grocer and several specialty shops.

17. Mr Loughran's report placed the Kaleen Plaza within the category of "Group Centres". It seems to me that this is clearly correct, and that this goes to a significant flaw in Mr Loughran's report, which concludes that the plaintiff could have competed successfully with the service delicatessen in the supermarket had certain retail strategies been adopted. Mr Loughran's report looked at a number of stand-alone full service delicatessens which operate in competition with a service delicatessen within a supermarket, and concluded that:

... all delis appear to compete well with full service deli supermarkets. Given that each of these delis has been operating for a number of years, I conclude, if a deli is well run, it can operate profitably in competition with a full range supermarket.

18. This conclusion was based on "a review of five other deli operations in Canberra, namely Edelweiss Gourmet Deli (Woden Plaza), Top Slice Deli (Civic Centre), The Deli Corner (Tuggeranong Hyperdome), Gourmet Deli (Westfield Belconnen) and Woolworths Deli (Gungahlin Town Centre)". The lastnamed operation is of course a delicatessen section of a full range supermarket located in a group centre, and is, it seems to me, quite irrelevant, being the competing supermarket rather than an independent delicatessen. The other businesses examined by Mr Loughran are all situated in either the city centre or the major supurban shopping centres.

19. A stand-alone delicatessen in such a location is, it seems to me, in an entirely different position to a stand-alone delicatessen in what Mr Loughran's report has called a group centre. Woden Plaza, Tuggeranong Hyperdome and Westfield Belconnen are all major town centre shopping centres that combine a range of supermarket operators with retail department stores (Myer or David Jones), cinemas, discount department stores (Kmart, Big W, Target), and a wide range of specialist retailers. I accept Mr Loughran's evidence that it is possible for a successful business person to run a service delicatessen in such a centre in competition with a supermarket. I also accept Mr Pelle's evidence that in years past there were a number of full service delicatessen in these centres, but now each town centre supports only the one service delicatessen identified by Mr Loughran. The operators of some of these businesses were served with subpoenas to produce financial records, and these were provided to the court. I see no need to reproduce this material in this judgment, save to say that it demonstrates that, in Civic itself, or a major town centre shopping complex, it is possible for a prudent business person to run a successful delicatessen in competition with a supermarket.

20. But this is an entirely different environment to the Kaleen Plaza shopping centre. This is a group centre, one rung down the "ACT retail hierarchy". Mr Loughran's report referred to the ACT Government's definition of a group centre, being -

the dominant role is focussed on the provision of major food retailing serving the group of nearby suburbs.

21. I accept this definition. It seems to me that it follows that it is quite inappropriate to compare an operation in a group centre with an operation in a town centre. The defendant's expert evidence shows that a delicatessen can operate in competition with a major supermarket with an in-house service delicatessen in the Civic Centre or a major town centre. These are very large retail operations, with a vast range of choice to attract patrons, including entertainment, fashion, whitegoods, electronics, and specialist retail services. There is no evidence that a stand-alone delicatessen can withstand such competition in a group centre where there is a full range supermarket and a limited range of speciality shops such as that at Kaleen Plaza, being a butcher, baker, hairdresser and newsagent. There was no evidence that there is a stand-alone delicatessen in Canberra operating successfully in competition with a full service supermarket delicatessen in a group centre similar to Kaleen Plaza.

22. The defendant, in written submissions filed by leave after the hearing asserts that -

... bearing in mind the evidence of other successful competing delicatessens in analogous situations, while conceding the absence of directly comparable evidence, that a reasonable effort, even without a complete re-fit but employing simple inexpensive techniques including exclusive lines, would have reduced the losses by at least 50 per cent.

23. The difficulty with this submission is that, as I have concluded, the evidence of the successful stand-alone delicatessens in major town centre shopping complexes cannot be seen as an analogous situation, and the assertion that other techniques could have prevented a loss of profit by 50 per cent is a bare assertion.

24. Mr Loughran did observe that some successful delicatessens seemed to provide unusual or exclusive lines, and indeed a photograph of one of the businesses said to be analogous showed that it claimed to provide a line of specialist Scottish foods. There was no evidence of any demand for such products in Kaleen. Mr Pelle gave undisputed evidence that the delicatessen in the supermarket had considerably more counter space than he had available, and a greater number in staff. Any attempts by him to move into new areas would, it seems, be simply matched by the larger store.

25. Mr Loughran observed that the Deli Planet had a dated look, and that its fit-out was not comparable with the successful deli operations that he looked at in the major town centres. I accept Mr Pelle's evidence that he had contemplated a refit in about 2001, but that because of his concerns about the likely opening of a competing business in a supermarket, he decided not to make this investment which would have been in excess of $100,000. I accept his evidence that this was a prudent business decision, and I am not satisfied that this would have made any real difference. That said, it is significant that, had it not been for the breach of the lease, the plaintiff would have undergone a substantial refit, and this must be reflected in the claim for loss of future profit.

26. Mr Loughran also gave evidence about the contrasting nature of the Zefferelli restaurant business operated by the Pelle family. He was most complimentary about the fit-out and standard of retail service provided by this business. He said:

In my opinion, the skills required to run a successful food service business such as Zefirelli and apply general good retail management principles are equally applicable to the operation of a delicatessen. The poor presentation of Deli Planet is in marked contrast to the seemingly viable and well presented Zeffirelli's operation.

27. It seems to me that this goes only to show that those behind the plaintiff company, principally Mr Pelle and his wife, are prudent and successful business people. I accept Mr Pelle's evidence that some years ago he realised that the ongoing viability of stand-alone delicatessen businesses was questionable in the face of competition from large supermarkets with full service delicatessen sections, and got out of the delicatessen business in a number of locations in Canberra. The family then invested in an apparently successful restaurant business, but maintained a viable and profitable delicatessen operation at Kaleen, due, it seems to me, to the exclusivity clause in the lease. I accept Mr Pelle's evidence that it was a prudent business decision to not invest heavily in a refit of the Deli Planet operation at the Kaleen Plaza when the larger full service delicatessen commenced its aggressive pricing competition.

28. Mr Loughran also gave evidence, orally and in his report, that the butcher remains viable at Kaleen despite a meat service offered by the supermarket. So it does, but apparently, also so do butchers in other group and local shopping centres in Canberra. That even a local set of shops can maintain a butcher and a baker in competition with a local independent supermarket that offers a limited pre-packaged meat range does not, it seems to me, say anything about the viability of a service delicatessen operation. There is simply no evidence in the defendant's case, it seems to me, to show anything that the plaintiff could or should have done to remain viable once the supermarket opened with a larger service delicatessen able to offer a broader range of products at a lower price in the context of a group shopping centre. There was no evidence of any viable stand-alone delicatessen in Canberra withstanding such competition. Accordingly, I find that the breach by the landlord of the lease clause which guaranteed exclusivity was the sole cause of the plaintiff's loss.

29. I make the observation that the plaintiff warned the defendant before the supermarket opened that any competing full service delicatessen would be in breach of the lease. I can understand, from Mr Loughran's evidence, that the defendant may have been in a position of some difficulty with the closure of the Jewel Supermarket and the opening of a new group shopping centre at Gungahlin, some kilometres away, which contained a large Woolworths supermarket with a full service delicatessen. I note what Mr Loughran said about the ever changing nature of retailing, and it may well be that the restricted supermarket offering of the old Jewel was a dated concept, and that to continue to attract patrons to the Kaleen Plaza, a full service supermarket was the only appropriate tenant. But if this was the case, the defendant had the option of coming to a commercial settlement with the plaintiff. Instead, and despite being warned explicitly about the exclusive clause in the lease, it chose to allow Supabarn to expand and refit and open a large full service delicatessen. It must, therefore, compensate the plaintiff for its loss.

Damages

30. I am satisfied that the defendant's conduct in acting in breach of the lease has caused the plaintiff's loss, and I am satisfied that the plaintiff has acted prudently and reasonably in seeking to mitigate that loss. I am not satisfied that the plaintiff's decision not to spend in the order of $100,000 to refit the store was a failure to mitigate the loss, as I am not satisfied that this would have made any real difference. The plaintiff enjoyed a favoured position as a tenant with an exclusivity clause, and it was the breach of this clause that opened the plaintiff to competition that it was unable to match. The defendant granted the exclusivity clause and so must deal with the damages claim. I note that, after instituting these proceedings in January 2003 the plaintiff sought an order which was granted in September 2004 to terminate the lease, thus reducing further ongoing trading loss and loss of profit. This was a sensible step.

31. The evidence is that, following many years of profitable trading, the plaintiff's business went into sharp decline following the breach, to the point that, rather than making a profit, there was an actual loss on trading in the years before the closure in late 2004.

32. The general approach a court should take in assessing damages for breach of contract is well settled. As Mason CJ and Dawson J said in The Commonwealth of Australia v Amann Aviation Pty Limited (1991) 174 CLR 64 at 80 -

The general rule at common law, as stated by Parke B in Robinson v Harman (1848) 154 ER 363, is "that 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". This statement of principle has been accepted and applied in Australia (see Wenham v Ella (1972) 127 CLR 454 at 471 per Gibbs J).

The award of damages for breach of contract protects a plaintiff's expectation of receiving the defendant's performance. That expectation arises out of or is created by the contract. Hence, damages for breach of contract are often described as "expectation damages". The onus of proving damages sustained lies on a plaintiff and the amount of damages awarded will be commensurate with the plaintiff's expectation, objectively determined, rather than subjectively ascertained. That is to say, a plaintiff must prove, on the balance of probabilities, that his or her expectation of a certain outcome, as a result of performance of the contract, had a likelihood of attainment rather than being mere expectation.

33. The plaintiff's claim for damages falls into four categories:

* Past loss on trading

* Past loss of profit

* Interest on past loss

* Future loss of profit

34. In this case the plaintiff company had run the delicatessen at the Kaleen Plaza for a number of years, and full financial and taxation records were properly discovered, and available for experts on both sides. Mr Pelle has for a number of years been involved in other business ventures, and it was his uncontradicted evidence that the delicatessen has been operated for many years by an employed manager, under his general supervision. He says that the business would, but for the breach of the lease, have continued to operate in this way, and I accept this.

35. Expert evidence in relation to damages was provided in the plaintiff's case by Mr Andrew Maroc, a certified practicing accountant, who has been an accountant for Mr and Mrs Pelle and their associated companies since 1994. An expert report for the defendant was provided by Mr Greg Meredith, a partner in the accounting firm of Ferrier Hodgson. Both experts gave oral evidence, and both experts impressed me by giving their evidence in an objective and professional manner, assisted as they were in this case with extensive financial records of a business that had operated at a relatively stable level of financial performance over many years until the breach occurred.

36. The plaintiff also relied on an expert report from Mr Gilbert, a qualified valuer and principal of the firm Queensland Lease Consultants. While much of his report went to the question of the impact of the breach on the plaintiff's operation, and whether the plaintiff could have better mitigated its damages by responding to the new competition from the supermarket, he also provided some calculations going to quantification of damages, again drawn from the discovered financial records.

Past actual trading losses (from breach to termination of trading)

37. In supplementary written submissions going to damages, Mr Meagher SC, counsel for the plaintiff, accepted that the figure determined by Mr Meredith for past loss on trading, being $363,222 was the appropriate starting figure for this component, agreeing that the approach taken by Mr Meredith on issues of depreciation was appropriate. As I have determined that Mr Pelle did not fail to take appropriate steps to mitigate his loss, it seems to me that this is the appropriate sum to award under this head of damages.

Past loss of profit

38. There was some degree of discrepancy in the approaches taken by the three experts who reported on this question, although their conclusions are not wildly out of step. Mr Maroc took an average profit of $60,000 over the 3.25 years from the breach to the termination of the business, for a starting figure of $195,000. Mr Gilbert reached a figure of $195,775.

39. Mr Meredith reached a starting point of $161,213. Much of this difference is due to a disagreement over the period for which the average profits pre-breach is taken. It is common ground that 1999 was a less favourable year, with a lower profit. Mr Meredith took this year into account, and the others did not.

40. It was common ground among the experts that some adjustment to the figures would need to be taken to reflect inflation. Counsel for the plaintiff submitted that, if inflation is properly taken into account, the appropriate loss of profit over the period of actual trading would be $177,372. I accept this figure as being appropriate.

Interest on past loss

41. It is appropriate to award interest on the past loss, and to assume the loss would have been a regular and ongoing loss. The appropriate approach is thus to halve the normal interest rate of 9 per cent and award interest on the awarded past loss sums of $363,222 together with $177,372, being a total of $540,594, which generates interest to trial of $79,062.

Future loss of profit

42. Projections of future loss of profit inevitably brought more controversy between the experts than assessments of actual trading and profit losses over the relatively short period between the breach of the lease and the closure of the business.

43. I am satisfied that, given the stable nature of the business, the lease would have been extended, so that I should look at the period to the end of June 2011.

44. It was common ground that, had the plaintiff continued with the business, an extensive refit of the store would have been necessary, and I take this into account.

45. Mr Meredith adopted a present value approach to assessment of future profit, adopting a discount rate of 20 per cent, to reach a figure of $174,951.

46. Mr Maroc calculated an undiscounted future profit by calculating out a notional average profit of $60,000 to the end of the lease period, giving a figure of $687,819. It seems to me that this approach fails to take into account the need for additional expenditure for a refit, and is also unrealistic in not adopting a discount for the inevitable contingencies of business conditions over a six year period. Mr Meagher acknowledged that this would need to be adjusted, but suggested an approach based on that of a personal injuries plaintiff, of taking a present notional annual loss and, with appropriate discount for contingencies and adjustment for present value, produced a figure of some $304,000.

47. Mr Harrison, for the defendant, submitted that the personal injuries approach was inappropriate for looking at future business profits and I accept this submission.

48. It seems to me that there is a striking similarity between the loss of profit figure calculated by Mr Meredith of $174,951 (the calculations being set out at length in his report and gone through in oral evidence), and Mr Maroc's report which provides, in addition to his notional and undiscounted profit stream, a notional sale value of the business (assuming the life of the lease and extension to 2011), but excluding trading stock, would be $180,000.

49. A purchaser of a business in leased premises is, in effect, purchasing a future profit stream. Evidence was given that the present value of plant and equipment in the delicatessen was negligible, and it was common ground that a full refurbishment would have been necessary had the breach not occurred. Mr Maroc's notional purchase price thus really reflects the present value of expected profits. This, it seems to me, provides a useful cross check on Mr Meredith's calculation, leading to a conclusion that an appropriate figure for future loss of profit is $180,000.

50. This amounts to a total award of -

Past trading loss $363,222

Past loss of profit $177,372

Interest on past loss $ 79,062

Future loss of profit $180,000

Total award: $799,656

51. It seems to me that this is appropriate in all the circumstances, and I award this sum. I make the observation that, on the evidence in this case, the plaintiff clearly brought to the defendant's attention the existence of the exclusivity clause before the defendant chose to breach that clause and permit the new shopping centre tenant to open a competing business. Clearly, at this point, there was an opportunity for the defendant to negotiate a commercial resolution of the matter by, if necessary, purchasing the plaintiff's business. That it chose not to, and so exposed itself to a claim for damages, is solely its own responsibility.

52. There will be judgment for the plaintiff in the sum of $799,656, plus costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 5 August 2005

Counsel for the plaintiff: Mr B Meagher SC

Solicitor for the plaintiff: Tetlow Tigwell Watch

Counsel for the defendant: Mr C Harrison

Solicitor for the defendant: Deacons

Dates of hearing: 20, 21 and 22 June 2005

Date of judgment: 5 August 2005