Holler v Osaki [2014] NZHC 1977; [2014] 3 NZLR 791; [2014] NZAR 1001; (2014) 15 NZCPR 415 (20 August 2014)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4548 [2014] NZHC 1977

BETWEEN	ANDREAS LUIGI HOLLER AND KATHARINE MARY ROUSE Appellants
AND	KENJI OSAKI First Respondent
AND	TEIKO OSAKI Second Respondent

Hearing:	27 February 2014
Appearances:	J W A Johnson and E J Walton for Appellant D G Collecutt for Respondents
Judgment:	20 August 2014

_{JUDGMENT OF KEANE J}

This judgment was delivered by me on 20 August 2014 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Wynn Williams, Christchurch

Simpson Dowsett Mackie, Mt Roskill, Auckland

HOLLER AND ROUSE v OSAKI [2014] NZHC 1977 [20 August 2014]

[1] On 19 March 2009 an Auckland rental property owned by the appellants, Andreas Holler and Katharine Rouse, was extensively damaged by fire. The second respondent, Teiko Osaki, the wife of their tenant, the first respondent Kenji Osaki, distracted by their children, left unattended on the stove a pot containing three centimetres of oil, turned to maximum heat. The oil boiled over and ignited. The appellants’ insurer, AMI Insurance Limited, met the cost of repair, $216,413.

[2] Mr Holler and Ms Rouse brought an action in this Court and applied for summary judgment contending that, as a result of Mrs Osaki’s negligence, Mr Osaki was in breach of their tenancy agreement, dated 15 September 2006, which obliged him, and necessarily Mrs Osaki, ‘to take all reasonable precautions against the outbreak of fire’, and imposed on him a duty of repair.

[3] The Osakis opposed this application and entered a protest to jurisdiction. Under the Residential Tenancies Act 1986 (RTA), they contended, the Tenancy Tribunal had exclusive jurisdiction. The claim made, they contended, was barred by ss 268 and 269 of the Property Law Act 2007 (PLA), which exonerate lessees from liability for fire damage caused by their negligence or that of their licensees. The Osakis also contended that they had settled any claim against them with Mr Holler and Ms Rouse.

[4] On 7 May 2012 Associate Judge Abbott stayed the summary judgment application. He held that under the RTA the Tribunal did have exclusive originating jurisdiction and that, while the claim exceeded $50,000, the limit of the Tribunal’s jurisdiction, it still had the ability to decide whether the claim was barred by ss 268 and 269. If the Tribunal held that the claim was barred, that was fatal to the application. If the Tribunal held it was not barred, the application could proceed.

[5] On 2 July 2012 the Osakis applied to the Tenancy Tribunal for orders declaring that the claim was barred under the RTA by ss 268 and 269 PLA. The Tribunal did not agree. On 23 October 2009 it decided that ss 40 and 41 of the RTA, which make tenants liable for the damage they or their licensees cause, applied uninhibited by ss 268 and 269.

[6] On 27 September 2013, in the District Court, Judge Mathers upheld the Osakis’ appeal. The Tenancy Tribunal, she held, was bound to determine the Osakis’ liability taking into account, indeed giving effect to, ss 268 and 269. On this appeal the Judge is contended to have misconstrued the RTA, in that way most fundamentally.

[7] The issue on this appeal involves, therefore, the extent to which the PLA, Part 4 of which governs leases generally, applies to residential tenancies, a form of tenure created and governed by the RTA. More particularly, as it relates to Mr Osaki, it involves two questions. In imposing liability on tenants for fire damage, does the RTA incorporate by reference ss 268 and 269 of the PLA, insofar as they exonerate tenants from liability? Or does it deny them any operative effect?

[8] This issue has an historical dimension, to which I will come shortly. It also has a policy dimension, as to the merit of extending to residential tenancies the risk allocation ss 268 and 269 make in leases generally. That is beyond the scope of this appeal. There is as well a derivative issue concerning Mrs Osaki. If Mr Osaki is immune from suit under s 268 and 269, does that immunity extend to her?

Grounds of appeal

[9] The appellants contend, first, that there can be no issue as to their primary cause of action. Mrs Osaki negligently left boiling oil unattended on the stove and caused the fire. That would have been a breach of cl 8(l) of the agreement, had it been Mr Osaki’s act. He is liable for her negligence under s 41(1).

[10] Secondly, they contend, Mr Osaki cannot be exonerated from that liability by ss 268 and 269. Before the PLA was enacted a tenant, who caused fire damage and did not have the benefit of the landlord’s insurance, was liable personally and vicariously.¹ That remains so, they contend, because ss 268 and 269 only exonerate commercial lessees from liability. Those sections do not extend to tenancies under the RTA. Section 142(1) of the RTA expressly says that Part 4 of the PLA does not

_{apply. Section 8(4) of the PLA makes the RTA paramount.}

¹ Murdoch v Air Pacific [1994] DCR 46; Harrison v Shields DC Dunedin NP435/00, 25

September 2002.

[11] Thirdly, they contend, s 142(2) may require the Tribunal, in exercise of its jurisdiction under s 85, to look to Part 4 of the PLA as a source of general principles of law. But that can only be when the RTA itself is silent. When it is not silent, it displaces the PLA. Sections 40 and 41 trump ss 268 and 269.

[12] Fourthly, they contend, Mrs Osaki was not at the time a tenant in the strict or extended sense. Nor was she ‘an agent of the tenant’. Even if Mr Osaki is exonerated by ss 268 and 269, that immunity does not extend to her.

Historical dimension

[13] In 1991 the New Zealand Law Commission issued a discussion paper proposing reforms to the Property Law Act 1952.² The Commission proposed that, where an insured leasehold property is damaged by fire or by another insurable event, and the damage is attributable to the negligence of the lessee or the lessee’s licensee, the lessee should be immune from any claim by the lessor, or the lessor’s insurer by way of subrogation.

[14] The underlying economic reality then was, the Commission said, that the lessor could be anticipated to have insured the property, and to have imposed on the lessee all or most of the cost, either specifically or as an element of the rent. Yet in many cases, the lessee was uninsured and often assumed that the lessor’s insurance would protect them. How liability was then allocated under leases or tenancies differed idiosyncratically. The then case law was inconsistent. The lessee was unacceptably exposed.

[15] In 1994, in its report ‘A New Property Law Act’, the Commission went further.³ It recommended that lessees be immune from claims even where the lessor was uninsured or underinsured. But, to balance that, it also proposed that the lessor be able to obtain from the lessee a waiver of that immunity by express agreement. In the event, ss 268 and 269, and related sections, give the lessee immunity for loss attributable to their negligence or that of their licensees. They and related sections

_{also restrict the ability to contract out; a measure that benefits lessees still further.}

² Law Commission The Property Law Act 1952 (NZLC PP16, 1991).

[16] In its 1991 preliminary paper the Law Commission also proposed that, in the case of residential tenancies governed by the RTA, tenants should have equivalent immunity. The Commission said this:⁴

The Residential Tenancies Act 1986 does not grapple with the problem. Section 40(2)(a) requires that the tenant shall not ‘carelessly damage, or permit any other person to damage, the premises’. Tenants are responsible for the actions of their licencees (s 41). Section 59 provides that on destruction of, or serious damage to, the premises, either party can terminate the tenancy by notice to the other. The Act is silent on the question of insurance. Any reforms should therefore extend to residential tenancies.

[17] The law as it then was, leaving all lessees and tenants exposed to risk, remained in place until the PLA was passed in 2007. And, in the meantime, the Commission’s concern about that risk, as it related to tenants of residential tenancies, proved prescient in one case certainly. In 2002, in a landlord’s claim against tenants in the District Court for in excess of $80,000 for fire damage, the landlord, in reality the landlord’s insurer, obtained judgments against them all regardless of fault.⁵

Unusually, the Judge said also, that outcome was unjust, and for much the reasons

the Commission had identified. He recommended reform.

[18] In 2006, the Residential Tenancies (Damage Insurance) Amendment Bill, was tabled in Parliament to require landlords to insure, and to render tenants immune from claims by their landlords or by their landlords’ insurers. The select committee to which this bill was referred, the Social Services Committee, recommended that it not be passed, but be considered instead as part of a more general review then being made of the RTA.

[19] In 2008, following that review, the then Government tabled in Parliament the Residential Tenancies Amendment Bill (No 2), one key proposal of which, according to the explanatory note, was to:

limit a tenant’s liability for damage to four times the weekly rent if the

Tenancy Tribunal ... or a Court is satisfied that the tenant did not –

cause the damage intentionally or recklessly; or

⁴ The Property Law Act 1952, above n 2 at [456].

intentionally or recklessly encourage or permit another person to damage the premises.

[20] There was a change of Government, before the bill was passed into law, and that key proposal did not find a place in the Residential Tenancies Amendment Act

2010. The Social Services Committee, after the change of government, declined by a majority to support the proposal. The minority, the former Government, expressed regret.

[21] In the result, the RTA does not expressly exonerate tenants from personal and vicarious liability for fire damage. But that, without more, cannot be decisive. To assume that it is decisive is to assume that the RTA needed to be expressly amended. Whether that is so remains a matter of interpretation.

Critical RTA sections

[22] There appears to be no issue on this appeal that, but for ss 268 and 269, Mr Osaki is answerable under ss 40 and 41 of the RTA for the loss suffered as a result of the fire, assuming that it is either conceded or proved that the fire resulted from Mrs Osaki’s negligence, and that there was no settlement.

[23] Section 40(2)(a) says ‘the tenant shall not – intentionally or carelessly damage, or permit any other person to damage, the premises’; the duty imposed as to fire risk by the tenancy agreement itself. Section 40(4) then goes on to say:

Where any damage (other than fair wear and tear) to the premises is proved to have occurred during any tenancy to which this Act applies, it shall be for the tenant to prove that the damage did not occur in circumstances constituting a breach of subsection (2)(a) of this section.

[24] Section 41(1) makes Mr Osaki liable for his wife’s negligence if that is

conceded or proved:

The tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) who was in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.

[25] Nor is it in issue that the Tenancy Tribunal would have had jurisdiction to order Mr Osaki to pay damages for the loss borne by AMI, but for the fact that the claim exceeds $50,000. Section 77(2)(n) states that the Tribunal has jurisdiction:

To order ... the tenant under any tenancy agreement to which this Act applies to pay to the other party such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any express or implied provision of the tenancy agreement or any provision of this Act.

[26] The claim is, however, beyond the jurisdiction of the Tribunal because, as s 77(5) says, ‘the Tribunal does not have jurisdiction to require any party to pay any sum, or to do any work to a value, or otherwise incur any expenditure, in excess of

$50,000’. That being so, s 82(1), which confers on the Tribunal exclusive originating jurisdiction for claims within its capacity, cannot apply. As to claims exceeding $50,000, the District Court and this Court have originating jurisdiction.

[27] The jurisdiction the Courts have, furthermore, is not the limited jurisdiction conferred by the RTA on the Tenancy Tribunal. When a claim exceeding $50,000 is lodged with the Tribunal, s 83(1) enables the Tribunal to transfer it to the District Court in its ‘ordinary civil jurisdiction’; and the proceeding is then ‘deemed to have been commenced by action in that Court, and shall be dealt with by that Court accordingly’.⁶ Though this Court is not referred to, the same principle must apply.

[28] In issue on this appeal then is the effect of s 142, a section amended in 2010; and that issue is as to the extent to which the section both enables and excludes the PLA being taken into account under the RTA. It says this:

(1) Nothing in Part 4 of the Property Law Act 2007 applies to a tenancy to which this Act applies.

(2) However, the Tribunal, in exercising its jurisdiction in accordance with s 85 of this Act, may look to Part 4 of the Property Law Act as a source of the general principles of law relating to a matter provided for in that part (which relates to leases of land).

[29] Section 142 is awkwardly expressed. If s 142(1) stood alone it would bar any resort to ss 268 and 269. But s 142(1) must be read subject to s 142(2), which

⁶ Residential Tenancies Act 1986, s 83(4).

entitles the Tribunal to resort to Part 4 as a source of general principles of law. Despite s 142(1), therefore, does s 142(2) nevertheless permit the Tribunal to resort to ss 268 and 269 to exonerate tenants from liability?

[30] There is then this related issue. Section 142(2) does not confer on the Courts in their ordinary civil jurisdiction the ability to resort to Part 4. Does that mean that the Courts are denied by s 142(1) any ability to resort to Part 4? Or does it mean that s 142(1), despite the absolute way in which it is expressed, only says that the Tribunal is not required to adhere to Part 4 literally? Does it complement s 142(2)?

Principles of interpretation

[31] The fundamental principle of interpretation is, as s 5(1) of the Interpretation Act 1999 says, simply this: ‘[t]he meaning of an enactment must be ascertained from its text and in the light of its purpose’. Section 5(2) enables the Court to take into account any ‘indications provided in the enactment’. Section 5(3) confirms that even the way in which the statute is organised has a place in the analysis.

[32] This purposive principle of interpretation, according to Burrows, has stood in New Zealand for over a century.⁷ It calls for a balance to be struck between the text and the purpose, in which the latter is decisive. In 1992 Cooke P said that, as a matter of general principle, ‘strict grammatical meaning must yield to sufficiently obvious purpose’.⁸ That is so also where a provision is ambiguous or unclear.⁹ But a sensible balance must be struck. As the then chief parliamentary counsel, George Tanner QC, said in 2005, ‘text is enlarged by purpose, and purpose is constrained by text’.¹⁰

[33] A case close to this is Sheehan v Watson, especially as to the distinct claim made against Mrs Osaki.¹¹ There the tension between text and purpose concerned ss

⁷ JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at

_203.

⁸ _{McKenzie v Attorney-General [1991] NZCA 105; [1992] 2 NZLR 14 at 17 (CA).}

⁹ Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR

_{767 at [24].}

¹⁰ Tanner & Carter ‘Purposive Interpretation of New Zealand Legislation’, (paper presented to

_{Australian Drafting Conference, Sydney, August 2005) at [66].}

¹¹ Sheehan v Watson [2010] NZCA 454, [2011] 1 NZLR 314.

268 and 269. The issue was whether the immunity they confer extended to the lessee’s ‘agents’, in that case employees. Against the threefold test in Air New Zealand Ltd v McAlister, the Court was satisfied that it did.¹² The Court was sure that there had been a drafting omission, that it knew what Parliament intended to say, and that it could supply the omission consistent with the purpose of ss 268 and 269.

[34] In that case the Court did not have to consider the question, which arises in this case, whether the RTA, a separate statutory regime, incorporates within itself, or excludes, ss 268 and 269. And the appellants invoke the maxim generalia specialibus non derogant, which means ‘general things do not derogate from specific things’. The appellants contend that the RTA, a specific statute, displaces the PLA, a general statute, more especially because the RTA was amended in 2010 after the passing of the PLA.

[35] Such maxims as these, however, as Burrows says, are at most ‘a valuable guide’. They no longer have the status of ‘eternal verities’. Furthermore ‘rigid rules can obscure rather than illuminate the Parliamentary intent’.¹³ In R v Coneybear, for instance, the ejusdem generis principle was held to be a rule to be applied with caution:¹⁴

Statutes, like other documents, should be construed so as to carry out the object sought to be accomplished, and if that object is plainly discernible then there is little room for such rules.

RTA – purpose and scheme

[36] There are, I consider, four attributes of the RTA, against which s 142 must be

considered and the first is the RTA’s purpose, as expressed in its long title:

An Act to reform and restate the law relating to residential tenancies, to define the rights and obligations of land lords and tenants of residential properties, to establish a tribunal to determine expeditiously disputes arising between such land lords and tenants ...’.

One of those purposes is to declare accessibly the central rights and duties of the landlords and tenants. Another, where their dispute concerns less than $50,000, is to

¹² _{Air New Zealand v McAlister [2009] NZSC 78, [2010] 1 NZLR 153 at [96] – [97].}

¹³ _{Statute Law of New Zealand, above n 7 at 213.}

¹⁴ R v Coneybear [1966] NZLR 52 (CA) at 55 – 56.

give them access to a forum, which is less formal and expensive and more timely than the courts are able to be in their ordinary civil jurisdiction. But, where a claim exceeds the Tribunal’s jurisdiction, it can only be brought in the Courts.

[37] The second attribute is that the RTA applies only to residential tenancies as defined.¹⁵ It does not apply to a wide array of tenancies, some of which are closely analogous, like those where ‘premises are let for the tenant’s holiday purposes’¹⁶ or the agreement permits some forms of sub-letting.¹⁷ Some of those excluded tenancies are subject to their own regimes, like the Unit Titles Act 2010, or the Public Bodies Leases Act 1969.¹⁸ Many will be subject only to Part 4 of the PLA.¹⁹

Desirably, the rights and duties of analogously placed tenants, and their liabilities and immunities, ought not to differ radically or inexplicably.

[38] The third attribute is the manner in which the Tenancy Tribunal is obliged by s 85 to exercise its special jurisdiction. Section 85 says this:

(1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between land lords and tenants of residential premises to which this Act applies.

(2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

[39] Section 85, this Court said in Welsh v Housing New Zealand Ltd, imposes on the Tribunal a binary duty.²⁰ Section 85(2), the Court said:

does not create a licence for the Tenancy Tribunal to impose its views on the substantial merits and justice of the case upon one or other disputant unless its determination is based on general principles of law relating to the dispute.

_{And so:}²¹

¹⁵ _{Residential Tenancies Act 1986, s 4.}

¹⁶ _{Section 5(1)(m).}

¹⁷ _{Section 5(1)(s).}

¹⁸ _{Section 5(1), (q) and (u).}

¹⁹ _{Property Law Act 2007, s 3.}

²⁰ _{Welsh v Housing New Zealand Ltd HC Wellington AP35/2000, 9 March 2001 at [29].}

²¹ At [30].

If a remedy is justified by the principles of law applicable to the matter, the Tenancy Tribunal will have to consider the merits and justice of the case and whether the strict application of the law gives rise to a fair result, but, if there is no remedy provided for by the law, it is not open to the Tenancy Tribunal to invent one.

[40] In like vein, Asher J said in Ziki Investments (Properties) Ltd v McDonald

that ‘[s]ection 85(2) states specifically that each dispute shall be determined

‘according to the general principles of law applying to the matter’’.²² That is the paramount principle. Though the Tribunal does not have to give effect to ‘strict legal rights or obligations or to legal forms or technicalities’, that only frees it from

‘technical requirements such as matters of form or time’. Though it can decide according to ‘the substantial merits and justice of the case’, that is only ‘where possible’ under the law applying. That said, while s 85(2) does not give the Tribunal

‘carte blanche to decide the case on its perception of merits and justice ... it can be an aid to interpretation.’²³

[41] The fourth attribute is that in some 12 other instances apart from s 142, the RTA refers to other statutes, or to the general law; and they seem to me to divide into three categories:

(a) First, there are those which define and enlarge the Tribunal’s jurisdiction: s14(4), for instance, confers jurisdiction under the Minors’ Contracts Act 1969; s 61 enables the Tribunal to terminate an abandoned tenancy and require the tenant to pay rent,

‘notwithstanding any rule of law to the contrary’.

(b) Second, there are those which enlarge or restrict the statutory matrix: s 16B, for instance, imports to tenancy agreements operational rules made under the Unit Titles Act 2010; s 25 excludes from the assessment of market rents those governed by the Housing

_{Restructuring Act 1992.}

²² _{Ziki Investment (Properties) Ltd v McDonald [2008] NZHC 1173; [2008] 3 NZLR 417 (HC) at [69].}

²³ At [70] (italics included).

(c) Third, there are those which concern machinery: s 48, for instance, which governs a landlord’s right of entry, does not apply to tenancies under the Armed Forces Discipline Act 1971; s 94 confers standing on a manager appointed under the Protection of Personal and Property Rights Act 1988.

[42] Within the second of those categories lies s 58. It governs when a mortgagee or any other person becomes entitled to possession of a property held on a residential tenancy. Section 58(1) sets out the rules, which are to apply. Section 58(2) says,

Subsection (1) shall apply notwithstanding anything to the contrary in the Property Law Act 2007 or the Land Transfer Act 1952 or any other enactment.

[43] In Ziki Investment, an appeal from a District Court decision dismissing an appeal from the Tenancy Tribunal, Asher J had to give effect to s 58(2) as it excluded the Land Transfer Act.²⁴ He said this:²⁵

While under the doctrine of indefeasibility of title Ziki may have retained a right to possession of the premises and the right to exclude any occupiers of the premises, the tenancy nevertheless continues prima facie under s

58(1)(a).

[44] In Ziki the effect of s 58(2) was to safeguard the primacy of the s 58(1) rules. It this case it has quite another significance. Like s 142 it excludes Part 4 of the PLA applying within its immediate context. But why does it do so? On the face of it s 142(1) excludes the PLA from applying under the RTA at all, subject only to s 142(2). If s 142(1) does have that apparent general absolute effect, s 58(2) serves no purpose.

[45] Also relevant is the amendment to s 142 made in 2007.²⁶ Section 142(1) remained as it was essentially. Part 4 of the PLA was substituted for Part 8 of the Property Law Act 1952. But s 142(2) was completely recast. As it was in its

_{original form it said this:}

²⁴ _{Ziki Investment (Properties) Ltd v McDonald, above n 22.}

²⁵ _{At [41].}

²⁶ Property Law Act 2007, s 364(1).

The provisions of Part 8 of the Property Law Act 1952, so far as they are applicable to any fixed-term tenancy or service tenancy immediately before the commencement of this Act, shall continue to apply to that tenancy, but shall be read subject to the provisions of this Act.

[46] Section 142(2), as it then was, identified clearly one issue that s 142(2), as it is now, resolves more generally. A significant part of Part 8 of the 1952 Act, and of Part 4 of the PLA for that matter, does not relate to residential tenancies. Section

142(2), as it was originally, dealt implicitly with the second issue to be resolved: that the Tribunal is required only to take into account, and to comply with, relevant general principles of the law. That is now made explicit in s 142(2), as it now is.

[47] Furthermore, s 142(2), as it now is, in contrast to its predecessor, resolves these two issues by aligning itself with s 85, which governs the manner in which the Tribunal is to exercise its jurisdiction. Section 142(2), as it now is, also qualifies s 142(1), just as its predecessor did, but with that critical shift of focus. For these reasons I conclude that s 142 lies in the first of the three categories I identify.²⁷

[48] Section 142 assists to define the Tribunal’s jurisdiction. It does not lie in the second category, which enlarges or restricts the statutory matrix within which the Tribunal, in the exercise of its jurisdiction, and the Courts in the exercise of their ordinary jurisdiction, resolve residential tenancy claims. It does not exclude ss 268 and 269 from conferring tenant immunity.

Conclusions

[49] This conclusion, that tenants holding residential tenancies facing claims under the RTA are entitled to claim the immunity that the PLA accords to lessees generally, is consistent with the policy of both statutes.

[50] As the Law Commission said in 1991, in principle there is no essential difference between the forms of tenure that these two statutes govern. Both forms of tenure are, to varying degrees, governed by the same general principles of law. The liability risk that lessees face under that form of tenure, and that faced by tenants

_{under that cognate form of tenure, is essentially indistinguishable. If one is to be}

²⁷ At [41] above.

immune from suit, so too in logic and equity, and to the same extent, should the other.

[51] On that footing, I conclude, Mr Osaki is entitled to claim tenant immunity; and it is equally consistent with the purpose and scheme of the RTA, I consider, that Mr Osaki’s immunity should extend to Mrs Osaki, against whom there is a distinct claim. The reasons why the Court of Appeal has held that the tenant’s immunity must extend to the tenant’s workers largely apply. If Mrs Osaki were not to share Mr Osaki’s immunity, Mr Osaki’s immunity would be rendered null.

[52] For these reasons, which broadly accord with those of the Judge, I hold that she was right to allow the appeal from the Tenancy Tribunal. I dismiss the appeal. As a consequence the Osakis are entitled to an order for costs, according to scale 2B,

_{and disbursements, both of which are to be fixed by the Registrar.}

P.J. Keane J