Collett v Van Zyl Brothers Limited (ZR 65 (CA)) [1966] ZMCA 12 (12 July 1966)

Full Case Text

COLLETT v VAN ZYL BROTHERS LIMITED (1966) ZR 65 (CA) COURT OF APPEAL BLAGDEN CJ, DOYLE JA, EVANS J 12th July 1966 Flynote and Headnote [1] Contract - Building contract - Defects clause - Common law rights not taken away. If a clause in a building contract providing that the builder will make good defects discovered within a speciﬁed period is to take away the purchaser's common law rights, it must do so in unequivocal terms. [2] Civil procedure - Appeal - Costs only, as to - Leave required. Where an appeal is limited to costs, leave to appeal is required. Where the appeal is not limited to costs alone, leave to appeal need not be obtained. [3] Civil procedure - Costs - Award at discre�on of judge - Discre�on to be exercised judicially. The award of costs in an ac�on is at the discre�on of a trial judge, such discre�on to be exercised judicially. [4] Civil procedure - Costs - Review of award by Court of Appeal - Where leave to Appeal required. Where leave to appeal is required (i.e., against an order as to costs only), and such leave is granted, the order for costs can be reviewed by the Court of Appeal. [5] Civil procedure - Costs - Review of award by Court of Appeal - Appeal made without leave. Where an appeal is made as to costs only, and is made without leave, the Court of Appeal should entertain the applica�on only if sa�sﬁed that the trial judge did not exercise his discre�on at all. [6] Civil procedure - Costs - Award at discre�on of judge - Principles for exercise of discre�on. A trial judge, in exercise of his discre�on, should, as a mater or principle, view the li�ga�on as a whole and see what was the substan�al result. Where he does not do so, the Court of Appeal is en�tled to review the exercise of his discre�on. Cases cited: (1) Hancock v B W Brazier (Anerley) Ltd [1966] 2 All ER 1; [1966] 1 WLR 1317. (2) Chell Engineering Ltd v Unit Tool & Engineering Co. Ltd [1950] 1 All ER 378. (3) Childs v Blacker, Same v Gibson [1954] 2 All ER 243; sub nom. Childs v Gibson, Childs v Blacker, Same v Same [1954] 1 WLR 809. 1966 ZR p66 BLAGDEN CJ (4) Wheeler v Somerﬁeld [1966] 2 QB 94; [1966] 2 All ER 305. (5) Ward v James [1966] 1 QB 273; [1965] 1 All ER 563. (6) Ormerod v Todmorden Joint - Stock Mill Co. Ltd (1882), 8 QB D. 664. (7) Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646. (8) Charles Osenton & Co. v Johnston [1941] 2 All ER 245; sub nom. Osenton (Charles) & Co. v Johnston [1942] AC 130. (9) Jones v McKie and Mersey Docks and Harbour Board [1964] 1 WLR 960; sub nom. Jones v McKie [1964] 2 All ER 842. (10) Baylis Baxter Ltd v Sabath [1958] 2 All ER 209; [1958] 1 WLR 529. (11) Donald Campbell & Co. Ltd v Pollak [1927] AC 732. (12) In re Gilbert; Gilbert v Hudlestone (1885), 28 Ch. D. 549. Statutes and rules construed: Zambia: Court of Appeal for Zambia Ordinance (Cap. 12), s. 25 (1) (d). High Court Rules (Cap. 3, subsid.), order 34, rule 3. England: Judicature Act, 1873, s. 49. Judicature Act, 1925, as. 31 (1) (h) and 50 (1). Supreme Court of Judicature (Consolida�on) Act, 1925, s. 31 (1) (h) (i). Supreme Court (England) Rules, order 36, rule 1 (3). Supreme Court Costs Rules 1959, rule 2 (5). Foster, for the appellant Gardner, for the respondent Judgment Blagden CJ: This is an appeal and cross - appeal from a judgment of the High Court, Ndola (Whelan, J), in a suit brought by the respondent company, as plain�ﬀ, on a building contract. On the 20th June, 1956, the appellant and respondent concluded a building contract whereby the respondent was to build a house in accordance with a speciﬁca�on and drawings for the appellant, and the appellant, by way of considera�on therefor, was to pay the respondent the sum of £3,750 plus a reasonable sum in respect of any extras the appellant might order. Both contract and speciﬁca�ons were reduced to wri�ng and these documents were produced in evidence at the trial. The contract speciﬁcally provided that the building works were to be in conformity with the speciﬁca�on and drawings and that these should be read and construed as forming part of the agreement. Payment of the contract price of £3,750 was to be made by a building society loan amoun�ng to £3,500 and the balance of £250 was to be paid oﬀ by the appellant by monthly instalments of £10. There was also provision for the payment of interest. 1966 ZR p67 BLAGDEN CJ There was no express provision in any of the writen instruments for a comple�on date but the learned trial judge found on the - evidence and his ﬁnding has not been challenged - that the appellant s�pulated that the house should be ready for occupa�on by the 1st October, 1956, and that the respondent assured her that it would be. He further found that the house was not completed by that date. The appellant and her husband went to England on leave in September, 1956, and whilst there they received a leter dated 1st November, 1956, from Mr Van Zyl, director of the respondent company, in�ma�ng that the house was ﬁnished. The appellant's husband replied on the 18th November, 1956, expressing his pleasure at this and asking if the respondent company would be prepared to wait for a while for the £10 instalments on account of unexpected expenses. The respondent company did not reply to this leter and the ﬁrst instalment was not paid un�l the 7th July, 1957. Two further instalments were paid - the last on the 1st September, 1957 - and therea�er no more. Their receipt was never acknowledged, despite requests therefor. In July, October and November of 1957 the appellant's husband wrote to Mr Van Zyl asking for certain works in and about the house to be completed and certain defects remedied. His leters remained unacknowledged and no ac�on of any kind was taken by the respondent company in regard to his requests. The appellant had the defects remedied by other contractors and paid no more instalments on the contract price to the respondent. On the 25th September, 1962 - that is, nearly ﬁve years later - the respondent company issued its writ claiming £422 18s. 4d., made up of the balance of instalments unpaid plus the cost of certain extras supplied, plus charges by way of interest. The appellant's defence was to say that, taking into account deduc�ons in the contract price due, ﬁrst, for works omited or defec�vely rendered, and secondly, for the sum of £100 included in the speciﬁca�on as provision for con�ngencies which was never in fact used, she had already overpaid the respondent company. She counter - claimed for the amount of that over - payment and also for damages calculated in terms of rent lost to her, ﬁrst as a result of the respondent company's failing to complete the house by the 1st October, 1956, and secondly as a result of the building being unletable over a further period whilst the defects were being put right. In the result the learned trial judge gave judgment for the respondent company on its claim to the extent of £90 and for the appellant on her counter - claim to the extent of £94 10s. 0d. He gave the costs of the claim to the respondent and the costs of the counterclaim to the appellant. The appeal and cross - appeal raised together three major and two minor issues. I propose to deal with these in turn commencing with those forming the subject of the cross - appeal. The ﬁrst ground in the cross - appeal relates to the learned trial judge's award of a sum of £37 10s. 0d. to the appellant as rent lost for the month of October, 1956, as a result of the late comple�on of 1966 ZR p68 BLAGDEN CJ the building, but this was abandoned in the course of argument so I shall say no more about it. The second ground of the cross - appeal concerned one of the works which the appellant claimed had been omited and in consequence en�tled her to a dimuni�on in the contract price. The item in ques�on was the external plastering of the house with a Tyrolean ﬁnish, as provided for in the speciﬁca�on under the heading of 'Plasterer'. At the trial, Mr Van Zyl admited that this par�cular item, together with certain others, had been omited. He said that he had agreed with appellant to subs�tute the more expensive Spanish �les in place of interlocking �les on the roof, and that to compensate for this it was also agreed that the Tyrolean plastering should be omited. Appellant strongly denied any such agreement. The learned trial judge expressed himself as not sa�sﬁed that the respondent had proved that the speciﬁca�on was varied in regard to this par�cular work before the contract was signed. By clause 12 of the speciﬁca�on, the contractor, that is, the respondent, was precluded from making any varia�on of the nature which he contended was agreed, without the writen authorisa�on of 'the Engineer', who, in accordance with clause 1, was to be appointed by the appellant. In fact, the appellant never appointed any engineer and the omission of the Tyrolean plastering was never authorised in wri�ng by anyone. The learned trial judge took the view that if it was clear that both par�es had orally agreed to a varia�on, then it could be said that the provisions of clause l 2 had been waived. But where, as here, there was complete disagreement between the par�es as to there being any oral agreement, such waiver was not established and clause 12 prevailed. Mr Gardner's conten�on on this ground of the cross - appeal, as I understood it, was that as the �ling of the roof and whatever was done by way of external plastering were carried out in the presence of the appellant and her husband, and without protest on their part, the need for any writen varia�on order must be regarded as having been waived. I ﬁnd it diﬃcult, however, to ﬁnd in the recorded evidence any real support for this conten�on. All along the appellant denied that she had ever agreed to the omission of the Tyrolean plastering and, except for a reference by the appellant's husband to the plastering having been started and nearly ﬁnished before he and the appellant le� Ndola, I can ﬁnd nothing to suggest that they were present when the roof was being �led and the Tyrolean plaster omited, let alone that they acquiesced in that omission. The onus in this issue was on the respondent to show that the omission of the Tyrolean plastering was properly authorised, or that the need for its authorisa�on was waived and the omission itself agreed between the par�es. It is clear from the learned trial judge's ﬁndings that that onus was never discharged. It follows that the second ground of the cross - appeal also fails. The third ground of the cross - appeal was, perhaps, of more substance. It related to awards made by the learned trial judge in the appellant's favour in respect of £118 for internal plastering and pain�ng, and £30 for �ling in the bathroom. These items were rendered necessary by the respondent's failure to execute these works properly or at all. The respondent also complains of the further 1966 ZR p69 BLAGDEN CJ sum of £57 awarded by the learned trial judge in respect of rent lost over a period of six weeks when the house was unletable owing to these plastering, pain�ng and �ling works having to be carried out by another contractor. The respondent's case is that if there were defects which required remedying, then, in accordance with clause 14 of the speciﬁca�on, it was a condi�on precedent to respondent's remedying them that direc�ons in wri�ng specifying the defects and requiring their amendment within a speciﬁed reasonable �me should have been served on the respondent. I think this argument begs the real ques�on, which is whether or not the respondent was in breach of its contract to build this house in accordance with the terms of the agreement dated 20th June, 1956, and of the speciﬁca�ons and drawings which formed part of that agreement. Omi�ng words irrelevant for the purposes of this par�cular issue, the contract provided that: ' The contractor shall . . . execute and perform the several works and provisions . . . described and referred to in the tender, speciﬁca�ons, and on the drawings . . . in conformity of the said speciﬁca�ons and drawings . . .' Clause 5 of the speciﬁca�ons s�pulated that: ' The contractor shall provide everything necessary which shall include all plant, tools, tackle, staging, scaﬀolding, car�ng, materials, goods, labour and everything of every sort and kind for the proper and complete execu�on of the work according to the true intent and meaning of the drawings and speciﬁca�ons taken together, whether the same may or may not be par�cularly shown on the drawings or described in the speciﬁca�on provided that the same is reasonably to be inferred therefrom . . .' Part of clause 8 is also in point; it speciﬁed under the heading 'Materials and Workmanship' that: ' The whole of the materials . . . to be provided by the Contractor to the best of their respec�ve kinds . . . and the Contractor is to be en�rely responsible for the proper and eﬃcient carrying out of the whole of the work. The work to be done in the best and most workmanlike manner . . .' It is these provisions which the appellant complains have been broken. A somewhat similar situa�on arose in the recent case of Hancock and Others v B. W. Brazier (Anerley) Ltd [1], where a builder sold a house in course of erec�on to a purchaser under a contract which provided in one clause, numbered 9, that the builder should 'prior to comple�on . . . in a proper and workmanlike manner erect build and complete . . . a dwelling house in accordance with the plan and speciﬁca�on', and also provided in another clause, numbered 11 that if the purchaser should discover any structural defects in the house and works within six months of comple�on and no�fy the builder thereof in wri�ng, then the builder should forthwith make good such defects without expense to purchaser. Some two years 1966 ZR p70 BLAGDEN CJ a�er comple�on the ﬂoors and walls began to crack because of the use, without negligence, of sodium sulphate in the hard core underneath the concrete ground ﬂoor, and substan�al damage to the house resulted. The purchaser sued for damages for breach of clause 9 to build in a proper and workmanlike manner in accordance with the plan and speciﬁca�on. One of the conten�ons advanced by the builder in defence of the claim was that a�er comple�on the purchaser could no longer rely on clause 9 because his rights were limited to those conferred by clause 11. Diplock, LJ rejected this conten�on and his decision was, on 5th May, 1966, conﬁrmed by the Court of Appeal. He found that there had been a breach of the warranty in clause 9. He said (at page 8): ' I have read clause 11 and it creates rights by providing that the builders will make good any structural defects which are discovered within six months. If that clause is to take away the rights of the purchasers which normally follow at common law in the case of a breach of contract, it must do so in very clear terms if the court is going to give it that eﬀect.' [1] It is true that Hancock's case is dis�nguishable from the instant appeal in that clause 11 in Hancock's case was limited to the discovery of structural defects, whereas clause 14 of the speciﬁca�on before us extends to ' any defects . . . or other faults'; but nevertheless I would respec�ully adopt Diplock, LJ's ruling that, for a discovery of defects clause to take away the purchaser's common law rights for breach of contract, that clause must be expressed to do so in very clear terms. No such terms exist here; and I have been unable to ﬁnd any reported decision which a discovery of defects clause has been interpreted to take away common law rights of ac�on for damages for breach of contract. In my view the defects in the internal plastering and pain�ng, and in the bathroom �ling, which the learned trial judge found proved, and for which he awarded, respec�vely, the sums of £118 and £30, together with the further sum of £57 for loss of rent, cons�tuted breaches of contract, and his award of damages in respect of them cannot be impugned. This disposes of the third and last ground of the cross - appeal, which thus fails in its en�rety. I now come to consider the two substan�al issues raised by the appeal. The ﬁrst concerns the refusal of the learned trial judge to deduct £100 from the contract price of £3,750, this being the sum which related to con�ngencies. A clause is o�en inserted in building contracts for the provision of a sum for con�ngencies; and, apart from any special terms, it would seem that if no expenditure is required for such con�ngencies the provisional sum inserted therefor can be deducted (see 3 Halsbury, p. 516, para. 1026). In the instant case con�ngencies were provided for by clause 37 of the speciﬁca�ons in these terms: ' 37. Contingencies. Provide the sum of £100 (One Hundred Pounds) for con�ngencies to be used as directed by the Engineer or be deducted in whole or in part, if not directed to be used.' 1966 ZR p71 BLAGDEN CJ The argument advanced by Mr Foster on behalf of the appellant here is that there having been no expenditure on con�ngencies - other than varia�ons which were accounted for against the contract price - the whole of this sum of £100 falls to be deducted from the contract price. This assumes that this ﬁgure was included within the contract price. The evidence, however, is all against such an assump�on. Mr Van Zyl said that the £3,750 was the ﬁgure he wanted to complete the job and it did not include any con�ngencies. The appellant, when she gave evidence, said that she expected to pay £3,750 for the house and not £3,650. Her husband agreed with her evidence on that point. But Mr Foster relied on the wording of clause 37. It was necessary, he said, to interpret what was writen in the contract, and not what was intended to be writen, even if this had the eﬀect of defea�ng the real inten�on of the par�es. He claimed that there was no ambiguity about clause 37 and what it meant had been explained by Mr Widlake, a chartered quan�ty surveyor - and thus an expert witness - who gave evidence for the appellant and who had been employed by her to examine and report on the omissions and defects in the house at the end of 1962. He was asked about clause 37. The learned trial judge's note records this as his answer: ' This is usual wording of con�ngency clause. Idea is to cover cost of extra work arising over the contract price. Although there is an extras clause (12) there would s�ll be need for a con�ngency clause. The list of con�ngencies would not have to be made out. A�er comple�on, from con�ngency sum is deducted the value of omissions and then are added value of extras - that is ﬁnal ﬁgure. The con�ngency sum is rather like security for costs.' And, later, in cross - examina�on: ' Con�ngency sum is normally shown separately in a tender but forms part of lump sum price.' And, again, in re-examina�on: ' Contract sum includes ﬁgure for con�ngencies shown separately in tender.' But I cannot accept Mr Foster's conten�on that there is no ambiguity in clause 37. In my view there is a patent ambiguity. What do the words, 'Provide the sum of £100 for con�ngencies . . .' mean? Do they mean that there has been provided the sum of £100 in the contract price for con�ngencies? That interpreta�on would not accord with the evidence. Do they mean that there shall be provided the sum of £100 for con�ngencies or that there may be provided such sum if and when con�ngencies arise? I do not think Mr Widlake's evidence furnishes an answer to these ques�ons. The best he can say is that clause 37 is the 'usual wording' of a con�ngency clause and that the con�ngency sum is 'rather like security for costs'. I do not think this evidence resolves the ambiguity of what is meant by the words of clause 37 I have quoted. But that ambiguity, in my view, is resolved by evidence of what actually happened; and that evidence clearly shows that no sum for con�ngencies was ever 1966 ZR p72 BLAGDEN CJ actually provided. In consequence the £100 does not fall to be deducted from the contract price and the appellant fails on her ﬁrst ground of appeal. The second ground of the appellant's appeal and by far the most substan�al issue in the whole case, relates to the learned trial judge's award of costs. The learned trial judge awarded the respondent the costs of the claim on which it was successful, and the appellant the costs of the counter - claim on which she was successful. This might be described as the usual order, but, as Denning, LJ put it in Chell Engineering Ltd v Unit Tool and Engineering Co. Ltd [2]: ' .... in most of these cases it is desirable that a judge should consider whether a special order should be made as to costs because the issues are o�en very much interlocked, and the usual order of" judgment for plain�ﬀ on claim with costs and for defendant on counter - claim with costs" does not always give a just result.' In Chell's case it did give a just result but in the later case of Childs v Blacker [3], it did not. In Childs, the county court judge made the same type of order as in Chell holding that he was bound by the later. The Court of Appeal in Childs held that he was not so bound. Lord Goddard, CJ said (at page 245): 'This case may draw the aten�on once more of county court judges to what Denning, LJ said in Chell's case', and he went on to repeat the passage from Denning, LJ's judgment which I have just read. [2] Had the appellant's appeal here been limited to costs alone she would have had to obtain leave to appeal - see Court of Appeal Ordinance (Cap. 12), s. 25 (1) (d) - but this is not necessary here where the appeal is not so limited - see Wheeler v Somerﬁeld [4]. By the High Court Rules Order 34, rule 3, it is provided that: ' The cost of every suit or mater and at each par�cular proceeding therein shall be in the discre�on of the Court or a Judge; and the Court or a Judge shall have full power to award and appor�on costs, in any manner it or he may deem just, and in the absence of any express direc�on by the Court or a Judge, costs shall abide the event of the suit or proceeding: Provided that the Court shall not order the successful party in the suit to pay to the unsuccessful party the costs of the whole suit; although the Court may order the successful party, notwithstanding his success in the suit, to pay the costs of any par�cular proceeding therein.' [3] The award of costs is thus discre�onary in the trial judge but there are certain canons to which the trial judge must conform in exercising his discre�on. There is a similar discre�on in England exercised by the judge under the Judicature Act 1925, s. 50 (1) and the Supreme Court Costs Rules, 1959, r. 2 (5). In the notes appearing under the Rubric, 'Discretion to be exercised judicially' at p. 1999/218 of the 1966 Annual Practice, there appears the following passage: ' Wide though the discre�on is, it is a judicial discre�on and must be exercised on ﬁxed principles, that is, according to rules 1966 ZR p73 BLAGDEN CJ of reason and jus�ce . . . and the exercise of discre�on even by a Judge si�ng alone must be jus�ﬁable . . . Where there are no materials on which the Judge can exercise his discre�on, he is not jus�ﬁed in depriving a successful party of his costs . . . the materials must be those in evidence in the case . . .' To what extent can a Court of Appeal interfere with an order made by a judge in the exercise of his discre�on? This mater has come up for considera�on in a number of cases. In the case of Ward v James [5], where the Court of Appeal was considering an appeal against an order for trial by a jury - which by R S. C. Order 36, r. 1 (3) is in the absolute discre�on of the judge - Lord Denning, M. R in delivering the judgment of the court, made some general pronouncements on the powers of the Court of Appeal in England to vary an order made in the exercise of a discre�on. He said (at 570): ' Whenever a statute confers a discre�on on the court or a judge the Court of Appeal has jurisdic�on to review the exercise of that discre�on (see Ormerod v Todmorden Joint - Stock Mill Co. Ltd [6], save only as to costs, for then the judge has the last word: see s. 31 (1) (h) (i) of the Supreme Court of Judicature (Consolida�on) Act, 1925. No rule can diminish the jurisdic�on of this court so given by statute.' [4] At ﬁrst sight it would appear from this dictum that Lord Denning was saying that there was no appeal from a judge's order as to costs made in his discre�on. His reference to costs was, of course, obiter and he did not pursue the aspect of costs any further The provision of the Judicature Act 1925, s. 31 (1) (h) which he referred to corresponds to our Court of Appeal for Zambia Ordinance, (Cap. 12), s. 25 (1) (d). The two paragraphs are almost iden�cal. Each provides that no appeal shall lie without leave from an order of the High Court or a judge as to costs only which by law is le� to the discre�on of the court or judge making the order. Clearly the judge has the last word, as Lord Denning said, if leave to appeal is refused. Equally clearly, if leave to appeal is granted, or if, as here, such leave is not necessary because the appellant is not appealing against the order as to costs only, the judge has not got the last word, and his order as to costs can be reviewed by the Court of Appeal. In his judgment Lord Denning then went on to deal with the review of a discre�on in general terms. He said (at 570): ' This brings me to the ques�on: in what circumstances will the Court of Appeal interfere with the discre�on of the Judge? At one �me it was said that it would interfere only if he had gone wrong in principle; but since Evans v Bartlam [7], that idea has been exploded. The true proposi�on was stated by Lord Wright in Charles Osenton & Co. v Johnston [8]. This court can and will interfere if it is sa�sﬁed that the judge was wrong. Thus it will interfere if it can see that the judge has given no weight (or no suﬃcient weight) to those considera�ons which ought to have weighed with him . . . Conversely it will interfere if it can see that he has been inﬂuenced by other considera�ons 1966 ZR p74 BLAGDEN CJ which ought not to have weighed with him, or not weighed so much with him . . .' There have been a number of cases in England which suggest that a rather more strict standard should be applied where the Judge's discre�on which it is sought to impugn is his discre�on in regard to an award of costs. In the notes to the Supreme Court Costs Rules, r. 2, appearing in the 1966 Annual Prac�ce, at p. 1999/226, under the Rubric 'Appeal as to Costs' it is stated that, in view of the provisions of the Judicature Act, 1925, s. 31 (1) (h), to which I have already referred: '. . . No appeal against a decision on costs can be entertained unless the trial judge by taking into account some mater wholly unconnected with the cause of ac�on or by being without material on which to exercise his discre�on, had not in law exercised his discre�on at all.' The authority quoted to support this proposi�on is Jones v McKie & Mersey Docks & Harbour Board [9], but in that case the appellant was appealing as to costs only and had been refused leave to appeal. [5] The posi�on was put clearly by Jenkins, LJ in Baylis Baxter Ltd v Sabath [10], when he said: ' The mater as it now stands really comes to this, that in a case of this sort - that is to say, in a case in which it is sought to appeal, without leave, from an order rela�ng solely to costs - such an applica�on should not be entertained, in view of the express terms of s. 31 (1) (h) of the Judicature Act, 1925, unless the circumstances are such that this court can say, in eﬀect "In this case the learned judge did not in truth exercise his discre�on at all". It is only in a case of that kind that this court has jurisdic�on to entertain such an appeal.' Then there is the passage in Viscount Cave, L. C.'s judgment in the locus classicus of Donald Campbell & Co. Ltd v Pollak [11], where he says at page 812: ' But when a judge, deliberately intending to exercise his discre�onary powers, has acted on facts connected with or leading up to the li�ga�on which have been proved before him or which he has himself observed during the progress of the case, then it seems to me that a Court of Appeal, although it may deem his reasons insuﬃcient and may disagree with his conclusion, is prohibited by the statute from entertaining an appeal from it.' But in that case, again, the appeal was limited to costs and the appellant had not; obtained leave to appeal which at that �me was required by the Judicature Act, 1873, s. 49; and it followed that, except in the circumstances the Lord Chancellor described, the Court of Appeal was precluded by the statute from entertaining the appellant's appeal. These cases are thus not of direct applica�on here where the appellant did not require leave to appeal and is before us on this issue as of right. Of more assistance are those cases in which leave to 1966 ZR p75 BLAGDEN CJ appeal against an order for costs was granted. The ﬁrst of these seems to have been in Gilbert v Hudlestone [12], where the headnote (which is substan�ally in the words used by Baggally, LJ at 551) reads: ' Where an appeal from an order as to costs which are le� by law to the discre�on of the judge is brought by leave of the judge under the 49th sec�on of the Judicature Act, 1873, the Court of Appeal will s�ll have regard to the discre�on of the judge, and will not over - rule his order unless there has been a disregard of principles or mis - apprehension of facts.' Now what is the posi�on here? The learned trial judge heard argument as to costs a�er he had delivered his judgment. Mr Foster, who represented the appellant in the Court below, put forward to him substan�ally three grounds as to why the appellant should have been awarded her costs. First, because what had been li�gated before the learned trial judge was in substance but one ac�on and looked at in that light the appellant was substan�ally the successful party; secondly, the respondent's ac�on was oppressive; thirdly, it was probable there would have been no need for li�ga�on at all but for the respondent's conduct in not answering the appellant's husband's leters or taking any ac�on upon them or keeping an appointment with him. The learned trial judge was aware of the respondent's conduct in this regard. He referred to it as 'quite remarkable' in the course of his judgment. But he did not men�on it in his decision on costs. In his decision on costs he said only: ' A�er considering the argument put forward by counsel for the purpose, I cannot ﬁnd that the plain�ﬀ's claim could be termed oppressive. I order that the plain�ﬀ do have costs on the claim and the defendant do have costs on the counterclaim.' [6] I think we must accept the learned trial judge's ﬁnding that the respondent's conduct in wai�ng nearly ﬁve years before commencing its ac�on was not oppressive in all the circumstances, and I think we must assume that he gave considera�on to the respondent's conduct as a whole, short of being oppressive, and did not consider it jus�ﬁed him in depriving the respondent of its costs. But in exercising his discre�on it was, in my view, essen�al as a mater of principle that he should have viewed the li�ga�on as a whole and seen what was the substan�al result. This he does not seem to have done. I would accept Mr Foster's submission that this was not a case involving two causes of ac�on represented by claim and counter - claim but rather, in substance, one ac�on only. In this respect it was very similar to the case of Childs v Blacker, to which I have already made reference. That was a landlord's ac�on for rent. The tenant did not deny owing the rent but counter - claimed for damages for breach of covenant to supply services and proﬀered payment of the balance which was refuted. The case was fought solely on the tenant's counter - claims and she succeeded. The Court of Appeal held that the proper order in these circumstances was that the tenant should have the costs of the ac�on. 1966 ZR p76 DOYLE JA In the instant appeal there was never any dispute by the appellant that she had not paid the £220 balance of instalments due on the full price as contracted between the par�es. Her case was that having regard to incomplete and defec�ve works the contract price should be diminished to a lower price; and that she had already overpaid that lower price. There was therefore litle or no contest on the respondent's claim. The contest - the substan�al issue in the case was that raised by the appellant's counter - claim; and on this she was substan�ally successful. This vital view of the case seems to have escaped the learned trial judge. He does not seem to have looked at the li�ga�on as a whole, but rather to have divided it into two parts and considered each separately. This, in my view, was not only 'a viola�on in principle' but it also represented a 'misapprehension of facts', to employ the phrases used by Baggally, LJ in Gilbert v Hudlestone. In these circumstances I consider that this court is en�tled to review the exercise of the judge's discre�on here and to subs�tute for his order such order as will, in our view, meet the jus�ce of the case. I would accordingly allow the appellant's appeal on the second ground raised and set aside the learned trial judge's order as to costs. Bearing in mind that the appellant was substan�ally but not completely successful in the li�ga�on below, I think that the proper order to subs�tute should be that the appellant should have the costs of the counter - claim and that each party should pay its own costs on the claim. I would award the costs of this appeal and the cross - appeal to the appellant. I would add that Evans, J, who is not able to be present, agrees with this judgment I have just delivered. Judgment Doyle JA: I agree with the judgment which has been delivered by the learned Chief Jus�ce and have litle to add. I had some diﬃculty with the passage in which the learned trial Judge deals with the alleged oral varia�on in rela�on to Tyrolean plastering. He said: ' Where there is no dispute as to the oral agreement the defendant is taken to have waived the need for reducing it to wri�ng, but where, as here, the par�es give completely opposite versions as to what transpired, the necessity for the authorisa�on to be in wri�ng becomes apparent. In the absence of further proof, I hold the plain�ﬀ bound by the speciﬁca�on, and the defendant is therefore en�tled to credit for the omission of the Tyrolean plastering on the external walls and the lounge to a total of £23.' This seems at ﬁrst sight a statement that where there are two opposite versions rela�ng to an oral varia�on one must ipso facto return to the terms of the writen contract without determining the merits of the disputed ques�on of fact. In other words where both par�es give the same evidence of an oral agreement, a waiver takes place, but if one of the par�es subsequently has a diﬀerent and conﬂic�ng recollec�on of the facts the waiver ceases to exist. I doubt the validity of such a proposi�on. However, it is possible that 1966 ZR p77 DOYLE JA the learned trial judge meant that he was not sa�sﬁed that the onus of proof that there had been an oral varia�on had been discharged and with some hesita�on I accept the passage in this sense. I would also have been prepared to hold that Clause 14 had no eﬀect at all. Its opera�on depended on ac�on by the engineer, a person with mul�farious du�es and func�ons under the contract. As no appointment of an engineer was ever made it is clear that he was dispensed with by mutual consent and with him the value of any clause which depended on his existence. Appeal allowed in part, cross - appeal dismissed 1966 ZR p78