Kentucky Fried Chicken Pty. Limited v. Federal Commissioner of Taxation and Ors.

Judges:
Yeldham J

Court:
Supreme Court of New South Wales

Judgment date: Judgment handed down 22 October 1986.

Yeldham J.

The plaintiff, Kentucky Fried Chicken Pty. Limited, carries on business selling food products through retail outlets in various States of Australia and in the Australian Capital Territory, and it franchises its name in other areas within Australia. It is a registered person pursuant to sec. 11 of the Sales Tax Assessment Act (No. 1) 1936 and is so registered as a ``manufacturer''. In the course of its business it supplies with, or for use as an adjunct to, its food products, in one form or another, refresher towels, paper serviettes and plastic spoons. These it purchases from the second, third, fourth and fifth defendants who initially appeared in the present proceedings but who did not thereafter take any part in them. The plaintiff seeks various declarations (indeed, the amended summons seeks 25 of them, some being in the alternative) concerning the liability or otherwise of the plaintiff and/or the vendors to it of the several articles referred to, to sales tax under several Sales Tax Acts and Regulations.

The evidence in the case concluded on 21 April 1986 but the last of the written submissions of counsel was not received by me until 11 September, partly due to the absence abroad of one of the counsel involved in the case. Hence the delay in preparing this judgment.

The relevant facts, which I take from a convenient summary made by counsel for the plaintiff in his written submissions and which I adopt, are as follows:

``3. The vast majority of food products sold by the Plaintiff are taken away by the purchasers thereof for consumption by them outside the Plaintiff's premises;

4. The overwhelming majority of each of the goods in question are packed in cardboard or polystyrene foam cartons or in plastic carry bags;

5. Based on a survey conducted by the Plaintiff (Exhibit G) and based further upon the Plaintiff's business practices consistently applied, it can be concluded that: -

  • (a) 100 per cent of the serviette packs (comprising a refresher towel, a paper serviette and a spoon) are packed by the Plaintiff in the cardboard or polystyrene foam cartons in which the Plaintiff's food products are packed;
  • (b) of the refresher towels , other than those contained in serviette packs: -
    • (i) 83.3 per cent are packed by the Plaintiff in the cardboard or polystyrene foam cartons in which the Plaintiff's food products are packed;
    • (ii) 1.9 per cent are provided as additional items by the Plaintiff and are packed by the Plaintiff in the plastic carry bags in which the cardboard or polystyrene foam cartons containing the Plaintiff's food products are packed; and
    • (iii) the remainder (14.8 per cent) are utilised by customers and are almost invariably packed by those customers in the plastic carry bags in which the cardboard or polystyrene foam

      ATC 4704

      cartons containing the Plaintiff's food products are packed;
  • (c) of the paper serviettes , other than those contained in the serviette packs: -
    • (i) 63.7 per cent are packed by the Plaintiff in the plastic carry bags in which the cardboard or polystyrene foam cartons containing the Plaintiff's food products are packed; and
    • (ii) the remainder (36.3 per cent) are utilised by customers of the Plaintiff and are almost invariably packed by those customers in the plastic carry bags in which the cardboard or polystyrene foam cartons containing the Plaintiff's food products are packed; and
  • (d) of the spoons , other than those contained in serviette packs;
    • (i) 60.2 per cent are packed by the Plaintiff in the plastic carry bags in which the cardboard or polystyrene foam cartons containing the Plaintiff's food products are packed; and
    • (ii) the remainder (39.8 per cent) are utilised by customers of the Plaintiff and are almost invariably packed by those customers in the plastic carry bags in which the cardboard or polystyrene foam cartons containing the Plaintiff's food products are packed.

6. Wastage of the goods is minimal;

7. The Plaintiff charges its customers one inclusive price for the goods in question and for its food products. No separate charge is made by the Plaintiff for any of the goods in question, the property wherein passing to its customers.''

Evidence from Mr Bothwell, the plaintiff's managing director, was that during the 12 months preceding September 1985 the plaintiff had utilised approximately 15,270,000 spoons, 13,948,000 refresher towels, 15,000,000 serviettes and 17,000,000 carry bags. These items were used in the course of serving approximately 19,000,000 customers.

In para. 1 of the amended summons the plaintiff claims a declaration that the contents of the serviette packs, being a paper serviette, a refresher towel and a plastic spoon, are, when packed in cardboard or polystyrene foam cartons with food products sold to the plaintiff's customers, or in plastic carry bags in which cardboard or polystyrene foam cartons with food products are placed and sold to the plaintiff's customers, ``containers'' within the meaning of that term as defined in cl. 1(1) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935. That definition is in these terms:

```container' means -

  • (a) the inner or outer coverings in which goods are packed or secured, or are to be packed or secured, in the ordinary course of business (including inside linings and inside packing materials); or
  • (b) goods ordinarily used to secure or seal, or to describe the contents of, coverings to which paragraph (a) applies, being goods forming part of the completed coverings,

and includes can keys, glass droppers and other goods that -

  • (c) are accessories of coverings or goods to which paragraph (a) or (b) applies or of goods marketed in such coverings;
  • (d) are attached to or form part of the inner coverings, or are contained in the outer coverings, of the goods so marketed; and
  • (e) are sold with those goods for one inclusive price;.''

Section 5(1) of the Sales Tax (Exemptions and Classifications) Act 1935 exempts from the payment of sales tax any goods covered by any item or sub-item in the first column of the First Schedule ``under any Act specified in the second column of that Schedule opposite that item or sub-item''. Item 91(1) in the First Schedule is:

``(1) Containers used, or for use, in marketing goods covered by any item or sub-item in this Schedule... where the property in the container passes, or is to pass, to the purchaser or lessee of the contents.''

The Acts to which the exemption applies are Sales Tax Assessment Acts Nos. 1-9. It was agreed between the parties that if it is found

ATC 4705

that the goods in question were containers as defined in cl. 1(1), it would not be asserted by the Commissioner that they were not used or for use in marketing goods within the meaning of cl. 91.

Paragraph 2 of the amended summons seeks a declaration that the contents of the serviette packs are, in the circumstances set out in para. 1 of such summons, ``containers'' within the meaning of reg. 4(1) of the Sales Tax Regulations. The relevant definition, which does not differ substantially from that contained in the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935, is as follows:

Section 12(1) of the Sales Tax Assessment Act (No. 1) 1930 provides that a registered person shall quote his certificate in such manner and under such circumstances as are prescribed. The relevant prescription for present purposes is in reg. 12(3) of the Sales Tax Regulations which, inter alia, is in these terms:

The relevance and the effect of the quotation by a registered person of his certificate is lucidly summarised by Dixon J. (as he then was) in
D.F.C. of T. (S.A.) v. Ellis & Clark Ltd. (1934) 52 C.L.R. 85 at p. 99 ff.

Paragraph 3 of the amended summons seeks a declaration that the plaintiff, as a registered person pursuant to the provisions of the Sales Tax Assessment Act (No. 1) 1930, is required by sec. 12(1) of that Act and reg. 12(3) to quote its sales tax certificate in respect of the purchase by it of the contents of the serviette packs from the manufacturers, suppliers or wholesalers thereof, these being the second, third, fourth and fifth defendants.

The fourth declaration sought is that, when the contents of the serviette packs are sold to the plaintiff by the respective defendants, none of them are, by virtue of the provisions of sec. 17(1) and 19 of the Sales Tax Assessment Act (No. 1) 1930, liable to pay sales tax as imposed by that Act in respect of the sale. Section 17(1) imposes sales tax upon the sale value of goods manufactured in Australia by a taxpayer and sold by him or treated by him as stock for sale by retail. Section 19 deals with the liability for tax.

Paragraph 5 of the summons seeks, in the alternative, a declaration that by reason of the operation of sec. 20 of the Sales Tax Assessment Act (No. 1) 1930, when the contents of the serviette packs are sold to the plaintiff by the other defendants none of them are, pursuant to sec. 17(1) and 19, liable to pay sales tax in respect of such sales. Section 20 provides that, notwithstanding anything in sec. 19, sales tax shall not be payable under the Act by the person specified in sec. 19 upon the sale value of goods the sale value of which is, by virtue of the Sales Tax (Exemptions and Classifications) Act 1935, exempt from sales tax.

ATC 4706

Paragraph 6 of the summons asks for a declaration that the plaintiff, by virtue of the provisions of sec. 5(1) of the Sales Tax (Exemptions and Classifications) Act 1935 and Item 91(1) of the First Schedule, is not liable to pay sales tax imposed by Sales Tax Acts (No. 2), (No. 3), or (No. 4) in respect of the contents dealt with in the way set out in the first paragraph of the summons.

Paragraphs 7 to 12 inclusive of the amended summons seek identical declarations in relation to the paper serviettes alone; para. 13 to 18 seek them in relation to the refresher towels alone; and para. 19 to 24 inclusive in relation to the plastic spoons alone. Paragraph 25 claims, in the alternative, a declaration that when the refresher towels, serviettes and plastic spoons were sold by the plaintiff to the second, third, fourth and fifth defendants they were, by virtue of sec. 4(b) of the Sales Tax Act (No. 1) 1930, read with Item 8(1)(p), Item 8(1)(r) and Item 1(d) of the Third Schedule to the Sales Tax (Exemptions and Classifications) Act 1935, liable to pay sales tax in respect of towels, serviettes and plastic spoons at the rate of 7½ per cent. (This is now 10 per cent.)

I propose to deal, first of all, with the question of whether or not the serviette packs, each containing a paper serviette, a refresher towel and a plastic spoon, and those goods separately, are a ``container'' pursuant to Item 91(1) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935, i.e. whether they are within the definition of ``container'' in cl. 1(1) of that Schedule. If any is a container and is otherwise within Item 91(1) then, pursuant to sec. 5(1), there is no sales tax payable in relation to such item.

On behalf of the plaintiff it was submitted that each of the goods was a ``container'' because each was within the description:

``... other goods that -

  • (c) are accessories of... goods marketed in such coverings;''

(namely, the coverings referred to in para. (a) of the definition):

``(d) are... contained in the outer coverings, of the goods so marketed; and

(e) are sold with those goods for one inclusive price.''

The reference in para. (c) to ``such coverings'' is to the coverings identified in para. (a), namely:

``... the inner or outer coverings in which goods are packed... or are to be packed... in the ordinary course of business.''

Counsel submitted that the food products sold by the plaintiff were packed in the cardboard or polystyrene foam cartons or plastic bags; that the serviette packs were and each of their contents was an accessory of such coverings, physical connection not being an essential attribute in this regard; that the inquiry whether a thing is an accessory of another involves asking whether the alleged accessory is designed or adapted for use (perhaps predominantly so) for a purpose which contributes to, or aids, the principal thing; and also that in the present case, the serviette pack, and its contents separately, were each adapted for use for a purpose which contributed to or aided the food products marketed within the various cartons and bags, and hence were accessories of the good marketed in the outer coverings. It was said that the primary function of the food products was human consumption, and that function was aided by the serviette packs, and the contents separately, which were accessories thereto.

The plaintiff further submitted that para. (d) of the definition was satisfied because the goods were contained in the relevant cartons and/or bags, being packed therein by the staff of the plaintiff and/or by its customers, and that hence such goods ``are contained in the outer coverings of the goods so marketed''. Finally, in relation to the definition, it was argued that the goods were sold with the food products, and for one inclusive price.

It was then submitted that, on the basis that each of the goods in question is a container, each fell within Item 91(1) of the First Schedule, because each container was used, or was for use, in marketing the relevant goods; the latter were covered by an item in the First Schedule; and the property in each container passed to the customers of the plaintiff. The first requirement was conceded by the Commissioner; the second was plainly satisfied - see Items 23(a) and 23(b) of the First Schedule to the Exemptions Act, as inserted by Act No. 145 of 1985, effective from 20 September 1985. Although this was after the

ATC 4707

date of the filing of the amended summons, I do not regard this as material, in view of the fact that the declarations sought relate to the future.

On behalf of the Commissioner it was submitted that the question whether the goods were ``containers'' involved objective characterisation of them as at the time when liability for sales tax would otherwise attach - i.e. on a sale by one of the second to fifth defendants to the plaintiff of spoons, serviettes or towelettes - reliance in this respect being placed upon certain passages in the judgment of members of the High Court in
D.F.C. of T. v. Stewart & Anor 84 ATC 4146; 52 A.L.R. 253. Here, it was submitted, the objective characterisation of the goods, as at the time of sale by the manufacturers to the plaintiff, was ``spoons, serviettes and towelettes''. The Commissioner argued that the relevant exemption did not extend to goods ``for use'' as containers although the latter words do appear in Item 91 (as contrasted with the definition). The submission continued that at the point of sale by the manufacturer one could not predicate of red plastic spoons (for example) that they were anything other than just that, and they are to be compared with glass droppers, can keys, corks, Crown seals, etc. which are things whose only use is to make a container a complete one or (as in the case of a key for a tin of sardines) is an integral part of the container or a true accessory thereto. Hence user or intended user cannot be relied upon as giving the goods the character of ``container''; they remain spoons, serviettes and towelettes respectively.

In D.F.C. of T. v. Stewart & Anor (ante) the principal question was whether or not certain ticket vending machines were ``goods'' as defined in the Sales Tax (Exemptions and Classifications) Act 1935. What was there said by some members of the Court is of some relevance to the question of whether or not, in the present case, the goods in question can be characterised as a ``container''. It is only if that question is answered in the affirmative that regard may be had to Item 91 where the expressions ``used'' or ``for use'' appear.

Stewart's case was concerned principally with Item 81(1) of the First Schedule to the Sales Tax (Exemptions and Classifications) Act 1935, which deals with ``goods for use... and not for sale'' by, inter alia, hospitals and other benevolent institutions. Deane J. (at ATC p. 4155; A.L.R. p. 266) said that what is required, when considering whether or not things are ``goods for use'', is an objective characterisation of the goods themselves in the light of all the relevant circumstances. Such characterisation must be made as at the time when liability for sales tax would otherwise attach. It will, in an appropriate case, be made with the benefit and in the context of knowledge of the actual use which was subsequently made of the goods. It is true, as the Chief Justice observed in that case, that the expression ``for use'' embraces concepts of intended as well as actual use, as also does Item 91 which refers to ``containers used or for use'' in a certain way. But the definition of ``container'' in cl. 1(1) of the First Schedule does, at least in part, involve the objective characterisation of the goods at the time when they are sold by one of the second to fifth defendants to the plaintiff. However, I do not consider that the question whether serviette packs or their contents separately and individually are accessories of the food marketed in coverings in which they are packed or secured can be answered, as the Commissioner suggested, solely by examining the nature of the goods in question at the point of sale by the manufacturer without paying any regard to their intended use. In order to determine whether something is an accessory of another the nature of the latter and the intended use of the former must clearly be highly relevant.

The most difficult aspects of the present matter are to determine whether or not the goods in question are accessories ``of goods marketed in such coverings'' i.e. of the food marketed in the inner or outer coverings to which para. (a) of the definition of ``container'' relates and to decide what those coverings are. The Commissioner conceded that the plaintiff's cardboard carton was a ``container'' but argued that a plastic carry bag was not for reasons to which I will refer.

In my opinion the goods in question cannot be said to be accessories ``of coverings or goods to which paragraph (a) or (b) applies''. One critical question is whether they are accessories ``of goods marketed in such coverings''. For the present I am content to assume, contrary to what the Commissioner argued, that ``the inner or outer coverings in which goods are packed or secured'' can

ATC 4708

include not only cardboard or polystyrene foam cartons but also plastic carry bags, an assumption which must later be examined. In my opinion each of the items contained in the serviette packs, and the packs themselves, are properly described as accessories of the food products marketed in such coverings.

In
D.F.C. of T. v. Polaroid Australia Pty. Ltd. 71 ATC 4249; (1972) 46 A.L.J.R. 32 Gibbs J. (as the learned Chief Justice then was) was concerned, inter alia, with whether certain Polaroid film packs and picture rolls designed for use in Polaroid cameras to produce finished pictures were ``accessories'' within the meaning of Item 38 of the Second Schedule to the Sales Tax (Exemptions and Classifications) Act 1935 to a camera. The issue was only a minor one in the appeal, and his Honour said (at ATC p. 4253; A.L.J.R. p. 35):

``In my opinion, however, the goods in question cannot be regarded as accessories for a Polaroid camera. An accessory for a camera is an extra and additional part of the equipment of the camera itself, such as a light meter, a filter or a wide angle lens, and in the ordinary course of language a film would not be referred to as an accessory for a conventional camera, nor a film pack or a picture roll as an accessory for a Polaroid camera.''

That case does not lay down any general rule. Counsel for the plaintiff referred me to a number of dictionary definitions which satisfy me that the inquiry whether a thing is an accessory of another involves asking whether it is designed or adapted for use (perhaps predominantly so) for a purpose which contributes to, or aids (as in this case) the food products marketed. Just as a can key in a sardine tin is, by definition, expressly made an accessory to the sardines packed in the can and to the can itself, so also the plaintiff's plastic spoons and the other items enable the plaintiff's products to be readily and conveniently eaten and enjoyed. The object of the plaintiff's food products is their consumption, and that is aided by the serviette packs and the contents of them.

In my opinion the remaining requirements of the definition of ``container'' are satisfied, subject only to the consideration of whether or not the plastic carry bags, as distinct from the cardboard or polystyrene foam cartons, can be described as ``the inner or outer coverings in which goods are packed or secured or are to be packed or secured in the ordinary course of business''. Paragraph (c) of the definition requires that the food be marketed ``in such coverings''. Counsel for the plaintiff argued that the definition did not require that the goods be wholly enclosed, but only that they be packed or secured. He submitted that, in any event, the word ``coverings'' in the context of the definition and in ordinary commercial usage meant ``something placed over or around a thing to conceal, shield or provide warmth'' a definition which he took from Webster's Dictionary. He referred me also to similar definitions in other dictionaries and submitted that the result was that whilst a covering may enclose an object, enclosure is not a necessary element for every covering, and that all that is here required is that goods must be packed or secured in such coverings.

However, in my opinion, ordinary plastic carry bags, such as are made available in modern times by many if not most retail stores to enable customers to carry away goods which they have purchased, and which are the type here in question, cannot be described as ``inner or outer coverings in which goods are packed or secured''. Whether or not a container as defined must wholly enclose what is carried is perhaps debatable; but I do not accept the proposition that such a plastic bag is something in which goods are either ``packed'' or ``secured''. The latter concept necessarily involves some degree of permanence and security being given to the contents, and the former some deliberate or formal packing in a ``covering'' of or for the goods. An ordinary paper bag or a shopping basket would not suffice. The question is one of fact and degree. That question of fact I answer in the present case by saying that a plastic carry bag is not a ``covering'' and it is not something in which goods are ``packed or secured''.

The consequence of the foregoing is that it is only the serviette packs, which are packed by the plaintiff in the cardboard or polystyrene foam cartons, and the refresher towels packed in such cartons which, assuming they otherwise qualify, could be regarded as ``containers'' within the expanded definition. So far as the latter is concerned I have already held that the serviette packs and the relevant towels are accessories of the food marketed in the ``coverings'', that is, the cardboard or

ATC 4709

polystyrene foam cartons. In my opinion also they are, within para. (d) of the definition, ``contained in the outer coverings of the goods so marketed''. I am satisfied also that the serviette packs and the towels in question are sold with the food products and for one inclusive price. The facts in
D.F.C. of T. v. Taubmans (N.S.W.) Pty. Ltd. (1966) 115 C.L.R. 570 and
Max Factor & Co. v. F.C. of T. 71 ATC 4136; (1971) 124 C.L.R. 353 were quite different.

Thus I hold that the serviette packs, comprising refresher towel, paper serviette and spoon, and also the refresher towels alone, which are packed by the plaintiff in the cardboard or polystyrene foam cartons, but not the refresher towels, serviettes and spoons individually which are otherwise used, fall within the definition of ``container'' in the First Schedule to the Sales Tax (Exemptions and Classifications) Act.

This conclusion, of course, poses some difficulties, because some of the various items purchased from the manufacturers will be for use in serviette packs or will be packed in cardboard or foam cartons and others will not.

Item 91 of the First Schedule has already been set out. In my opinion the serviette packs and the relevant towels were ``for use in marketing goods covered by any item... in this Schedule... where the property in the container... is to pass to the purchaser... of the contents'' and hence they come within Item 91. The first requirement concerning use was conceded by the defendant. The other requirements are plainly satisfied. The relevant products are covered at least by Items 23(a) and 23(b) of the First Schedule as amended by Act No. 145 of 1985 and which became effective on 20 September 1985. This refers inter alia to goods sold exclusively or principally or put up for sale as food for human consumption.

In the result it will be necessary for the parties to carefully consider my reasons and to determine the precise form of the appropriate declarations which should be made. Mr Bothwell's evidence concerning the serviette packs was that during the period of 12 months preceding September 1985 the number supplied to customers was 3,908,000. During the same period the plaintiff utilised approximately 15,270,000 spoons, 13,948,000 refresher towels and 15,000,000 serviettes and 17,000,000 carry bags. These items were used in the course of serving approximately 19,000,000 customers. In evidence he agreed that the number of spoons supplied in the serviette packs was only approximately one-fifth of the number of spoons supplied overall; the percentage of serviettes was the same; and ``the vast majority of... refresher towels that move through our system move through as an integral part of a pack''. I have already held that of the remaining refresher towels 83.3 per cent are packed in cardboard or foam cartons. In the light of the foregoing, and of my conclusions, the parties must work out the appropriate declarations to be made.

In relation to the declaration sought in para. 25 of the summons, this will be relevant only to the extent that the goods purchased by the plaintiff from the various manufacturers thereof are not exempt from sales tax. The allegation is that the plastic spoons, paper serviettes and the balance of the refresher towels should be subjected to sales tax at the rate specified from time to time in sec. 4(b) of the Sales Tax Act (No. 1) 1930 (which is currently ten per cent). So far as the plastic spoons are concerned, it is claimed that they fall within the terms of Item 1(d) of the Third Schedule to the Sales Tax (Exemptions and Classifications) Act, which relates to:

``Goods... of a kind ordinarily used for household purposes, namely...

  • (d) cutlery...''

The Commissioner does not oppose the making of a declaration to the effect that the red plastic spoons in question come within this description and hence it is not necessary to deal further with the arguments of the plaintiff in this regard.

So far as the paper serviettes and refresher towels which are not exempt are concerned, the plaintiff argued that they fell within Items 8(1)(p) and (r) of the Third Schedule, which relate to:

``(1) Household drapery and soft furnishings, namely

  • ...
  • (p)... table napkins...
  • (r) towels, face cloths and face washers.''

In
F.C. of T. v. Sherwood Overseas Pty. Ltd. 85 ATC 4267 Olney J., who was there

ATC 4710

concerned with an automatic suction power device for cleaning the bottom and sides of domestic swimming pools, and with the question whether this could be described as goods of a kind ordinarily used for household purposes, said (at p. 4271):

``The use of the adjective `household' suggests that the intention has been to distinguish the particular goods in question from similar goods that have uses outside a domestic establishment. I have already made reference to commercial and industrial uses to which goods of a similar description can be put and I think that in broad terms this is the intention of using the words `ordinarily used for household purposes'. I do not understand the Commissioner to have advocated that an article can only be regarded as ordinarily used for household purposes only if its ordinary use is within the four walls of a dwelling house. Indeed, some of the items specified in the Third Schedule are inevitably used out of doors whereas a number of others can commonly be found and used both inside and outside.

In my opinion a robust approach ought to be taken to the construction of the Third Schedule particularly in view of the fact that it is part of a statute imposing taxation and I take the view that any goods which fall within the particulars described in para. (a) to (p) of the first item which are ordinarily used in or about a dwelling house can fairly be said to be ordinarily used for household purposes.''

With these views I respectfully agree and I would apply them to Item 8 also.

I do not think that the inquiry is, as the Commissioner has submitted, into whether the items are household drapery or soft furnishings in the ordinary use of those words. They have been defined to include table napkins and towels, face cloths and face washers. I see no reason why a refresher towel does not come within the expression ``towels, face cloths and face washers'' notwithstanding that it is not made of textile fabrics. Adopting a robust approach to the construction of the items in question, I consider that in this day and age paper serviettes can properly be described as ``table napkins'' which, by definition, come within the description ``household drapery and soft furnishings''. I consider also that refresher towels, which again are not made of cloth but of paper, are to be described as ``towels, face cloths and face washers'' which again, by definition, are included within the extended definition of household drapery and soft furnishings. In these circumstances the plaintiff is entitled to the declaration sought in para. 25, limited to the goods not otherwise exempt, and with the necessary amendment to the rate of duty chargeable.

The parties are to bring in a document embodying the appropriate form of the declarations and orders which should be made. If there is no agreement as to costs, I will then hear argument upon them. My present view, upon which I have not heard counsel, is that the plaintiff should receive the whole of its costs. There will be no orders as to the costs of the second to fifth defendants inclusive.

 

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