GREEN GREEN Macnaughton J. Macrossen, for the co-defendant: The co-defendant was not guilty of adultery, and as a successful party should be allowed his costs. MACNAUGHTON J. The original petition by the plaintiff was for dissolution of his marriage on the ground of his wife's (the defendant's) adultery with the co-defendant at Leichhardt Street, Spring Hill, between the 1st and 8th of March, 1923. There was & cross petition by the defendant for judicial separation on the grounds of cruelty and desertion. The case was heard before me without a jury on the 10th and 11th of July, and the 1st, 2nd and 6th of August last. Both petitions were dismissed, and I reserved the question of the co-defendant's costs. The material facts are briefly as follows: The defendant had lived apart from the plaintiff, under a separation deed executed in July, 1917. which contained the usual dum casta clause. The defendant, the co-defendant, and a Miss Mulry have since December last conducted in partnership a wine shop in Leichhardt Street, Spring Hill. Since that time they have all lived and are still living in a small flat above the shop, the defendant and Miss Mulry sleeping in the back bedroom and the co-defendant on a stretcher in the dining room at the front. There was evidence, if it had been believed, which clearly proved adultery on the 8th of March, given by three private detectives-M. Kelly, A. Jackson, and C. O'Sullivan-and also evidence, not so direct, pointing to the same conclusion, between the 1st and the 7th of March, by the same witnesses, who had all received substantial sums of money from the plaintiff for their services. The story told by them about the 8th of March was flatly contradicted by a Miss Lovell, who lived next door to the flat above the wine shop, and at that time knew none of the parties, and was a perfectly independent witness. I came to the conclusion that she was speaking the truth, with the corollary that I regarded the story of Kelly, Jackson and O'Sullivan as a fabrication. Kelly was also contradicted by another independent witness, A. Cornish, as to an alleged conversation with the defendant and co-defendant which, if believed, practically amounted to an admission of adultery. I believed Cornish, and in view of these contradictions, disregarded the whole of the evidence of the three private detectives. Evidence of such persons, whose payment usually depends upon results, has to be used with the greatest care and scrutinised with the utmost jealousy. See AND ROBERTS. Sopwith v. Sopwith, per Sir Creswell Creswell J.O. (1); Sampson GREEN v. GREEN v. Sampson, per O'Connor J. (2); and White v. White, per Shand J. (3). Apart from these witnesses, the only evidence of adultery Macnaughton J. was the fact that the defendant and co-defendant were living in the same flat, so that they had every opportunity of committing adultery. Although it was highly improper for the defendant, a married woman separated from her husband, to do this, it is not sufficient to prove adultery. I reserved the question of allowing the co-defendant his costs to consider the authorities. In Halsbury's Laws of England, Vol. 16, p. 551, it is laid down that a co-respondent may have to pay his own costs, although found not guilty, if, by his conduct, he has brought the suit on himself. The cases cited in support of this proposition are first, Robinson v. Robinson (4). There, the co-respondent was seen to go into the house of the respondent, who was living apart from her husband, remain there for some time, and escape by the back door. In the next, Winscom v. Winscom (5), the respondent and co-respondent were seen walking together on a road after dark and kissing each other; and in the last, Carstairs v. Carstairs (6), the co-respondents were seen with the respondent after dark under circumstances that suspicious, but not sufficient to establish adultery. were The facts in these cases are quite different from the present. The defendant and co-defendant openly started and conducted the wine shop business, which was a very profitable one, and did not in any way conceal the fact that they were living in the same residence. The plaintiff must have known that the mere fact of their living in this way would not be enough to entitle him to succeed, and that his case must depend upon the evidence of the private detectives, which has failed him, and the dates of the adultery charged, and of the petition, the 26th March, 1923, bears this out. The co-defendant here is in the position of a successful litigant. Apart from the decisions in the English Divorce Court cited above, the costs of the action are in my discretion-O. XCI., r. 1-but that discretion must be exercised according to legal principles. The principles which govern the exercise of that discretion in cases tried by a Judge alone were elaborately considered by the Court of Appeal in Ritter v. Godfrey (7). (1) 1859, 4 Sw. & Tr. 243, at p. 246. L (5) 1864, 3 Sw. & Tr. 380. AND ROBERTS. GREEN v. GREEN Lord Sterndale M.R. said, at p. 53: "In order to justify an order refusing a defendant his costs, he must be shown to have Macnaughton J. been guilty of conduct which induced the plaintiff to bring the action, and without which it would probably not have been brought." On the facts set out above, I do not think that the mere fact of the co-defendant living in the same house as the defendant induced the plaintiff to bring the action, so, applying the test suggested by Lord Sterndale, I do not feel justified in depriving the co-defendant of his costs. Plaintiff ordered to pay costs of co-defendant. Solicitors for plaintiff Stephens & Tozer. Solicitors for defendant: Desmond & Roach. Solicitor for co-defendant: G. Storer. [IN THE FULL COURT.] THE BRISBANE TRAMWAYS COMPANY LTD. v. THE BRISBANE TRAMWAY TRUST AND ANOTHER. Brisbane Tramway Trust Act of 1922-Construction-Acquisition of Tramway by statutory body from promoters-Origin, nature and duration of rights of promoters-Extent of promoters' rights -Assessment of purchase money payable-Basis or principle on which assessment to be made-Undertaking of promoters Position of Local Authorities-Unexpired extensions Authorised extensions-Tribunal by whom purchase money to be assessed-The Tramways Act of 1882 (46 Vic., No. 10)—The Tramways Act of 1882 Amendment Act of 1890 (54 Vic., No. 16) -The Brisbane Tramways Act of 1913 (4 Geo. V., No. 27) — The Brisbane Tramway Purchase Act of 1920 (10 Geo. V., No. 34) repealed-The Brisbane Tramway Trust Act (13 Geo. V., No. 14). By The Brisbane Tramway Trust Act of 1922, provision was made for the acquisition, by the Trust established under the Act, and purchase on behalf of certain specified councils of local authorities of the Tramway (as defined in the Act) of the Brisbane Tramways Co. Ltd., and that the amount of purchase money payable by the Trust and the basis or principle upon which the same should be assessed, and the Court or person by whom such purchase money should be assessed, should be the same as if the compulsory purchase from the Company were made under The Tramways Acts, 1882-1890 and The Brisbane Tramways Act of 1913, and any agreements made in pursuance of the last-mentioned Act, and that in case of any disagreement or dispute, the basis or principle upon which, and the Court or person by whom such purchase money should be assessed should be determined by the Full Court on the petition of the Minister or the Company, and without in any way taking into consideration or paying regard to any of the provisions of The Brisbane Tramway Purchase Act of 1920, or the Act of 1922 (other than s. 16 thereof). Disagreements and disputes arose with respect to the amount of purchase money payable and the basis or principle of assessment for property admittedly comprised in the definition of "Tramway," and also with respect to certain property owned and used by the Company in connection with the generation, sale and supply of electric light, heat and power, and certain extensions, additions and modificatons to and of the Tramway, claimed by the Company to be included as part of the "Tramway and its appurtenances," and alleged by the Minister to be excluded as unauthorised. On a petition by the Company, 1923. June 6, 7, 8, 11, 12, 13. August 28. McCawley C.J. Lukin J. F.C. THE BRISBANE TRAMWAYS CO. LTD. v. Held (McCawley C.J., Shand, Lukin, Macnaughton and O'Sullivan JJ.), that the amount of purchase money payable should be assessed by the Land Court, and that the Court was unable on such petition, or under s. 16 of the Act of 1922, or on the material before it, to determine the question of the authorisation or TRAMWAY TRUST. validation of the extensions, additions and modifications in the petition mentioned, or (Shand and Lukin JJ.) of the apparatus for the generation and supply of electric light, heat and power. THE BRISBANE Held (McCawley C.J., Macnaughton and O'Sullivan JJ.), that the Company's rights of user (as well as its obligation to provide a sufficient service for public convenience), expired upon the acquisition of the Tramway at the expiration of the defined period, were not acquired by the councils, and therefore should not be included in ascertaining the amount of purchase money payable; that the purchase money for each of the tramways completed more than 14 years before the acquisition of "the Tramway" under the Act of 1922, should be the value to the Company of the Tramways with their appurtenances, assessed on the basis or principle approved by the House of Lords in The Edinburgh Street Tramways Company v. The Lord Provost, etc., of Edinburgh (1), and that the purchase money for each of the tramways completed less than 14 years before the acquisition of "the Tramway" under the Act of 1922, should be the value to the Company of those tramways with their appurtenances, assessed on the basis of what a hypothetical prudent purchaser should pay to stand in the shoes of the Company (with all the Company's statutory rights, powers and obligations) in respect of each of such tramway undertakings, including the contingency of the councils exercising the power of compulsory purchase of the tramway with its appurtenances under s. 84, subsec. 1 of the Act of 1882 on the basis of the Edinburgh Street Tramways Co. Case (supra) after the expiration of 14 years from the time when such tramway was completed (or deemed to be completed under the Act of 1913 and agreements thereunder); and that the apparatus used by the Company for the purpose of supplying electric light, heat and power could not be regarded as coming within the expression " the tramway with its appurtenances" or "the Tramway." Held (Shand J.), that in assessing the amount of the purchase moneys payable under the provisions of s. 84 (2) of the Act of 1882, the assessing tribunal must take into consideration the value which the physical properties constituting the 'tramway with its appurtenances" would have had for the Company if it had been left in undisturbed possession of them, with the right to use them for the purpose of working the tramway traffic under the provisions of the Acts of 1882 and 1890, and taking the tolls authorised thereby. Held (Lukin J.), that the basis of assessment of the purchase money payable should be the value of the Tramway as a profit-earning, commercial-going concern, with all its assets and powers-that is to say, the price that a willing purchaser would, at the date of acquisition, have had to pay to a vendor not unwilling, but not anxious, to sell the undertaking in question; and that such value should be (1) [1894] A.C. 456, |