ENVIRO SYSTEMS RENEWABLE RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED) v WESTPAC BANKING CORP [2015] SASC 59 (15 April 2015)

Last Updated: 16 April 2015

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)

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ENVIRO SYSTEMS RENEWABLE RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED) v WESTPAC BANKING CORP

[2015] SASC 59

Reasons of Judge Dart a Master of the Supreme Court

15 April 2015

CORPORATIONS - WINDING UP - WINDING UP IN INSOLVENCY - STATUTORY DEMAND - APPLICATION TO SET ASIDE DEMAND - GENUINE DISPUTE AS TO INDEBTEDNESS - OFFSETTING AND OTHER LIKE CLAIMS

Section 459H of the Corporations Act 2001 - genuine offsetting claim - plaintiff's land sold by receivers - duties of receivers - alleged sale for an under-value - receivers acting as agents for the plaintiff - no offsetting claim against the defendant established - s 459J - no other reason to set aside the statutory demand - application to be dismissed.

Corporations Act 2001 (Cth) s 420A, s 423, s 459C, s 459H, s 459J, s 459M; Transfer of Land Act 1958 (Vic) s 77(4); Australian Securities and Investments Commission Act 2001 (Cth), referred to.

Artistic Builders Pty Ltd v Elliot and Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16; Bank of Western Australia Ltd v Abdul & Anor [2012] VSC 222; Carwyn Constructions Pty Ltd (ACN 126 481 589) v J & WL Consulting Services [2009] QCA 225; (2009) 73 ACSR 421; Cooperatieve Centrale Raiffeisen-Boerenleenbank B A v Philips [2011] SASC 139; Crontec Automotive Tooling Pty Ltd v Allsteel Australia Pty Ltd [2006] NSWSC 555; Eumina Investments Pty Ltd v Westpac Banking Corporation [1998] FCA 824; (1998) 84 FCR 454; Expo International Pty Ltd v Chant [1979] 2 NSWLR 820; Fortson Pty Ltd v Commonwealth Bank of Australia and Another [2008] SASC 49; (2008) 100 SASR 162; Gaskell and Another v Gosling and Another [1896] 1 Q.B. 669; John Shearer Ltd v Gehl Co [1995] FCA 1789; 18 ACSR 780; Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773; (2009) 72 ACSR 684; Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation [2006] SASC 91; (2006) 94 SASR 269; Re Geneva Finance Ltd; Quigley v Cook and Others (1992) 7 ACSR 415; Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410; Visboard v The Federal Commissioner of Taxation (Cth) [1943] HCA 4; (1943) 68 CLR 354; Willaire Pty Ltd v Equititrust Ltd (2010) 81 ACSR 200, considered.

ENVIRO SYSTEMS RENEWABLE RESOURCES LTD (RECEIVERS & MANAGERS APPOINTED) v WESTPAC BANKING CORP
[2015] SASC 59

JUDGE DART:

1. These reasons deal with the plaintiff’s application to set aside a statutory demand served on it by the defendant. They arise from a second hearing of the application. Another Master dealt with the application last October and made orders pursuant to s 459H of the Corporations Act 2001 (“the Act”) adjusting the amount of the debt claimed in the demand. The plaintiff appealed those orders. His Honour Justice Gray heard that appeal and remitted the application for a further hearing in respect of the question of whether or not the statutory demand should be set aside.
2. For the reasons that follow, I propose to dismiss the application.

Sale of the plaintiff’s assets

3. The plaintiff is a public company and formerly owned at least two properties. The first was at Verdun. A tenant conducted a hardware business on the site. Secondly, the plaintiff owned and managed a Blue Gum plantation on a property near Edenhope in Victoria, called Warolim. The timber was processed and sold as firewood. The property comprised a number of titles and totalled in all more than 900 hectares of land. More than half of the land was given over to the Blue Gum plantation.
4. The plaintiff had banking facilities with the defendant. Those facilities fell into default and on 23 January 2013 the defendant served a Notice of Default and Intention to Sell in respect of the land at Verdun. The defendant appointed Receivers and Managers (“Receivers”) to the business. In April 2013, at a public auction, the Verdun land was sold for a price slightly in excess of $1 million. The contract settled on 3 May 2013.
5. Thereafter, also in April 2013, the defendant appointed the same Receivers to all of the other assets and undertakings of the plaintiff, including the Warolim property. Shortly after their appointment, the Receivers obtained a valuation of Warolim from Lindsay Wapper & Associates Valuation Services. That valued the property at $535,000 on a mortgagee sale basis. It proceeded on the basis that the land was best used for pastoral purposes and discounted the value of the land to allow for the cost of the removal of the Blue Gums. It made no allowance for the value of the timber to be removed.
6. At the same time the Receivers arranged for Geddes Management Pty Ltd to inspect the property and provide a valuation report in respect of the Blue Gum trees growing on the land. It valued the net present value of the trees on the land at $886,195. It reported that the market situation for firewood had deteriorated and the best value would be obtained for the Blue Gums by selling them as woodchip.
7. The Receivers appointed Colliers International (Victoria) Pty Ltd (“the Agents”) to sell the Warolim property by an expression of interest process. The Agents conducted a marketing campaign over a five week period, which involved advertisements in a number of publications circulating nationally and also in the local area. An email was sent by the Agents to approximately 2000 local, national and international forestry industry participants, farmers and investors, alerting them to the sale of the property. The property was also listed on several real estate websites.
8. A number of expressions of interest were received and those parties were given an opportunity to make binding offers. The agents received four binding offers and negotiated with the party who made the highest offer. His initial offer was in the amount of $475,000 and, after negotiations, a final price of $515,000 was agreed.
9. The Receivers became aware that a caveat had been lodged on the titles to the Warolim property. To avoid any difficulties in respect of the settlement of the contract the Receivers had the defendant execute the contract of sale as vendor and mortgagee.[1] The contract settled on 4 November 2013.
10. The defendant subsequently served the statutory demand on the plaintiff in respect of monies said to remain owing. The defendant claimed a debt in the amount of $2,898,870.27.

Legal issues that arise on the application

11. When the matter was originally heard before a Master, the plaintiff complained about the conduct of the sale process in respect of the sale of both the Verdun land and Warolim. It no longer presses any argument in respect of the sale of the land at Verdun.
12. Its claim now is that the Warolim property was sold for a significant under-value and that loss has been caused to the plaintiff because of that. Its main point being that the property was sold for use as pastoral land and no value at all was obtained for the Blue Gum plantation.
13. The plaintiff seeks to set aside the statutory demand on three bases which are that:
    1. There is a genuine dispute as to the amount of the debt.
    2. It has an offsetting claim.
    3. It is entitled to relief under s 459J of the Act.
14. There is no dispute as such about the calculation of debt owed to the bank. What the plaintiff says is that the debt should be reduced because of the damage it suffered by reason of the sale of Warolim for a significant under-value.
15. This matter primarily falls to be determined pursuant to the provisions s 459H of the Act which provide as follows:

459H Determination of application where there is a dispute or offsetting claim
(1) This section applies where, on an application under section 459G, the Court is satisfied of either or both of the following:
(a) that there is a genuine dispute between the company and the respondent about the existence or amount of a debt to which the demand relates;
(b) that the company has an offsetting claim.
(2) The Court must calculate the substantiated amount of the demand in accordance with the formula:

where:
admitted total means:
(a) the admitted amount of the debt; or
(b) the total of the respective admitted amounts of the debts;
as the case requires, to which the demand relates.
offsetting total means:
(a) if the Court is satisfied that the company has only one offsetting claim—the amount of that claim; or
(b) if the Court is satisfied that the company has 2 or more offsetting claims—the total of the amounts of those claims; or
(c) otherwise—a nil amount.
(3) If the substantiated amount is less than the statutory minimum, the Court must, by order, set aside the demand.
(4) If the substantiated amount is at least as great as the statutory minimum, the Court may make an order:
(a) varying the demand as specified in the order; and
(b) declaring the demand to have had effect, as so varied, as from when the demand was served on the company.
(5) In this section:
admitted amount, in relation to a debt, means:
(a) if the Court is satisfied that there is a genuine dispute between the company and the respondent about the existence of the debt—a nil amount; or
(b) if the Court is satisfied that there is a genuine dispute between the company and the respondent about the amount of the debt—so much of that amount as the Court is satisfied is not the subject of such a dispute; or
(c) otherwise—the amount of the debt.
offsetting claim means a genuine claim that the company has against the respondent by way of counterclaim, set-off or cross-demand (even if it does not arise out of the same transaction or circumstances as a debt to which the demand relates).
respondent means the person who served the demand on the company.
(6) This section has effect subject to section 459J.

16. The purpose of the statutory demand regime is to act as a filter. That is to separate out those disputes which are genuine and those disputes which are not. If there is a genuine dispute, the demand is set aside and the matter is left to be litigated in the usual manner. If there is a genuine offsetting claim, the demand is adjusted accordingly. Where neither exists, the demand is not set aside or varied. A failure to comply with a statutory demand leads to the presumption of insolvency,[2] which founds most applications to wind up a company.
17. The arguments advanced by the plaintiff naturally fall into the category of an offsetting claim. There is no dispute in respect of the facilities provided by the defendant, nor the calculation by which the defendant arrived at the amount claimed in the statutory demand. It is not a genuine dispute claim.
18. What the plaintiff seeks to do is set off against that amount its alleged claim for damages arising from the sale of Warolim for an under-value. Thus, it is s 459H(1)(b) that is applicable and it is necessary to consider the meaning of an offsetting claim. It is defined as a genuine claim by way of counterclaim, set-off or cross-demand.
19. In John Shearer Ltd v Gehl Co[3] the Full Federal Court said:[4]

The word “cross-demand” is a word of considerable width. While the words “counterclaim” and “set-off” are technical words, the meanings of which are confined, the same is not true of the word “cross-demand”.

20. The Full Federal Court went on to say:[5]

It would seem to follow that in the context of the Law, a context similar to that in s 41(7) of the Bankruptcy Act 1966 (Cth), a cross-demand will include any claim for damages which exists at the time the application to set aside the statutory demand is made, which is for a monetary amount capable of quantification whether or not it arises out of the same transaction or circumstances as the debt to which the statutory demand relates.

21. In Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation[6] the Full Court had to consider the question of an offsetting claim. In the principal judgment Debelle J said: [7]

The test whether an offsetting claim exists is the same as for a genuine dispute, that is to say, the claim must be bona fide and truly exist in fact and that the grounds for alleging the existence of the dispute are real and not spurious, hypothetical, illusory or misconceived. The issue is whether the offsetting claim is bona fide, real or not spurious.

22. To have an offsetting claim for the purpose of s 459H(1)(b), a party must articulate an arguable cause of action against the creditor that will, if successful, result in an award of damages.
23. Further, it is necessary for a plaintiff to quantify its alleged offsetting claim. The standard of proof in respect of the quantification of an offsetting claim is plausible contention, not the balance of probability.[8]
24. Separately, the plaintiff also relies on s 459J(1)(b) of the Act in that it says there is some other reason why the demand should be set aside.

459J Setting aside demand on other grounds

(1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

(a) because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

(b) there is some other reason why the demand should be set aside.

(2) Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.

25. The provision gives a discretion to the Court to set aside a demand when the justice of the circumstances require it to do so. Examples of utilisation of the provision include setting aside a demand in circumstances where a bona fide appeal is on foot in respect of the judgment which supports the demand. [9] It is usual in such cases to require payment of the full amount of debt into court pursuant to s 459M of the Act.
26. Likewise, if the statutory demand process is being used unjustly or unconscientiously, a demand may be set aside.[10] However, the cases make clear that 459J and 459H have separate work to do and operate independently and discretely from each other. That is to say, 459J furnishes an additional ground to set aside a demand to that provided in s 459H. It does not add an additional element to the grounds for setting aside a demand pursuant to s 459H.[11]
27. A fair summary of the authorities on s 459J(1)(b) suggests there must be factual circumstances to satisfy the court that an injustice will occur if the demand is not set aside. Such circumstances have proven to be, and are likely to remain, fairly rare.

Duties of a receiver

28. As the plaintiff’s complaint is the manner in which the Receivers went about the sale of Warolim, it is necessary to consider what obligations they had when doing so.
29. The common law duties of a receiver were considered by Needham J in Expo International Pty Ltd v Chant.[12] His Honour explained the duties as follows:[13]

The conclusion I have drawn from the authorities to which I have referred is that the receiver in a case such as the present (as distinct from a case where the receivers were appointed by the Court and, possibly, a case where he is the agent of the mortgagee) has certain duties towards the mortgagor which are enforceable by the latter directly against the receiver. Those duties include the duty to exercise his powers in good faith (including a duty not to sacrifice the mortgagor’s interests recklessly); to act strictly, and in accordance with, the conditions of his appointment; to account to the mortgagor after the mortgagee’s security has been discharged, not only for the surplus assets, but also for his conduct of the receivership. The latter duty, in my opinion, involves the duty to terminate the receivership by handing over the surplus assets to the mortgagor as soon as the interests of the mortgagee have been satisfied. I think the receiver would be acting outside his powers, or mala fide, if he failed to terminate the receivership because of some extraneous or collateral consideration. There is, in my opinion, no warrant in the authorities for holding the receiver to be liable for loss caused by negligence.

30. The proposition that a receiver was not, at common law, liable for negligence, received some consideration in the Harmer Report.[14] That report recommended the adoption of a more stringent approach in respect of the duties owed by a receiver to a mortgagor.
31. In the result, s 420A of the Act was enacted. It provides as follows:

420A Controller’s duty of care in exercising power of sale
(1) In exercising a power of sale in respect of property of a corporation, a controller must take all reasonable care to sell the property for:
(a) if, when it is sold, it has a market value—not less than that market value; or
(b) otherwise—the best price that is reasonably obtainable, having regard to the circumstances existing when the property is sold.
(2) Nothing in subsection (1) limits the generality of anything in section 180, 181, 182, 183 or 184.

32. The obligations in s 420A deal with the duty of care of a controller. The term “controller” is defined in s 9 of the Act as follows:

controller, in relation to property of a corporation, means:
(a) a receiver, or receiver and manager, of that property; or
(b) anyone else who (whether or not as agent for the corporation) is in possession, or has control, of that property for the purpose of enforcing a security interest;
and has a meaning affected by paragraph 434F(b) (which deals with 2 or more persons appointed as controllers).

33. The Receivers fall within the definition of controller and were obliged to comply with the provisions of s 420A when undertaking the sale of the assets of the plaintiff.
34. It is clear that a breach of s 420A does not expressly confer a right to claim damages or any other remedy on a mortgagor.[15] Notwithstanding that, a remedy is usually available requiring the receivers to account for any difference between the market value and the price actually obtained.[16]
35. In addition, the provisions of s 423 of the Act permit a court to inquire into the conduct of a controller and, after such inquiry, take such action as it thinks fit. That includes ordering the controller to make good the loss suffered by a mortgagor by reason of the controller’s breach of s 420A.[17]

A receiver is an agent of the mortgagor

36. As discussed, the plaintiff’s complaint relates to the conduct of the Receivers in respect of the sale process and their failure to obtain any value for the timber growing on Warolim.
37. The standard terms of mortgage applicable to the facilities made available by the defendant provided that any receivers and managers appointed by them will be the agents of the plaintiff. It seems to me that a difficulty confronts the plaintiff because of the status of the Receivers as its agents.
38. The agency of a receiver is special and limited.[18] Nonetheless, the fact of the matter is, at general law and pursuant to the contractual arrangements between the parties, the Receivers are the plaintiff’s agent. To maintain an entitlement to a set-off by way of counterclaim or cross-demand, logically the plaintiff must have a claim against the defendant. However, what the plaintiff complains of is the conduct of its agent.
39. In Gaskell and Another v Gosling and Another[19] Rigby LJ, having found that the receivers in that case were agents for the borrower, said as follows:[20]

The following results seem to follow from the principles already states : (a) that creditors cannot be made responsible for the liabilities of a business carried on for the purpose, among others, of securing and paying their debts, even though they may have considerable control: ... (b) that a receiver and manager appointed by a mortgagee under an agreement that he shall be the agent of the mortgagor is in the same position as if appointed by the mortgagor himself, and as if every direction given to him emanated from the mortgagor himself : ... (c) that a mortgagee is not made a mortgagee in possession by such an appointment, and would not be even if the mortgagor appointed him to receive income.
[References omitted.]

40. A mortgagee in the position of the defendant is not responsible for the conduct of receivers and managers, except insofar as it gives directions or interferes with the conduct of the receivers and managers’ realisation of assets.[21] There is no suggestion or evidence that the defendant interfered in any way with the conduct of the receivership or the sale process adopted with respect to Warolim.
41. The purpose, and consequence, of the agency was made clear by Owen J in Re Geneva Finance Ltd; Quigley v Cook and Others:[22]

The primary duty of the receiver is to realise the assets of the company for the benefit of the secured creditor. The receiver is not subject to control by the company in the way in which he carries out his function. It is, therefore, somewhat surprising to see the receiver referred to as the agent of the company. However it is a limited type of agency, designed to protect the mortgagee from liability for the acts and defaults of the receiver and to facilitate dealings between the receiver and third parties rather than define the rights and duties the receiver (as agent) to the company (as principal) stop.

Consideration of the issues

42. The Receivers obtained no value for the timber growing on the property. That was so, even though they had a valuation which estimated the net present value of the timber on the land at $886,195. The trees had a market value. The plaintiff has established that it has a bona fide argument that the Receivers breached both their common law obligations and also their statutory obligations pursuant to s 420A of the Act in failing to obtain any value for the timber. The Receivers have put forward evidence explaining why they proceeded as they did. They contend that no breach of duty occurred. For present purposes it is not necessary to resolve that difference of position.
43. On the first hearing of this application the Master accepted the evidence of Mr Chambers, a director of the plaintiff, as to the value of the timber growing on the land. That evidence was that there was a company in southern Victoria that was buying Blue Gum logs for use for woodchip and paying between $60 and $70 per tonne for the timber at or about the time of the sale of Warolim. Mr Chambers estimated the cost of harvesting and delivery to the woodchip mill to be in the order of $40 per tonne. He estimated the net value of the trees on the property as being between $1.2 and $1.8 million. That is a plausible contention. The Master accepted the higher figure and adjusted the statutory demand accordingly by deducting that figure from the amount claimed in the statutory demand.
44. All other things being equal, I would, with respect, make the same decision as the first Master and reduce the amount claimed in the statutory demand by $1.8 million.
45. The matter, however, does not stop there. The plaintiff must establish an offsetting claim against the defendant if there is to be any adjustment to the statutory demand. It was the Receivers who conducted the sale process, not the defendant. It is the Receivers who allegedly acted in breach of duty. Had the Receivers completed the sale of Warolim in their capacity as receivers of the plaintiff, no issue of an offsetting claim against the defendant would arise on the facts of this case.
46. An issue only arises, if at all, because the defendant, at the request and recommendation of the Receivers, became the contracting party for the sale of Warolim as vendor. The question becomes whether, in doing so, any duties or obligations accrued to the defendant in respect of the sale of Warolim or, alternatively, the shield of immunity provided by the Receivers’ status as agent of the plaintiff, was removed.
47. The plaintiff recently provided further written submissions in respect of the consequences of the Receivers being its agents. The plaintiff advances three arguments in support of its proposition that it has an offsetting claim against the defendant notwithstanding it was the Receivers’ actions that caused its alleged loss. They are that:
    1. The defendant owed the plaintiff duties as mortgagee in possession.
    2. The defendant was the controller of the plaintiff’s property, for the purpose of s 420A of the Act.
    3. The defendant engaged in unconscionable conduct within the meaning of the Australian Securities and Investments Commission Act 2001 (Cth).

Given the wide definition of controller in s 420A of the Act, there may not be much practical difference between points 1 and 2 because a mortgagee in possession will always also be a controller for the purposes of the Act.

48. The evidence shows that the Receivers remained in actual possession of Warolim until completion of the contract. The defendant signed as mortgagee exercising a power of sale. No issue can arise, therefore, in respect of the defendant being mortgagee in possession.
49. The Receivers procured a binding agreement with the purchaser and took that agreement to the defendant for the purpose of having it become the contracting party as vendor and mortgagee. Does that fact make the defendant a controller for the purpose of 420A of the Act?
50. In the statutory context in which it is found, the words “possession and control” in the definition of “controller” refer to a legal right to de facto possession, which is effective to displace the proprietary interests of the plaintiff.[23] The definition of “controller” in the Act is disjunctive in the sense it refers to a receiver or anybody else in possession. In this case the Receivers never surrendered possession of the property and remained in control of the property at all material times. The definition does not appear to anticipate there being multiple controllers of property. The defendant did not become, merely by executing the contract, a controller of the plaintiff’s land.
51. The defendant was never mortgagee in possession, nor was it a controller. It therefore did not owe the plaintiff any of the duties that would have arisen had it been either or both of those.
52. A further question that needs to be considered, however, is whether there was any conduct on behalf of the defendant that could be regarded as displacing the agency relationship between the Receivers and the mortgagor. In my view, the position of the defendant in entering into the contract is properly to be regarded as the defendant accepting a recommendation of the Receivers. A mortgagee who merely acts on the recommendation of the Receivers does not, in doing so, ordinarily incur any liability nor displace the agency of the Receivers.[24] Nothing that the defendant did had the effect of displacing the Receivers’ agency.
53. Nor has the plaintiff established any facts or circumstances sufficient to make out a bona fide offsetting claim against the defendant based on alleged unconscionable conduct by the defendant.
54. In the result, based on the evidence before the Court, I am not satisfied that the plaintiff has established a genuine offsetting claim that truly exists.
55. The other matter to be considered is the plaintiff’s alternative proposition that the Court should set aside the demand pursuant to the provisions of s 459J(1)(b). The plaintiff says that the defendant has acted oppressively or unfairly by issuing the statutory demand. In my opinion, none of the evidence put forward makes out any basis for alleging that the defendant so acted. There is no basis to set aside the statutory demand on this alternate ground.
56. I propose to dismiss the plaintiff’s application. I will hear the parties as to the form of the orders.

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[1] See s 77(4) Transfer of Land Act 1958 (Vic).

[2] Section 459C of the Act.

[3] [1995] FCA 1789; 18 ACSR 780.

[4] John Shearer Ltd v Gehl Co [1995] FCA 1789; 18 ACSR 780 at 786.

[5] John Shearer Ltd v Gehl Co [1995] FCA 1789; 18 ACSR 780 at 786.

[6] [2006] SASC 91; (2006) 94 SASR 269.

[7] Ozone Manufacturing Pty Ltd v Deputy Commissioner of Taxation [2006] SASC 91; (2006) 94 SASR 269 at 285.

[8] Crontec Automotive Tooling Pty Ltd v Allsteel Australia Pty Ltd [2006] NSWSC 555 at [34].

[9] Eumina Investments Pty Ltd v Westpac Banking Corporation [1998] FCA 824; (1998) 84 FCR 454 at 459.

[10] Willaire Pty Ltd v Equititrust Ltd (2010) 81 ACSR 200 at [39]-[41].

[11] Carwyn Constructions Pty Ltd (ACN 126 481 589) v J & WL Consulting Services [2009] QCA 225; (2009) 73 ACSR 421 at [8].

[12] [1979] 2 NSWLR 820.

[13] Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 at 834.

[14] Australian Law Reform Commission Report No 45, 1988, Vol 1, at [164].

[15] Mijac Investments Pty Ltd v Graham (No 2) [2009] FCA 773; (2009) 72 ACSR 684.

[16] Fortson Pty Ltd v Commonwealth Bank of Australia and Another [2008] SASC 49; (2008) 100 SASR 162.

[17] Artistic Builders Pty Ltd v Elliot and Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16.

[18] Visboard v The Federal Commissioner of Taxation (Cth) [1943] HCA 4; (1943) 68 CLR 354.

[19] [1896] 1 Q.B. 669.

[20] Gaskell and Another v Gosling and Another [1896] 1 Q.B. 669 at 697.

[21] Standard Chartered Bank Ltd v Walker [1982] 1 WLR 1410 at 1416.

[22] (1992) 7 ACSR 415 at 427.

[23] Cooperatieve Centrale Raiffeisen-Boerenleenbank B A v Philips [2011] SASC 139 at [32].

[24] Bank of Western Australia Ltd v Abdul & Anor [2012] VSC 222 at [48].