Banks, Beverley Joy v Official Trustee in Bankruptcy
[1996] FCA 63
•21 FEBRUARY 1996
CATCHWORDS
BANKRUPTCY - Generally - proof of debt - proof based on contract - no contract found - proof of debt expunged.
CONTRACT - Offer and Acceptance - parties operating with business names and for companies - identification of offeror - request for written contract - part payment made - document not executed - performance rendered - offeror identified in unexecuted document.
CONTRACT - Intention to Create Legal Relations - intention not present when contract alleged to have been made.
CONTRACT - negotiations - identification of contracting parties - whether offeror acting as agent or as principal.
Bankruptcy Act 1966
BEVERLEY JOY BANKS v OFFICIAL TRUSTEE IN BANKRUPTCY (First Respondent) and WEINGARDE PTY LIMITED (Second Respondent)
No NB 1186 of 1994
FINN J
SYDNEY
21 FEBRUARY 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
GENERAL DIVISION )
)No NB 1186 of 1994
BANKRUPTCY DISTRICT )
)
OF THE STATE OF NEW SOUTH WALES )
RE:BEVERLEY JOY BANKS
A Bankrupt
Ex Parte:BEVERLEY JOY BANKS
Applicant
OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent
WEINGARDE PTY LIMITED
Second Respondent
CORAM: FINN J.
PLACE: SYDNEY
DATE: 21 FEBRUARY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The proof of debt of Weingarde Pty Limited trading as Australian Pops Orchestra be expunged.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
GENERAL DIVISION )
)No NB 1186 of 1994
BANKRUPTCY DISTRICT )
)
OF THE STATE OF NEW SOUTH WALES )
RE:BEVERLEY JOY BANKS
A Bankrupt
Ex Parte:BEVERLEY JOY BANKS
Applicant
OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent
WEINGARDE PTY LIMITED
Second Respondent
CORAM: FINN J.
PLACE: SYDNEY
DATE: 21 FEBRUARY 1996
REASONS FOR JUDGMENT
On 14 June 1995 application was made to this Court under the Bankruptcy Act 1966, s99(1) for orders expunging a number of proofs of debt alleged to have been wrongly admitted by the trustee in the bankruptcy of Mrs Banks. I am now only concerned with one such proof. It is that of Weingarde Pty Ltd ("Weingarde") which was admitted on the basis of a contract said to exist between Mrs Banks and that company. The narrow question before me is whether the alleged contract was in fact with Mrs Banks as Weingarde contends. It is Mrs Banks' contention that it was with a third party - ALB Photographic Services Pty Ltd.
Both the trustee of Mrs Banks' estate (the Official Trustee in Bankruptcy) and Weingarde have been separately represented in these proceedings. Mrs Banks has appeared in person.
For the purposes of this application it has been conceded that I should treat this matter as, in effect, a hearing de novo with the consequence that it is appropriate for me to take into account any available, relevant evidence whether or not this was before the trustee when taking its decision. I need not here enter on the question whether this concession does no more than state what is the true position in any event: cf Tanning Research Laboratories Inc v O'Brien (1990) 1 ACSR 510 at 515. I would merely note that, in these circumstances and with Weingarde separately represented, the formal position adopted by the trustee in the proceedings has been one of impartiality as between the real disputants.
To facilitate understanding of the issue before me it is appropriate at the outset to provide a brief outline of the various parties implicated in this dispute.
The Parties
(1) Mrs Beverley Banks, the bankrupt, is the person who on one side conducted the negotiations which gave rise to the disputed contract.
(2) Le Voy & Associates ("Le Voy") is a registered business name owned by Mrs Banks. As will be seen, Mrs Banks used the Le Voy & Associates name during the contractual negotiations in question. Le Voy's own promotional material describes Le Voy (inter alia) as:
an Administrative and Management Organisation, formed under the auspices of A.L.B. Photographic Services Pty. Ltd. trading as R. J. Foster & Associates ...
(3) ALB Photographic Services Pty Ltd ("ALB") appears, at the relevant times, to have been a company operated by Mrs Banks and in which her husband was employed in a managerial position. I have not been provided with Australian Securities Commission documentation as to the shareholding and office holding of this company.
(4) Weingarde Pty Ltd, which trades under the name of the Australian Pops Orchestra, provides orchestral concerts and music through its orchestra, the Australian Pops Orchestra.
(5) Australian Pops Orchestra is a business name. It also describes an orchestra which provides concerts.
(6) Mr W K McMillan is a director of Weingarde. He was the founder and is the full-time operator of the Australian Pops Orchestra. It was with Mr McMillan as representative of the Australian Pops Orchestra that Mrs Banks conducted the negotiations to which reference has been made.
The Issue Between the Parties
This is of narrow compass. There is no real dispute between Mrs Banks and Weingarde as to the essence of the contract in question. It was for the provision of orchestral services for charity concerts in Newcastle and Sydney on 12 and 13 March 1991. The consideration was agreed. In the event it amounted to $66,008. Of this $21,000 remains unpaid. The proof of debt is for that sum.
The contractual negotiations, as I have noted, were conducted on the one side by Mrs Banks and on the other by Mr McMillan. The sole question before me is whether the contract said to have eventuated - and all parties before me have assumed that there was a resultant contract - was (i) with Mrs Banks trading under the name of Le Voy; or (ii) with ALB for whom Mrs Banks trading under the name of Le Voy acted in a representative capacity.
The Factual Setting
It needs to be stated at the outset that the material placed before me is not as extensive as perhaps it could have been. Evidence both of the course of the negotiations and of the evolving relationship of Mrs Banks and Mr McMillan is sparse. Likewise there has been little cross-examination of those who have given evidence. I mean no disrespect to Mrs Banks when I say that this is probably a consequence of the unfortunate circumstance of her having to represent herself in the matter.
While I am conscious of the obligation placed upon trial judges in cases of self-representing litigants - cf Neil v Nott (1994) 121 ALR 148 at 150 - I do not consider that any particular steps needed to be taken by me in the circumstances to ensure that Mrs Banks had a fair and proper opportunity to present her case.
The idea for the concerts appears to have originated in the desire of Mrs Banks' husband to promote the music of a particular Australian composer. Mrs Banks, in seeking an available orchestra, was referred to the Australian Pops Orchestra ("the APO"). In oral evidence she indicated that she had not previously heard of the APO.
As a result of a telephone call to Mr McMillan, Mrs Banks went to Melbourne to discuss the proposed concerts. At that meeting she indicated that venues had been booked (the Sydney Opera House and the Theatre in Newcastle) and that the concerts were to aid the work of a particular charitable foundation.
Though the evidence as to time is not precise, Mr McMillan quite early on received a promotional brochure from Mrs Banks concerning Le Voy. Because of the significance Le Voy has in this matter it is necessary to set out in some detail extracts from the brochure. It introduces Le Voy in the following way:
LE VOY & ASSOCIATES
LEGENDS & VOYAGES
Sydney OfficePh: (02) 799 7798
PO Box 543 (02) 819 7411
Drummoyne NSW 2047 Fax: (02) 819 6536
LE VOY & ASSOCIATES
'TAKING AUSTRALIA'S MUSIC TO THE WORLD'
BACKGROUND:
Le Voy & Associates is an Administrative and Management Organisation, formed under the auspices of A.L.B. Photographic Services Pty. Ltd. trading as R. J. Foster & Associates - one of Australia's most respected Insurance Investigation Services specialising in Arson and Corporate defalcations. Fosters has operated within Australia and internationally since 1957, under its present Management since 1977 and acts on behalf of a variety of clients including Commercial Union Insurance, National & General Insurance, Baltica Insurance, Sun Alliance Insurance, AMP Insurance, Federation Insurance, Zurich Insurance, CIC Insurance, FAI Insurance, Union Insurance, GRE Insurance, Lloyds of London, Coles Myer, Woolworths, Norman Ross, Franklins Stores, Kroll & Associates worldwide, Law Society of NSW, Bar Association, Australian Broadcasting Commission and various others.
The Principals of A.L.B. Photographic Services Pty. Ltd. have for many years contributed to numerous public appeals and organisations for the less fortunate. Discussion with these organisations has shown the difficulties and problems encountered by them in their endeavours to gain support of the business community in difficult times. Le Voy & Associates was formed to address this problem in a professional manner to display an understanding of the needs of corporate sponsors and at the same time create areas of employment and benefits to the organisations caring for those in need.
The brochure goes on to indicate the manner in which Le Voy uses musical performances to promote charities; it notes that it retains the services of a public relations organisation for media and publicity purposes; it gives the names of Le Voy's solicitors and accountants; it identifies Mrs Banks as Le Voy's principal and provides some biographical detail; and it concludes with a list of "Projects under Negotiation".
It will be necessary to return to the brochure and particularly to the part quoted above. Its opacity is of no little importance in these proceedings.
After the meeting I have noted above, Mr McMillan provided Mrs Banks with a costing for the concerts. On 29 December 1990, following an earlier suggestion of Mr McMillan, Mrs Banks and a person from the public relations organisation used by Le Voy, attended an APO concert in Melbourne. The following day Mrs Banks wrote to Mr McMillan on Le Voy
letterhead. This letter requested that Mr McMillan "[w]ith confidence contract the best you have" for a number of dates not limited to those of the Sydney and Newcastle concerts. It concluded with New Year greetings and "wishes that Le Voy will be able to serve the Australian Pops Orchestra to the satisfaction of all".
On 31 December 1990 Mrs Banks sent a facsimile to Mr McMillan, this time on R J Foster & Associates letterhead which referred to the letter of the previous day. It likewise asked that Mr McMillan "with confidence please contract orchestra" for the same dates as in the letter of 30 December.
After receiving the letter but before receipt of the facsimile Mr McMillan rang Mrs Banks. It is his uncontradicted evidence that his conversation with her was to the following effect:
McMillan:"Beverley, I got your letter and that is fine but I would appreciate a contract."
Banks:"Not a problem. I will look after it."
I would note in passing that it is the submission of Weingarde that on 30 December (the date of the letter) an agreement was concluded between Mr McMillan on behalf of Weingarde and Mrs Banks trading as Le Voy. For reasons I will later give, I cannot accept this submission.
On 6 February 1991 two invoices were sent on APO letterhead to Mrs Banks. The one required payment of $33,004 on 14 February 1991. The other, a like payment on 1 March. The invoices were made out to -
Beverley Banks
Le Voy & Associates
PO Box 543
Drummoyne2047
NSW
Payment was not made on either of these invoices on the date due.
In early March Mr McMillan requested payment and provided Mrs Banks with details of Weingarde's bank account. In a later telephone conversation Mrs Banks secured agreement to the payment of $45,000 with the balance to be paid at the performance in Sydney.
On 7 March 1991, $45,000 was credited to Weingarde's bank account. It was received by way of telegraphic transfer. The money was drawn on the ANZ Bank account of ALB. The bank records which were tendered in these proceedings, but which were not available when Weingarde's proof of debt was submitted, establish beyond question that ALB was the payer. Anomalously the bank statement provided to Weingarde by its own bank identifies "Bev Banks ANZ Sydney" as the payer.
Early in the afternoon of 7 March, Mr McMillan received a facsimile from Mrs Banks on Le Voy letterhead outlining the itinerary for the concerts in Newcastle and Sydney. That itinerary identified Le Voy and Beverley Banks as "ORGANISERS AND MANAGEMENT".
Later the same day Mr McMillan received a facsimile from a David Lee of Connery & Partners, Solicitors, containing an agreement for the two concerts. Its execution was requested. That opening paragraph of that agreement provided that it was -
Between ALB Photographic Services Pty Limited trading as Le Voy & Associates ... and Weingarde Pty Limited trading as Australian Pops Orchestra.
On receipt of this facsimile Mr McMillan rang Lee, acknowledged receipt of the fax but said he did not have time "to digest it" and so he would not sign it. It was never in fact signed.
On 10 March 1991 Mr McMillan and the orchestra flew to Sydney. The concerts were given on the agreed dates. On the night of 13 March after the Sydney concert a cheque for $21,000 drawn on the account of ALB and signed by Mrs Banks, was handed to Mr McMillan. That cheque has been returned unpaid on presentation with the advice "Refer to Drawer".
It is the case that a dispute arose as to the expenses incurred by Mr McMillan. There is evidence to which objection initially was taken but later withdrawn that Mr Banks invited Mr McMillan to take proceedings against ALB (presumably as the alleged contractor) should he consider that moneys remained owing to APO. I mention this matter simply to foreshadow that were I to find a contract with Mrs Banks there may remain the issue of a potential cross-claim against Weingarde. This matter has not been pursued in these proceedings.
There are several additional pieces of evidence to which reference should be made. First, Mrs Banks has given evidence that, because of the shortcomings of the public relations organisation she engaged, appropriate sponsorship for the concert had not been secured. For this reason and at a late date, ALB was in fact called upon to "underwrite" the concert - to use Mrs Banks' language in a letter to the trustee. As I will indicate, the trustee relies upon this evidence as providing a literal account of what transpired and as being consistent with a finding that the Weingarde contract was with Mrs Banks.
A second matter to which reference should be made relates to correspondence between the trustee and the agent of Weingarde which acted on its behalf in relation to the proof of debt. On 10 February 1995 a letter was written on behalf of the Official Receiver to the agent (Mannix Mercantile Pty Ltd) in terms (inter alia) requesting the agent to provide documentary evidence establishing Mrs Banks personal liability to APO. In its reply of 11 April 1995 the agent wrote (inter alia):
The reason that our client had been directly dealing with Mrs B Banks is because of the complexity of establishing with which company our client was supposed to be dealing.
This will become obvious to your [sic] after reading the letter headed "Le Voy & Associattes" [sic] (copy attached.
The attachment incorporated that part of the Le Voy brochure which has been quoted verbatim earlier in this judgment.
If the preceding factual narrative is not disputed by any of the parties before me, there is one matter of evidence which is contested. On the day this matter was heard and after the hearing had begun Mr McMillan, with leave, filed an affidavit in which he swore that "in all my dealings with Mrs Banks she never mentioned to me the name ALB Photographic Services Pty Limited". Further, in cross-examination by Mrs Banks, Mr McMillan suggested that the references made to ALB both in the Le Voy brochure and in the contract faxed to him on 7 March 1991, did not make any impression on him at the time. And when questioned about a visit made to the registered premises of ALB in Drummoyne - the purpose of this visit was not explained - Mr McMillan responded that he believed he attended the premises of R J Foster.
There is no evidence before me which could justify a finding that Mrs Banks made oral reference to ALB in the course of her dealings with Mr McMillan. If, however, the burden of Mr McMillan's evidence to which I have referred is to suggest that he was in a practical sense unaware at all relevant times of the possible significance of ALB in the dealing he negotiated with Mrs Banks, I am unable to accept this. On the uncontradicted evidence before me, he had had no previous contact with Mrs Banks or Le Voy. Having been early provided with a copy of Le Voy's brochure it is in my view improbable that he did not consult it for the purpose of ascertaining something about the person or body with whom he was dealing. As I will later indicate, a reading of the brochure may well have created confusion in his mind as to the relationship between Le Voy and ALB. Nonetheless it would have brought home to him the existence of ALB and that Le Voy had some significant connection with it. Furthermore I am not able to accept that he did not read and comprehend the significance of the opening paragraph of the agreement faxed to him on 7 March which identified ALB as the contracting party. He had on his own admission asked Mrs Banks for a contract. The need for it had been discussed "on a number of occasions". The contemporaneous reason he gave for not signing it was not that he did not read it, but that he didn't have "time to digest it". That reason I can accept. I am prepared to find that while he did not sign the agreement sent him, he knew as from 7 March that ALB was being advanced as the party with whom Weingarde was being asked to contract.
The Submissions Made
It is Weingarde's contention that a binding agreement was made on 30 December between Mr McMillan on behalf of Weingarde and Mrs Banks trading as Le Voy. That agreement was said to have resulted from the cumulative effect of the Melbourne meeting of late 1990 which identified the contractual performance required, the quotations provided to Mrs Banks and the letter of 30 December - and the confirmatory facsimile of 31 December - advising Mr McMillan to proceed to organise the orchestra. The subsequent action of Mr McMillan invoicing Mrs Banks trading as Le Voy is pointed to as being consistent with such a contractual relationship. The draft contract of 7 March I am then invited to view simply as post-contractual behaviour devoid of legal effect. Likewise it is said the fact that the payment of $45,000 and the cheque for $21,000 came from ALB may well have been of some moment as between Mrs Banks and ALB but it could not affect Mrs Banks' character as a contracting party.
The trustee's submissions, in inviting me to find, on balance, that the contract was with Mrs Banks personally, were directed at providing explanation for several particular pieces of evidence which it is said either support that conclusion or can adequately be explained away where apparently inconsistent with it. Referring to the Le Voy brochure (the relevant part of which I have already quoted), it was said the language there did not suggest a legal, let alone an agency, relationship between Le Voy and ALB: it referred to Le Voy being "formed under the auspices of" ALB. Of this it was submitted, "auspices" should be given its natural meaning of "patronage" and no more.
It was also submitted that the preferable interpretation to be placed on ALB's part in the matter was that its positive participation only became necessary when the public relations organisation failed to secure the needed sponsorship with the result that ALB agreed then to "underwrite the concerts". The language of underwriting as I have noted was used by Mrs Banks in her correspondence with the trustee. This particular submission assumed a pre-existing contract between Mrs Banks and Weingarde.
Finally it was suggested that, given the need which emerged for ALB financial involvement, the 7 March contract was prepared to reflect that changed position. If it had been agreed to by Mr McMillan there would have been, in effect, a novation of the original contract. But the contract was never signed. And so, goes this submission, the original agreement remained on foot.
Mrs Banks, for her part, has maintained that the contract was with ALB from the outset; that despite his evidence, Mr McMillan had this brought home to him - reliance here being placed from the outset upon the brochure; that the various business names used by the actors in this matter should not be allowed to conceal who were the intended contracting parties - and neither of the persons conducting the negotiations were such in her submission; and that the performance rendered by ALB was consistent with the contract asserted by Mrs Banks.
Conclusions
There has been no dispute before me as to the principles of contract law which are to be applied here. The dispute is as to their application. The clear object of the various communications between Mrs Banks and Mr McMillan was the creation of a contractual relationship. The subject matter of that contract was certain. But in the most important matter of all - the contracting parties themselves - can it properly be said that the parties have, or should properly be taken to have, reached agreement? If such is the case when did it occur and between whom?
In the absence of a written agreement, my conclusions can only be based on the words and conduct of the parties and upon such illumination as these provide. I should also emphasise that my concern in the end is with the objective manifestation of a contract between the parties and not with whether there has in fact been a congruence between the actual subjective intentions of the parties: cf Taylor v Johnson (1983) 151 CLR 422.
I should state my own conclusions briefly before enlarging upon them. They are these.
(1) At no time was a contractual relationship created between Weingarde and Mrs Banks.
(2) Though the subject matter of a proposed contract was settled at a relatively early date, no contract came into existence before 7 March for the reasons (a) the identity of one of the intended contracting parties had not been clarified; and (b) there was not a sufficient intention at any previous time then to create legal relations.
(3) The draft contract of 7 March which I have found to have been read by Mr McMillan identified who, for the purposes of any contractual dealing, was making the offer to Weingarde. It was ALB and not Mrs Banks.
(4) The services in consequence rendered by Weingarde were known thereafter to have been requested by ALB. Whether the relationship which resulted between Weingarde and ALB was contractual is a matter on which I need express no opinion.
(5) The proof of debt against Mrs Banks should be expunged.
Though the observation was made long after the events occurred to which I have been referring, the reply made by Weingarde's agent to the Official Receiver captures the essence of the dilemma that the course of dealing initially posed for Mr McMillan, hence Weingarde:
The reason that our client had been directly dealing with Mrs B Banks is because of the complexity of establishing with which company our client was supposed to be dealing.
That complexity, I should add, was probably bilateral. On the evidence before me I have no reason to doubt that at the outset Mrs Banks and Mr McMillan were total strangers. Each carried the shroud of a business name, albeit in Mr McMillan's case one owned by Weingarde. And, I would note in passing, ALB for its part traded as R J Foster and Associates. In providing Mr McMillan with the Le Voy brochure, Mrs Banks made known to him the existence both of the Le Voy and Foster business names and of ALB. When Mrs Banks became aware of the existence of Weingarde is not a matter of sworn evidence before me. This clearly occurred at or before the preparation of the draft contract of 7 March. But there is no evidence to suggest that that knowledge was acquired on or before 30 December when Weingarde asserts that a contract was formed. Neither Mrs Banks nor Mr McMillan were probably aware who were the actual owners of the business names which each appeared to use during those negotiations. But Mrs Banks did provide Mr McMillan with information about Le Voy. This was the brochure.
That document, in my view, was itself a cause of confusion. Though Mr McMillan sought in his evidence to minimise its significance, it provided the initial cause of uncertainty in this matter. It did not in terms represent Mrs Banks, through Le Voy, to be ALB's agent. But despite its reference to Le Voy being formed under ALB's "auspices", its focus in its initial paragraphs on ALB and its business (suggesting a company of both substance and reputation) and on the philanthropic activities of ALB's principals are capable, reasonably, of creating the impression that ALB may well be implicated directly in the business being conducted under the Le Voy name. Likewise the brochure in its reference to Le Voy as an "Administrative and Management Organisation" does not convey an unambiguous representation that Mrs Banks, through Le Voy, acted as a principal in the activities in which that name was used. The brochure, in other words, was quite capable of creating a reasonable doubt as to the capacity in which Mrs Banks was acting.
Though the evidence is slight I am prepared to find on the balance of probabilities that that doubt was entertained by Mr McMillan and that nothing done by Mrs Banks before 7 March 1991 served to dispel it. I equally am prepared to find that the doubt was probably not one which, initially at least, was of particular moment to him. He had stipulated for prepayment of the contract price and he was asking for and had received assurances he would get a written contract. While he continued to press for that contract, the available evidence seems to indicate on balance that with prepayment agreed but with preparations for the contract underway from the end of December, Mr McMillan's immediate concern was more with the fact of being prepaid than with the identity of the party who was to have the contractual obligation to make the prepayment.
In response to my questioning, Mr McMillan indicated that while he did on occasion contract with natural persons as opposed to corporations, it was not characteristic for him to proceed on the basis of oral rather than written contracts unless with reputable corporations or persons he had dealt with on other occasions. Here his requirement was a written contract.
It is, in my view, a proper and available interpretation of the slender evidence as it stood up until the draft contract of 7 March was transmitted (i) that Mr McMillan did not have adequately conveyed to him who was being put forward as the contracting party, be that ALB or Mrs Banks; (ii) that he was prepared, because of the negotiations, to proceed on the assumption that a binding contract would eventuate - an assumption encouraged by Mrs Banks in her letter and facsimile of 30 and 31 December respectively and on which he was prepared to act; and (iii) that, for his purposes, the written contract would serve both to identify who were the contracting parties and to formalise their relationship.
In saying this I am rejecting the submissions not only of Weingarde and the trustee, but also of Mrs Banks. The course of events up to 30 December were not in my view capable of sustaining either of the competing contracts alleged. There was, as I have found, an incompleteness in the identity of at least one of the contracting parties. In addition, there was not in my opinion a sufficient intention to create legal relations at that time. Mrs Banks' letter and facsimile, while telling Mr McMillan to contract the orchestra, uses the qualifying words "with confidence". These words I here interpret to mean that an assurance is being given that a contract will eventuate - a contract moreover for proposed dates more extensive than in the contract which is said to have eventuated. Likewise on 30 December despite the letter, Mr McMillan still asked Mrs Banks for a contract. Neither side had made their contractual commitment.
In this state of affairs Mr McMillan then invoiced Le Voy for the projected performances. It was suggested in argument that Mrs Banks should then have indicated to Mr McMillan that she was not responsible for the payment and her failure to do so only reinforces the contention that she was personally liable on the contract. I am unable to accept this characterisation of the matter. It was quite appropriate in my view for Mr McMillan to continue to deal with Mrs Banks as he had in the past. She may not have been responsible for payment. But she could properly be looked to to secure payment from whomsoever it was due, as she in fact did.
As I have already indicated it was the transmission of the draft contract to Mr McMillan of 7 March that clarified the identity of the proposed contractors. The draft in my view made clear on whose account Mrs Banks was contracting. This was ALB's. There being no contract between the parties before 7 March, it was on this date that Mr McMillan had brought home to him who was the proposed contracting party. Thereafter Weingarde should properly be taken as having rendered its performance for the party it then knew to be requesting its services. That was ALB. That Mr McMillan did not sign the contract does not affect this conclusion. I should add that there is no need in these proceedings for me to be more precise than I have been about the character of the resultant legal relationship between Weingarde and ALB. It suffices for me to say that the events of 7 March provide no basis for any claim on Mrs Banks and no such claim existed before then. The proof against her cannot stand.
For the sake of completeness, one additional comment should be made on a submission made by the trustee. Mrs Banks in her evidence referred to ALB underwriting the concert. As I have noted, the trustee invited me to treat this observation literally and as signifying recognition by Mrs Banks that she bore primary liability for the agreed consideration.
It is not appropriate in my view to ascribe to Mrs Banks a precise legal understanding of the language she used on this occasion any more than it is to comment on the use made by Weingarde's agent of the term "company" in the letter written to the Official Receiver to which I have earlier referred. The burden of what she was saying seems to have been no more than that, if the concerts were to go ahead without the anticipated sponsorship, ALB had to shoulder a financial burden that was not originally envisaged. This it was prepared to do.
My order, then, is that the proof of debt of Weingarde Pty Limited trading as Australian Pops Orchestra be expunged.
I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 21 February 1996
Solicitor for the applicant : The applicant appeared in person
Solicitor for the respondent : Maurice Freidman & Company
Solicitor for the second : Kemp Strang & Chippindall
respondent
Date of hearing : 20 November 1995
Date of judgment : 21 February 1996
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