Bibra Lake Holdings Pty Ltd (In Liquidation) v Firmadoor Australia Pty Ltd trading as Cleveland Industries

[1992] HCATrans 313

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl0 of 1992

B e t w e e n -

BIBRA LAKE HOLDINGS PTY LTD

(IN LIQUIDATION)

Applicant

and

FIRMADOOR AUSTRALIA PTY LTD

trading as Cleveland Industries

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY. 16 OCTOBER 1992. AT 10.21 AM

Copyright in the High Court of Australia

Bibra 1 16/10/92

MR K.J.M. de KERLOY:  Your Honours, I appear for the

applicant.	(instructed by Freehill Hollingdale &
Page)

MR M.J. STEVENSON:  May it please the Court, I appear for

the respondent. (instructed by Jackson McDonald)

MASON CJ: Yes, Mr de Kerloy?

MR de KERLOY:  Your Honour, this proposed appeal is of

fundamental importance to the due administration of

insolvent companies throughout Australia. A short

question of law on appeal is whether, in recovering preferences, the proper plaintiff is the liquidator or whether the proper plaintiff is the company.

The consequence of the Court's determination which

is of fundamental practical importance and, in

fact, was recognized by Mr Justice Ipp in the court below, is that if liquidators are obliged to sue in

their own names they would be liable personally for

will come out of the assets of the company.

the costs of the action if they are unsuccessful. generally the costs

As a matter of policy, liquidators should not,

if the law permits, be put at personal risk as to
costs for merely carrying out their statutory

duties in a proper manner and for the benefit of

unsecured creditors.

DEANE J: But the result will be the same, will it not,

unless the company has not got enough assets?

MR de KERLOY:  If the company has no assets, the liquidator

has no right of indemnity or the right of indemnity

is valueless.

DEANE J:  In that case, why should the party on the other

side be landed with the deficiency instead of those

interested in the company who can fund the

liquidator?

MR de KERLOY:  For the reason that they have the right to

apply for security for costs and can be compensated

fully by any orders for security for costs. You

see, the real problem with this area, as a matter of policy rather than as a matter of law, which I

will deal with later, is that liquidators are

reluctant, or by virtue of the way in which matters

have developed, are reluctant to put themselves

personally at risk, and that is an understandable
position. But, nevertheless, their fundamental

duties require them to recover, where possible,

preferences from preferred creditors so that the

Bibra 2 16/10/92

fundamental rule in liquidations and in solvency

law can be followed, that is, the ratable

distribution of the corporate state.

In fact, that proposition and the unfortunate

consequences has been recognized. In Buena Vista

Motors Mr Justice Street cited with approval

Mr Justice Manning's decision in Re Bonang Gold

Mining Co, at page 73, where he said:

"If the official liquidator were

personally liable for costs, it might be

impossible to secure the services of anyone on

that behalf in cases where the assets were

small, and the interests of the creditors

might suffer severely by an official

liquidator fearing to risk the chance of

having to pay costs.

And then at page 75, His Honour said, in his own

judgment:

Whilst I am of the view that the order for which Mr Kenny contents is that which he

is entitled to have made in favour of his

client -

that is, an order that the liquidator take the

action -

I would observe that the consequence of this could be to deter liquidators from invoking

this procedurally simple form of litigating a

misfeasance. Such consequence could be
mitigated by a relatively minor amendment to

s 305, enabling the application to be made in

the name of the company itself, rather than on

the application of the liquidator.

If the decision in the present case,

Your Honours, is correct, it will, and it in fact

does, act as a powerful deterrent to liquidators

pursuing actions for the recovery of preferences.

That will work to the prejudice of the unsecured

creditors and frustrate the legislative scheme. On

the other hand, a determination which results in an insolvent company being permitted to sue in its own

name to recover a preference will work no injustice

to defendants who may adequately be protected by

orders for security for costs in the appropriate

case.

As a matter of policy, I submit that that

approach is consistent with recent statements made
by this Court in Knight v F P Special Assets, a

decision handed down in late June. There, the majority of the Court confirmed that the prima

Bibra 3 16/10/92

facie general principle is that an order for costs

is made only against the party for the litigation

but stated, firstly, there are a variety of

circumstances where:

considerations of justice may, in accordance

with general principles relating to awards of

costs, support an order for costs against a

non-party.

And hence the Court can, in appropriate cases, award costs against - to use the words that are contained in my learned friend's submission - "aggressive liquidators acting for unsecured

creditors to the harassment of suppliers."

Secondly, that generally, as a matter of policy, the order for security for costs must

ordinarily be the appropriate remedy. In my

respectful submission, as a matter of policy, that

is the better approach than an approach which

operates as a powerful disincentive to liquidators
to pursue one of their primary functions on behalf
of unsecure9 creditors and which, because of its
inherent inflexibility, condemns liquidators in all

cases to being personally responsible for the costs

of unsuccessful litigation commenced in their

names.

Perhaps by way of illustration, it may be of

assistance to look at the points raised by my learned friend's submission in answer to this

apparent injustice. The first issue he says is,

"Well, if there are moneys in the company, in the

administration, generally speaking, the issue will

not arise" but in many liquidations the liquidator

is faced with a number of actions against

directors, against preferred creditors. It is

often uncertain whether, at the end of the day, he

will have sufficient assets to pay the costs of any

particular action.

But, more to the point, in many instances

those funds are not available. The company's

estate has been impoverished by the very

dispositions which the liquidator seeks to recover.

Those creditors, of course, who have been preferred

are not likely to contribute to a fund which will

enable the liquidator to pursue recovery actions

against them.

The third point that my learned friend says is

that the liquidator can always be protected by

approaching the court for directions in difficult or marginal cases. Of course, any such approach,

even if entertained by the court, would be

pointless as directions given by the court are not

Bibra 4 16/10/92

binding on parties, and that was the point made in

Re Sportsman's Leisure & Hobby Warehouse Pty Ltd

(in Liquidation), which is No 13 on my list of

authorities.

My learned friend also says that the

liquidator could be protected from an order by

obtaining a strong legal opinion. There is simply

no authority for that proposition. On the

contrary, the authorities clearly support the

proposition that failure of an action instituted by

a liquidator in his name results in an order for

costs against the liquidator personally. That is
so, whether there is any assets in the

administration whatsoever.

Ultimately, the thrust of the submission is

that preferred creditors should not have the

opportunity to place liquidators at personal risk

as to costs as a means of effectively stymying

actions against them. The history of this very

matter is a classic example of the perversity that

could occur if the present practice is upheld, and

the points are made at page 10 of the application

book by Mr Justice Rowland where His Honour

outlined the brief history.	The liquidator in the
name of the company had:

sued the respondent to recover $210,000 from

the respondent, which payments were said to

have been -

made preferentially. And between lines 10 and 20,

His Honour said this about the history:

The respondent sought an order for

payment of security for costs, but prior to

the return date of the hearing of that

application gave notice that it would seek,

first, an order that the Liquidator be joined

as a plaintiff and if that application was

successful, it sought to adjourn its

application for security -

for costs -

against the company.

So, it originally had sought what we submit would

be the right remedy if the company was the proper
plaintiff and that then would, of course, throw up,

before the court, a question of whether the merits

of the case justified an impoverished plaintiff

paying moneys into court. The court has developed,

now over a large number of years, a determinant

policy to prevent this sort of application against

Bibra 16/10/92

insolvent or impoverished plaintiffs from being

used to stymie proper litigation.

Seeing, I think, that difficulty,

Your Honours, the respondents had a change of heart

and instead of proceeding with their application

for security, abandoned that, in effect, and made

an application to have the Liquidator joined, with

the result that if the Liquidator had been
unsuccessful, he would have been put personally to

all the costs of the litigation. That is the very

evil of which I now complain.

TOOHEY J:  Mr de. Kerloy, the order made below was not one of

substitution of Liquidator of the company, was it?

It was an order that the action be stayed until the

Liquidator be joined as a plaintiff?

MR de KERLOY: That is right.

TOOHEY J: And leaving it open to the Liquidator to move to

be joined or not to be joined.

MR de KERLOY:  But the action could not proceed without him

being a party.

TOOHEY J:  Is there any particular reason why the order was made in terms of a joinder?

MR de KERLOY: Well, I think the learned Master thought that

that was the appropriate order to make, that both

parties should be before the court and, in fact, in

one of the more recent cases, Horn v York, which is

No 8, that is, in fact, the approach that

Mr Justice McLelland advocated and said ought to be

the approach that is adopted because in

circumstances such as this the company's rights are

also affected.

I will attempt to show Your Honours that, in fact, it is only the company's rights that are

affected and it is only the company that should be

the proper plaintiff.

TOOHEY J:  From the Liquidator's point of view, I do not

suppose it makes much difference. He is still

personally liable whether he is a sole plaintiff or

a co-plaintiff.

MR de KERLOY:  He will be the one that they will issue the

writs of execution against.

MASON CJ:  Now, am I right in thinking that the stream of

authority in this country favours the approach

taken by the court below? If you look at pages 15

and 16 of the application book, you will see on

those two pages there are references to a number of

Bibra 6 16/10/92

authorities which it is said support that

proposition, that it is the Liquidator who is the

moving party.

MR de KERLOY:  I think it is fair to say that there has been

a trickle of authority consistent over the years
which supports the proposition that the liquidator

is the proper party but, in my submission, those

authorities have not considered the true nature of

the company's claim. A lot of the decisions,

Your Honour, were made, to use a better expression,

on the run. Oftentimes, for example, the case

which Mr Justice Rowland cites where

Mr Justice Buckley gave his decision in Independent

Automatic Sales Limited v Knowles was a decision

made at the commencement of the trial where this

point was taken.

MASON CJ: Yes, but has that not given rise to what might

now be described as a well-established practice in

Australia as a result of acceptance in decisions in

this country of the correctness of that approach?

And that practice, in effect, is reflected in the

provision of the section where the section says,

ttvoid as against the Liquidatortt?

MR de KERLOY:  I would say not, Your Honour. There are

certainly a number of reported decisions, including

decisions of this Court, where the plaintiff, for

the recovery of a preference, was the company

itself. The most recent decision of this Court to

that effect was Kyra Nominees v National Australia

Bank, 4 ACLC 400, which is at page 2.

TOOHEY J:  Is it in the material that we have been handed

up?

MR de KERLOY:  No, it is not. But it is simply illustrative

of the point that applications for the recovery of preferences are oftentimes made by the company and

the point is never taken. The reported decisions

are in relation to the odd occasion when the point

is taken. Horn v York, which is a decision of last

year but was reported this year, is just another

example of the point being taken. But that was an
example of the application being commenced again in

the name of the company.

DEANE J: But if you put to one side the inconvenience that

the Liquidator might be liable for the costs of an

action that he instigates, is not the obviously convenient course in the light of the statutory provision that both company in liquidation and

Liquidator are plaintiffs, as Justice McLelland suggested in the New South Wales court and the Full

Court adopted here?

Bibra 16/10/92

MR de KERLOY:  No question of convenience arises. Either a

party has a right which ought to be agitated before

a court or it does not.

DEANE J:  But there is the question of convenience. For

example, in Franklin's v Commissioner of Taxation,

Olive really the sort of dispute that courts are better

Justice Menzies discussed the problems of the

left without in the context of particular

litigation, and you simply avoid the problem if you

have both company and liquidator as plaintiff.

MR de KERLOY:  You may avoid one problem and, in my

submission, there is no such problem. I think on a

proper analysis of the authorities, including the

leading authority of this Court, Octavo Investments

v Knight, Your Honours should be persuaded that

there is no necessity for the liquidator to be

present. For the sake of convenience, however, the

result would be that many proper applications or

actions for the recovery of preferences are simply
not instituted.

This case is a classic example of the system being abused by a respondent who is seeking to

introduce the Liquidator as a party and it is open

for that abuse to happen because no application for

security of costs then occurs.

DEANE J: But why, if the claim is well founded, should not

those who are going to benefit from the claim
indemnify the Liquidator in respect of any order
for costs? We all know that orders for security
for costs constantly prove to be inadequate and

that the courts are inclined not to make orders

which provide adequate protection in terms of

security for costs.

MR de KERLOY:  But that is not, in my submission,

Your Honour, with respect, an answer to - the

inadequacy of the amount that is awarded is not an

answer. The answer is that courts should, in

appropriate cases, if they are of the view that the

particular application for security has not been

used to stymie the proper litigation of an

insolvent plaintiff, make a proper order. We do

not, for a minute, say that in an appropriate case,

even after trial, the Liquidator should not be made

a party to the costs order if his conduct in any

way constitutes misconduct.

The real question, however, is that the issue

is never brought before the court. Where there is

simply - the liquidator has his right of indemnity,

he must get together the small creditors and say,

"Well, I wanted indemnity for the full amount of

Bibra 8 16/10/92

any costs that I may incur in prosecuting the

litigation and in paying any costs awarded against

me.tt The first question that is asked by the small

creditors is, "Well, how much will that be?" And I think the answer is, "I simply don't know. I don't

know what difficulties are going to be put in my

path as a liquidator to pursue these claims." That

is the usual powerful disincentive for the small

creditors not to be persuaded to put up any money.

On the other hand, if the liquidator comes to

them and says, "I've had an order for security

against me. If I'm permitted to pursue this

action, I must put in $50,000 into the court.	Your
ratable percentage of that is X." That is a
completely different scenario. In those
circumstances, the small creditors know that,

"Well, we've lost something but we've got something

to recover", whereas the reverse, of course,

favours the large preferred creditors. The common

experience is that the large preferred creditors

are the ones that are most quick to act. They are

the ones that get in quickly and put pressure on
the company that is going under and get themselves

paid.

Of course, their best policy is to so

completely clean out the bank that there is no

money for the liquidator to pursue them. That is

the evil that this application seeks to address;

that is the practical consequence that it seeks to

address.

The other point, of course, that is equally

important is to demonstrate that the decisions,

such as the decision on Horn v York and of the

court below were incorrect and upon a proper

analysis, Your Honours, if one looks at the very

clear statements made by this Court in Octavo

Investments v Knight, the position of the courts

below - this court below and in Horn v York is

simply untenable.

Perhaps I can take Your Honours to that case.

The thrust of the Horn v York and of the court below was that the Liquidator was the proper
plaintiff because he was the trustee for the

unsecured creditors and as trustee he was entitled

and should take the action for the recovery of the

funds. My submissions, which were not accepted,

were that the proper plaintiff is the company
because the company is the owner or the possessor
of the right to recover those funds or that

property.

Bibra 9 16/10/92

The statement that I wish to take Your Honours

to is at page 371. There it was said, at the

bottom of the page:

In the case of the winding up of a

company the legal title to all company

property, including trust property, remains in

the company. The liquidator of a company

takes the position of the directors and, in

the absence of a court order under s. 233(2)

of the Companies Act, acquires no title to

company property.

And then they said, at page 372, in the penultimate

paragraph:

However, a question remains as to the

propriety of the relief granted by Connolly J

and affirmed by the Full Court. The

applicants, being the liquidators, sought and

obtained inter alia an order that Octavo pay

to them the amount of the preference. As we

have already said there is no question in this
case of the property of Coastline vesting in
the liquidators. · To order the moneys to be

paid to the liquidators tends to confuse their

position with that of a trustee in bankruptcy.

Payment should therefore be made to Coastline,

notwithstanding that the practical result may

be regarded as substantially the same because
the liquidators are in control of the assets
of the company, having vested in them all the

powers of the board of directors.

Nevertheless, the Court thought it appropriate

to address that very issue and that is the question

that is raised in the proposed appeal, that the
decisions before and after this case have not

accepted or not followed the clear logic of those

reasons and, I might add, the clear logic of cases

that went for many years beforehand, Sanquinetti v Stuckeys and In Re Farnham, and what those cases	suggest, and they are referred to in my list of
authorities at 7 and 8, is that there is no
question even in bankruptcy of the trustee in bankruptcy obtaining a title directly from the
preferred payee. The moneys must be returned to
the bankrupt and it is from there that the rights are to be adjusted.

If I can take Your Honours to the authority of

In Re Farnham.

At page 808, His Lordship, page:

MASON CJ: Where do we find this?

Bibra 10 16/10/92

MR de KERLOY: This is at 6, at page 808:

If the settlement is void as against the trustee, it is void altogether. The section

does not mean that the property, the subject of the settlement, vests in the trustee by a title which overrides both that of the donor

and the donee. The settlement being void, the

property reverts to the donor, and it is as

the donor's property that it vests in the

trustee and must be distributed correctly.

That was the view taken by Chitty J of this

section, and I think that it is right.

And, similarly, at page 811, His Lordship,

Lord Justice Rigby said, at the bottom of the page:

He urged that the gift was perfectly good as

between husband and wife only, and that the

property comprised in it remained the property

of the wife, though vested in the trustee in

bankruptcy. That depends on the proper

construction of s 47 of the Bankruptcy Act,

1883, which provides that such a settlement as

this is assumed to have been shall be - and it

has been in fact admitted by the wife to have

been - void as against the trustee in

bankruptcy. It being, then, a void
settlement, he can take nothing under it.
What, then, is the alternative? It is quite
plain that the Act intended that the property
should come to the trustee, not as the
property of the beneficiary under the

settlement, but as if the settlement never had

existed.

Your Honours will see that in the second

Kratzmann case, which is No 4 in my booklet, the

nature of the right which is given by the section

was examined at page 298 . There, Their Honours

said, towards the bottom of the page: But what is the position where A has made a	payment in discharge of his indebtedness to B
and both have been adjudged bankrupt before
A's trustee has obtained a declaration that the payment is void as against him? In such a
case the declaration in no way affects title to specific and identifiable property; it
merely means that the money was not paid in
discharge of A's indebtedness to Band, if it
is to be repaid, it must be repaid out of the
estate of B. In Re Ward; Thomas v L.G. Abbott
& Co Ltd Paine J expressed the view that in
the case of a payment avoided as a preference the right of the bankrupt's trustee was equivalent to the right to maintain an action

Bibra 11 16/10/92

for moneys had and received and much the same

was said as long ago as Marks v Feldman.

And then they cite a passage from the first

Kratzmann case by the then Chief Justice:

"Whatever rights the liquidator has in this

respect must be derived from the general law
which becomes applicable upon the avoidance of

the company's transaction.

And that, in my respectful submission, gives the

explanation to what is meant by the words "void as

against the liquidator".

In a paper that Mr Justice McPherson

delivered, he described section 565 in this way:

As an example of the benefits of plain

English, section 565 has little to commend it.

In this context "void" has always been

understood to mean voidable. The point was

firmly established in Stephenson v .....

The point that I think he was getting at and which

the Chief Justice was getting at in the first
Kratzmann case is that what right the liquidator

has is the right to elect to avoid the transaction.

Once that election takes place, it is the company

that must recover the funds. It is the right of

the company to recover the funds. Section 565 and

its equivalents have given the liquidator the right

to elect but they have not, in my respectful

submission, given him the right to maintain the

action.

Once he has given his decision, he is functus

officio and I think that point is made clear in an

old English case but which is consistent with the

line that the liquidator's right is a personal one

and cannot be assigned, and that was made in the

case of Broughton v Barker, which is No 19 on my

list. There, the fact situation was that the

official assignee had sold all of the company's

rights to the purchaser and the purchaser sought to

exercise the liquidator's right to avoid a

preference - and the primary judge, at page 81,

said:

Whatever may have been at one time the

doubtful nature of the claim made, it appears

to me to be settled by the cases of the Bank

of Australasia v Harris in this Court, and

Young v Builliter in the House of Lords. The

first establishes that the mortgage is only

void as against creditors. The second that it

is not void even against them, unless so

Bibra 12 16/10/92

treated by the official assignee. There is a

discretion given to him for the benefit of the
creditors which cannot be transferred.

And that is the right that is given to him, the right to elect to avoid the transaction.

Once the right has been exercised then, in the

words of Sir Garfield Barwick, the company must

rely on its ordinary common law rights. And it is

the common law rights, in the case of an action for
the recovery of moneys, that is, is an action for
moneys had and received - in an action for the

recovery of a chattel, it is an action in trover.

But it is that common law right which must be

exercised by the company to recover its own moneys,

and that is the consistent approach, an approach

which is entirely consistent with In Re Farnham and

the Stuckeys' case.

Now, the error, in my respectful submission,

which the Full Court fell into and in which courts
which have found that the liquidator was the

necessary party was that they had attempted to

quite rightly insulate the proceeds from the

recovery of preferences from secured creditors and

so they introduced the device of a trust for the

benefit of the unsecured creditors. This point was

picked up in the second Kratzmann case

inferentially where, in answer to the proposition

that was put by the respondent that in the case of

a claim by a trustee in bankruptcy for the return

of the funds the payee holds the moneys on trust,

was rejected.

What the Court there said was, "No, the trust

doesn't extend to the trustee in bankruptcy, it

extends to the creditors of the trustee in

bankruptcy", and therefore rejected the submission

that the payment should be made in full and not

merely by way of a right to prove in the

liquidation.

That appears, Your Honours, at page 300

towards the bottom of the page where Their Honours

said:

The position of a secured creditor who has a

charge on specific property is, of course, not in question; such property in the hands of the

trustee will still remain subject to the

charge. But where security has been given by

a bankrupt over all of his assets and a

payment to a creditor is made by him out of

moneys subject to the charge and the payment
is, as against the trustee subsequently

declared void as a preference the moneys paid,

Bibra 13 16/10/92

when recovered, will not be subject to the

charge. In such a case it may be said that

although the moneys paid as a preference were at the time of payment subject to the charge, the moneys recovered by the trustee are not

the same moneys and that they do not, by

virtue of payment to the trustee, become

moneys of the bankrupt or in any way subject

to the charge; when recovered they become the

moneys of the trustee and his title to them

does not depend upon his succession to any

title which the bankrupt had.

And what I think Their Honours meant, with respect,

was that it does not depend on any prior title
which the bankrupt had and, similarly, in relation

to the recovery of preferences by a company, its

title does not depend upon any prior title. Its

title depends upon the election of the liquidator

and it is at that election that the company's right

emerges.

Their Honours in the Full Court picked up on

the passage that was cited, they said, with

approval, in the second Kratzmann case, a passage

from In Re Yagerphone where Mr Justice Bennett
said, and which is quoted at page 301 of the second

Kratzmann case:

" ... the sum of money, when recovered by the

liquidators by virtue of s 265 ..... did not
become part of the general assets of

Yagerphone, Ltd, but was a sum of money received by the liquidators impressed in their

hands with a trust for those creditors amongst

whom they had to distribute the assets of the

company."

That is, I think, the fundamental error which

courts have fallen into. It is not the liquidator

who is the trustee of those funds, it is not the liquidator who is impressed with a trust in favour	of the creditors, it is the company which is
impressed with that trust if, in fact, such a trust
emerges. In that way, the recoveries of preferences would be insulated from prior ranking
charges because even though after acquired, the
beneficial interest in the title was, upon the election by the liquidator, vested in the unsecured creditors.

But one wonders whether it is really necessary

to go to that extent. The bankruptcy law has since

time immemorial said that it was simply impossible for a bankrupt, prior to its bankruptcy, to charge

the right of recovery under a preference. The

Bibra 14 16/10/92

citation, Your Honours, which is not amongst my

citations but is in the standard test - - -

MASON CJ:  Mr de Kerloy, you are arguing an application for

special leave to appeal, you are not arguing an

appeal. We are concerned to know, in a sense, the

point that you seek to put and what measure of

support you have.

MR de KERLOY:  I think the support that I have is the

salient decision - - -

MASON CJ:  I am not suggesting that you have failed to

indicate what the support is, what I am rather

suggesting to you by implication is that you have

already done that. There is no occasion to go into

great detail in support of the argument you are

presenting.

MR de KERLOY: That is the argument, Your Honour.

MASON CJ:  Thank you. The Court will take a short

adjournment to consider its position in this

matter.

AT 11.01 SHORT ADJOURNMENT

UPON RESUMING AT 11.10 AM

MASON CJ:  The Court need not trouble you, Mr Stevenson.

The procedure of requiring the liquidator to

be named as an applicant in proceedings of the kind

in question in this case is well settled in

Australia. It has some obvious practical

advantages. Notwithstanding the well researched

arguments presented by Mr de Kerloy, the Court does

not consider that it would be appropriate to grant

special leave to appeal to reconsider that

practice. The application is therefore refused.

MR STEVENSON:  May it please the Court, I would therefore

move for orders, first, that the application for

special leave be refused and, second, that the

respondent have the costs of the application to be

taxed.

MASON CJ:  You do not oppose an order for costs,

Mr de Kerloy?

Bibra 15 16/10/92

MR de KERLOY:	No, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.11 AM THE MATTER WAS ADJOURNED SINE DIE

Bibra 16 16/10/92