Dawson & Anor v Westpac Banking Corporation

[1991] HCATrans 92

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 1990

B e t w e e n -

JOHN WILLIAM DAWSON and PREMIUM TYRE SERVICE PTY LIMITED

Appellants

and

WESTPAC BANKING CORPORATION

Respondent

MASON CJ
DEANE J
DAWSON J
TOOHEY J

McHUGH J

Dawson(2) 57 12/4/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 APRIL 1991, AT 9.46 AM

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Downes.

MR DOWNES:  Your Honours, the matters we would wish to

argue, if we fail on the present ground and leave

is given to us to do so, are as follows: one, that

where a dead is procured by fraud or simply where

its execution is not authorized, section 51A of the

Conveyancing Act does not protect it. Two, that

whatever findings be ultimately made relating to

the use of the name ATWA in the mortgage,

section 51A does not apply, and thirdly, that any

mistake made by Westpac was related to the parties

to the transaction was not a mistake of the kind

dealt with in Taylor v Johnson, upon which

Mr Justice Mahoney relied at page 923, because that

is a case about mistake relating to a purchase

price, and in the circumstances there is not a

mistake case at all. The mistake simply shows that

there was no valid transaction and the proposition

to that effect, namely that mistake as to parties

is not a matter of mistake at all but simply a

question of whether there is a contract or not,

appears in the very passage cited by

Mr Justice Mahoney in Greig & Davis at page 923.

TOOHEY J: Those propositions do not accord, at least

completely, with the alternative sought in the

notice of appeal, do they, and there is some

correspondence but it is not complete?

MR DOWNES:  Yes. I should have thought, Your Honour, that

they were within what appears in the notice of

appeal. I am simply, so to speak, isolating the

particular matter we seek to rely upon in a way

which is not isolated in the notice of appeal.	I
think the notice of appeal simply says, that

questions arise relating to one, section Sl(l)(a),

two, mistake, et cetera.

Now, Your Honours, we have taken the opportunity overnight to produce a document which

seeks to compare in column form the findings.

MASON CJ: Yes.

MR DOWNES:  And could I hand up to Your Honours that

document and I think that this document will be an

aid to the process of concentration of the mind

that Your Honour the Chief Justice referred to last

night and will enable me to reduce the time that I

need further to take.

I will not take Your Honours through them.

Your Honours will see that most of the matters that

are referred to, at any event, on page 1 are

references to the appeal book to which I have taken

Your Honours.

Dawson(2) 58 12/4/91

The only matter that I have not taken

Your Honours to or mentioned at all, I think, is

the finding numbered 4 on page 2 which relates to

the question of whether the mortgage conferred a

benefit on Premium or not. With respect to that

the trial judge found unquestionably that it did

not and Mr Justice Mahoney that it did.

Point 5, Your Honours, are some references,

some of which I have taken Your Honours to, others

which I have not taken Your Honours to, but can I

just content myself at the moment by indicating

that there is, as there appears, a wealth of

material, namely, findings made by the trial judge on the question of demeanour of witnesses; on the

question of the discrediting of documents arising

out of, and that is quite important, Your Honours,

arising out of findings relating to demeanour;	and
thirdly, based on the inadequacy of the evidence.

DAWSON J:  Mr Downes, what does (NB) mean in relation to

exhibit Lon page 2?

MR DOWNES:	Nota bene is what it means.
MASON CJ:	I must offer an apology for lack of knowledge of the Classics.
MR DOWNES:	Your Honours, Sir Garfield Barwick, in Whereat v

Duff, (1973) ALJR 540, in a judgment with which

other Judges of the Court, including Your Honour

the Chief Justice, effectively agreed said - this,

as Your Honours may recollect, was a probate suit

and so its relevance apart from this statement of

proposition is - I do not need to take Your Honours

to the facts, but what His Honour said at page 542,

referring to the leading judgment in the Court of

Appeal was as follows:

His Honour's reasons ..... indicated a radical

departure from basic principle, in that the

question for the Court of Appeal was not

adverted to, namely, whether the positive

finding of the primary judge was erroneous and

ought to be disturbed.

More recently, Your Honours the Chief Justice,

Mr Justice Wilson and Your Honour Mr Justice Deane

in Baumgartner v Baumgartner, (1987) 164 CLR 137,
in a passage at page 145 made, we would

respectfully submit, a similar statement when

Your Honours said five lines from the bottom of

page 145:

In this situation it was not a legitimate

exercise for an appeal court to ignore those

conflicts and the way in which the primary

Dawson(2) 59 12/4/91

judge resolved them and to draw inferences

from the surrounding area of common ground

between the parties.

Your Honours, it is our submission, that as a

general proposition relating to its methodology,
the whole of the judgment of Mr Justice Mahoney in

the Court of Appeal, and particularly the passages

that I read to Your Honours yesterday, offend
against that principle. Turning to the particular,

we submit that the finding, the central point of

which one finds at page 906, directly reverses

findings, the central point of which is found at

pages 832 and 835. They are the findings relating

to the meeting. It is no justification of the
reversal of the findings by the Court of Appeal

that the Court of Appeal did not found itself on

oral evidence. The judge took pains to show that

his findings as to the credit of the witnesses
inevitably impacted adversely on the assessment of

documents, and so, in this case, findings relating

to the credibility of witnesses are just as

pertinent to the validity of documents as they are

to the actual oral evidence of the witnesses

themselves.

The result, we would respectfully submit, is

that the judgment of the Court of Appeal cannot

stand. It is submitted that there is no basis for

here finding that the judge, to use one of the

phrases that appears in the cases, failed to use or

palpably misused the advantage that he had by

seeing the witnesses in making the findings which

he made. Your Honours, in those circumstances,

nothing is gained by. remitting this matter to the
Court of Appeal. If the matter is remitted to the

Court of Appeal, we would be submitting there that it ought to be heard by a differently constituted bench, but the fact that it may be heard by the

same bench is a reason, we would respectfully

submit, why Your Honours should deal finally with

the matter, if at all possible. This is because

the judges constituting the Court of Appeal have

already drawn conclusions on the very factual
matter they will be asked to reconsider. There is
no issue in this case which does not depend upon
findings of fact made by the trial judge, which
were departed from by the Court of Appeal.

Finally, Your Honours, if this Court decides

the appeal against the appellant or is minded to
return the matter to the Court of Appeal, we would

ask the Court to first consider our application to

widen the grant of special leave. Unless there are

any matters Your Honours wish to raise with me,

those are our submissions.

Dawson(2)	60	12/4/91
MASON CJ:	Thank you, Mr Downes.	Yes, Mr MacFarlan.

MR MacFARLAN:  If the Court pleases. Your Honours, there

were two sides to this case. One was concerned

with the late change of the ATWA name and the

second was concerned with the efficacy of PTS's

execution. This appeal is only concerned with the
first of those two sides, although my learned

friend's application for leave would seek to widen

it so it intrudes into the second side.

But dealing with the first and only side, the subject of the appeal as it is presently

constituted, the critical and, in fact, only

relevant finding of His Honour Mr Justice Bryson on

that side of the case was that Earth Moving was not

selected to be ATWA until after the date of the

mortgage, and we say "only relevant finding"
because, in our submission, that was the only

finding that was reversed by the Court of Appeal on this side of the case, and we have prepared a table

of references which I will hand up in due course

and will seek to demonstrate that.

But we say, Your Honours, there are two

ultimate issues for this Court. One is, was it

open to the Court of Appeal to act on the basis

that that finding that I have referred to of

His Honour was one which did not arise out of the

resolution of a conflict of oral evidence, or was

not otherwise underpinned by a finding as to the

credibility of witnesses? That is the first issue.

The second is: alternatively, was it open to the

Court of Appeal to act on the basis that

His Honour's finding was contrary to the objective

facts, or alternatively, palpably wrong?

Now we will, of course, have to address those issues and we propose to do so shortly, but before

doing so, Your Honours, I wish to come to exhibit L

which is at the heart of the answer to both of

those questions. It has to be appreciated,

Your Honours, in relation to exhibit L, that

His Honour Mr Justice Bryson did not accept that

exhibit L was presented to the Corporate Affairs

Commission before the date of the mortgage, or on

or before the date of the mortgage, and we

emphasize that because we understand something

different fell from His Honour Mr Justice McHugh

yesterday and we would seek to demonstrate that, in

fact, Mr Justice Bryson did not accept that.

Could we refer Your Honours to 829, line 20 of the appeal book? At line 18 His Honour refers to

the receipt, and says there is no evidence to show

what the contents of that Form 24 were. So he is

saying there that he is not satisfied that the

Dawson(2) 61 12/4/91

receipt shows that that was the same form that was

lodged in March.

There is no evidence either way for or against concluding that the Form 24 (which would

relate to a change of name) which according to

Ex 29 was lodged by PTSEMD on 18 March 1983

related to a change of the company's name to

A.T.W.A. Trading Pty Ltd; the contents of

that Form 24 are quite unknown and all that is

known about it is that the Corporate Affairs

Commission did not act on it.

So, His Honour is postulating that it might have

been Earth Moving changing its name to something other than ATWA which, we would submit, is quite

..... in all probability. Page 836 at point 5 is

another demonstration of the same finding, that is

line 5 on page 836:

Form 24 document ..... certified by Mr Smith and

setting out such a special resolution are

unlikely to have had any existence in reality

by 16 March.

Your Honours, in fact His Honour Mr Justice Bryson

refers to exhibit Lat two other places and perhaps

for completeness if I just mention the references:

828 line 19 and 836 line 5. Page 828 is the one

where he deals with it most extensively and, in

particular, at lines 19 and 20 refers to what he

says "are unexplained handwritten inscriptions".

The fact that His Honour saw fit to refer to

this some five times, and at some length, indicates
that the matter of exhibit L was at the heart of

His Honour's reasoning. We say it was the keystone

of His Honour's reasoning. His reluctance or his
decision not to accept the evidence that we say

established the exhibit L was lodged or presented prior to the date of the mortgage, was crucial to

his finding that Earth Moving was not selected

before the date of the mortgage.

Nextly, about exhibit L, may we refer

Your Honours to volume II, page 539 of the appeal book. That is a letter of 17 August expressed to

enclose a certificate of incorporation on change of

name, change of name said to be effective

27 July 1983, and I will refer in a moment to the

significance of the enclosure with that letter of a

certificate of incorporation on change of name.

But before doing so could I digress for one moment

in relation to that letter.

Your Honours will see the statement that the

change of name is effective from 27 ~uly. My

Dawson(2) 62 12/4/91

learned friend in the course of his address said

that the Bank was put on notice in August 1983 of a

defect in its mortgage. Now, the only finding of

His Honour Mr Justice Bryson in that respect was

one that upon receipt of this letter any reasonable

person being informed that the change of name only

took effect in July would have realized that the

mortgage was one which could not have been relied

upon. We do not agree that that is what a

reasonable person would have concluded from this

letter, but His Honour did not conclude that the

Bank did, in fact, appreciate that.	The finding I
refer to is at page 825 line 16.
Your Honours, I mention it because my learned friend referred to it.	We do not see it as

relevant to the matters under appeal. It is

relevant to our estoppel case which as yet has not

been determined.

Now, if I could return to exhibit L, with that

reference to the enclosure of the certificate of

incorporation in mind, would Your Honours go to

volume II, page 421 which is exhibit L itself.

MASON CJ: It is clear, is it, that the "Presented" stamp is

a stamp required by the commission?

MR MacFARLAN:  We say it is, Your Honour, but that is a

matter of inference. If Your Honours would also

open the receipt which is at page 704 -

DAWSON J:  Where do you draw the inference from?

MR MacFARLAN:  A number of things, Your Honour. It is

really from the receipt, Your Honour, and the

connection between the document and the receipt and

the official-looking nature of the "Presented"

stamp.

Could I ask Your Honours to look at the

receipt at page 704. My learned friend made some

play of the reference in the receipt to $61.00,

whereas the document, exhibit L, refers to $55.00.

Do Your Honours see that just above line 4? There

is a handwritten $55. Now, the explanation for

that, and I will support it by handing to

Your Honours copies of the legislation, is this:

that the filing fee on a Form 24 was $50. The cost

of a copy of a certificate of incorporation on

change of name was $5, and stamp duty on the issue

of such a certificate of incorporation on change of

name was $6. So it is understandable then that the

commission would note $55 on this document, but yet

take $61 from the presenter of the document.	And
could I hand to Your Honours copies of the
legislation.

Dawson(2) 63 12/4/91

DAWSON J:  But would they take the money at the time the

document was presented?

MR MacFARLAN:	Yes, indeed.
McHUGH J:	But the receipt is stated 18th.
MR MacFARLAN:	Yes, it is.
McHUGH J:	And the receipt is made out in the name of

Brigden, although that is then crossed out.

MR MacFARLAN:  Yes.

McHUGH J: Exhibit L has got Millar, the other accountant's

name there. They did not come into it until much

later in the piece.

MR MacFARLAN:	Yes. Well the reason for the change in accountant's name, Your Honours, is that the file
as appears from the correspondence was handed over
by Brigden to Millar, sometime in the middle of the year, and it is apparent that Millar undertook the
task of changing the name at a time when it was
incomplete and relodged this document on 27 July.
TOOHEY J:	Why do you use the expression "relodged",

Mr MacFarlan?

MR MacFARLAN: Represented perhaps would be more accurate,

Your Honour.

TOOHEY J:	I just find it curious that during the course of the appeal it was not made clear to the court what the system is that is employed by the Securities
Commission. I do not understand it myself, but why is there a presenting of a document as opposed to a
lodging of a document? Is there a sort of hiatus during which the commission looks at the document and decides whether it will accept it or not?

MR MacFARLAN:  One would infer that to be so with a change

of name, Your Honour, because there is no

suggestion this was a name which had been reserved

so it would have to be checked to be a suitable

name and not coinciding with an already registered

name, and we would suggest - - -

MASON CJ: But you used the expression "represented", would

that be accurate on the view you are putting to us?

The document would not have been taken away from

the commission, would it?

MR MacFARLAN: It appears to have been, Your Honour, yes.

McHUGH J:  The correspondence suggests that, but that seems

to me to indicate a real weakness in trying to link

Dawson(2) 64 12/4/91

up the numbers, that exhibit Land exhibit 29 are referring to one and the same thing. I mean, you

would not know what went on here.

MR MacFARLAN:  Your Honour, it is the same document number

that - - -

McHUGH J: Well, of course it is, but for what reason? A

document - obviously somebody has paid $61 for some

purpose on 18 March, and then they have come back

at some later stage of the exhibit Land the same

number has been put on it by some clerk, but how
does that prove that exhibit L, in any shape or

form, was lodged on 18 March?

MR MacFARLAN:  One knows, Your Honour, that a form 24 was

lodged in respect of Earth Moving on 18 March.

Money was paid to the Corporate Affairs Commission in respect of a form 24 for that company on

18 March. It would be an extraordinary

other change of name being contemplated by	coincidence, in my submission, if there was some totally dormant company, other than in relation to the proposal to resurrect it, in relation to this
ATWA importation business.

McHUGH J: But in this bizarre case, anything is possible.

You have only got to look at those minutes which

constitute exhibit 41. According to exhibit 41

Earth Moving, the new company, had been operating at least since 2 March and there are sets of

minutes. What is the explanation to those?

MR MacFARLAN: Well, that is consistent with exhibit L,

Your Honour, but the decision was obviously made to

change the name in early March. Now, nothing, in

our submission turns, on a day here or there and

Mr Smith, as appears from the evidence and the

findings of His Honour Mr Justice Bryson, was not a

man who could be regarded as one who would attend	to the technicalities with great care and in a	practical business sense, and it is not at all
surprising, in our submission, that the idea to
change the name was formed; and the company
commenced to operate from early March; the change
of name was commenced to be effected about that
time.

TOOHEY J: But what is unsatisfactory, Mr MacFarlan, I

think, is against a background of findings of fact

based on oral testimony and other material, that

the Court of Appeal then, by reference to a

document which itself certainly does not present a

very clear picture, arrives at some sort of finding contrary to that of the trial judge, unless somehow

Dawson(2) 65 12/4/91

this question is foreclosed by the way the appeal

was handled before the Court of Appeal.

MR MacFARLAN:  Yes, well, that is indeed very significant,

Your Honour, because that concession was made and

that explains, in our submission, why the Court of

Appeal did not see fit to refer to the detail of

what the trial judge said.

TOOHEY J:	Now, when you say "that concession was made", I know in general what you are referring to but could
you spell it out with some precision.

MR MacFARLAN:  I will enunciate it, yes. The concession

was, Your Honour, that the receipt showing the
lodgment of a document, or showing the payment of

funds to the Corporate Affairs Commission on

18 March 1983, related to the same Form 24 which is

exhibit Land Mr Justice Meagher below - - -

MASON CJ: 

But the passage at page 39 seems to indicate that

that is the footing on which it was represented in
the Court of Appeal and accepted.

MR MacFARLAN:  Yes. And one really cannot criticize the

Court of Appeal, with respect, for then not looking

at His Honour's decision in detail because the

keystone of His Honour's reasoning had disappeared

as a result of the concession.

McHUGH J: But now, you assert that, but the trial judge

said you could not rely on any of these documents.

He said you could not rely on anything that Smith

said. Even if the trial judge made a mistake, what

right did the Court.of Appeal have to make a

decision? Why was not the proper course to send it

back to the trial judge to reconsider the matter in

the light of the presumed mistake that he has made?

MR MacFARLAN:	Your Honour, what the trial judge did was to effectively discard the oral evidence. There were
the case. His Honour did not accept the evidence three witnesses who said something on this side of
of any of them and His Honour did not, in any way,
rely upon the evidence of any of them to form his
view that he did about the time of selection of
Earth Moving to be ATWA.
Now, that left the matter, in effect, tabula rasa and His Honour, as the judgment indicates,
went back to such documents and circumstances as
were available and said he was not persuaded
because the matter of onus was important, he put the onus on us to persuade him that the selection
was made before the mortgage. His Honour found he
was not persuaded, and the essential reason for
that was that His Honour did not regard any

Dawson(2) 66 12/4/91

document as having any force if it was merely

authenticated by Mr Smith.

Now, the Court of Appeal did not attach significance to a document because it was

authenticated by Mr Smith. They attached

significance to exhibit Land the receipt,

exhibit 29, because they were authenticated by the

Corporate Affairs Commission.

McHUGH J:  The contents of exhibit L depended upon Mr Smith.

He was the one that asserted that there was a

change of name on 4 March. He is the one who

prepared that document.

MR MacFARLAN:  But the trial judge did not believe him one

way or the other, Your Honour, about that.

McHUGH J: Well, I know.

MR MacFARLAN:  He would not regard that evidence as being

of any force or weight.

McHUGH J: Well, does that not mean that for the purposes of

the appeal all that you can say is that a blank

document was presented to the Corporate Affairs,

because so far as the trial judge was concerned the

contents of it were worthless.

MR MacFARLAN:  Not the contents of it, Your Honour.

Mr Smith - - -

McHUGH J: Yes, he said you could not place any reliability

on any of the documents.

MR MacFARLAN: Mr Smith's evidence about it was worthless,

therefore it was as if Mr Smith had not been

called, or if he had been called he did not say

anything about the document, and it was a matter,

so the trial judge thought, to see if there was any

other authentication of it, and he found none. The

Court of Appeal found the authentication in the

Corporate Affairs receipt.

DAWSON J: That is not right. What the judge says is that

anything prepared by Mr Smith, or behind which was

Mr Smith, was unreliable, and this document would be of that sort.

MR MacFARLAN:  He does not, with respect, say that, "If

Mr Smith says, 'I signed this document', I

therefore conclude that Mr Smith did not sign it.";
the trial judge says, "If Mr Smith says 'I signed

this document' I just do not know one way or the

other, and I have got to look for some
corroborative evidence before I will accept that

that is the position". Could I show Your Honours a

Dawson(2) 67 12/4/91

couple of passages in the judgment which we say

illustrate that. At 827, line 23:

In this as in other instances where statements

about events in the affairs of companies are

supported only by the signature of Mr Smith, I

regard the statements in the document as quite

unreliable.

McHUGH J: Well that is what Mr Justice Dawson was just

putting to you.

MR MacFARLAN: Well, we say, Your Honour, it does not

indicate that His Honour is saying he will believe

the opposite of what Mr smith says in evidence: if

Mr Smith says X therefore Y must be the case.

DAWSON J; No, but he says he will not believe what is said

in the document.

MR MacFARLAN:  He says, with respect, Your Honour, that if

it is supported only by his signature then he will

not accept the document. He wants to find some

corroboration, or other support for the document,

and he found none in - - -

MCHUGH J:  He says:

where statements about events ..... are

supported only by the signature of Mr Smith -

MR MacFARLAN:	Yes.
McHUGH J:	Now, the statement of events supported by

Mr Smith's signature in exhibit Lis that the name

of the company was changed on 4 March. Well, the

trial judge said he regarded that as quite

unreliable.

MR MacFARLAN: His Honour does not say, "I conclude from

that that there was certainly not a meeting on that
day".	He says, "I am not persuaded".

McHUGH J: But he said, at other parts of the judgment, that

there was no meeting on the 4th.

MR MacFARLAN: Well, His Honour uses the the word

"persuaded" which is an important key, in our

submission, to the way His Honour approached it.

At 835, line 5:

The statement purportedly made by him to the

effect that there was was a special

resolution ..... to change PTSEMD's

name ..... does not, on the balance of

probabilities, persuade me that in fact any

Dawson(2) 68 12/4/91

decision was taken by members or ..... even by

Mr Smith himself.

Now that illustrates the point we are attempting to

make, Your Honours, that it was a matter of being

unpersuaded by anything Mr Smith said. Now that,

we submit with respect, illustrates that he used

the oral evidence in a purely negative sense in a

way which bears some analogy to the decision in

Jones v Capaldi, to which I will come, where at an

appellate level there was interference with the

judgment below, because the judge effectively

discarded the oral evidence - he did not believe

anyone - so the matter was there afresh to be

determined on the basis of inference from objective

circumstances.

TOOHEY J:  I do not think that does justice to the judgment,

Mr MacFarlan, because if you take the passage on page 835, to which you have just referred, and drop

down to say line 14, the judge said:

It is improbable that this document was signed

as early as 14 March 1983 and it is improbable

that there was any project of changing the

name of PTSEMD to ATWA on or before 16 March

1983.

It is not just simply a non-persuasion. That is an

affirmative finding.

MR MacFARLAN: That has to be seen, in our submission, in

light of what he said before, and one has to ask

the question, "Well, other than applying onus",

which we say His Honour did, "how does one

conclude, on the balance of probabilities, that X

was not the case?". If there is no oral evidence

that X was not the case, the only oral evidence is that X was the case, and that is disbelieved, then

we could readily accept that, upon the basis of the

oral evidence, one simply has to decide it on the

matter of onus, the matter is not proven, or one

has to go to other circumstances outside the oral

evidence.

Could we add something else in answer to what

Justice McHugh said, if I can remember it - I will

have to come back to it, Your Honours. So, if I

could just pick up with exhibit L again, could I

hand to Your Honours copies of legislation which

demonstrates that matter about the $61 and $65 and

if Your Honours would look to the first document

that shows the $50 filing fee on the third

photocopy page, the last item, item 11, on lodging

and application, change of name, and the $5 is the

second-last page of the companies document, so it

is the seventh photocopied page. There is an

item 51 for a certificate issued by the commission,

Dawson(2) 69 12/4/91

$5, and then in the bundle there is also three

pages from the stamp duties legislation, the last

three pages of the photocopies. The third-last

page has a heading, Companies - Every Certificate

of Incorporation One Pound Ten Shillings. The next

page, little viii shows an increase in respect of

that item from $3 to $6. We have not provided the

increase from one pound ten shillings to $3, but the important one is $3 to $6, and then the last

page of the photocopies shows the increase from $6

to $10.

The other matter I was intending to mention in

relation to what Justice McHugh said was that

really one should infer that the cheque was

accepted over the counter, but it was not processed

and receipted until 18 March. Your Honours, if

there is any doubt about 18 March there, we do have

a clearer copy which illustrates that; that is in

exhibit L line 5, but my learned friend -

DEANE J:  Mr MacFarlan, while you are on that, the

particulars on the receipt show F24 as does the

document lodged. Is Form 24 from the schedule to

the Act, or is it just a company's form?

MR MacFARLAN:  I am not sure, Your Honour, to be frank. It

is either the regulations or the Act.

DEANE J: It is obviously a standard form for special

resolutions or - - -

MR MacFARLAN: Well, Your Honours see that in the very fine

print just above the stamped number 4246, there is

a reference to the legislation and the last is to a

regulation 28, and also the printed - yes, that is

reference to regulation 28.

DEANE J:  So the least we know from the company's receipt is

that Earth Moving lodged before 18 March, and F24

which of its nature must relate to a special

resolution, and it is conceded that the document it
referred to was the document stating that a special

resolution changing the name had been passed.

MR MacFARLAN:  Yes.

TOOHEY J:  Do we know that, Mr MacFarlan? Do we know that

it was lodged before 18 March?

MR MacFARLAN:  Your Honour, we infer that it was presented

in the sense of handed over the counter on 16 March

by reason of the stamp in the middle.	And that is
rather confirmed or supported - - -

TOOHEY J: For the moment I am seeking to just preserve this

distinction between presented and lodged if there

Dawson(2) 70 12/4/91

be one. You accepted the notion that the evidence

established that the notice had been lodged at

least by 16 March? Is that right, or can we say no

more than that it was presented by 16 March?

MR MacFARLAN:  The latter, Your Honour.

TOOHEY J: Could I ask you this: for the purpose of

effecting a change of name under the Act, is

Form 24 the only document that has to be lodged?

MR MacFARLAN:  I do not know of any other, Your Honour.

TOOHEY J: Presumably the regulations may throw some light

on it. Would it be possible to, without

necessarily providing a copy of the material, draw

our attention to the relevant regulations?

MR MacFARLAN:  Yes, it would, Your Honour, but probably not within the next hour or so.

TOOHEY J: Well, at some time.

MR MacFARLAN:  If Your Honours would give us permission to

lodge a response in writing we would do that.

DEANE CJ:  The other thing is did the Court of Appeal act on

the basis that the resolution had been passed and
the name had been changed, or did it act on the
basis that the document was relevant - or the
existence of the document was relevant on the

question whether it was intended that Earth Moving

should change its name?	I am not saying; I am
asking you.

MR MacFARLAN: Really the latter, Your Honour, or perhaps a

bit of both in that in a passage I will come to the

Court of Appeal - - -

DEANE CJ: Well, I notice your documents suggest the latter,

but I have a different impression.

MR MacFARLAN:  The Court of Appeal says that indicates or is

evidence that a meeting took place, but even if no

meeting took place it is still of significance

because it shows that Mr Smith was doing something

at that time, and that is the important factor. We

seek to add that as a response to Justice Toohey's

reference to lodgment and presentation. The

importance of the document, in our respectful

submission, Your Honour, is that it was in

existence at that time for this reason, that the

task involved for the court in relation to this

name change problem really had two steps to it.

One was to undertake the task of objectively

construing the mortgage to see what was referred to

by the words "ATWA Trading Pty Limited" where

Dawson(2) 71 12/4/91

referred to in the mortgage, and that was a task

that the court was really directed to take by a

decision such as Taylor v Johnson. If there had

been a company registered with that name at that

time the task, of course, would have been an easy

one and the necessity to go to the surrounding
circumstances would have been limited to a trip to

the Corporate Affairs Commission to search the

register. There was no such company on the

register at that time.

The inquiry into surrounding circumstances

for the purpose of objectively construing the

document therefore required a rather wider

investigation, and it was satisfied by a finding

that Mr Smith, who was the moving party in relation
to these transactions and the person with whom the

Bank dealt in relation to both ATWA and in relation

to Premium Tyre Service, had engaged in activity

indicating objectively that the name ATWA was being

adopted, or intended to be adopted, for PTS (Earth

Moving). Now, that was the first task and once one

got past that task it became then a question of
whether there was any remedy available to anyone in

respect of mistake.

McHUGH J: But then the Court of Appeal tied itself to the

fact that the meeting was held and that is plain

from 917-918, is it not?

MR MACFARLAN:  No, with respect, Your Honour.

McHUGH J: Because they say:

If the meeting was not held -

we might have to consider other things and they say

it was necessary to pursue it.

MR MACFARLAN: Yes. Well, perhaps, if I could take

Your Honours to that passage.

McHUGH J:  If you go to 918 at the top of the page and read

the next two paragraphs, it was:

On that basis -

the meeting was held -

And then he deals with an alternative, he says:

The significance of the fact that the meeting

was not in fact held and the effect of that

upon the change of name would then require

consideration.

Dawson(2)	72	12/4/91
MR MACFARLAN:	Yes.	We accept what Your Honour says about

line 17. We would respond to that, Your Honour, by

saying that Their Honours would not have had any

difficulty if they had pursued those matters

because the task was, as I suggested - the initial

task was one of construction of this document to

see what was referred to by those words and that

involved looking at the surrounding circumstances

and if there was an objective fact such as the bringing into existence of a document, such as this, to link Earth Moving to the name ATWA then

that was evidence which enabled the question of

constructions to be determined.

DEANE J: But it is a different question. I mean, if the

Court of Appeal has based itself on the fact the

meeting was held, one has to go back to the trial

judge's findings that you cannot place any reliance

at all on the accuracy of what is said in documents

which means that once the change of name is

registered you get all sorts of presumptions corning

into help you, the fact that Mr Smith lodged a

document shows what you say it shows, that it was

in project and that the trial judge has obviously

gone quite wrong on a critical aspect, but it does

not take the next step of saying that there was a

meeting.

MR MACFARLAN:  We say, Your Honour, that the document does

provide evidence of a meeting and when one accepts

the authentication of the document's existence in

March 1983 one can use that to provide some

evidence of the meeting.

DEANE J: But, Mr MacFarlan, looking at this case, if one

were to speculate about whether this company

actually went through the formality of holding a

meeting or whether Mr Smith said, "I will make out

a document and lodge it saying there was a

meeting", my impression from the evidence is that

you would be left high and dry as to which way to

speculate.

MR MACFARLAN:  That was really a matter for the Court of

Appeal, with respect, Your Honour. Once one finds

that the Court of Appeal was entitled to act on the

basis that the trial judge's view was not supported
by a positive finding as to the credit of some

witness, then that was a matter for the Court of

Appeal and, we would suggest that Your Honours

would actually go into the task of considering what

inferences should be drawn. The Court of Appeal

had the advantage, perhaps not the pleasure of two

and half days of hearing on this appeal with a

detailed examination of the evidence and documents

and that, we respectfully submit, would be a matter for them. But we would also emphasize that it does

Dawson(2) 73 12/4/91

not really matter whether there was a meeting or

not because if there was a meeting it did not
change the name of itself, the relevant
consideration was the objective activity by Smith

who was the proponent of this scheme.

McHUGH J:  Does it not raise other issues? I have not got a

conceptual framework about all of this, but if

there was no meeting then how did Smith have the

authority to be changing names and does that not

throw some light then as to whether or not Earth

Moving was ever going to be a party?

MR MACFARLAN: 

Your Honour, then one is involved in other

issues which really are not the subject of this
appeal, in my submission.

McHUGH J: 

I know, but it seems to me that you just cannot

glide over the Court of Appeal's findings, that is

why it strikes me that even if the trial judge made

a mistake, then the best relief you could have got

was to go back before him and have that mistake

pointed out.

MR MacFARLAN:  Your Honour, it was held that Mr Smith - held

by the Court of Appeal - and this was in reliance

of Mr Dawson's evidence, not Mr Smith's, that respect of all financial matters.

McHUGH J:	But that was in relation to Premium, not in relation to Earth Moving.
MR MacFARLAN:	In relation to Premium Tire Service, yes.

Well, we were not, with respect, actually concerned

with ATWA, we were looking at seeking to enforce a

document against Premium Tire Service in which

there is reference to ATWA and one has to, as a

first step, identify what it was that was referred

to by those words, an objective task of

construction. And when the - - -

McHUGH J:  I appreciate what you are doing, but supposing

that there was no authority to use Earth Moving,

either under that name or under the name ATWA, does

that throw any light on the validity of the

mortgage? In other words, it was being made a

debtor without any authority whatsoever.

MR MacFARLAN: Well, it may do, but it raises a lot of

difficult questions, Your Honour - - -

McHUGH J: Well, I know it does.

MR MacFARLAN:  - - - which really are not the subject of

this limited grant of leave.

Dawson(2) 12/4/91

McHUGH J:  I know. I only raised this for the purpose of

showing that I just do not think you can just

simply glide from the Court of Appeal's finding

about a meeting being held on to the next step that

you want - - -

MR MacFARLAN: Well, the critical question must be, with

respect, on this appeal, was Mr Justice Bryson's

finding as to selection of Earth Moving, or the
timing of selection of Earth Moving, one which

arose out of a resolution of a conflict of

evidence, or was it otherwise underpinned by a

finding as to the credit of a witness?

McHUGH J: Well, they may not be exclusive; it may be both,

and he may have made a mistake in respect of an

aspect of the documentation and therefore he should

be reconsidering the matter.

MR MacFARLAN: Well, certainly the former did not apply

because it was not a case of contending oral

evidence, and His Honour accepting one and

rejecting the other. The only question would be

whether the decision was somehow underpinned by a

finding as to credit. We have said it is not

because the evidence was discarded and that

His Honour did not use it in a positive sense to

say that because X says Y, then Z must be the case.

His Honour cannot be understood to have used it in

that sense. We would suggest that would be wholly

inappropriate.

McHUGH J:  I must say, it does seem terrible to send this

case back again to anybody.	How much money is
involved in this case?

MR MacFARLAN:  A matter of hundreds of thousands, I think,

Your Honour. My learned friend says it is over a

million, I am willing to be corrected.

McHUGH J: Yes.

MR MacFARLAN: But, Your Honour, the easy way to resolve

this case was on the estoppel argument because the

account was in credit in August 1983, so that all

the indebtedness that is now sued for arose after
that time and after the change of name came into

effect, and the Bank continued, as the evidence

reveals, to deal with Mr Smith on behalf of both

ATWA and PTS and continued to refer to this

mortgage in its Bank documents as security for this

debt.

DEANE J: But if you open up the estoppel argument,

Mr Downes is just itching to reply to you, and we

will be here all day.

Dawson(2)	75	12/4/91
MR MacFARLAN:	Yes.	No, I am just responding to

Justice McHugh, Your Honour, but it is relevant in

this sense to the question of remission because we

would submit that if we are unsuccessful on this

appeal, the matter has to go back to the

Court of Appeal, because we have this estoppel

argument and at least one other, which as yet are

undetermined.

Now, mainly with exhibit L, what I have said

about exhibit Lis strongly supported by the

accountants' contemporaneous letters. Could I go to page 702 of the appeal book? At 702, line 25,

there is the explanation as to why there was an

earlier problem in relation to the change of name,

and that is powerful evidence, in our submission,

that the Form 24 lodged in March was a change of

name from Earth Moving, or related to a proposed

change of name from Earth Moving to ATWA.

Certainly well prior to 27 June that happened. And

so also at page 705, the accountants' letter. This

was the letter from Brigden.

TOOHEY J:  I am sorry, just before you leave page 702,

Mr MacFarlan.	I am not sure what you seek to make
of it.	On one reading it would appear that the

name had not yet been changed.

MR MacFARLAN:	Well it had not been, Your Honour. We do not contend it had been. We do not contend the name
change was effective before the date asserted in that letter of August. It became effective in a
date in July.

TOOHEY J: Well here is a letter written to a company by a

name which the company has no right to use.

MR MacFARLAN: Yes, but Your Honour, these people are

businessmen.	They were not attending to the detail
of these matters.	To put it bluntly, they probably

did not care particularly.

TOOHEY J: They are not in adherence to the Salomon v

Salomon doctrine.

MR MacFARLAN:  Indeed, and in their marketing documents, as

Your Honour Justice McHugh pointed out yesterday,

there is looseness of language.	They talk about "a
new company".	Now, in fact it was not a company

newly to be incorporated. It was effectively a

shelf company, because it was a dormant one that

was being taken off the shelf, but really, in a

practical business sense, those people could not

have cared one wit about that distinction, nor one

would have expected them to, but - - -

McHUGH J:	What about the letter at page 705, line 19?:
Dawson(2)	12/4/91

the secretarial records of the company are at

this stage nonexistent.

MR MacFARLAN:  Yes. Well, that seems to be borne out by the

evidence at the trial. What we do have though is

this document lodged with the Corporate Affairs

Commission. We.have the Corporate Affairs produced by the accountants, but these documents

show, in our submission, that the Form 24 lodged in

March will provide strong evidence that that was

related to a change of name and was not some other

type of document and, we submit, Your Honours, that

our learned friend should be held to the concession

that was made concerning the correlation between
the receipt and the document. It was an entirely

reasonable concession, in our submission. It was

made on the first day of the two and a half day

hearing in the Court of Appeal and was not sought

to be withdrawn, nor sought to be withdrawn at any time up until yesterday, and also not sought to be withdrawn on the special leave application.

Now, I have said to Your Honours what the

consequence of construing exhibit Lin the way we

have suggested would be, and the next question is

whether the court had power to interfere with the

finding as to the selection of Earth Moving, and I

have largely said already, in answer to questions,

what I intended to say, but let me just add a

couple of point I have not put. The first is to

whether it was really a finding based on

credibility.

We would refer Your Honours to page 834

point 24 which provides, in our submission, some

support for what I have said about the trial

judge's process. At page 832 and earlier he has

discarded Mr Smith's evidence. Then, at page 833

at about line 22, he has commenced to deal with the

AGC (Advances) documents, and then line 24 on 834,

he says:  These documents and circumstances make it

to a marked degree improbable -

and so on. And the linchpin of his positive

finding is the AGC documents. Could I just say a

couple of things about the AGC documents? One is

that it is quite possible that Mr Smith became

aware of the rejection by the Corporate Affairs
Commission of his proposed change of name before

6 April, and that is the explanation for Earth

Moving's name appearing in these documents. That

was put to Mr White in the Court below and he

accepted that that was a possible answer to those

documents.

Dawson(2) 77 12/4/91

Another point we would make in relation to those documents is, "Well, if Earth Moving was this

dormant company, what was it doing executing

security documents?" The fact it was executing

security documents is wholly consistent with the

idea that it was being resuscitated for the purpose
of this project.

The third point we would make is that it is quite possible that these documents were prepared

and signed some time before 6 April and as is not

unusual, they were dated the day of settlement,

namely, 6 April when the money was advanced.

So, the documents do not at all drive one to

the conclusion that the name had not been changed

by 6 April. Anyway, the point we seek to make is

that His Honour is looking at those documents and

making a positive finding based upon inferences

from documents rather than oral evidence.

I need not add anything to the alternative that we put that Mr Justice Bryson's finding was

contrary to the objective facts and palpably wrong

and the Court of Appeal were entitled to proceed on

that basis. That submission is supported by the

same matters I have already put concerning

exhibit Land, in particular, the fact that the

relevant concession was made.

Now, I put in commencing that there was only

one relevant finding reversed and, as I said, we

have prepared a document and I would hand that to

the Court. What we have done is to take, in the

left-hand column, each of the subparagraphs of the

relevant paragraph of the notice of appeal,

relevant paragraphs, paragraphs 5 and 6. We have

referred to Justice Bryson's finding and then to

what Mr Justice Mahoney said.

The only one that was reversed, Your Honours,

is 5(d), that is, concerning the time of selection
of Earth Moving.	I will not go through them all

but may I just illustrate the position by reference

to 5(f), Justice Bryson's finding that the Bank

intended:

that PTS and ~he Bank should enter into legal

relations with a newly formed company.

Now, that is at page 835 point 25.	He says, at
lines 25 and 26:

it was well known to Mr Smith that there was

no newly formed company of that name.

Dawson(2) 78 12/4/91

He finds that on the probabilities. That is the

same as Mr Justice Mahoney's finding at 921,

line 30:

The proper conclusion is, in my opinion, that party to the transaction was "a newly formed

company" bearing the ATWA name and that it was

separate from and to be "consistently

monitored" with Tire Warehouse.

So, they found it was a newly formed company.

That first reference to Mr Smith is incorrect,

Your Honour. I just have to find the reference to

His Honour's finding concerning Mr Mathieson. But,

in effect, His Honour found that Mr Mathieson, for the Bank, thought that he was dealing with a newly

formed company. Mr Justice Mahoney found the same.

That was not in accordance with what Mr Smith thought and intended because it was going to be an

existing company that changed its name, and that is

why Mr Justice Mahoney went on to consider the

question of mistake, a mistake on the Bank's part,

and he said that at worst that rendered the

contract voidable at the Bank's instance because of
its mistake, but it had clearly affirmed the

contract and it was therefore a valid contract

which remained on foot.

Now, if I could just make a comment about the respondent's schedule of findings if Your-Honours

have that, the one that was handed up this morning.

If Your Honours look at points numbered land 2

which have the subparagraphs (a), (b), (c) and (a)

and (b), they are all variations of this same point

as to what was the date of selection of Earth

Moving. So it is the one finding. The point

numbered 3 as to Mathieson's belief for the

company, we say there was no different finding

because Mr Justice Bryson made the finding that

Mr Mathieson thought it was to be the new company.

On the next page, point 4, "Premium benefited by

mortgage", that is from the other side of the case

which is not the subject of appeal. At point 5,

Mr Justice Mahoney makes no findings as to the

credit. Well, that was not necessary because

Mr Justice Mahoney did not depart from what

Mr Justice Bryson said.

Mr Justice Bryson's finding, and could I ask

Your Honours to correct this in our schedule - in relation to 5(f) the reference to

Mr Justice Bryson, instead of 835.25 it should be

864.3 where Mr Justice Bryson says:

Dawson(2) 79 12/4/91

The probable position is that Mr Mathieson thought of ATWA as a newly formed company -

the very same words that Mr Justice Mahoney uses.

Now, if I could advert to paragraph 5 of our

outline of submissions, we refer to some

authorities there, and I can perhaps indicate the

propositions we seek to get from those references

without actually taking Your Honours to them.

The reference to Warren v Coombes at

page 538.8 is to a passage cited from the speech of

Lord Wright in Powell's case where he spoke of

being a special position for a trial judge's

findings where it was based on impression of

witnesses and which is, we say, not this case.

At page 551.7 is the well- known passage, a

statement of principle in Warren v Coombes, and

552.5 is the statement that if the Appeal Court

considers itself to be in as good a position as the

trial judge, then it is its duty - it is not a
matter of option - it is its duty to go ahead and

decide the case as it thinks proper.

The reference to Abalos is to Justice McHugh's

decision where he spoke of a conflict of evidence

and demeanour being important then, and this is not

a conflict of evidence case.

Taylor v Johnson we refer to because that was

a case in which the trial judge said demeanour was
not important, and therefore the Court of Appeal

was able to intervene.

But could I go to Jones v Capaldi, 98 CLR 615.

That was a motor vehicle case and it was a case in which His Honour felt unable to accept the evidence

of either side, and that appears at page 617

point 4. His Honour says:

On all the relevant evidence I am unable to	say that the plaintiff's account of how the
collision took place is more probably correct
than the account of the defendant. As I am
left in that state of mind the plaintiff has
failed to discharge the onus cast upon him and I must therefore give judgment for the
defendant."

So, the analogy we would seek to draw is, that if

the judge discards witnesses and says, "Look, they

are just no help to me and I will have to decide

the case otherwise", for example, in that case on
the basis of onus, in this case on the basis partly

of onus and partly of documents, in particular the

Dawson(2) 80 12/4/91

AGC documents, then the ability of the appellate court to interfere is established. In S(b) of our

outline of submissions we have referred to

Brunskill in support of the proposition that

interference is justified where there is an

inconsistency with objective facts or the finding

is glaringly improbable.

I have already dealt, in passing,

Your Honours, with paragraph 8 of the submission,

that is to the effect that there is an undetermined

claim for estoppel remaining and there is, at

least, one other contention.

Now, that leaves me, Your Honours, just to

make three points about the question of weight,

the complaint that the Court of Appeal did not give

weight to the decision of the trial judge, and I am

assuming for the moment that it was open to the

Court of Appeal to interfere and I am attempting to rebut a criticism that nevertheless they should

have referred to the trial judge's decision and

given it weight. The first point we would make

about that is that the concession was made and that

that was the keystone. of His Honour

Mr Justice Bryson's reasoning and once that

keystone disappeared there was no cause for the

Court of Appeal to consider His Honour's finding. It did not merit any weight being attached to it,

in our submission.

That is not to say that Their Honours did not, in fact, examine the finding in great detail.	The
two pages from the Court of Appeal transcript I

handed up show that Their Honours did, but having

done so in argument and bearing in mind the

concession, the need to refer in the judgment to it

did not arise and Their Honours referred, in the

judgment of course, to the concession at page 917

line 12.

The second point we would make about this

matter of weight is that if there is not a
questions of credibility involved, it is the duty
of the appellate court to make its own decision

and, again, assuming it is decided it is not a case

where credibility is involved, it is bound to deal

with the arguments that are presented to it and if

the parties before it, and in particular the

respondent to the appeal, feels unable to support

the trial judge's opinion or finding in a critical

respect, then it is not necessary for the appellate

court to deal with something that is not pressed

and at best we are really talking, Your Honours,

about a matter of courtesy.

Dawson(2) 81 12/4/91

McHUGH J:  Can I just ask you: one thing that you have not

placed any reliance on and neither has the Court of

Appeal, one piece of evidence which seems to

suggest, fairly conclusively, that there was an

intention to use a company called ATWA Trading

Company was the fact that a seal had been

manufactured and was in existence as at 16 March.

Now, do you seek to get anything out of that in any

way?

MR MacFARLAN:  We would seek to get something out of it. I

suppose our opponents would say, "That does not

indicate what the existing company or new company

was going to use that seal" and we have got to look

to other evidence to relate it to Earth Moving but

it is certainly the evidence that a selection of

someone had been made by that date.

MCHUGH J: Yes.

MR MacFARLAN:  Our opponents would say, it does not tell one

who was selected.

McHUGH J:	No, I appreciate that.
MR MacFARLAN:	Your Honours, I have two matters remaining to deal with. One is the matter of the leave
applications; the other is I wanted to say
something about Mr Grant's evident.  My learned
friend referred to Mr Grant's evidence and the fact
that His Honour said that it had been thoroughly
discredited. His Honour went on to make a comment,
en passant, we say.  Now, Mr learned friend,
Mr Downes, has not, again, we say for good reason,
sought to rely on that additional comment to say
that His Honour's decision at first instance was
underpinned by some finding as to credit.

Now, I do not want to box at shadows since my

learned friend has not relied on it, but I think I

probably should just make a comment on it. It

appears at 845 of the appeal book, and His Honour

said at line 2:

His oral evidence is thoroughly discredited by

his waverings and his claim to assistance

where rationally there could not have been

any.

And he is talking about exhibit 41, there:

Taking his oral evidence with his statements in Ex 41, they seem, on the whole, to lend

some small support to the view that it is

unlikely that Mr Smith and Mr Grant intended

to represent PTSEMD in executing• the document.

Dawson(2) 82 12/4/91

Now, Your Honour, we want to just make the point that that reference to "small support" is not

one which can be used to say that

Mr Justice Bryson's judgment was based upon a

finding of credit. And we would make these points:

it was a comment made in passing after he had made

his relevant decision; he reached his conclusions

at 834 to 836. Secondly, he used the word "small"

and that does not comply with the relevant test, in

our submission. Justice McHugh in Abalos' case

cited Lord Sumner in Hontestroom to the effect that

an appeal court should not interfere if the judge's

estimate of the man forms any substantial part of
his reasons, and also in Taylor v Johnson there was
reference to no significant assistance being
derived by the trial judge.

So the fact that there is a passing reference

to "small support" does not advance any case
against us and, in any event, the reference must be

to the documents, exhibit 41, because His Honour

has found the evidence thoroughly discredited, so

that sentence must be read as indicating there is

some support to be derived from exhibit 41. Now,

we do not at all agree with that in relation to

exhibit 41. I will not go back to that exhibit,

but could I just say this: that exhibit shows that

the predecessor in this importation business,

namely Tire Warehouse, had ceased business at the

end of February, and that it was intended by all

concerned that the new company, ATWA, take over in

March, and that that occurred because there are

minutes and the like which show that the company

was then operating under that name, and that it was

a different company from the predecessor.

There are, as Justice McHugh pointed out

yesterday, some infelicities of expression in
marketing documents, but that is highly
understandable, in our submission. There would be

no reason for men, such as this, when talking to

their customers, to draw fine distinctions between

whether this is a shelf company, or whether it is

going to be newly incorporated. The fundamental

point is plain from the exhibit that a new company,

by the name of ATWA, was trading as from the

beginning of March and it was a company which had

been previously named Earth Moving. Your Honours,

that brings me finally to the leave applications

made by my learned friend.

TOOHEY J:  Mr MacFarlan, just before you deal with that

matter, could I just ask you whether the two pages

that we were given yesterday from the transcript of

argument for the Court of Appeal relating to the

concessions are the complete picture, or whether we

ought to have anything more.? It is just that the

Dawson(2) 83 12/4/91

foot of page 39 does leave the matter somewhat in
the air, as if there may have been a further

discussion.

MR MacFARLAN:  Yes. Your Honour, we think it is the

complete picture.	We have the whole of the
transcript.	We have indicated to our learned

friends that we have the whole of the transcript

and I think they have had a look at it and, in

fact, in my learned friend's address I think he

said something about the possibility of some

further extracts being handed up and we would

suggest, with respect, that he will no doubt hand

something up if he thinks that the picture is not

complete.

TOOHEY J:  So far as you are concerned, they are the only

two pages that you rely upon, are they?

MR MacFARLAN:  On that point, yes. Now the leave

applications. Your Honours, can I go to the notice

of appeal, the relevant part is at page 945,

paragraph 9 line 19. The appellants seek:

unlimited special leave to appeal to enable

the appeal to extend to the following matters:

(a)	what effect in law does a deed of agreement have when one of its purported parties does not exist; and
(b)	what relevance or effect, if any, do the

following matters have in such a case:

We emphasize those words "in such a case",

..... section 51 -

and the like. Now, what that means, Your Honour,

is that in this notice of appeal, what was sought

was leave to argue certain questions in the event

that there was a favourable finding on the point of
non-existence of one of the parties.	Now, what my

learned friend has sought at this hearing yesterday

and this morning goes well beyond paragraph 9 of

the notice of appeal. He has sought leave in

relation to section 51 on a much wider point,

namely whether section 51A can apply when a

transaction is induced by fraud and, Your Honours,

his client had every opportunity at the leave

application to advance such an argument and to seek

leave on section 51A. There were certain bases for

that application at the leave application and leave

was refused in respect of section 51A, and we

submit that that finding should be adhered to.

Dawson(2) 84 12/4/91

In support of the application, my learned friend asserted that the Court of Appeal had found

that Mr Smith acted fraudulently in the execution

of the mortgage on behalf of PTS. Now that is not

so, Your Honours, because it is the very finding

that my learned friend has referred to in his

document. The Court of Appeal found, contrary to

Mr Justice Bryson's finding, that Mr Smith did, in

fact, have the authority, and they relied on

Mr Dawson's evidence that Mr Smith was the managing

director and looked completely after the financial

side of the business. So to get anywhere on his

point of law concerning section 51A, he would have

to have the Court of Appeal finding concerning
fraud reversed and Your Honours would be required
to enter into yet a further investigation of the
facts as to the correctness of further factual
findings of the Court of Appeal.

Your Honours, the same comments can be made in respect of his application in so far as it relates

to the question of mistake. He now seeks leave in

respect of the bare question of the effect of

mistake, but the leave sought in the notice of

appeal was more limited, because it related to a

case where one of the parties did not exist.

What the Court of Appeal considered was a

situation where upon an objective basis, the party to the document was capable of identification, yet

one of the parties was under a misapprehension or

mistake as to the identity. Now that is a different

point than the one considered in the notice of

appeal and we would submit there is no basis for

thinking the Court of Appeal's decision on that

point of law was incorrect. It is wholly in

accordance with Taylor v Johnson, that once the
question of construction of the document has been

resolved on an objective basis, the question of

mistake only intrudes when one considers whether

equity would grant some relief and whether it would

be regarded as voidable, and it could only be

voidable at the instance of the mistaken party, and

that was Westpac and Westpac has, of course, and

continues, to rely upon the mortgage. If the Court

pleases, those are our submissions.

MASON CJ: Thank you, Mr MacFarlan. Yes, Mr Downes.

MR DOWNES:  Your Honours, so far as the concession is

concerned, we do have some copies of further pages

in the transcript going from pages 37 through to 47

and 48. Could I hand those to the Court.

TOOHEY J: What, all relating to the concession, Mr Downes?

Dawson(2) 85 12/4/91

MR DOWNES:  Well I think the matter of the exhibit is dealt

with during the passages appearing on those pages.

I am not going to take Your Honours to it. I do

not know that it adds a lot, but for example one

sees at page 40, in Mr White's first answer on the

page, when he makes a statement that he:

does not accept this document constitutes

evidence the mortgagor's intention at that

time was that ATWA, a company which was going

to be called ATWA, was to be the debtor.

But simply, I think the other material puts the

concession in its context. Now, Your Honours, what

we say as to this - I think I said most of this

yesterday, but to be clear - is firstly that it was

a very limited concession. As one sees from the

pages that were handed up yesterday, it began by a

reference to the meaning of the stamp "presented",

and the word "presented" is the word which appears

again and again on page 39, and we would

respectfully submit that one has to read the

concession to the extent to which it was made as

limited to evidence to the meaning of the stamp

"presented".	Your Honours, that is the first
matter.

The second matter is that, in any event, the

concession was simply a concession based upon

material that was available as much to the court as

it was to counsel who was making the concession,

and that it was not a concession made at the trial,

in any way in which it could be said that it

effected the evidence that was adduced, and in

those circumstances.we would respectfully submit
that this Court ought not to deal with the matter

by construing the words of the concession, but by

simply addressing the issue on the material that is

now before the Court.

TOOHEY J:  When you put it that way, Mr Downes, are you

seeking to resile from the concession, or asking us

to deal with the matter on the basis of the

concession having been made, but attaching to it

the significance that you ask us to attach to it?

MR DOWNES:  No, I, as the ultimate alternative, do seek to

resile, in the sense that, we would respectfully

submit, although the numbering on the top of the

two documents is a starting point for a basis upon

which a finding of the concession might be made, it

is no more than a starting point, and the material

does not, in all the circumstances, and would not

have justified the judge at the trial, in drawing

the inference.

Dawson(2) 86 12/4/91

But, if Your Honours are minded not to permit

me to withdraw the concession and put that

submission, I seek to deal with the matter in the

alternative ways that I have just put to

Your Honours.

DEANE J:  Mr Downes, would one not at least get from the

concession made by an experienced lawyer that this

stamp with "Presented" on it, was, if evidence had

been called, a Corporate Affairs stamp? I mean, to

us it does not say anything, but one would presume

any filing clerk in Sydney or an experienced

corporate lawyer would be able to say, "That is

Corporate Affairs", or "No, that has got nothing to do with the Corporate Affairs"?

MR DOWNES: Well, I would say, "No", Your Honour, because

that is not the way the basis upon which the

concession was made.

DEANE J: Well, yes, it is because

MR DOWNES:  I mean, there is no concession, "I know this to

be from my experience a Corporate Affairs

Commission stamp." We would respectfully submit

the kind of inference that Your Honour is drawing,

perhaps from knowing something about the person who

made the concession, is not in the circumstances

justified.

DEANE J: We are, though, really, going down a strange

track, are we not, unless there is something behind

what you were saying and it all is an awful mistake

and the Corporate Affairs Commission has never put

a stamp saying "Presented" when documents are

submitted to it? It is a rather odd procedure. I

mean, presume that Mr White had said, "The

Corporate Affairs does not put that stamp on it.

That is not a Corporate Affairs stamp" before the

Court of Appeal. There would no doubt be an

equally experienced solicitor on the other side,

who, if Mr White's understanding was wrong, would

have called evidence about it in the Court of

Appeal.

MR DOWNES:  Your Honour, it is just that the matter was not

dealt with in that context. It was dealt with in

the context of His Honour Mr Justice Meagher

saying, "It is crystal clear that that is what it

is". It was dealt with, so to speak, in context of

a leading question from the bench, not based on any

suggestion that everyone knows, or this is a

Corporate Affairs Commission stamp. There is also

nothing to show why one would necessarily link the

date that it was written, as associated with the

stamp. I mean, logic, perhaps, suggests that

because it happens - they must have been put on

Dawson(2) 12/4/91

separately in the sense that the stamp did not put
on a date, and I suppose logic suggests that if the
date is within the square, the one is to be linked

to the other, but - - -

DEANE J: Except Mr Justice Meagher's interest in Corporate

Affairs' procedures and personnel is rather well

known, is it not?

MR DOWNES:  I am not sure that it would extend to a

knowledge that little square rubber stamps with the

word ''Presentedtt at the top are put on documents.

DEANE J:	I do not know.
MR DOWNES:	Your Honour, we would respectfully submit, this

highlights what we ultimately wish to say about

this matter, and I can perhaps remind Your Honours

what we say about it by using a phrase I used
yesterday, namely, detective work. It really is

not the sort of speculation that is appropriate

when the matter could and should have been dealt
with by the person relying upon this document with

some probitive evidence relating to it.

As I understand the way the trial was

conducted, very little if anything was said about

these numbers, maybe not even mentioned. This was

something that just emerged in the Court of Appeal.

Your Honours, that is what we say about that document.

So far as His Honour's findings are concerned, can I just take Your Honours briefly to the passage

on page 832 that my learned friend relied upon,

832 line 25, and particularly just this line - I do

not want to read it all again because Your Honours

have had the passage read twice already:

all that is known about it is that the

Corporate Affairs Commission did not act on

it.

So that one of the things that operated substantially on His Honour's mind was this: that

whatever was the position so far as the lodging of

a document in March was concerned, nothing happened

about that change of name until a substantial

period of time, indeed months, afterwards. In the

meantime His Honour, of course, places reliance

upon other material, including his assessment, we

would respectfully submit, of the witnesses and

other material such as, for example, exhibit N, the
charge.

Your Honours, in any event, exhibit L does not conclude the issue whether Earth Moving was in some

Dawson(2) 88 12/4/91

way constituted as ATWA by 16 March 1983, and that

is the matter which ultimately His Honour dealt

with. His Honour dealt with many circumstances,

including credit of witnesses, in dealing with that
ultimate matter.

McHUGH J:  But that would be a false issue, would it not,

because the real issue in the case was not whether

there had been a proper change of name, but what

Smith intended when he entered into this?

MR DOWNES:	Yes, Your Honour, and contrary to my learned friend who, as we would understand his submissions,
puts the submissions on the basis that there was no positive finding of this matter, merely the absence of a finding - and that is what he was seeking to
do when he took Your Honours, I think, to
page 835 - and that, of course, contains within it
the seeds of a recognition that if there was a positive finding then he is faced with insuperable
problems, now, we would respectfully submit that
there were the plainest positive findings of His
Honour. His Honour Mr Justice Toohey pointed to one at page 835 line 15, but could we go to 835
line 27:

Mr Smith did not intend that PTS and the Bank

should enter by the mortgage into legal

relations with -

Earth Moving.

It is improbable that any project of changing

the name of PTSEMD to ATWA then existed and I

find that no such project then existed.

We would respectfully submit they are the plainest

possible positive findings of what is, as

Your Honour says, the real issue.

Now, Your Honours, the

McHUGH J: But the problem from your point of view so far as

that finding is concerned is that exhibit 29 and
exhibit L seem to point irresistibly to the

conclusion that there was a project on foot as at that time of changing the name of Earth Moving to

ATWA.

MR DOWNES:  But if one comes to that from exhibit L,

Your Honour, when one looks at exhibit N, that is

just as plain evidence that there was no such

project and His Honour has looked at many documents

pointing in one direction or the other and, of

course, Your Honours will recollect that another

candidate is the company, Tire warehouse. And,

Your Honours, there is positive evidence, I am sure

Dawson(2) 89 12/4/91

Your Honours have read this, that TWA and ATWA

stands for Tire Warehouse Australia, the A standing

for Arrow, the Romanian motor car that the company

proposed to import.

So, there are many factors pointing in another

direction - - -

McHUGH J:  But the only direction in which the receipt

points and the Form 24 is that Earth Moving was

intending to change its name and no other

conclusion is rationally open, is it, that it was

intending to change its name to ATWA?

MR DOWNES:  Could we say two things about that. The lodging

of the charge considerably later points only to the

conclusion that the company was not changing its

name, we would respectfully submit, that is the

first point, and the second point, we would submit,

Your Honour, that there is a possibility that these

people really had not made.	It might have been a
possibly contemplated course.

McHUGH J:  Somebody paid $61, so they must have made up

their mind to some extent.

MR DOWNES:  Yes, Your Honour. If one draws the inference

that the $61 was paid but, with great respect, it

still does not compel, we would respectfully

submit, the conclusion.

McHUGH J: Supposing one came to the view that the trial

judge had misunderstood a significant piece of

evidence and the Court of Appeal had gone off on

the wrong foot because it found that a meeting had

taken place and it should not have and had not

dealt with the issue.	What should happen to the
case?

MR DOWNES: Well, Your Honour, when Your Honours look at the

whole of the reasoning of the trial judge, we would

He found it himself on proper material in a proper	respectfully submit that Your Honours will conclude that His Honour did not misconceive the evidence.
fashion and in those circumstances there is no point in Your Honours doing anything but allowing the appeal and reinstating the judgment of the
judge. If Your Honours, contrary to that, consider
that the judge did act on some misapprehension that was raised for his consideration and he ought to
have considered, then Your Honours will send the
matter back, not to the Court of Appeal but to the
trial judge.
Could I ask Your Honours not to put - and this is what I have in mind in saying that Your Honours
will not need to do that. Your Honours will not

Dawson(2) 90 12/4/91

ignore the fact that although Mr Smith was there he

did not seek to give any evidence positively about

a meeting on the relevant date at all and the trial

judge - - -

McHUGH J:  I must say, speaking only for myself, if there is one thing I am confident in this case about is that there was no meeting.

MR DOWNES: Well, Your Honours, exactly, and the Court of

Appeal has found that there was.

Your Honours, just a word about the company's

fees records. They seem to produce the result that

my learned friend suggests in terms of monetary
sums but, we would respectfully submit, that the

fact that here in the Court of Appeal in the third

hearing relating to these factual issues, this sort

of material is surfacing for the first time in aid
of an inference of the kind that is relied upon, is

another matter to take into account in deciding

what weight should be put on the speculative

argument relating to this document in the first

place.

Your Honours, I do not think a lot turns on

this but Your Honours did raise the matter. It

appears from the judgment of the Court of Appeal

that at that time the amount of the debt was

$1.17 million.

Your Honours, my learned friend sought to put

some argument which suggested that what one was

here dealing with was businessmen in the real world

and I think Your Honour Mr Justice McHugh referred

to Salomon's case. Could I just remind

Your Honours that my learned friend's client is a

bank, and whatever one thinks about the way

businessmen conduct transactions on the back of

postcards or envelopes or whatever, one's

experience of the way banks deal with matters such

as incorporation is exactly to the contrary of my
learned friend's submission.	The way banks - - -

McHUGH J:  Mr Mathieson conceded he knew the difference, did

he not, between the two?

MR DOWNES:  Yes, Your Honour. But banks deal with the

matter in the very purist fashion that my learned
friend suggested that these parties would not be

dealing with it in and there is a wealth of

evidence on this in the case. The Bank had

searches made and so forth. Something broke down

at the end in what would ordinarily have been, one

assumes, the practice of the Bank but, we would

respectfully submit, to look at the matter in that

way is not appropriate.

Dawson(2) 91 12/4/91

Now, my learned friend also put submissions to the effect that Mr Justice Mahoney did not depart

from Mr Justice Bryson's finding on credit but, we would respectfully submit, that is exactly what he

did do and he did it without saying that that was

what he was doing, and I do not want to take

Your Honours to the passages, but this is what we

have dealt with in paragraph 14 of the written

submissions where we have referred to the three

occasions where Mr Justice Mahoney said something

about Mr Justice Bryson and in the first we say, he

was neutral and in the second and third, effecively

was reversing his findings on credit and by

necessary inference was reversing those findings on

credit in connection with the critical findings

that we rely upon in this case.

McHUGH J: Could I just ask you this: although the key

issue was the state of mind of Mr Smith as at the

time of executing the mortgage, when you read
Mr Justice Bryson's judgment and you read the Court

of Appeal judgment you get the impression that the battleground between the parties was that that was

to be really determined by whether or not there was a meeting which took place on 4 March which changed

the name. Is that right or not?

MR DOWNES: That was certainly a key issue, but I am not

sure that it is correct to say, is it, Your Honour,

that the ultimate question is, "What was in

Mr Smith's mind?", because Mr Smith was just one of

the shareholders of this company, Earth Moving.

Indeed, exhibit A shows that shares in the company

were held in trust for Mr Dawson, amongst other

people and, of course, looking at that as the

ultimate question involves, so to speak, an

assumption in the first place. The first question

is, "Did Earth Moving by some means constitute
itself, for relevant purposes, as ATWA in a way

which one could then say that there was a contract

entered into which found its form ultimately in the

as Premium?" It is a tripartite relationship, not	form of the deed between that organization as well
one between two which identifies a third - - -

McHUGH J:  I raised that with Mr MacFarlan during argument,

but that issue does not seem to have been much

examined.

MR DOWNES:  But, Your Honour, the way in which it was then

dealt with by Mr Justice Bryson was to say, well,

the best thing I can do in the circumstances of
this case to try and find out whether Earth Moving

did have that intention or not was to look at the

intention of Mr Smith. And so that is what he

looked at and he found Mr Smith positively did not

have the intention and in those circumstances that

Dawson(2) 92 12/4/91

was the end of the issue.	But the issue ultimately
goes back to Earth Moving, not to Mr Smith.	My
learned friend -

DEANE J:  Mr Downes, when the change of name was registered

pursuant to section 65(1), did that give rise to a
presumption that the resolution had in fact been

passed on 4 March?

MR DOWNES:  We would submit not, Your Honour, and it has not

been contended so far that it did so.

DEANE J:  I at the back of my mind have an understanding

that when a resolution of change of name is

registered, there is a presumption of regularity,

both of the meeting and the resolution.

McHUGH J: That is certainly the case of incorporation, is

it not.

MR DOWNES:  Well I just cannot assist Your Honour at the

moment on that, but we would say that even if there

was a presumption, the presumption was overtaken by

the material that -

DEANE J: Well nothing seems to have turned on it in the

Court of Appeal.

MR DOWNES:  Your Honours, my learned friend suggested that

this was not a conflict of evidence case, but we

would respectfully submit it is exactly what it

was. What the trial judge did was, look at

differing pieces of evidence from different

witnesses and look at differing pieces of evidence
within the evidence of one witness, and use that to

draw conclusions and, I mean, if one needs to go to any particular point again, we would submit that it

is apparent at almost every line, certainly every

page, but the passage I read to Your Honours, "his

documents are usually dubious and his oral evidence

and his demeanor while giving it are also bases for

this view".

Your Honours, my learned friend said that I

did not rely on 845 point 05. Well, I did not

understand that to be the case.	I read the
passage, Your Honour, and I do rely on it.	I will
not read it to Your Honours again.

Now, Your Honours, that takes me to just one

submission relating to my learned friend's written

outline of submissions and, as we would see it, the

critical submission upon which my learned friend's

submissions are founded is really 3(iv) on page 2

and we say that that contains two errors. It omits

a third alternative, namely, the Court of Appeal

relied on documents which the trial judge had

Dawson(2) 93 12/4/91

discredited in consequence of his findings on

credit, and we would respectfully submit that the

second of the two that there appear, namely:

its conclusion was not contradicted by the

evidence of any witness accepted by the trial

judge -

is not correct, because the whole of the background

to His Honour's conclusions was the assessment of

the witnesses.

The last matter I wanted to mention,

Your Honour, is the special leave argument.

Firstly, my learned friend said that leave on

section 51A was refused. I have a copy of the

transcript here and we can make available copies to

Your Honours if -

MASON CJ: Well it was not refused, was it?

MR DOWNES:  No, nor did I advance submissions on it. The

court stopped me when I dealt with the facts and I

then in reply asked whether I could be heard on

mistake and section 51A and Your Honour

Mr Justice Dawson said, "Well, if we are going to

grant leave on that basis, there is no point in

that, Mr Downes". Can I just remind Your Honours

that when I opened the matter, I opened it by

saying that there were two pertinent facts which

were at the background: one was the absence of the

existence of one of the parties, namely ATWA, and

the other was want of authority, and plainly, Your

Honour, that was a background matter to the extent

to which my learned friend now says perhaps the

notice of appeal was not as well drafted as it

might have been in terms of identifying the precise

basis upon which the section 51A argument arose.

But we would respectfully submit that Your Honours

ought not to decline to give consideration to the

matter merely by reference to that matter.

Your Honours, those are our submissions in

reply.

MASON CJ:  Thank you, Mr Downes. The Court will consider

its decision in this matter.

AT 11.39 AM THE MATTER WAS ADJOURNED SINE DIE

Dawson(2) 94 12/4/91