Elliott v Water Wheel Holdings Ltd And Elliott v Water Wheel Mills Pty Ltd - [2004] FMCA 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELLIOTT v WATER WHEEL HOLDINGS LTD AND ELLIOTT v WATER WHEEL MILLS PTY LTD

[2004] FMCA 75

BANKRUPTCY – Application to set aside bankruptcy notices – Deeds of Company Arrangement – whether Administrator has power to apply for issue of bankruptcy notices in relation to future property – bankruptcy notices – validity – word italicised rather than underlined – whether inclusion of attachment of page 6 of notice relating to interest where no interest claimed a defect or irregularity – whether notices invalid – purposive approach – substantial compliance – application of s.306 of Bankruptcy Act – whether s.25C of the Acts Interpretation Act applies.

Bankruptcy Act 1966, ss.40(1), 40(1)(g), 40(3), 41, 41(2), 306(1), 444A
Corporations Act 2001, ss.9.110, 444A, 558J, 588L,1401(3)
Bankruptcy Regulations, Reg 4.02

Supreme Court (General Civil Procedure) Rules 1996 (Vic), Rule 66.12(1)
Property Law Act 1958, s.134

Acts Interpretation Act 1901, s.25C

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Hospital Products Ltd v USSC (1984) 156 CLR 41
Poulton v Commonwealth (1953) 89 CLR 540
Gould v Skinner (1983) 1 QDR 377
Farrugia v Farrugia [2000] 99 FCR 16
Australian Steel Co (Operations) Pty Ltd v Lewis [2000] 109 FCR 33
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Marshall v General Motors Acceptance Corporation Australia (2003) 199 ALR 109

Applicant:

JOHN DORMAN ELLIOTT

Respondent:

WATER WHEEL HOLDINGS LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 450 033)

File No:

MZ 57 of 2004

Applicant:

JOHN DORMAN ELLIOTT

Respondent:

WATER WHEEL MILLS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 032 473)

File No:

MZ 59 of 2004

Delivered on:

19 February 2004

Delivered at:

Melbourne

Hearing Date:

13 February 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr G Bigmore QC with Mr Heath

Solicitors for the Applicant:

Tress Cocks & Maddox

Counsel for the Respondents:

Mr R Brett QC

Solicitors for the Respondents:

Minter Ellison

ORDERS

The applications filed 23 January 2004 be dismissed.
The Applicant shall pay the Respondents’ costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 57 of 2004

JOHN DORMAN ELLIOTT

Applicant

and

WATER WHEEL HOLDINGS LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 450 033)

Respondent

MZ 59 of 2004

JOHN DORMAN ELLIOTT

Applicant

and

WATER WHEEL MILLS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 032 473)

Respondent

REASONS FOR JUDGMENT

Introduction

There are two applications before the court by John Dorman Elliott (the applicant). Both applications filed on 23 January 2004 seek orders setting aside bankruptcy notices. In the first application (MZ 57 of 2004) the Applicant seeks to set aside bankruptcy notice VN1894/03, whilst in the second application, MZ 59 of 2004, he seeks to set aside bankruptcy notice VN1895/03.
The grounds upon which each application is based are identical. The applications relate to bankruptcy notices issued on 2 December 2003 by the Official Receiver on the application of the Administrator of Water Wheel Holdings Ltd (subject to a deed of company arrangement) ("Holdings") and Water Wheel Mills Pty Ltd (subject to a deed of company arrangement) ("Mills").
The grounds in support of the applications are as follows:
a)Holdings and Mills are not creditors who have obtained final judgments or final orders against the applicant within the meaning of s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (‘the Act’);
b)further, or alternatively, any entitlement of Holdings and Mills under s.588J of the Corporations Law 1993 (Cth) (‘the Law’) or under the order a copy of which is annexed to notices is not one of the “assets” available to meet creditors claims within the meaning of clause 11 of the Deed, and accordingly, not “cash” or “proceeds” within the meaning of clause 12 of the Deed, and accordingly the Administrators of the Deed had no authority to cause application to be made for the issue of the notice;
c)further, contrary to s.41(2) of the Act, the form of the notice is not in accordance with the form prescribed by reg 4.02 of the Bankruptcy Regulations by reason of:
i)the inclusion of page 6 in the notice; and
ii)the italicising and failure to underline the word “and” in sub-paragraphs 5(a) and 7(a) of the notice;
d)further, if the inclusion of page 6 is a formal defect or an irregularity, substantial injustice is caused by it in that it may be read as stating, erroneously, that the amount claimed in the notice does not include amounts of interest.
At the hearing counsel for the applicant did not pursue ground (a), namely that Holdings and Mills are not creditors who had obtained final judgments or final orders against the applicant within the meaning of s.40(1)(g) of the Act.
Counsel then referred to "the first ground of attack" being paragraph (b) of the applications and "the second ground of attack" being paragraphs (c) and (d) in the applications. For convenience I will use the same reference.
On 30 January 2004 the court made orders dismissing applications by the applicant seeking an extension of time for compliance with the relevant bankruptcy notices (the first bankruptcy proceedings). During that hearing the Court made formal orders extending the time for compliance to enable the present applications to set aside the bankruptcy notices to be heard and determined. The Court had otherwise permitted the parties to rely upon affidavit material which had been filed in support of the proceedings seeking extension of time for compliance with the bankruptcy notices, namely applications numbered MZ 1456 of 2003 and MZ 1457 of 2003.
In the earlier proceedings the applicant relied upon affidavits sworn by him on 18 December 2003 (the Elliott affidavits). He further relied upon affidavits of Hugh William Maclaren sworn 23 January 2004 in both proceedings. Before the court in the present applications leave was granted to the applicant to rely upon an affidavit of James Patrick Tobin sworn 12 January 2004 which referred to evidence and transcript before the Honourable Mandie J in Supreme Court proceedings number 7748 of 2000.
In the proceedings before this court the background and relevant legislation has been appropriately set out in the respondents’ outline of submissions filed on 12 February 2004 and it is agreed between the parties that the court may rely upon that outline, save for some minor alterations to be made by the court.

Background

On 16 February 2000, Holdings and Mills appointed Mr Daly and Mr Brooke as joint and several administrators.
On 30 June 2000, Mills and Holdings entered into deeds of company arrangement (‘the Deeds’) with Mr Daly and Mr Brooke as deed administrators (‘the Administrators’).
On 27 November 2000, the Australian Securities and Investments Commission (‘ASIC’) commenced proceedings in the Supreme Court of Victoria against the Applicant (the second defendant) and two others for breach of the civil penalty provision in s.588G (duty to prevent insolvent trading) of the Law (as it was then) (‘the Insolvent Trading Proceeding’). On 5 May 2003 and 30 June 2003, Mandie J gave reasons for judgment in the Insolvent Trading Proceeding. The Applicant was found to have breached his duty as a director of Holdings and of Mills by failing to prevent certain debts from being incurred by those companies.
On 30 June 2003, Mandie J made orders including the following:
(a)“The First and Second Defendants each pay compensation pursuant to s.588J(1) of the Law as follows (but not so as to exceed in total each of the following amounts):
i)       to Mills: the sum of $1,330,486.11;
ii)     to Holdings: the sum of $97,513.89” (order 3)
(‘the Compensation Orders’);
(b)“… pursuant to s 1317EA(3)(a) of the Law:
(a)     …
(b)the Second Defendant is prohibited from managing a corporation for a period of 4 years commencing on 28 July 2003;
(c)    …” (order 4);
(c) “The First and Second Defendants pay the taxed costs of the Plaintiff [ASIC] of this proceeding (including reserved costs) save that neither of the said Defendants is required to pay more than 80% of such costs” (order 7).
On 30 June 2003, the Applicant filed a notice of appeal against the judgment and orders made by Mandie J (‘the Appeal’).
The Appeal is fixed for hearing on 23 February 2004.
On 2 December 2003, the Official Receiver issued the following Bankruptcy Notices on the application of Holdings and Mills:
(a)The Holdings Bankruptcy Notice claiming an amount of $97,513.89 pursuant to the Compensation Orders;
(b)The Mills Bankruptcy Notice claiming an amount of $1,330,486.11 pursuant to the Compensation Orders.
On 18 December 2003, Mr Elliott commenced the First Bankruptcy Notice Proceedings seeking an extension of time for compliance with the Holdings Bankruptcy Notice and the Mills Bankruptcy Notice, respectively, (‘the Bankruptcy Notices’) pending the hearing and determination of the Appeal.
The time for compliance with the Bankruptcy Notices has been extended to 13 February 2004 and further extended pending determination of the current applications.
There is no dispute that each bankruptcy notice included "page 6" which contained the following:
CALCULATION OF INTEREST
The creditor does not claim interest.

Legislation

The Law that was in force at the commencement of period of insolvency alleged by ASIC in the proceedings against the Applicant, including in relation to the fixing of penalties and the ordering of compensation, was the Corporations Law as in force on 14 September 1999.
The Law, as in force on 19 September 1999 continued to apply to any contraventions committed by the Applicant when the proceedings against him commenced on 27 November 2000 notwithstanding the commencement of certain amendments on 13 March 2000.
By virtue of s.1401(3) of the Corporations Act 2001 the provisions of the Law referred to above were taken to be included in the Act; and for all practical purposes the proceedings before His Honour continued under the provisions by which liability was initially incurred, being those that governed those proceedings when they commenced.
It is appropriate to set out relevant sections from the Law, the Act, the Bankruptcy Regulations (the regulations).

Corporations Law (the Law)

Sections 9, 110, 444A, 588J, 588L provide:-
“9. ‘ property’ means any legal or equitable estate or interest (whether present or future and whether vested or contingent) if real or personal property of any description and includes a thing in action.”
“110.Expressions have the same meaning as in this Law
(1)Subject to subsection (2), an expression has in the regulations the same meaning as it has in this Law.
(2)Where a provision of the regulations has effect for the purposes of a particular provision of this Law, an expression has in that provision of the regulations the same meaning as it has in that provision of this Law.
(3)Subject to subsection (2), this Part applies in relation to the regulations as if the provisions of the regulations were provisions of this Law.
(4)This section has effect except so far as the contrary intention appears in the regulations.”
“444A(3)[Preparation of instrument] The administrator of the deed must prepare an instrument setting out the terms of the deed.
444A(4)[Matters to be specified] The instrument must also specify the following:
(a)     the administrator of the deed;
(b)the property of the company (whether or not already owned by the company when it executes the deed) that is to be available to pay creditors’ claims;
(c)the nature and duration of any moratorium period for which the deed provides ;
(d)to what extent the company is to be released from its debts;
(e)the conditions (if any) for the deed to come into operation;
(f)the conditions (if any) for the deed to continue in operation;
(g)     the circumstances in which the deed terminates;
(h)the order in which proceeds of realising property referred to in paragraph (b) are to be distributed among creditors bound by the deed.
(i)the day (not later than the day when the administration began) on or before which claims must have arisen if they are to be admissible under the deed.
444A(5)[Prescribed provisions included] The instrument is taken to include the prescribed provisions, except so far as it provides otherwise.”
“588JOn application for civil penalty order, Court may order compensation
(1) Where, on an application for a civil penalty order against a person in relation to a contravention of subsection 588G(2), the Court is satisfied that:
(a)the person committed the contravention in relation to the incurring of a debt by a company; and
(b)the debt is wholly or partly unsecured; and
(c)the person to whom the debt is owed has suffered loss or damage in relation to the debt because of the company's insolvency;
the Court may (whether or not it makes a pecuniary penalty order under section 1317G or an order under section 206C disqualifying a person from managing corporations) order the first-mentioned person to pay to the company compensation equal to the amount of that loss or damage.”
(2)A company's liquidator may intervene in an application for a civil penalty order against a person in relation to a contravention of subsection 588G(2).
(3)A company's liquidator who so intervenes is entitled to be heard:
(a)only if the Court is satisfied that the person committed the contravention in relation to the incurring of a debt by that company; and
(b)only on the question whether the Court should order the person to pay compensation to the company.”
“588L   Enforcement of order under section 588J or 588K
An order to pay compensation that a court makes under section 588J or 588K may be enforced as if it were a judgment of the court.”

The Bankruptcy Act (the Act)

Subsection 40(1) of the Act provides (relevantly):
“40(1) A debtor commits an act of bankruptcy in each of the following cases:
…
(g)if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i)where the notice was served in Australia—within the time specified in the notice; or
(ii)where the notice was served elsewhere—within the time fixed for the purpose by the order giving leave to effect the service;
….”
Subsection 40(3) of the Act provides (relevantly):
“40(3) For the purposes of paragraph (1)(g):
…
(d)a person who is for the time being entitled to enforce a final judgment or final order for the payment of money shall be deemed to be a creditor who has obtained a final judgment or final order;
….”
Section 41 of the Act provides (relevantly):
“41(1)An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:
(a)a final judgment or final order that:
(i) is of the kind described in paragraph 40(1)(g); and
(ii) is for an amount of at least $2,000; or
(b)2 or more final judgments or final orders that:
(i) are of the kind described in paragraph 40(1)(g); and
(ii) taken together are for an amount of at least $2,000.
(2)The notice must be in accordance with the form prescribed by the regulations.
(3)A bankruptcy notice shall not be issued in relation to a debtor:
(a)except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;
…
(6A)Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a)proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b)an application has been made to the Court to set aside the bankruptcy notice;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
…”
Subsection 306(1) of the Act provides
“306(1)Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.”

The Bankruptcy Regulations (the Regulations)

Bankruptcy Regulation 4.02 provides:
“Form of Bankruptcy Notices
(1)For the purposes of subsection 41 (2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed.
(2)A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes).
(3) Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901 .
Note - Under section 25C of the Acts Interpretation Act 1901 , where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient; see also paragraph 46 (1)(a) of that Act for the application of that Act to legislative instruments other than Acts.”
Note 2 to the prescribed form of bankruptcy notice provides:
“Note 2: Interest accrued (item 3 of the Schedule)
If interest is being claimed in this Bankruptcy Notice, details of the calculation of the amount of interest claimed are to be set out in a document attached to this Bankruptcy Notice. The document must state:
(a) the provision under which the interest is being claimed; and
(b) the principal sum on which, the period for which, and the interest rate or rates at which, the interest is being claimed.
(NB: If different rates are claimed for different periods, full details must be shown)”

Supreme Court (General Civil Procedure) Rules 1966 (Vic)

Enforcement of judgments and orders of the Supreme Court of Victoria is dealt with in Order 66 of the Supreme Court (General Civil Procedure) Rules 1996 (Vic). Rule 66.12(1) of those Rules provides as follows:
“Enforcement by or against non-party
(1)A person not being a party who obtains a judgment or in whose favour a judgment is made may enforce the judgment by the same means as if he were a party.”

Relevant extracts from Bankruptcy Notices

The relevant sub-paragraphs of the respective Bankruptcy Notices are sub-paragraphs 5(a) and 7(a) reproduced from the notices as follows:-
“5. Bankruptcy proceedings may be taken against you if, within the time stated in paragraph 3, above:
(a)you do not comply with the requirements of either paragraph 3(a) or paragraph 3(b) above; and
(b)the Court (that is, the Federal Court of Australia or the Federal Magistrates Court of Australia) does not extend, or is not deemed to have extended, the time for compliance with this Bankruptcy Notice (see paragraph 6, below).”
“7.In addition, within the time specified in paragraph 3 above, you may file an application to the Court for an order to set aside this Bankruptcy Notice on the specific grounds that:
(a)you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in this Bankruptcy Notice as owing to the creditor; and
(b)in the action or proceeding in which the judgments or orders mentioned in paragraph 2 of this Bankruptcy Notice was obtained, you could not have set up that counterclaim, set-off or cross demand*.”

Deeds of Company Arrangement

It is appropriate to set out the relevant extracts from the Deeds of Company Arrangement. In each Deed under the heading “Definitions” in clause 1 provision is made for the following:-
“Prescribed Provisions” means the prescribed provisions set out in Schedule 8A of the Regulations at the Commencement Date.
Subclause 8 of each of the Deeds provides:
“8. APPLICATION OF PRESCRIBED PROVISIONS
8.1This deed includes the Prescribed Provisions except for Prescribed Provision 4.
8.2If there is any inconsistency between the Prescribed Provisions and this deed, the provisions of this deed will apply.”
Subclause 9.3 of each of the Deeds provides:
During the Deed Period, no person other than the Administrators can exercise or purport to exercise any power or function as an officer of the Company, deal with any of the Company’s assets or business or be involved in the affairs of the Company except with the Administrators’ prior written consent.
Clause 11 of the Mills Deed provides:
11. PROPERTY AVAILABLE TO MEET CREDITORS’ CLAIMS
11.1 The assets of the Company available to pay the Claims of Creditors after Administration Liabilities comprise all the assets and undertakings of the Company, including without limiting the generality of the foregoing:
(a) the flour milling business;
(b) the stock feed business;
(c) the rice milling business;
(d) the Company’s debtors;
(e) the Company’s stock;
(f) all the Company’s real estate;
(g) cash held by the Administrators on the Signing Date;
(h) any other property of the Company whatsoever of whatever description and wherever located and whether or not under the control of the Administrators at the Signing Date.
Clause 12 of the Mills Deed provides:
12. THE FUND
12.1 The Administrators will open and maintain an appropriate bank account, styled the ‘Water Wheel Mills (Deed of Company Arrangement) Administration Account’ (‘Administration Account’).
12.2 The Administrators will pay into the Administration Account:
(a)the proceeds from the sale of the flour milling business;
(b)the proceeds from the sale of the stock feed business;
(c)the proceeds from the sale of the rice milling business;
(d)the proceeds of realization of all the Company’s debtors;
(e)the proceeds of sale of the Company’s stock;
(f)cash in the Administrators’ account as at the Signing Date;
(g)the proceeds of realization of all other assets of the Company.
Subclause 22.6 of the Mills Deed provides:
22.6 Subject to clause 4, the Company will revert to the control of the Directors on the Termination Date.
Clause 11 of the Holdings Deed provides:
11. PROPERTY AVAILABLE TO MEET CREDITORS’ CLAIMS
11.1The assets of the Company available to pay the Claims of Creditors after Administration Liabilities comprise all the assets and undertakings of the Company, including without limiting the generality of the foregoing:
(a) the Company’s debtors;
(b)cash if any held by the Administrators on the Signing Date;
(c)any other property of the Company whatsoever of whatever description and wherever located and whether or not under the control of the Administrators at the Commencement Date.
Clause 12 of the Holdings Deed provides:
12. THE FUND
12.1 The Administrators will open and maintain an appropriate bank account, styled the ‘Water Wheel Holdings (Deed of Company Arrangement) Administration Account’ (‘Administration Account’).
12.2 The Administrators will pay into the Administration Account:
(a) the proceeds of realization of all the Company’s debtors;
(b)cash in the Administrators’ account at the Commencement Date;
(c)the proceeds of realization of all other assets of the Company.
Subclause 22.6 of the Holdings Deed provides:
22.6 Subject to clause 4, the Company will revert to the control of the Directors on the Termination Date.
Prescribed provision 1 states:
1 Administrator deemed agent of company
In exercising the powers conferred by this deed and carrying out the duties arising under this deed, the administrator is taken to act as agent for and on behalf of the company.
Prescribed provision 2 states:
2 Powers of administrator
For the purpose only of administering this deed, the administrator has the following powers:
…
(u) subject to the Bankruptcy Act 1966 , to prove in the bankruptcy of any contributory or debtor of the company or under any deed executed under that Act;
…
(x) to take out letters of administration of the estate of a deceased contributory or debtor, and do any other act necessary for obtaining payment of any money due from a contributory or debtor, or the estate of a contributory or debtor, that cannot be conveniently done in the name of the company.

The first ground of attack

The applicant asserts that any entitlement of Holdings or Mills under s.588J of the Law or under the order annexed to the bankruptcy notices is not to be regarded as relating to one of the "assets" available to make creditors' claims within the meaning of clause 11 of the deed, and accordingly, is not "cash" or "proceeds" within the meaning of clause 12 of the deed. Accordingly, the applicant asserts that the administrators of the deeds had no authority to cause applications to be made for the issue of the bankruptcy notices.

Applicant’s submissions

The judgment against the applicant was pronounced on 30 June 2003. It was submitted by the applicant that based on the terms of the Deeds of Company Arrangement (the DOCAs) dated 30 June 2000 that the judgment debt is not properly available to meet the claims of the company's creditors. Accordingly, it was submitted that empowers the respondents to deal with the "assets" of each company but only in accordance with their terms. Clause 11 of the DOCA refers to the property available to meet the claims of the company's creditors. It was submitted that according to subclause 11.1(h) of the Mills DOCA the assets of the company include the following:
“Any other property of the Company whatsoever of whatever description and wherever located and whether or not under the control of the Administrators at the Signing date.”
It was submitted that the subclause contemplates property in existence “at the signing date". It should be noted that although there is a difference in clause 11 in each of the deeds, no issue was taken in relation to the similar clauses where one deed refers to "at the signing date", whereas the other deed refers to "at the commencement date". It was submitted that the relevant date should be the date of the DOCAs, that is, 30 June 2000. It was further submitted that as a matter of logic it does not embrace property which might have come into existence following that "point in time". The reference to "control" is claimed to be consistent with this submission.
It was submitted that it is of significance that the DOCAs do not provide that these items of property fall within the definition of "property" in the "Law" (as defined in the DOCA or its successors). Reference was made to s.9 of the Law.
It was submitted there is no foundation in the text of the DOCAs for an argument that the "property" includes the judgment debt which is the basis of each bankruptcy notice. For example, it was submitted there is no foundation for contending that "property" is defined by reference to the Law or its successors. As subclause 11.1(h) has a plain and unambiguous meaning, extrinsic evidence is not admissible to contradict that meaning, according to the applicant's submissions (see Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 347-353).
The applicant submitted that DOCAs are capable of an effective operation in a business sense without the implication of any term operating to expand the scope of clause 11 to include a judgment debt. The fact that the DOCAs came to be embodied in a detailed document supports this contention (see Hospital Products Ltd v USSC (1984) 156 CLR 41 at 72 per Gibbs CJ). In this context it is significant, according to the applicant, that the respondents retained a firm of competent and experienced solicitors for the purpose of preparing the DOCAs. Through their solicitors the respondents could have pressed for the inclusion of a term expanding the definition of "property" prior to the execution of the DOCAs.
It was further submitted that clause 5.2 of the DOCAs confers powers on the administrators, but only "[f]or the purposes of administering this deed". It is relevant to set out clause 5.2 which is identical in both DOCAs as follows:
For the purposes of administering this deed, the administrators have the power set out in section 437A and section 442A of the Law and Prescribed Provision 2.
It was submitted that it is no part of that "purpose" of clause 5.2 for the administrators to attempt to get the benefit of the compensation orders made in favour of the respondents under s.588J long after the execution of the DOCAs in proceedings which did not even commence until 27 November 2000.
Reference was made by counsel for the applicant to s.444A of the Law.
It was submitted that s.444A(4)(b) contemplates property which is in existence when a DOCA is executed. The present tense is used in that paragraph to indicate a requirement of immediate certainty about the property concerned. It was submitted that the infinitive is used in that paragraph to indicate a requirement that the proceeds of realisation of the property will be distributed to creditors at some identifiable future time. Whilst it is submitted that the phrase "is to be available" relates to any property which is in existence for the purpose of meeting the claims of creditors. It was submitted that the mandatory requirement with respect to the specification of property highlighted the significance of the earlier submissions that were made on behalf of the applicant; that the DOCA is capable of an effective operation in a business sense without the implication of any term operating to expand the scope of clause 11 of the deed to include a judgment debt.
It was conceded by counsel for the applicant that s.444A(4)(b) of the Law contemplates the specification of future property. However, it was submitted that the focus of that section is upon "separation of property of the company into two categories, viz 'available' and 'unavailable'". It was submitted that in "traditional terms" only the former category of property assigned for the benefit of creditors.
It was submitted that property vests in a trustee in bankruptcy or of a deed of assignment but is simply assigned to the trustee of a deed of arrangement under Part X of the Bankruptcy Act 1966. Property only vests in a liquidator if so ordered and is only sometimes formally assigned to administrators of a Part 5.3A deed. It was submitted, therefore, that any inquiry into what might or might not have been made "available" in terms of s.444A(4)(b) on a particular date is informed by ascertainment of what might have been assigned by the company on that date. It was submitted that neither Mills or Holdings had a statutory right of action (based on s.588G) against the applicant.
According to the written submissions of the Applicant s.588G is a "civil penalty provision". The Law empowered the "commission", and commission delegate, or some other person authorised in writing by the minister to make an application for a "civil penalty order". Section 588J provides expressly for a limited intervention by a liquidator. The Applicant submits it is "plain that the legislative scheme did not authorise expressly the assignment of the commission's cause of action to an administrator". The Applicant submitted that it follows that the right was not something over which the administrator could exercise any control whether prior to or following the date on which it arose.
It was further submitted that in any event the right in this case was incapable of assignment. It was submitted that the statutory causation is "analogous to a cause of action in tort" (an action in tort is incapable of assignment, either at law or in equity) (see Poulton v Commonwealth (1953) 89 CLR 540). Any right, if it could be conceded to be a right, as at 30 June 2000 depended upon future conducts by Australian Securities and Investments Commission (ASIC) alone. It was then merely “an expectancy or possibility”. According to the applicant's submissions, it was "incapable of assignment at common law". In any event, the ability to assign an equity depends on the subject matter having come into existence. In this case it was submitted that a statutory right did not arise until November 2000. There is no suggestion that ASIC purported to assign the statutory duty to the administrator or that it had power to do so.
It was further submitted that there was no debt at the time of execution of the DOCAs. Any suggestion by the respondents that at the time of execution the “contravention of s.588G had occurred and creditors suffered loss and damage” is incorrect according to the Applicant. The power of the court to make a compensation order stems from s.588J of the Law. Based on the words of that section, any exercise of the power depended upon the court being satisfied as to the matters set out in s.588J(1). The court's power to make an order under that section depended on the existence of a finding that s.588G(2) had been contravened. It depended upon the existence of relevant legal proceedings by ASIC under that section. Prior to the date of pronouncement of the orders by the court on 30 January 2003 it was submitted there were no relevant findings requiring an order to compensation pursuant to s.588J of the Law.
It was submitted that any suggestion that the trial judge, Mandie J, in making orders for compensation had intended that the benefit go to the creditors for the deeds should be rejected as having no foundation. Reliance was placed upon the transcript of the proceedings annexed to the affidavit of Mr James Patrick Tobin where the following extract was claimed to be relevant:
“… it really doesn't really matter whether these - the company or the administrator are a parties. If the court has power to make some further order somewhere in the law then no doubt one can consider making that order. But if the court hasn't then all the court can do is make that order and whether the administrator and the companies are parties or not seems to me to make no difference.”

Respondents’ submissions

It was submitted on behalf of the respondents that the administrators have power to take action in the name of the companies to realise assets whose proceeds are to be distributed pursuant to the DOCAs.
It was submitted that clause 11 in each of the DOCAs is expressed in the widest possible terms. The assets of the company available to pay claims of creditors includes all the assets and undertakings of the company. There is no reason, it was submitted, to read down clause 11 in the manner that is suggested by the applicant. The deeds were intended, according to the respondents, to continue in operation for a substantial period and it is inherently likely the company property would come into existence during this period. The respondents submitted the clear intention of the DOCAs, particularly clause 11, is to give the administrators control over all of the companies' property and there is no warrant for "excluding newly acquired property from their ambit".
The respondents submitted that even if the only property that then existed is covered, which is not conceded, the contraventions of s.588G had occurred and creditors suffered loss and damage. The applicant's liability, therefore, had already existed before the date of the DOCAs. It was submitted that if the applicant's contentions concerning the interpretation of clause 11 of the deeds was correct, then the benefit of the compensation orders would go to the companies and their shareholders. It was submitted that Mandie J in making the orders "must have intended that the benefit go to the creditors through the deeds". In exercising their duties under the DOCAs and powers conferred upon them, the administrators are taken to act as agents for and on behalf of the companies pursuant to prescribed provision 1 referred to earlier in this judgment.
It was submitted by the respondents that during the deed period no other person other than the deed administrators can exercise or purport to exercise any power or function as an officer of the company, deal with any of the company's assets or businesses or be involved in the affairs of the company, except with the deed administrators' prior written consent (see clause 9.3).
Accordingly, if the administrators cannot cause the companies to take action to recover the compensation, then "no-one can", according to the respondents’ submission. It was submitted by the respondents that this would be "an absurd consequence of a construction that Mr Elliott would put on the deeds".
It was further submitted by the respondents that the administrators' powers include the power to do any other act necessary for obtaining payment of any money due from a debtor and to prove in the bankruptcy of a debtor (see prescribed provision 2). Acting as agents of Mills and Holdings the administrators applied to the Official Receiver for the issue of bankruptcy notices, and it was submitted, it is clear that only the administrators could cause the companies to make application for the issue of those notices.
Further submissions in writing were provided by the respondents in reply to the applicant's submissions. In particular, it was submitted that there are “fundamental misconceptions in the approach of the applicant to the question of the authority of the administrators to cause the companies to issue the bankruptcy notices”.
It was submitted that it is incorrect for the applicant to assert that the deeds of company arrangement effect an assignment of property to the administrators and that the administrators can exercise their powers only in relation to property that has been assigned to them or the sole purpose for which the administrators are able to exercise their powers is to deal with the assets that are available for distribution to creditors. It was submitted by the respondents that it is clear on the face of the DOCAs that they do not purport to effect any assignment of property. Property of the companies, whether it existed at the time that the deeds were executed or not, remains, according to the respondent's submissions, property of the companies. No property is assigned to the administrators.
The DOCAs have purposes to deal with a limited class of the companies' property. It was submitted another purpose of the deeds is to remove control of the companies from the directors and shareholders for the period of administration and to place it in the hands of the administrators. This is evident from the provisions of clause 9. The directors and shareholders have no powers at all during the period of administration. All the company's powers are exercisable only by the administrators.
The respondents submitted that it is not the case that the administrators are able to deal only with the property of the company that is available for distribution to creditors. The administrators are able to control all of the company's affairs, whether they relate to distributable property or not, according to the respondents’ submission. Otherwise the companies would be paralysed for a considerable period of time in relation to a significant part of their affairs.
It was submitted, therefore, that even if the applicant was correct in the contention that the property available for distribution to creditors does not include future property, which is refuted by the respondents, it does not follow that the administrators have no power to cause the companies to apply for bankruptcy notices in respect of judgment debts of a future property. They have that power because of their general control of a company's affairs.

Reliance was placed upon the provision of the deeds which have been overlooked, namely clause 8, which provides that the deeds include "the prescribed provision" defined in clause 1 as the provision set out in schedule 8A of the Corporations Regulations. Two relevant provisions were referred to which were listed earlier in this judgment, namely paragraph 2(a) which provides a power to take possession of the "property" of the company, and paragraph 2(f) being the power to call in the "property" of the company.
Reference was made to s.110 of the Law which provides that an expression in the regulations has the same meaning as it has in the Law ("property" is defined in s.9 of the Law as including future property). Accordingly, the respondents submitted there is no doubt that the judgment debts created by the orders of Mandie J are property: they are legal choses in action assignable pursuant to s.134 of the Property Law Act 1958 (see Gould v Skinner (1983) 1 QDR 377 at 385).
It was submitted that the word "property" therefore appears not only in clause 11 of the deeds but in the provisions of schedule 8A that are incorporated in the deeds by reference. Accordingly it was submitted the incorporated provisions give “express power to the administrators to deal with the future property of the companies, and that is enough on its own to dispose of this ground of the applicant's objection”.
It was further submitted by the respondents that the preceding submissions dispose of any argument that funds paid by the applicant would not be available for distribution to creditors. The ordinary rules of interpretation apply so that if a word has a particular meaning in one provision of a document it has the same meaning in another provision of the same document unless there is very clear reason for giving it another meaning. It was submitted that "property" in the incorporated provisions includes "future property". It was submitted there is no reason for presuming a different meaning in clause 11 of the DOCAs. Any moneys paid pursuant to the orders by the court would be available for distribution to creditors.
During the course of the hearing further submissions were made by the respondents that it would be an odd outcome if as a result of a claim of insolvent trading that those creditors who had suffered as a direct result of that insolvent trading could not now obtain the benefit of the compensation order made by the Supreme Court against the applicant.

Reasoning

The Administrators of both Respondents are entitled to enforce the judgment pursuant to Order 66 of the Supreme Court (General Civil Procedure) Rules 1966 and in particular Rule 66.12(1) referred to earlier in this judgment.
In my view clause 8 of each of the deeds clearly provides a provision whereby each deed includes “prescribed provisions”. They are defined in clause 1 as provisions which are set out in schedule 8A of the Corporations Regulations. Significantly I accept that the prescribed provisions provide a power to the administrators to take possession and call in property of the company (see paragraphs (a) and (f)). There is no doubt that by application of s.110 of the Law an expression in the regulations has the same meaning as it has in the Law. It is therefore appropriate to apply the definition of “property” as it appears in s.9 of the Law set out earlier in this judgment. By applying the definition of “property” as it appears in s.9 of the Law, I am satisfied that the judgment debts created by the orders of Mandie J in the Supreme Court of Victoria may be regarded as legal choses in action assignable pursuant to s.134 of the Property Law Act 1958. I accept the respondents submission that accordingly the incorporated provisions provide express power to the administrators to deal with “future property” of the companies. Section 9 of the Law which I take to be given the same meaning in regulations clearly refers to ‘property’ meaning any legal or equitable estate or interest whether present or future and whether vested or contingent and includes a thing in action. The submission by the Applicant that property in the present case would not include the judgment debt which is the basis of the bankruptcy notices should therefore be rejected. To exclude the benefit of the judgment of Mandie J from the power of the administrators administering the deeds would constitute an inappropriate restriction contrary to law and indeed contrary to any sensible commercial practice. I accept that it would lead to what has been described as an absurd outcome.
In my view the chronology of events whereby the deeds had been executed well before the orders or indeed even the commencement of proceedings which led to the orders in the Supreme Court does not in any way detract from the rights of the administrators to rely upon the judgment and to apply for bankruptcy notices to be issued. Whether there has been some delay in the administration of the companies is not a relevant matter for this Court to take into account. The fact remains that the deeds continue to be in full force and effect until terminated either by the administrators or otherwise by Court order. There is no application to terminate the deeds and in any event I am satisfied that during the currency of the deeds property of a kind has come into existence and is appropriately the subject of the bankruptcy notices.

I reject the Applicant’s submissions in relation to the analysis of s.444A(4)(b) to the extent that it is suggested that it supports a proposition that only property in existence at the time when the deeds are executed is contemplated. As found earlier in this judgment I am satisfied that property includes the meaning found in s.9 of the Law and that otherwise the judgment of the Supreme Court in the present case is capable of falling within that meaning and becomes property which is appropriately dealt with by the administrators under the respective deeds.
In my analysis of the relevant meaning of ‘property’ I am not assisted by the analogy with assignment to a trustee under Part X of the Bankruptcy Act or properly vesting in liquidators. Administrators clearly have power under the deeds to deal with the company’s assets or business to the exclusion of others save and except with the administrators prior written consent (see clause 9.3 of each deed). I am further satisfied that the expression “whether or not under the control of the administrators” at the “signing date” or “commencement date” in both deeds does not confine the administrators to dealing with property as at the respective dates. Instead in my view apart from applying the definition of “property” to which I have already referred in s.9 of the Law, it is clear on a proper reading of clause 11 in both deeds that they contemplate control of the administrators both at the signing date or commencement date and thereafter. To do otherwise would be to artificially and inappropriately restrict the power of administrators throughout the administration period. It is clear on a proper reading of the deeds that they are designed to enable the administrators to properly conduct the affairs of the respective companies during the period of currency of the deeds. There is no proper basis in my view upon which it could be said that a restriction should be placed upon the administrators in dealing with property under the control of the administrators at the signing date or commencement date of the deeds.
It is clear that at all times the administrator is deemed an agent of each company which is the subject of the deed and has power amongst other things to take proceedings under the Bankruptcy Act.
The deeds are intended to continue in operation for significant periods and it would be artificial to remove from the administrators powers an ability to deal with future property.
In my view the Administrators exercising appropriate powers given to them under the Deed have the capacity to deal with future property which in turn may ultimately be converted to cash to be distributed as deemed appropriate to creditors or otherwise according to law.
I am satisfied that the Deed does not express a contrary intention which would justify ignoring the definition of “property” in s.9 of the Law. The “property of the company” referred to in paragraph (a) in Provision 2 of Schedule 8A should not be construed as excluding the definition in s.9 of the Law and nor in my view would it be appropriate to conclude as suggested by the Applicant that it may then properly be available. This would unduly restrict the rights of the Administrators to pursue bankruptcy proceedings which may or may not arise as a result of events which occur after the date of execution of the Deeds.
The role of Administrators in the administration of a Deed of Arrangement is an ongoing process and is not confined or fixed to the circumstances known only to exist as at the date of execution of the Deed.
Given my findings and reasoning in this matter I do not believe it is necessary for me to further consider whether the events which occurred which led to the judgment of Mandie J had occurred prior to the execution of the deeds. It is therefore not necessary for me to make a finding as to whether the Applicant’s liability had already existed as at the date the deeds were executed. There is no assignment as such of property to the administrators but rather an assumption by them of powers to deal with company property both present and future. Hence, I am satisfied that the first ground of attack is misconceived, both in terms of what is described as an assignment of property to the administrators and a restriction of the powers of the administrators to deal with property which only existed at the time of execution of the deeds.
It follows therefore the first ground of attack should fail.

The second ground of attack

Paragraphs (c) and (d) which constitute the “second ground of attack” raise the issue of whether the bankruptcy notices are in a form prescribed by the regulations. It is common ground that s.41(2) of the Act provides that a bankruptcy notice must be in accordance with “the court prescribed by the regulations” and that the form is prescribed by regulation 4.02 of the Bankruptcy Regulations.
The Applicant relies upon two complaints, the first being italicisation of the word “and” which appears in sub-paragraphs 5(a) and 7(a) of each bankruptcy notice and the inclusion of page 6 referred to earlier in this judgment.

Applicant’s submissions

It was submitted on behalf of the Applicant that the italicisation of the word “and” appearing in sub-paragraphs 5(a) and 7(a) of the bankruptcy notices contravenes s.41(2) of the Act and indeed that there is a similar contravention by virtue of the failure to underline that word. In passing it should be noted that there is no dispute that the prescribed form does not include italicisation but does have underlining of the word. It was submitted therefore that s.41(2) of the Act lays down a requirement of substantial rather than strict compliance with Form 1 of Schedule 1 to the Regulations. Reliance was placed upon the decision of Farrugia v Farrugia [2000] 99 FCR 16 (Farrugia) at paragraph 64 and it was submitted that the observations to the majority in Australian Steel Co (Operations) Pty Ltd v Lewis [2000] 109 FCR 33 (Australian Steel) at paragraph 47 do not render the reasoning in Farrugia inapplicable to the present case. It was submitted that there is no substantial compliance with the prescribed form and that the nature of the defect excludes any possible operation of s.306 of the Act (see Farrugia paragraphs 82 and 84).
In relation to the attachment of page 6 to the bankruptcy notice, it was submitted that although the respondents “eschews any claim for interest” on the judgment debt the fact that the judgment debt is based in part on interest means that the inclusion of the page prevents substantial compliance with Form 1 of Schedule 1 of the Regulations. During the course of oral submissions Counsel for the Applicant submitted that objectively the inclusion of this page would create confusion in the mind of the recipient who when confronted with a proper reading of the bankruptcy notice would note that “nil” is next to the item referring to interest claimed and that the recipient is then confronted with what is described as a “superfluous page” upon which it is stated, “interest is not being claimed”. It was submitted that the message being given to the recipient is that the judgment debt is being altered and that interest once in contention and merged in the judgment debt is no longer in contention. This in turn raises in the objective debtor’s mind how much should be paid in order to comply with the bankruptcy notices which is a standard test giving rise to the setting aside of a bankruptcy notice.

Respondents’ submissions

The Respondents submitted that the Court should have regard to the authority of Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 (Kleinwort) when considering the issue of the invalidity of the bankruptcy notices. The approach taken by the High Court in Kleinwort on the question of invalidity is summed up in the following passage:-
“7.Three questions arise as to the validity of the bankruptcy notice in this case: are they defective or irregular; if so, is the defect or irregularity substantive or formal; and if it is formal only, has it occasioned substantial and irremediable injustice?”
Further reference was made to the majority in Kleinwort at page 77-80 where the Court stated the following:-
“The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v FCT (1955) 93 CLR 631 at 644; [1956] ALR 79; Pillai v Comptroller of Income Tax [1970] AC 1124 at 1135. In such cases the notice is a nullity whether or not the debtor in fact is mislead: Re a judgment Debtor [1908] 2 KB 474 at 481.”
On the issue of interest, reference was made to the Full Court of the Federal Court in Australian Steel and in particular the following passage which appears at page 45 of the judgment:-
“In our view the purpose of the requirement that the source of the creditor’s entitlement to interest be stated can only be to enable the debtor to verify that the amount claimed is in fact due. The same purpose lies behind the requirement that a copy of the judgment relied on be attached to the notice. Bankruptcy Notices can be served anywhere in Australia, a country with 10 separate court jurisdictions, containing some 22 levels of courts, each with its own statutory foundation, quite apart from tribunals and other bodies with power to make enforceable orders for the payment of money. The applicable interest rate can often be a matter of dispute: see for example EMCL Pty Ltd v Esanda Finance Corp Ltd [1999] FCA 978; BC9904104 at [58] et seq. That case dealt with the different issue of an award of interest by a court at the time of judgment, but it illustrates the potential for confusion and uncertainty as to applicable rates of interest in litigation in a multi-jurisdictional country. The form prescribed by the regulations provides the answer. Having regard to the purpose behind the requirement that the provision under which interest is being claimed, and correctly claimed, be included in the notice, that requirement is made essential by the Act, and a notice issued in breach of the requirement will be invalid.”
Counsel for the Respondents noted that the Full Court decision in Australian Steel had been affirmed by another Full Court of the Federal Court in Marshall v General Motors Acceptance Corporation Australia (2003) 199 ALR 109.
In applying the principles set out by the majority in Kleinwort Benson, it was submitted that the inclusion of page 6 does not constitute a defect or irregularity and in fact is completely consistent with the prescribed form of bankruptcy notice.
In the event that there is a defect or irregularity then it was submitted that there is no failure to comply with the requirement made essential by the Act leading to invalidity. Further, it was submitted that in deciding whether or not the defect is substantial or formal the Court can consider whether the defect or irregularity could reasonably mislead a debtor as to what is necessary to comply with the notice. It was submitted the inclusion of page 6 could not mislead the debtor and the circumstance of the defect or irregularity if there be one is formal only which leads to the question of whether or not “it occasioned substantial and irremediable justice”. There is no evidence of any injustice before the Court. It was further submitted that it is not erroneous to say that the amount claimed in the bankruptcy notice did not include interest because upon the entry of judgment any claims merged in the compensation orders themselves.
On the question of the italicising and failure to underline the word “and” where it appears in paragraphs 5(a) and 7(a) of the bankruptcy notice, it was submitted that a Court should adopt a purpose of approach to the question of validity and should consider the nature of the requirements under consideration and attempt to discern the legislative intent behind it. Paragraphs 5 and 7 provide certain information to the debtor. The first informs the debtor that bankruptcy proceedings may be taken against him in certain circumstances and paragraph 7 informs the debtor that he may be able to set aside the bankruptcy notice on a specific ground. The use of underlining in each case emphasises the matters set out in the paragraphs are conjunctive. While it was conceded the provision of the information set out in the relevant paragraphs is an important function of those paragraphs, the requirements of the word “and” be underlined is not. It was submitted that it cannot be inferred that the legislature or those to whom the task of drafting the prescribed form of bankruptcy notice was delegated considered the underlining to have such importance as to make a bankruptcy notice drawn in breach of that requirement invalid.
Reference was made to the case of Farrugia where the Court set aside a bankruptcy notice where certain words were reproduced in regular rather than bold type face. It was noted that Australian Steel was decided subsequently and that the result in Farrugia would have been different if a purpose or approach to the question of validity had been adopted. In any event the bold type face requirement of the matter under consideration in Farrugia serves a far more important purpose than the requirement in paragraphs 5 and 7 that the word “and’ be underlined. There could be no suggestion in any event that a recipient of the bankruptcy notices could be mislead by any alleged defect or that he would suffer substantial or irremediable prejudice by reason of it. Accordingly it was submitted there has been substantial compliance with the prescribed form and any defect or irregularity in connection with the notice is cured by s.306 of the Act. Reliance was also placed upon s.25C of the Acts Interpretation Act 1901 (Cth) which provides that substantial compliance with the prescribed form is sufficient unless contrary intention appears.

Reasoning

In my view there is no substance in the submissions made by the Applicant in support of what is referred to as “the second ground of attack”.
Applying the authorities to which I have been referred by Counsel for the Respondents I am satisfied the inclusion of page 6 could not be regarded as constituting a defect or irregularity. If words had been placed on that page which were capable of creating confusion or misleading the recipient then my conclusion may be different. However, in the present case the words have a clear meaning namely that “the creditor does not claim interest”. The mere inclusion of the page itself would not, if left blank, constitute a defect or irregularity but any potential confusion is certainly removed in my view by the inclusion of the words to which I have referred. I am satisfied the inclusion of page 6 does not constitute a defect or irregularity. Even if it were to be found to be a defect or irregularity it was formal only and in my view in the context of this case applying the principles set out in the Kleinwort decision I am satisfied that it could not be said to have occasioned any substantial or irremediable injustice to the recipient and that s.306 of the Bankruptcy Act would apply.

Likewise in my view the italicising and failure to underline the word “and” where it appears in paragraphs 5(a) and 7(a) applying a purposive approach and consistent with the principles to be applied from the Full Court decision in Australian Steel would not render the bankruptcy notices invalid. Indeed it may even be argued that by italicising the word “and” it is given prominence of a kind similar to underlining but in any event it could not be suggested that there is significance in the context of this complaint in relation to the underlining requirement. Even if the Court were to apply the reasoning in Farrugia which as noted predated the majority decision in Australian Steel, I would not regard the current application as in any way similar to the failure to reproduce in bold type face the words which were under consideration by the Court in the Farrugia decision. I am further satisfied that in any event there has been substantial compliance with the prescribed form and any defect or irregularity in connection with the notice is cured by s.306 of the Act. I am further satisfied to the extent that it is required there has been substantial compliance in the present case of a kind which would attract the benefit of s.25C of the Acts Interpretation Act.
I otherwise accept the submission made for and on behalf of the Respondents that it is accurate to characterise what has occurred as being the use of one form of emphasis over another and that this does not render the bankruptcy notices invalid.

Conclusion

It follows therefore that the appropriate order of the Court should be in each application that the applications are dismissed with costs.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 19 February 2004