John Sheahan (Respondent 1) and Le Poidevin Industries Pty Ltd (in Liquidation) (Respondent 2) v Northern Australia Land and Agency Co Ltd (Appellant 1), Dean Kiverton Le Poidevin (Appellant 2) and Gloria Dawn Le..

[1994] SASC 4528

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON(1), MOHR(2) AND NYLAND(3) JJ

CWDS
Legal practitioners - rights and privileges - right of audience - Second appellant legal practitioner appearing at trial in person and as counsel for other appellants - trial judge refusing to allow second appellant to both appear as counsel for other appellants and to give evidence after giving the second appellant the opportunity to elect not to continue to appear as counsel - position adopted by trial judge correct - generally not proper for counsel to appear as a witness in the same matter.

Evidence - documentary evidence - s45aEvidence Act inapplicable to contracts for the sale and purchase of land, they not being shown to be business records - further discretionary grounds existing under s 45a(2) for trial judge to refuse to admit the documents in any event - s 1305 Corporations Law inapplicable to the contracts, they not being documents kept pursuant to an obligation imposed by the Corporations Law - while s1305 renders accounting records of a company prima facie evidence of the matters stated in them, ample grounds for trial judge to find that prima facie presumption rebutted.

Corporations Law s 468, 1305 and Evidence Acts 45a. Telecom Australia in Sheahan (as liquidator of Maqill Construction Holdings Pty Ltd (in liquidation)) (1991) 4 ACSR 425; R in Secretary of State for India ex parte Esekiel (1941) 2 KB 169; Stones in Byron (1846) 4 Dow and L 393 and Ferry in Bonnin and Ors (1889) 23 SALR 66, applied.

HRNG ADELAIDE, 6 April 1994 #DATE 6:5:1994

Counsel for appellant Northern
Australia Land and G D Le Poidevin: Mr D K Le Poidevin

Solicitors for appellant Northern
Australia Land and G D Le Poidevin: Dean Kiverton Le Poidevin

Appellant D K Le Poidevin:         In person

Counsel for respondents:             Mr J M Cudmore

Solicitors for respondents:         Ward and Partners

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal by three defendants in an action commenced in this Court by the liquidator of a company known as Le Poidevin Industries Pty Limited ("Le Poidevin Industries"). Inter alia, the liquidator sought declarations that certain transfers of land were void, by virtue of section 468 of the Corporations Law. Le Poidevin Industries was named as a co-plaintiff in those proceedings.

2. The defendants in the action were a company known as Northern Australia Land and Agency Co Pty Ltd ("NALAC"), Dean Kiverton Le Poidevin ("D K Le Poidevin") and Gloria Dawn Le Poidevin. The lastmentioned two persons were, at all material times, both directors and shareholders of Le Poidevin Industries and NALAC.

3. Following a trial of the issues raised in the action, Perry J entered judgment in favour of the plaintiffs. The defendants in the action now seek to challenge the propriety of that judgment on a variety of bases expressed in the lengthy notice of appeal.

4. Before turning to those matters, it is first desirable to outline the primary facts, either as expressly found by the learned trial judge or revealed by the evidence - many of which are beyond real dispute.

5. Le Poidevin Industries and NALAC were both companies apparently incorporated pursuant to the statutory law of this State.

6. On or about 5 August 1991 a notice of demand, in respect of a judgment debt of $10,459.59 in its favour, was served on Le Poidevin Industries by the Mid-North Animal and Plant Control Board. That demand not having been met, a summons was issued on 30 September 1991, seeking the winding up of the company. A winding up order was made, as sought, on 13 November 1991, the first plaintiff, Sheahan, being appointed liquidator.

7. As at 30 September 1991, Le Poidevin Industries was, and, for some time, had been, the registered proprietor of two separate holdings of farming land. One comprised an area of 108 acres near Owen ("the Owen land"), whilst the other comprised an area of some 12 acres at Angle Vale ("the Angle Vale land"). In their totality the two parcels of land were valued at about $123,000.

8. On 9 October 1991, D K Le Poidevin (who is a practitioner of this Court) caused two separate instruments of transfer to be lodged for registration at the Lands Titles Office. Each bore the date 25 August 1990; and each was penalty (late) stamped on 8 October 1991. One instrument transferred the Owen land from Le Poidevin Industries to NALAC for a monetary consideration of $54,000, whilst the other transferred the Angle Vale land to the same transferee for a stated monetary consideration of $69,000. Both instruments of transfer bore two different common seals of each party - one being the pre Corporations Law style seal and the other the post Corporations Law form of seal. Indeed, that related to the Angle Vale land, for some reason, bore three seals. The instrument related to the transfer of the Owen land was registered on 6 November 1991. That related to the Angle Vale land was registered on 18 November 1991.

9. A perusal of a copy of the certificate of title in respect of the Owen land indicates that NALAC lodged a caveat on it on 11 September 1991, i.e. shortly after service of the notice of demand which was the precursor of the winding up application. This was withdrawn simultaneously with the lodgment of the instrument of transfer to that company. On that lodgment a pre-existing memorandum of mortgage in favour of the Australia and New Zealand Banking Group Limited was discharged.

10. A somewhat similar scenario existed in relation to the title to the Angle Vale land, save that the pre-existing mortgage was in favour of General Credits Limited.

11. When the liquidator's action came on for trial, the state of the pleadings was such that, by virtue of the Supreme Court Rules, many assertions of fact set out in the statement of claim had not been denied in the defence and thus were taken to have been admitted.

12. By the defence and counterclaim the appellants pleaded that the respondents were not entitled to the relief sought, because, it was averred, the memoranda of transfer had been registered pursuant to contracts dated 25 August 1990, whereby the relevant land was, in each instance, sold to NALAC for full market value and paid for by offset against "mortgage loans by" that company "to Le Poidevin Industries". It was pleaded that the actual transfers were not registered until 1991, because NALAC had desired "to make use of the existing mortgage loans from the ANZ Bank and General Credits Ltd"; and that "All payments on these mortgages from 25 August 1990 were made by" NALAC. The liquidator's action initially went forward for trial limited to the issue as to whether the transactions implemented by the two memoranda of transfer were void, by virtue of section 468 of the Corporations Law. Other issues pleaded were stood over for consideration, as appropriate, at a subsequent time.

13. So far as relevant, that section stipulated that:-
    "468.(1) Any disposition of property of the company, other
    than an exempt disposition, and any transfer of shares or
    alteration in the status of the members of the company made
    after the commencement of the winding up by the Court is,
    unless the Court otherwise orders, void.
    (2) ...
    (3) ...
    (4) ..."

14. Perry J identified two questions which arose for decision under the section. The first was whether the memoranda of transfers constituted "dispositions" within the meaning of the section, which were void unless otherwise ordered by the court. The second was whether, assuming an affirmative answer to the first, the court ought, in the circumstances, to otherwise order.

15. In my view it is beyond question that the learned trial judge was undoubtedly correct when he held that the effect of the legislation was that the respondents' case had, prima facie, been made out, once it proved that a relevant "disposition" had taken place; and that the onus then shifted to the defendants to prove that the circumstances were such that the court ought to "otherwise order". (Telecom Australia v Sheahan (as liquidator of Magill Construction Holdings Pty Ltd (in liquidation)) (1991) 4 ACSR 425.

16. In the course of his reasons for judgment, the learned trial judge pointed out that, by virtue of section 465(2) of the Corporations Law, a winding up is deemed to have commenced at the time of the filing of the application for the winding up - in this case, on 30 September 1991. He also concluded that the effect of section 67 of the Real Property Act is that, regardless of when they may have been executed, the two memoranda of transfer did not become effective to pass title in the land to which they related until registration ie 6 and 18 November 1991 respectively.

17. He accepted that any prior equitable interest shown to have been created prior to registration might also amount to a "disposition" within the meaning of section 468 of the Corporations Law.

18. However, he held that no such disposition, such as that said, in the defence, to have been created by the alleged contracts of sale dated 25 August 1990 and any bona fide execution of transfers pursuant to them, had been proved.

19. As to this he adverted to the course which the trial had taken.

20. When the case had been called on for hearing D K Le Poidevin had announced his appearance as counsel for all three appellants. Perry J, at that stage, pointed out to him the undesirability of and difficulties likely to stem from such a situation. With some hesitation, the learned trial judge, took the matter no further at that time and accepted the announced appearance.

21. As the trial proceeded the very types of difficulties foreshadowed by Perry J actually manifested themselves.

22. D K Le Poidevin eventually sought, for the purposes of the defence case, to enter the witness box and give sworn evidence with a view to proving various documents, including extracts from the general ledger and journal of Le Poidevin Industries, relevant contracts of sale and two mortgages - most of such documents being said to have been handwritten by D K Le Poidevin personally. The genuineness of various of the documents in question was in issue and, had D K Le Poidevin given evidence, he would have been subject - as Perry J put it - to "close and adverse cross examination".

23. After hearing argument on the point, the learned trial judge ruled that D K Le Poidevin was not entitled and would not be permitted to both assume the role of a witness in the case and also continue to maintain his position as counsel for at least the two defendants other than himself. A short adjournment was granted to permit him to consider his position. In the event, Perry J ultimately gave leave to D K Le Poidevin to continue to appear as counsel for all three defendants upon the express acceptance that he was not subsequently to assume the role of a witness in the case.

24. When the trial resumed, considerable debate ensued as to the admissibility of certain documents sought to be tendered by D K Le Poidevin. Perry J was disposed to accept a tender of various sheets said to comprise the journal and general ledger of Le Poidevin Industries, having regard to the provisions of section 1305 of the Corporations Law.

25. D K Le Poidevin renewed an earlier application to tender two purported contracts of sale of the Owen land and the Angle Vale land by Le Poidevin Industries to NALAC, primarily as being business records of the former, pursuant to section 45a of the Evidence Act.

26. That section is expressed in these terms:-
    "45a (1) An apparently genuine document purporting to be a
    business record -
    (a) shall be admissible in evidence without further proof;
    and
    (b) shall be evidence of any fact stated in the record, or
    any fact that may be inferred from the record (whether the
    inference arises wholly from the matter contained in the
    record, or from that matter in conjunction with other
    evidence).
    (2) A document shall not be admitted in evidence under this
    section if the court is of the opinion -
    (a) that the person by whom or at whose direction, the
    document was prepared can and should be called by the party
    tendering the document to give evidence of the matters
    contained in the document;
    (b) that the evidentiary weight of the document is slight
    and is out-weighed by the prejudice that might result to any
    of the parties from the admission of the document in
    evidence; or
    (c) that it would be otherwise contrary to the interests of
    justice to admit the document in evidence.
    (3) For the purpose of determining the evidentiary weight,
    if any, of a document admitted in evidence under this
    section, consideration shall be given to the source from
    which the document is produced, the safeguards (if any) that
    have been taken to ensure its accuracy, and any other
    relevant matters.
    (4) In this section - 'business' means business, occupation,
    trade or calling and includes the business of any
    governmental or local governmental body or instrumentality:
    'business record' means -
    (a) any book of account or other document prepared or used
    in the ordinary course of a business for the purpose of
    recording any matter relating to the business; or
    (b) any reproduction of any such record by photographic,
    photostatic, lithographic or other like process."

27. The learned trial judge maintained his previously expressed attitude that he was not prepared to admit the purported contracts pursuant to the section because:-
    - they were not, on the face of them, obvious business
    records of the relevant company and no evidence had been
    called to establish that they were;
    - the documents and their authenticity went to the very
    heart of the matters in dispute and, in any event, the
    provisions of subsections 2(a) and 2(c) were, in his
    opinion, directly applicable to them. Perry J declined a
    tender of two purported memoranda of mortgage, both because
    they were not stamped and had not been shown to fall within
the purview of section 45a or any other relevant, enabling
    statutory provision.

28. Having tendered the ledger and journal sheets, the appellants then closed their cases. Some rebuttal evidence was called, principally as to obvious alterations of figures in the company records which had been admitted in evidence.

29. It was on the foregoing basis of evidence that the learned trial judge arrived at what seems to me to have been an inevitable conclusion that the transfers of the two parcels of land constituted "dispositions" which were rendered void by virtue of the provisions of section 468 of the Corporations Law.

30. He then proceeded to consider whether the appellants had discharged their onus of establishing grounds upon which he could properly "otherwise order", so as to validate the dispositions.

31. In referring to the relevant documentation before him, he drew attention to what he described as some "strange features" of them, which tended to place in question their authenticity - particularly as to when certain of them had been brought into existence. He also directed attention to a series of altered figures contained in the books of account of Le Poidevin Industries.

32. He summarised his eventual conclusions in these terms:-
    "The counter claim is distinguished by the absence of any
    particulars indicating the basis upon which it is suggested
    that it would be proper to validate the transaction. It
    appears, however, from the argument advanced by Mr
    LePoidevin that the defendants contend that the registration
    of the transfers should be validated because lodgment of the
    transfers for registration was nothing more than the
    perfection of a transaction in the nature of a sale of the
    two parcels of land which was, in turn, evidenced by
    contracts signed on 25 August 1990. Furthermore, he
    contended that entries recorded in a bundle of sheets
    extracted from the general ledger of LePoidevin Industries
    (D8 and D20), and other records which find expression in the
    general journal of the plaintiff company (D15), prove the
    underlying transaction as having taken place in August 1990.
    The defendant's case is that the transaction was an arm's
    length transaction for good consideration, and having been
    entered into well before the commencement of the winding up,
    the Court should validate the steps necessary to allow its
    implementation, notwithstanding that those steps were not
    taken until after the commencement of the winding up. The
    difficulty with the case put by the defendants is that there
    is simply no evidence which satisfies me of the essential
    factual basis upon which the case is put forward. I could
    accept the proposition that if a truly arm's length
    transaction for good consideration takes place before the
    commencement of the winding up, it might well be proper in
    such a case for the Court to exercise its power to validate
    a further or final step in the transaction, that step
    otherwise constituting a disposition of property within
s.468(1).

In such a case, presumably, the creditors would have the
    benefit of whatever consideration was paid, and furthermore,
    such an approach is consistent with the general principle
    that a liquidator takes subject to equities attaching to the
    property of a company. Here, however, the evidence relied
    upon by the defendants to support such an approach is both
    fragmentary and unconvincing. As I have indicated, the
    so-called contract notes were not admitted in evidence.
    Furthermore, no party to the alleged transactions was called
    to give evidence of the nature of the transactions, and of
    the payment of the consideration for the transfers. No
    evidence has been given to explain the appearance of the
    transfers, nor to explain why it is that they were not
    presented for stamping and registration until the expiration
    of such a long period of time. No company minutes have been
    tendered. Mr Reilbeling gave evidence that a number of
    entries in the company's ledger and journal had been
    altered, in most instances by using liquid paper correction
    fluid, and by the writing over of another figure or number.
    By use of an instrument which he described as a
    video-spectral comparator, he was able to see through the
    white-out and identify the underlying, original entry. The
    amounts of a number of journal entries have been changed
    significantly, and as well, entries indicating a
    corresponding journal entry designated by a capital J
    followed by a number, have been changed so as to indicate
    different entries or pages in the journal. His evidence was
    neither shaken in cross-examination, nor was it the subject
    of any explanatory oral evidence given by the defendants, or
    any of them. It seems likely that the journal and ledger
    were kept by Mr LePoidevin. For reasons which I will come
    to, I am unable to accept that fact as a basis upon which
    the records might be regarded as reliable. I accept the
    contentions advanced by Mr Cudmore with respect to the
    significance of certain discrepancies in the journal and the
    ledger, and in particular the fact that, according to the
    books, on 1 July 1989 the company resolved to pay Mr
    LePoidevin a dividend of $135,000 as a result of the
    increase in valuations of the two pieces of land, which was
    credited to a capital reserve account. It appears from the
    books, in record to which certain evidence was given by Mr
    LePoidevin at an examination under s.597 of the Code, that
    this was credited to him as a loan, and not paid, and
    'transferred' two days later by him to Northern Australia
    Land. There is a total absence of any explanation as to why
    that transaction took place, or the circumstances.

    Furthermore, in the journal, the sheet which is numbered on
    one side J97 and on the other J98, is a sheet of paper of
    different colour from the sheets on either side of it, and
    it does not carry, as do most of the other sheets in the
    ledger, a stamp heading "LePoidevin Industries Pty Ltd".
    That sheet carries entries said to be relevant to the
    present transactions. I have a strong suspicion that the
    sheet was inserted irregularly at a time other than the
    dates which appear on it. The answers of Mr LePoidevin to
    the examination to which I have referred, which took place
    before a Master of this Court shortly before the
    commencement of the proceedings before me, in the first
    place, fail to satisfy me, even on the balance of
    probabilities, that any transactions took place in 1990, as
    asserted by the defendants, and also operate to destroy any
    confidence I otherwise might have entertained as to his
    involvement with the books of the company. The whole of Mr
    LePoidevin's examination indicates consistent evasion, and
    attempts either to conceal or confuse both the position of
    the companies, and the circumstances of the transactions in
    question."

33. The learned trial judge, having referred to various matters of detail related to the examination in question and the historical facts leading up to the winding up order, then expressed these views:-
    "For present purposes, however, the significance is that the
    date of service of the notice of demand was shortly before
    what appears to be the first of the steps taken by Northern
    Australia Land Co to perfect the alleged transaction
    pursuant to which it took both parcels of land, namely, the
    lodgment of the caveats, and the lodgment of the transfers
    for stamping. Those steps must, therefore, be considered in
    the light of the fact that by then the company was under
    notice that a creditor was preparing the ground for the
    liquidation of the company.

I am quite unable to accept the proposition inherent in the
    case of the defendants that it was purely coincidental that
    just at that time North Australia Land took steps to
    complete the transactions. The onus is on the defendants to
    prove on the balance of probabilities the facts necessary to
    support its plea for an order validating the transactions in
    question. I am totally unconvinced of the genuineness of
    the purported transactions, or that any money or moneys
    worth passed between the companies involved, and I remain
    unsatisfied that there is any proper basis upon which it
    would be right to make the orders, or any of them, sought in
    the counter claim."

34. He thereupon dismissed the counterclaim, thereby refusing to validate the impugned dispositions. He further declared that those dispositions were void and directed the Registrar General to cancel the transfers of the subject parcels of land to NALAC.

35. In the notice of appeal the grounds relied upon span some 16 paragraphs, which are expressed, at least in certain respects, in terms reflective of submissions by way of argument, rather than properly pleaded grounds. Be that as it may, I do not consider it necessary to plumb all of them in detail to their depths.

36. The initial complaint made by the appellants focuses on the refusal of the learned trial judge to permit D K Le Poidevin both to continue to appear as counsel for all defendants and also enter the witness box to give evidence on what were obviously contentious matters. In short the argument advanced was that there is no established principle of law to support such a proposition.

37. In reasons for decision published by him on 4 February 1993, Perry J summarized relevant reported dicta on the topic in these terms:-
    "In R v Secretary of State for India ex parte Ezekiel (1941)
2 KB 169 there appears a footnote at the end of the
    judgments of the Court of Appeal to the following effect
    (p.175): '(1) After the judgments had been delivered in this
    case, Humphreys J said: Before the court parts with this
    case, there is a short observation which the other members
    of the court desire me to make and with which I agree. It
    was brought to the attention of the court that, on the
    hearing at Bow Street police court, junior counsel on one
    side was called as a witness to prove certain aspects of
    Indian law and continued thereafter to act as counsel in the
    case. No objection was taken to this by counsel on the
    other side. We think it right to point out that this is
    irregular and contrary to practice. A barrister may be
    briefed as counsel in a case or he may be a witness in a
    case. He should not act as counsel and witness in the same
    case.'

In Stones v Byron (1846) 4 Dow and L 393 at p.395 Patteson J
    said: 'Here the attorney for the plaintiff makes a speech
    and conducts the cause as his advocate, and examines the
    witnesses, and addresses the jury in reply to the
    defendant's counsel, and afterwards calls himself as a
    witness. I must say that I do not think that such a course
    of proceeding is proper, or consistent with the due
    administration of justice. It seems to me, therefore, that
    his evidence ought not to have been received, and, having
    been received, that there ought to be a new trial.'

The report of the case contains a footnote as follows:
    '(a)
    The learned counsel stated that the only instance in which
    he had been able to find that such a proceeding had been
    permitted, was in the trial of Sir Thomas More, in the time
    of Henry the Eighth, when the then Solicitor General, who
    was conducting the prosecution against that eminent man, "to
    his eternal disgrace," to use the words of Lord Campbell, in
    relating the fact in his Lives of Chancellors, vol 1, p.574,
    "and to the eternal disgrace of the Court who permitted such
    an outrage on decency, left the bar and presented himself as
    a witness for the Crown".

(b)
    This case was referred to, and acted upon, in a subsequent
    case of Deane v Packwood, in Hilary Term, 1847, before Mr
    Justice Erle, in this Court. There the attorney for the
    plaintiff, after opening the case, tendered himself and was
    admitted as a witness. And Mr Justice Erle made absolute a
    rule for a new trial on this ground.'

The only reported decision in this Court which I have been
able to find is Ferry v Bonnin and Ors (1889) 23 SALR 66.
    In that case, P.F Bonnin, who was one of the defendants,
    appeared as counsel with Mr Nesbit for the defendants. At
    the outset of his judgment Boucaut J said (68): 'I have
    consulted my learned colleague the Chief Justice as to the
    position of the learned counsel Mr Bonnin, who appeared for
    himself and others, and the Chief Justice has agreed with me
    in the view that I take, and in future I will rule that no
    person can take both the position of suitor and counsel. A
    person has no right to take both positions, and a rule had
    been passed on that in England, and in future in such
    instances the person will have to elect to take the position
    of counsel or that of suitor; he cannot take both.'"

38. It must at once be said that the foregoing dicta reflect what has always been taken to be the settled practice of this court, as a reflection of its inherent jurisdiction to control its own processes and procedures.

39. A legal practitioner appearing as counsel in a case does so as an officer of the court. It is utterly inconsistent with that role that he or she should also seek to adopt the role of a witness (except, perhaps, as to the most formal and non controversial of matters) in the same proceedings. The reasons for that are so obvious as scarcely to require statement. A person cannot, at the same time, maintain the independence, objectivity and integrity required of counsel when that person is pursuing particular, personal aspects as a witness - the more so if evidence is being given in his or her own interest.

40. Moreover, if counsel temporarily forsakes the bar table to adopt the mantle of a witness, this necessarily operates unfairly against other parties. Evidence in chief can be fashioned and presented in a form designed best to suit the ultimate aims of counsel and can be given with full knowledge of what has already occurred up to that point. Moreover, where credibility and reliability become an issue it would be a parody of (and quite inimical to) any notion of proper procedure to allow that person to address on the topic of his or her own credibility; and it would also be utterly indecorous and present opposing counsel with a severe embarrassment in having to comment adversely on a professional colleague as a witness.

41. In the South Australian setting, an attempt by counsel to both continue to act in that capacity and also adopt the role of a witness, is, understandably, a breach of the professional conduct rulings of the Law Society of South Australia.

42. These are but some of the relevant considerations, but they amply serve to illustrate the validity of the view expressed by Patteson J that a process such as that contended for by D K Le Poidevin is neither proper, nor consistent, with the due administration of justice.

43. The stance adopted by Perry J was plainly correct and this ground of appeal ought summarily to be rejected. D K Le Poidevin was properly put to election and bound by it.

44. I move on to the other grounds of appeal, but only to address them in the briefest of terms.

45. In so far as they complain of the exclusion of evidence by virtue of the ruling above referred to, they necessarily fail. No more need be said on that score. In that regard the appellants are simply the victims of the intransigence of he who represented them.

46. To the extent that complaint was made that Perry J should have admitted the alleged contracts dated 25 August 1990 pursuant either to section 1305 of the Corporations law or section 45a of the Evidence Act, such complaints were patently misconceived.

47. As to the latter provision, the accuracy of the ruling made by Perry J is so self evident that little further comment is required. These documents were not obviously business records of the company on the face of them; and no evidence was led to prove that they were, as a matter of fact. In any event, having regard to the issues in the case, the situation clearly fell within the subsections adverted to by the learned trial judge and it would have been an improper and unfair exercise of discretion to admit them, in absence of oral evidence as to their provenance.

48. So far as the former provision is concerned the short answer is that section 1305 of the Corporations Law was, in terms, inapplicable to them.

49. That section stipulates that:-
    "1305. (1) A book:
    (a) kept by a body corporate under a requirement of this
    Law; or
    (b) kept by a corporation under a requirement of a
    previous law corresponding to a provision of this Law;
    is admissible in evidence in any proceeding and is prima
    facie evidence of any matter stated or recorded in the book.
    (2) A document purporting to be a book kept by a body
    corporate shall, unless the contrary is proved, be deemed to
    be a book kept as mentioned in subsection (1). The word
    "books" is elsewhere defined as including:- "(a) a register;
    (b) any other record of information; (c) accounts or
    accounting records, however compiled, recorded or stored;
    and (d) a document;"

50. What is manifestly in contemplation is that class of document which is brought into existence, by or on behalf of a company, and maintained in its custody by virtue of an express obligation to do so imposed by the Corporations Law itself. The alleged contracts are not of that character.

51. Nor is any comfort to be derived from section 67a of the Evidence Act, as asserted on behalf of the appellants. That provision does not render any document executed under seal ipso facto admissible. It is no more than a provision facilitating admission of documents admissible in any court in the United Kingdom without formal proof of the actual seal on them. It primarily relates to the admission of public documents.

52. In relation to the accounting records of the company, section 1305 of the Corporations Law does no more than than render them prima facie evidence of the matters stated in them. There was ample evidence before Perry J which entitled him to adopt the view that such prima facie presumption had been rebutted. The criticisms of his findings in that regard are clearly unsustainable.

53. In global terms, all of the other complaints voiced in the grounds of appeal are equally misconceived or lacking in substance. They reflect an obvious lack of understanding of the principles upon which rebuttal evidence is received, misconceive the role and powers of the presiding judge in a civil case and reflect an imperfect understanding of the obvious, logical reasoning of the learned trial judge, as expressed in his reasons. It is pointless to endeavour to traverse them in detail. The only further specific comment which ought to be made is that, insofar as the appellants seek to extract some mileage from the fact that caveats were registered by NALAC on 11 September 1991 (i.e. shortly prior to the issue of the summons seeking a winding up order), they conveniently ignore the fact that they were nevertheless registered after service of the notice of demand on Le Poidevin Industries, the obvious and very apparent purpose of which, at the time, was to found the winding up application which actually followed.

54. It must be said that there is no merit whatsoever in the appeal prosecuted by the appellants. None of the grounds expressed raise any issue of substance.

55. I would unhesitatingly dismiss the appeal.

JUDGE2 MOHR J I agree.

JUDGE3 NYLAND J I agree.