Pan Australian Credits (SA) Pty Ltd v Resort Developments Pty Ltd
[1991] FCA 766
•29 NOVEMBER 1991
Re: PAN AUSTRALIAN CREDITS (SA) PTY LTD
And: RESORT DEVELOPMENTS PTY LTD
No. S G3035 of 1991
FED No. 766
Corporations Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Von Doussa J.(1)
CATCHWORDS
Corporations Law - application to wind up - company alleging that its debt to the creditor had been compromised - proceedings in another court where the fact of the compromise is in issue - whether the Court should go into the evidence and determine on the merits whether the debt continued to exist - whether wind up order should be made.
Corporations Law, s.460
Re Welsh Brick Industries Ltd. (1946) 2 All ER 197 at 198
In re K.L. Tractors Ltd. (1954) VLR 505 at 510
In re Q.B.S. Pty. Ltd. (1967) Qd R 218 at 225
Derby Motorplus Pty Ltd and Ors v Swan Building Society (1990) 2 ACSR 239 at 240-241
HEARING
ADELAIDE
#DATE 29:11:1991
Counsel for the applicant : Mr D.G.W. Howard
Solicitor for the applicant : Kelly and Co.
Counsel for the respondent : Mr M.S. Kemp
Solicitor for the respondent : Kemp and Co.
ORDER
Resort Developments Pty Ltd be wound up by this Court under the provisions of the Corporations Law.
Bruce James Carter of 91 King William Street, Adelaide be appointed as liquidator of the company.
The applicant's taxed costs including reserved costs be reimbursed in accordance with sub s.466(2) of the Corporations Law.
The applicant attend the registry with sufficient number of copies of this order (Form 96) for entry and of the Notice of Appointment of Liquidator (Form 99) for signing and sealing by 3.30 p.m. today.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicant seeks an order under sub.s.460(1) of the Corporations Law winding up the respondent company on the ground that it is unable to pay its debts. The applicant relies on the respondent's failure for three weeks to pay the sum of $746,949.95 after service of a notice of demand pursuant to para.460(2)(a).
There is no dispute that the respondent was unable to pay its debt to the applicant at the expiration of the statutory notice. The respondent's only asset on its own admission is the land and commercial premises situate at 102-106 Wright Street, Adelaide ("the property"). The market value of the property as it presently stands is about $450,000, possibly up to $500,000. It is, however, subject to a mortgage to the applicant. The amount claimed in the s.460 notice was the principal and interest due under the mortgage at 3 May 1991. The respondent has been unable to meet any part of its liability for interest for upwards of a year. The principal and interest presently due exceeds $800,000. The respondent however opposes the order sought. It does so for the same reason that it is opposing an order for possession presently being sought by the applicant in proceedings in the Supreme Court of South Australia under Part XVII of the Real Property Act 1886.
The background to the two sets of proceedings is as follows. The inability of the respondent to meet its commitments under the mortgage had been the subject of discussion and correspondence between the parties for some time. The s.460 notice was served on 6 May 1991. No payment was forthcoming from the respondent. The applicant decided to put in train steps necessary to enter possession of the property under the mortgage, and to sell as mortgagee. To this end the Supreme Court proceedings were issued on 11 July 1991. However, before those proceedings were served, two directors of the applicant wrote to a director of the respondent, Mr P.F. Burns, suggesting that he discuss the matter. A meeting for this purpose was held at the applicant's premises on 16 July 1991. Present were Mr P.F. Burns and his son Mr P.C. Burns, two directors of the applicant, Mr Taylor and Mr McAvaney, and the administrator/manager of the applicant, Mr Wayland. The respondent says that at the meeting a compromise was reached with the applicant whereby the applicant agreed to forego its rights under the mortgage in consideration of a series of transactions relating to the property which the parties agreed to undertake. The applicant disputes that any such agreement was reached on 16 July 1991. The applicant says that a proposal was discussed but its acceptance by the applicant was subject to the fulfilment of conditions which never occurred. Further, the applicant says that on 18 July 1991 Mr P.F. Burns informed the applicant that "the deal is off". (This last allegation is also disputed by the respondent).
On 19 July 1991 the applicant served the Supreme Court proceedings. On 9 August 1991 the respondent filed an affidavit by Mr P.C. Burns in the Supreme Court opposing an order for possession. Paragraphs 2.7 to 4.3 of that affidavit set out the respondent's case:
"2.7 On the 16th day of July 1991 my father and I attended a
meeting with officers of the plaintiff which so far as my father
and I were concerned was organised to endeavour to resolve the
mutual financial dilemma with respect to the said office premises
as between the plaintiff and the defendant. The officers of the
plaintiff present at the meeting were Messrs Wayland McAvaney and
Taylor.
2.8 I say that the plaintiff was aware prior to the time of the
said meeting that the likely gross sale price of the said office
premises would have left it with a shortfall of at least
$250,000.00 as against what it had claimed by Notice of Demand to
be due to it by the defendant.
2.9 My father at an early point of time in discussions at the said
meeting said (or used words to the following effect) 'Unless we
can make a commercially based agreement then we might as well walk
away accepting that what we have put into this building is lost'.
3.1 The meeting ended with the following agreements:-
The defendant would apply to have the building 'strata titled' to
create 3 units. Units 1 and 2 on the ground floor were to be
transferred to the plaintiff. Unit 3 on the upper floor was to be
retained by the defendant. The Burns family (i.e. my father and I
and our families) were to raise $250,000.00 on the security of
other assets for payment to the plaintiff.
3.2 Such agreements were made in full settlement of the claims
which the plaintiff was making against the defendant for moneys
lent and allegedly lent pursuant to the abovementioned mortgage.
3.3 My father expressly stipulated that he required Messrs Wayland
McAvaney and Taylor to acknowledge that 'the deal was made' and
that there would be no question of the agreement being referred to
any board of the plaintiff for sanction. Thereupon the
acknowledgement was given by all three of the plaintiff's officers
and my father and I shook hands with them to signify final
agreement.
4.1 On the 17th day of July 1991 in terms of the defendant's
promise to the plaintiff the defendant delivered various documents
intended to record the agreements above referred to.
4.2 By letter dated 18th July 1991 ... the plaintiff used language
to the effect that it was not bound by what had been agreed as
aforesaid.
4.3 My father informs me that he telephoned Mr Taylor (one of the
three said officers of the plaintiff) above referred to for the
purpose of protesting at the introduction by the plaintiff of
conditions not raised at the meeting."
The applicant's case is summarised in the following paragraphs of an affidavit by Ellis Bryson John Wayland sworn on 25 September 1991, also filed in the Supreme Court proceedings:
"2.1 A meeting did take place as alleged, but I was not present until
the final few minutes of that meeting by deliberate design. It had
earlier been suggested that Mr Pitman and myself should attend the
meeting also, but we both felt that our presence might be a
constraining influence, and that the presence of only Messrs Taylor
and McAvaney might encourage frankness on the part of Mr Peter Burns
Senior (Mr Pitman was another director of the applicant).Mr Peter Burns Senior on the following terms:
(a) That the property be strata titled into three strata
units, the first floor as one unit and the ground floor as two units.
(b) Mr Burns would 'purchase' the first floor for an
amount of $250,000.00.
(c) The two ground floor units would then be transferred
to the plaintiff.
(d) In consideration of this offer (once consummated), the
plaintiff would release the defendant and its directors from any other financial responsibility for the debt.
2.3 The chairman of the meeting (Mr Peter Taylor) came out of the meeting and requested that I comment on the proposal put by Mr Peter Burns Senior...
2.4 It was only then that I went into the meeting and told Mr Burns Senior of my belief that strata titles could not be issued because the building had been constructed in non-compliance with Council regulations. Mr Burns Senior then got very upset and said this was only my opinion. 2.5 In order to placate him, we suggested that the offer should be made in writing and that he could prepare a contract for us to review, thus allowing us sufficient time to have our valuers check the validity of his claim that strata titles could be issued in two months. 2.6 With regard to the contents of paragraph 3.3, I deny that there was ever any shaking of hands to signify final agreement, nor was there any acknowledgement that the 'deal was made'. Rather, the agreement was that the offer would be put in writing and then considered by the Board of the plaintiff.
3. By letter dated the 17th July 1991, Mr Peter F. Burns provided the plaintiff with a document described as a 'confirmation of agreement' and also an undertaking by Resort Developments Pty. Ltd. to pay the sum of $250,000.00 to the plaintiff. ...
4. By letter dated the 18th July 1991, I responded to the letter of Mr Peter F. Burns. ...
5. I am informed and verily believe that upon receiving my letter, Mr Peter F. Burns telephoned Mr Peter Taylor on the 18th day of July 1991 and informed him that 'the deal is off'."
The letter from Mr Wayland dated 18 July 1991 referred to in para.4 above read:
'18th July, 1991
Peter F. Burns
Director
Resort Developments Pty. Ltd.
102-106 Wright Street
ADELAIDE SA 5000
Thank you for your letter dated 17th July 1991 which was delivered
to our office this morning.
As intimated by our directors at Tuesday's meeting the proposition
from our viewpoint is dependent on two critical factors viz:-
1) The probability of strata titles being issued within 2
months as detailed in Paragraph 4 of your letter of confirmation and
2) The value of Units 1 and 2 on the ground floor of the premises.
We have this morning instructed our valuers Messrs Theodore Bruce
and Co. to advise us on both aspects and as soon as their report is
received (expected within 3 days) we will be in immediate contact
with you.
Acting on your assurances given at the meeting on Tuesday that the
issue of strata titles is imminent we will (as evidence of our
good faith) instruct our solicitors to prepare a contract to give
effect to the proposition. Assuming that the report from Messrs
Theodore Bruce and Co. is favourable we will then be in a position
to proceed forthwith.
Yours faithfully,
E.B.J. Wayland
SPECIAL MANAGER'
The letter was dictated by Mr Wayland on 17 July 1991 but not typed until the following morning.
Copies of the affidavits filed in the Supreme Court proceedings were exhibited to affidavits by the same deponents in these proceedings.
When the application came on for hearing before a registrar of this Court it was referred to a judge for hearing. When the application came on for hearing before me on 1 November 1991 Miss Field appeared for the applicant. Notwithstanding the affidavit of Mr P.C. Burns she contended that a wind-up order should be made. She conceded that if the Court were satisfied that the debt was disputed by the respondent on "some substantial ground, and not on some ground which is frivolous or without substance", (see Mann v Goldstein (1968) 2 All ER 769 per Ungoed-Thomas J. at p 773) the order should not be made. However, she submitted that the Court should go into the affidavit evidence before the Court and hold that there was no substance to the respondent's case. She referred in particular to Re Welsh Brick Industries Ltd. (1946) 2 All ER 197 at 198 where Lord Greene M.R. said that the winding-up Judge must go "into the matter himself on the evidence before him and (consider) whether or not the dispute is a bona fide dispute, or, putting it in another way, whether or not there is some substantial ground for defending the action". See also In re K.L Tractors Ltd. (1954) VLR 505 at 510 and Derby Motorplus Pty Ltd and Ors v Swan Building Society (1990) 2 ACSR 239 at 240-241. Counsel also referred to the following passage from the judgment of Gibbs J. (as he then was) in Re QBS Pty. Ltd. (1967) Qd R 218 at 225:
"Of course a debt is not bona fide disputed simply because the
respondent company says that it is disputed. The court hearing
the petition can go into evidence to consider whether or not the
dispute is bona fide i.e., whether the claim is disputed on some
substantial ground (Re Welsh Brick Industries Ltd. (1946) 2 All
ER 197). It seems to me that in every case it becomes necessary
for the court to exercise its discretion as to how far it will
allow the question whether or not the dispute is bona fide to be
explored. In some cases it may be very easy to decide this
question on the petition and affidavits in reply. In other cases
however it may be difficult to determine whether or not the
dispute is bona fide without determining the merits of the dispute
itself. In some such cases convenience may require that the court
decide the question whether or not a debt exists, but in other
such cases it may appear better to allow that question to be
determined in other proceedings before the petition for winding up
is heard."
I pointed out to counsel that looking at the affidavits alone it was not possible to hold that the denial of the debt by the respondent was not on substantial grounds unless the affidavit evidence of Mr P.C. Burns was rejected. Unless his assertion that there was an agreement in the terms alleged by him was rejected the Court would be compelled to hold that there was a bona fide dispute. If the Court were to be asked to take the step of rejecting that evidence it would be necessary for those who participated in the meeting on 16 July 1991 to give oral evidence - or at the least to be cross-examined on their affidavits. There was no evidence that the respondent was indebted to any other creditor, so if its case that the debt to the applicant had been extinguished were made good, there would be no question of the company being otherwise insolvent: cf. General Welding and Construction Co. (Qld) Pty Ltd v International Rigging (Aust.) Pty Ltd (1983) 8 ACLR 307 at 309, and Re Gem Exports Pty Ltd and Ors (1984) 8 ACLR 755 at 760.Discussion which ensued led to the common position between counsel for the parties that the area of dispute concerned the events of 16 and 18 July 1991, and that this Court, on the wind-up application, should hear oral evidence and resolve the dispute on the merits. As the facts fell into a narrow compass I considered this was a case where the Court should decide whether the debt alleged by the applicant still exists or whether the applicant was bound by an agreement to accept the compromise in place of its rights under the mortgage. If the area of dispute were left to be determined in the Supreme Court proceedings it would be several months before the trial took place. The pleadings in the Supreme Court action have not closed. In the meantime, accruing interest would increase the alleged debt substantially, or, if it were held that a compromise had been reached, the applicant would be kept out of the enjoyment of the fruits of the compromise for a considerable period.
These proceedings were therefore adjourned to enable the witnesses to be called. When the hearing resumed on 22 November 1991 the respondent called Mr P.C. Burns. The applicant, then represented by Mr Howard, called Messrs Wayland, Taylor and McAvaney.
The oral evidence, as anticipated, concerned the events of 16 and 18 July, but raised issues somewhat wider than those envisaged by the affidavits of Mr P.C. Burns and Mr Wayland.
The first question is whether there was an agreement reached on 16 July as alleged by the respondent. The second question is whether Mr P.F. Burns on 18 July said "the deal is off". If there were no agreement as alleged reached on 16 July such a statement would, as the applicant contends, merely confirm the conditional nature of the proposal discussed on 16 July. On the other hand, if the agreement alleged by the respondent had been reached on 16 July, the letter of Mr Wayland dated 18 July sought to impose fundamentally different terms which the applicant, correctly in my opinion, concedes would amount to a repudiation by the applicant of the original agreement, and the question would be whether a statement by Mr P.F. Burns that "the deal is off" constituted an acceptance of that repudiation and a rescission of the agreement. A further issue also emerged on the oral evidence, and that is whether - even if the respondent is entitled to favourable findings on the questions already identified - the applicant is no longer bound by the agreement because, on the evidence of Mr P.C. Burns about the inactivity of the respondent in relation to the strata titling of the property, the respondent should be held to have accepted the applicant's repudiation of the agreement.
The evidence disclosed that the applicant is one of a group of companies that was established by a charitable institution to earn revenue for the purposes of that charity. The group ran into financial difficulties in 1990. Mr Wayland was appointed by the charitable institution, which had lent money to the applicant, as a "special manager" to oversee the applicant's operations and to guide it through troubled times. Mr Wayland is by profession a finance banker and consultant in financial matters.
The loan by the applicant to the respondent was made before Mr Wayland's appointment. The recovery of the loan was a matter of importance to the applicant as it represented a substantial part of the asset base of the applicant. The background to the loan was not understood by Mr Wayland. It was for this reason that he drafted the letter, signed by two directors of the applicant, to Mr P.F. Burns which led to the meeting on 16 July 1991. Messrs McAvaney and Taylor were long time acquaintances of Mr P.F. Burns and Mr Wayland hoped that if they discussed the matter with him information about the background of the loan might be ascertained. It was for this reason that Mr Wayland did not attend the early part of the meeting.
It is common ground that a proposal along the lines of the alleged agreement was put forward by Mr P.F. Burns to Messrs Taylor and McAvaney. This was the first time the proposal had been made. As I understand Mr P.C. Burns' evidence it is not suggested that the proposal was accepted as a binding agreement by Messrs Taylor and McAvaney before Mr Wayland attended the meeting. Once the proposal had been outlined, Mr Taylor left the meeting to discuss it with Mr Wayland. It seems clear on the evidence, and I so find, that Messrs P.F. and P.C. Burns, and Messrs Taylor and McAvaney, each understood during their discussion that any proposal would have to be put to Mr Wayland. Mr Wayland then attended the meeting. It is also common ground, and I so find, that Mr Wayland expressed doubts whether it would be possible to have the property sub-divided into strata titles, and said, in any event, that he believed it could not be done within two months as asserted by Messrs P.F. and P.C. Burns. There was discussion over building requirements by the Adelaide City Council. Mr P.F. Burns was pressing to have the proposal accepted. Mr Wayland said the proposal would have to be put to the Board of the applicant.
At this point the evidence of the witnesses varies. Mr P.C. Burns says his father said that the majority of the Board of the applicant, and Mr Wayland, were present, and he wanted the applicant's agreement there and then; Mr Taylor said words to the effect: "That's true, we do have the relevant people here"; Mr P.C. Burns says that Messrs Taylor and McAvaney then "accepted that proposition". When asked what they said, he could not remember their exact words but did remember Mr McAvaney saying that he thought the proposal was a better solution than he expected to come from the meeting, and Mr Taylor said "I agree with that proposition". Mr Wayland said he was "happy with that proposition if it could happen". On the other hand, Messrs Wayland and Taylor deny that the proposal was accepted. Mr McAvaney agrees that he said words to the effect that the proposal was a better outcome than he expected and now says that he thought the proposal was accepted on the condition that it must happen within two months.
Common ground then returns: Mr Wayland said words to the effect "put it in writing; prepare common form contracts for the ground floor units, and an acknowledgement to pay $250,000; and do so by 12 noon the following day." Mr Wayland adds that an important additional statement was made by him: that these documents were required so that the terms of the proposal would be clearly stated, and the applicant would then consider it after it was checked by the applicant's valuers, and they had advised whether strata titles could issue in two months. Mr Taylor says he understood that this was the purpose for requesting the proposal in writing but cannot remember it being said expressly that the written material would be put to the applicant's Board for consideration.
The paperwork was prepared by the respondent and delivered to the applicant before 12 noon the following day. Mr Wayland considered it and dictated the letter in reply which was typed up on 18 July.
Mr P.C. Burns says that the letter of 18 July 1991 was received by him. That probably occurred on 18 July as a copy was sent to him by facsimile. He telephoned his father, who by that time had returned to Queensland where he resides.
Mr Taylor says that he was telephoned by Mr P.F. Burns who referred to the letter. Mr Burns was upset because he said he thought there had been a change of rules. Mr Taylor's evidence about that conversation, and others which occurred shortly afterwards is as follows :
"...he phoned me one night at about five - six o'clock at night at my home and he said, Peter F. Burns, Peter Taylor. The deal is off. And I said, Well, OK. I repeat, the deal is off. Pan Australian Credits has lost 400,000. The deal is off. So I just thanked him for his phone call. That's all right. That's your decision, and thanked him for the phone call. The next day or the day after, I received a phone call from Peter C. Burns and he told me that we had gone back on our contract and I said, No, Peter. Your father cancelled the deal last night. He told me that the deal is off. And he then went on to say other things with regard to Mr Wayland...I thanked him for his phone call and that was the end of that conversation. Either the next night or two nights later, I received a phone call from Peter Burns senior from Brisbane and introduced himself, Peter Burns, Peter Taylor. I'm phoning you to thank you most sincerely for what you have done. I repeat, I thank you most sincerely for what you have done. I was a little bit dumbfounded and he went on to say, I have just spoken with son Peter and he said, Dad, I've never been so relieved in all my life. It's now over. So I just thanked him for his phone call and left it at that and that was the last time I've spoken to either Peter senior or Peter junior."
It is common ground that Mr P.C. Burns spoke with both Mr Taylor and Mr Wayland by telephone shortly after the letter of 18 July 1991 was received. He said to both of them that the letter sought to impose conditions contrary to the firm agreement reached on 16 July 1991; and both men denied that any agreement had been reached at the meeting on 16 July 1991.
At 16 July 1991, matters necessary to bring about subdivision of the property and the issue of strata titles included compliance with a list of building requirements issued by the Adelaide City Council, a survey of the property, and the preparation and lodgment of survey plans and an application for subdivision. When asked what steps the respondent had taken to carry out these matters after 16 July 1991, Mr P.C. Burns said nothing at all had been done. When asked why he replied:
"Well, as I said, I took that letter (of 18 July 1991) to be Mr Wayland's way of dismissing the agreement, if you like, and it was followed up immediately by confirmation...from my father who had told me he had a conversation with Mr Taylor and he told me that arising from that conversation they said the deal was off. Who is alleged to have said the deal was off? - Mr Taylor. So nothing further was done? - No."
Mr McAvaney is a gentleman of advancing years. Prior to the meeting on 16 July 1991 he had decided to retire from the Board of the applicant, and did so that day after the meeting. Whilst I have no doubt that he honestly and conscientiously endeavoured to assist the Court, I am not satisfied that his evidence on matters of detail is reliable. He was mistaken as to the time of the meeting, and I am satisfied that he is now mistaken as to the outcome of the meeting.
Whatever may have been the belief of Messrs P.F. and P.C. Burns when they left the meeting on 16 July 1991 I am satisfied by the evidence of Mr Wayland and Mr Taylor that there was no unconditional acceptance of the proposal by them on the applicant's behalf on 16 July 1991. I was particularly impressed by Mr Taylor, and I would accept his evidence in preference to that of the other witnesses wherever there is conflict, but there are other reasons as well for this conclusion.
The evidence of Mr P.C. Burns left me with the clear impression, subsequently confirmed by the evidence of the applicant's witnesses, that he and his father understood that their proposal, if it were to be accepted, required the approval of Mr Wayland. Yet what Mr Wayland said, on Mr Burns' own evidence, was only that he "was happy if it could happen". In a practical sense "it could happen" only if strata titles could issue in the time frame proposed by the respondent, and if the likely value of the two units to be transferred to the applicant rendered the overall proposal a commercially realistic one, a matter about which the advice of a valuer was required. Further, I consider it is extremely improbable that Mr Wayland, having explained to the meeting why he doubted whether strata titles would be approved, and in any event why they would not issue within the time frame, would then agree unconditionally to the proposal. Immediately after the meeting concluded Messrs Wayland and Taylor contacted the respondent's surveyor. That is a further indication that the time frame remained an important matter still to be clarified.
I find that there was no unconditional acceptance of the proposal made by the representatives of the applicant at the meeting on 16 July 1991. I further find that when Messrs P.C. and P.F. Burns were requested to put their proposal in writing it was to be inferred from the conversation which preceded the request that the writing would constitute an offer by the respondent to be considered by the applicant. I am satisfied by the evidence of Messrs Wayland and Taylor that there was no statement by Mr Taylor to the effect that the representatives of the applicant at the meeting had authority to accept the proposal, and that there was no shaking of hands at the conclusion of the meeting to acknowledge that a deal was made, or at all. In my opinion the respondent has failed to establish its case on the first question.
Furthermore, I consider the respondent would in any event fail on the question of its acceptance of the repudiation of the "agreement", so that the applicant would no longer be bound by it. Mr P.F. Burns was not called to give evidence. As I have said, I was impressed by Mr Taylor, and have no hesitation in accepting his evidence. I find that Mr P.F. Burns did say, on 18 July 1991, "The deal is off". He may have done so in anger, but his statement was clear. Moreover the import of that statement was reinforced by the further statement: "Pan Australian Credits has lost 400,000". That the "agreement" of 16 July 1991 was treated as at an end by the respondent is further borne out by Mr Taylor's evidence of his second telephone conversation with Mr P.F. Burns, and by the respondent's failure to take any of the steps required as a matter of urgency to process an application for subdivision within the time frame contemplated by the "agreement".
I find, on the merits, that the debt relied on by the applicant continues to exist. The ground on which the existence of the debt was disputed by the respondent is without substance. It is common ground that the respondent is unable to pay this debt, and is therefore hopelessly insolvent. The formalities of O.71 of the Federal Court Rules have been complied with. There will be an order that the respondent be wound up pursuant to s.460 of the Corporations Law.
In light of these findings it is unnecessary to consider the further points which were touched on in argument, namely that Messrs Taylor, McAvaney and Wayland, to the knowledge of Messrs P.F. and P.C. Burns, had neither actual nor ostensible authority to accept the respondent's proposal on 16 July 1991; and that the alleged agreement would be unenforceable by the respondent as it concerned a disposition of an interest in land (the discharge of the appellant's mortgage), and the sale of land, and there is no memorandum or note thereof, in writing and signed by the applicant, as required by s.26 of the Law of Property Act 1936 (S.A.)
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