Re Arcadiou, T. Ex parte The Official Trustee in Bankruptcy

Re TROODIA ARCADIOU; Ex parte THE OFFICIAL RECEIVER and PHILIP ARCADIOU
(1985) 6 FCR 336
Bankruptcy - Contract

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DIVISION OF THE STATE OF VICTORIA
GENERAL DIVISION
Smithers J.(1)

CATCHWORDS

Bankruptcy - "Settlement" - Whether detriment to promisee is valuable consideration when no benefit to promisor - Bankruptcy Act 1966 (Cth), s 120(2).

Contract - Sufficiency of consideration when detriment to promisee without benefit to promisor - Whether privity exists between mortgagee and mortgagor when mortgage is part of larger transaction for benefit of third person.

HEADNOTE

The bankrupt had granted a mortgage to the respondents over a property owned by her and the respondents had, in return, secured a loan from G Pty. Ltd. to Y, the husband of the bankrupt, by means of a mortgage over their property in favour of G Pty. Ltd. The bankrupt received no moneys or other benefit from the respondents. The Trustee in Bankruptcy sought an order to declare the mortgage between the bankrupt and the respondents void pursuant to s 120(2) of the Bankruptcy Act 1966 in that, inter alia, it was a settlement not made for valuable consideration.

Held: (1) Consideration may consist of a detriment to the promisee even though there is no corresponding benefit to the promisor.

(2) Even though the bankrupt received no benefit from her transaction with the respondents, there was nevertheless valuable consideration in that the respondents suffered a detriment in the form of the liability they incurred pursuant to the mortgage agreement with G Pty. Ltd, the proceeds of that mortgage being received not by them but by Y for his own use.

(3) Even though there may have been no request by the respondents to the bankrupt to enter into the mortgage in their favour, it was clear that the bankrupt and the respondents understood that the respondents would act to their detriment in giving a mortgage to G Pty. Ltd. on the basis that the proceeds were made available to Y for his own use and that the bankrupt would give the respondents a mortgage over her property to protect them against liability in the event of Y's failure to repay the proceeds of the mortgage. Their transaction formed part of a larger transaction which involved other parties but there was clearly an understanding between the respondents and the bankrupt which gave rise to privity of contract between them.

Re Windle (a bankrupt) Ex parte The Trustee of The Bankrupt v. Windle (1975) 1 WLR 1628, referred to.

HEARING

1985, April 29-30; May 23. #DATE 23:5:1985

A Moshinsky, for the applicant trustee.

F G Davey, for the respondents.

Cur adv. vult

Solicitors for the applicant trustee: G T Bigmore.

Solicitors for the respondents: Hall & Wilcox.

SMW

JUDGE1

23 May 1985
SMITHERS J. In this proceeding the trustee of the bankrupt estate of Troodia Arcadiou whose estate was sequestrated on 8 September 1981 seeks an order declaring the giving by the bankrupt to the respondents of a mortgage dated 28 September 1976 and registered in the Office of Titles in Victoria No H334987 is void as against the applicant as a settlement within the meaning of s 120(2) of the Bankruptcy Act 1966 (Cth) (the Act). Troodia Arcadiou is the mother of the respondent Phillip Arcadiou, and Yiangos Arcadiou hereafter mentioned is the respondent's father.

The mortgage was entered into within five years of the commencement of the bankruptcy. It purports to secure to the respondents the sum of $50,000 lent by them to the bankrupt. The mortgaged property is land at Mildura upon which there is a dwelling. It is said that no sum of $50,000 or any sum at all was lent by the respondents to the bankrupt and accordingly there was no consideration for the mortgage. In that case, the mortgage which is clearly a settlement would not be a settlement of property made for valuable consideration and would be void as against the trustee.
The respondents concede that no money passed between them and the bankrupt by way of loan to support the mortgage. They contend, however, that the mortgage was given to them pursuant to an agreement between the bankrupt and themselves that the bankrupt should enter into the mortgage by way of security to them against liability to be incurred by them under a proposed mortgage to Guardian Investments Pty. Ltd. (Guardian) over a property at Werribee belonging to them to secure a loan by that company to the respondents of $50,000. The amount secured by the mortgage was to be made available to Yiangos Arcadiou as required by him in connection with the carrying on of his business as a builder and vendor of houses. The respondents say that pursuant to that agreement they entered into the mortgage with Guardian, made the amount of the loan available to Yiangos Arcadiou, and that $44,935 of the loan was obtained by Yiangos Arcadiou from the mortgagee for his own use and $5,065 was received by them.
It is said however, that $14,673 of the amount received by Yiangos Arcadiou was money owing by the respondents to him, as to $8,673.32, thereof on the purchase by them from him of property at Werribee and as to $6,000, thereof on a second mortgage from the respondents to him over a property at Sunshine, and that the receipt by Yiangos Arcadiou of that amount as part of the sum of $44,935 constituted a discharge of the respondent's liability for both those sums and a corresponding benefit to the respondents. Accordingly, if they suffered any loss by entering into the mortgage to Guardian it would not be more than $30,262.
The case for the trustee was put, in the first place, much higher than this. It was contended that there was no evidence of any consideration going to the bankrupt. It was said that on the evidence it was clear that the only request to the respondents to enter into the mortgage to Guardian was that of Yiangos Arcadiou, the only bargain concerning the giving of the mortgage to Guardian was between the father and the son, and that the giving of the mortgage by the bankrupt to the respondents over the Mildura property proceeded pursuant to a request to her by Yiangos Arcadiou, there being no privity of contract between the respondents and the bankrupt. The critical factor relied on was that the bankrupt made no request and received no benefit from the transaction. There was accordingly no privity and no valuable consideration supporting the bankrupt's mortgage over the Mildura property. The following events form the background to the foregoing.
In July 1976 the respondents owned and lived in a dwelling at Sunshine. There was a first mortgage of some $9,000 to the National Bank and a second mortgage securing some $6,000 to Yiangos Arcadiou. The respondents were desirous of moving to a different locality. About the middle of 1976 a purchaser was found. Yiangos Arcadiou took control of the business. The sale price was $43,000. Yiangos Arcadiou arranged for the purchaser to pay a deposit of $8,000 to him personally by monthly instalments. The balance after deducting the sum due to the bank, namely $26,326.68 was payable by the purchaser on 5 August 1976 but was not actually paid until a date in October 1976. The $26,326.68 was received by Yiangos Arcadiou personally. On 24 August 1976, which was shortly after the contract to sell the Sunshine property was made, the respondents entered into a contract with Yiangos Arcadiou to purchase from him a property at Werribee, being then vacant land, for $11,000. The contract provided for payment of a deposit of 10 per cent of the purchase price on the same day and for payment of the balance on the next day. On the same day the respondents entered into an agreement with Yiangos Arcadiou for the erection on the land of a dwelling house for the sum of $32,000 payable as to $3,200 on the signing of the contract and the balance on or before 25 December 1976. It is to be inferred that the parties intended the money to come from the sale of the Sunshine property to be applied to the purchase of the land at Werribee and the building of the house thereon.
In September 1976 Yiangos Arcadiou, whose business was that of building and selling dwelling houses, suffered liquidity problems. He had approached Guardian through its solicitor Mr Noel Tregent and arranged for an advance of $110,000 on condition that one of his sons and a son-in-law each entered into mortgages to Guardian over properties held by them and the respondents entered into a mortgage over the Werribee property for $50,000. It was in these circumstances that Mr Sotos, a solicitor, prepared the three mortgages. He took the mortgages to a family meeting in September. Yiangos Arcadiou, the bankrupt and the respondents were present. At that meeting the parties were aware that Yiangos Arcadiou was experiencing liquidity problems and had arranged with Guardian to borrow $110,000 from it on the basis that the three mortgages to Guardian, including one by the respondents for $50,000 over their property at Werribee, were entered into. The son-in-law and other son of Yiangos Arcadiou were quite willing to and did enter into their mortgages totalling in all $60,000. Mr Sotos said that the mortgage over the Werribee property being ready for signature and the respondent being asked to sign it:

"Phillip and Sandra Arcadiou refused to sign the mortgage documents on the basis that they wanted security of their own against the possibility that if something went wrong and their property was in jeopardy - their property in Glenmoyne Square

(Werribee) was in jeopardy - they would have added security, and that is when the mother suggested and instructed us to prepare security over that property in Mildura."

Mr Sotos said he prepared the mortgage over the Mildura property the next day on the instructions of the bankrupt. When asked what she told him he said:

"She instructed me to prepare security over the Mildura property to secure her son's agreement to sign the documents that were put before him in respect to the Guardian Investment mortgage."

The evidence of Yiangos Arcadiou is to the effect that when the loan for $110,000 was arranged on the basis of the three family mortgages, Phillip refused to sign the mortgage over his Werribee property unless he had security. Yiangos Arcadiou then told Phillip to speak to Mr Sotos about security and after they had spoken he asked his wife, the bankrupt, if she would give the necessary security over her Mildura property and she agreed and in due course the two mortgages were signed. The bankrupt herself said:

"That in or about September 1976 my husband requested me to mortgage my property situated at Walnut Avenue Mildura South to my son Phillip Arcadiou. My husband told me that if I did this my son and his wife would mortgage their property at Glenmoyne Square Werribee to Guardian Investments Pty. Ltd. and Guardian Investments Pty. Ltd. would then advance moneys to my husband. I agreed to mortgage my property at Walnut Avenue Mildura South as part of this arrangement."

The respondent, Phillip Arcadiou said that at the meeting in September between himself, his father and mother, and probably other members of the family, he refused to give the mortgage to Guardian for $50,000 over his Werribee property unless he was given some security and that his mother agreed to give the security over her Mildura property until Yiangos could "obtain the money". He said that instructions were given to Mr Sotos to prepare the mortgage over the bankrupt's Mildura property and that mortgage was signed by the bankrupt and thereupon the respondents signed the mortgage to Guardian over the Werribee property.
Having regard to the foregoing I have no doubt that the mortgage entered into by the bankrupt was entered into by her pursuant to an agreement to which she and the respondents were parties, and that the obligations expressed in that mortgage were undertaken by her to secure the respondents against the liability incurred by them by entering into the mortgage to Guardian for $50,000 over their Werribee property, to the extent that the mortgage moneys were received by Yiangos Arcadiou for the purpose of his business. The respondents entered into the mortgage. They signed what was called a disbursement order in the following terms:

"TO: Messrs. Sotos, Vertes & Co., Barristers & Solicitors, 193A Hampshire Road,

Sunshine. VIC. 3020.

RE: GUARDIAN INVESTMENTS PTY. LTD., - LOAN TO PHILLIP ARCADIOU and SANDRA ARCADIOU - LOT 69 GLENMOYNE SQUARE WERRIBEE

1. Sotos, Vertes & Co., By amount of loan on account of costs

and disbursements $442.00 $50,000.00 to be paid by Guardian Investments Pty. Ltd. on instructions from Dudley Tregent & Co.

2. Government Fees (as per Item 1)

(a) Stamp duty on Transfers $385.00

(b) Registration fee on Transfers $72.00

(c) Stamp duty on Mortgage $171.50

(d) Registration fee on Mortgage $16.00

3. By amount of progress payment advanced to Y. Arcadiou at Mortgagees' discretion on 27.9.76 $25,000.00

4. Residue of loan to be advanced in accordance with special condition 40 of the subject mortgage 5.

---------- ----------. $50,000.00 $50,000.00 DATED this 28th day of September 1976 (Signed)

Phillip Arcadiou

(Signed)

Sandra Arcadiou"

Yiangos Arcadiou recovered $25,000 from Guardian on 25 September 1976 and other sums shortly afterwards totalling in all $44,935 less perhaps the amounts referred to in paragraph two of the disbursement order. Yiangos Arcadiou did not pay any of this amount to Guardian or to the respondents.
In August 1978 the respondents sold the property at Werribee. By that time the amount owing for principal and interest under the mortgage to Guardian was $64,000. This sum was paid to Guardian by the respondents.

Consideration
It is clear of course that what is said to have constituted valuable consideration for the giving by the bankrupt of the mortgage over her property did not enrich or benefit her estate. But this is not the test by which to determine whether within the meaning of s 120 of the Act a settlement in question was given for valuable consideration. What is required is something which constitutes consideration for the settlement according to law and which is of value. Consideration must move from the promisee. Under the traditional definition of consideration it is sufficient that there is either a detriment to the promisee or a benefit to the promisor. Thus detriment to the promisee suffices even though the promisor does not benefit, for example, where the promisor guarantees the overdraft of a customer of a bank and the bank suffers detriment by advancing money to the customer. As Sir William Holdsworth said, "Detriment to the Promisee is of the essence of the doctrine and benefit to the promisor, when it exists, is merely an accident." History of English Law, Vol 8, p 11.
The detriment suffered by the respondents was that they incurred legal liability to a stranger for a loan of $50,000 the benefit of which was to go to the father and under which they were required to repay the sum of $50,000 to the stranger within twelve months with interest at 14 per cent per annum, those obligations being secured by way of mortgage of real property owned by them.
In Re Windle (a bankrupt), Ex parte The Trustee of The Bankrupt v. Windle (1975) 1 WLR 1628 at 1637 it was said by Goff J:

"It is clear that the consideration does not have to replace anything in the debtor's estate, for it may be something which he has bargained shall be provided for a third party, nor does it have to be equal to that which has been taken out. The three Court of Appeal cases taken as a whole appear to me to establish that for this purpose the expression 'purchaser for valuable consideration' does not import a purchase in the strict sense of a contract of purchase and sale, but it does postulate a person who in a commercial sense provides a quid pro quo: see per Lord Esher MR in Hance v. Harding 20 QBD at 738 and per Sir James Hannen 20 QBD at 739 and per Cozens-Hardy MR in Re Pope (1908) 2 KB at 172. He there said: 'I think it means a person who has given something in consideration of the settlement, or, to use the language of Sir James Hannen, a quid pro quo.' "

The validity of these observations is beyond question. Here the detriment suffered by the respondents was something which according to their bargain with the bankrupt was to be provided for a third party.

Privity

The submission that the only request to the respondents to enter into the mortgage to Guardian was that of Yiangos Arcadiou, as a result of which, either there was no transaction between the respondents and the bankrupt, or no consideration for whatever transaction there was, is not in my opinion sustainable. The transaction between the bankrupt and the respondent has to be gathered from the conversations and actions of the parties in the circumstances in which they took place. It is clear that the bankrupt entered into the mortgage over Mildura to induce the respondents to enter into the mortgage to Guardian and to make the mortgage money available to Yiangos Arcadiou. It is also clear that the agreement between the bankrupt and the respondents was that the promise of the bankrupt to pay to the respondents the sums secured by the mortgage over Mildura was to operate only to the extent that Yiangos Arcadiou failed to repay to Guardian the amounts due to Guardian under the mortgage in respect of moneys received by him from Guardian under the mortgage. It is really immaterial whether the request to the bankrupt came from Yiangos Arcadiou or the respondents. All parties understood that the respondents would not enter into the mortgage over Werribee unless the bankrupt gave the security. This she did, and the respondents responded to their detriment as the bankrupt intended they should. No point was taken before me that the agreement between the bankrupt and the respondents differs from that recorded in the mortgage given by the bankrupt. The respondents accept the qualification of the bankrupt's obligations under the mortgage. There is in this class of proceeding no legal obstacle to the provision of oral evidence to prove the true consideration for the giving by the bankrupt of the mortgage. See In Re Hume, Ex parte The Official Assignee (1909) XXVIII NZLR 793 at 801. Cf In Re Dundas (1933) 6 ABC 265; May on Fraudulent and Voluntary Disposition of Property 2nd ed at 211.
Accordingly, I am satisfied that there was privity of contract between the bankrupt and the respondents and that there was valuable consideration to support the security given by the bankrupt in the form of the mortgage to the respondents.
But a settlement may be partly voidable and partly valid. See Halsbury 4th ed Vol 3 par 202. And in this case an attempt was made, either in support of the contention that the settlement was void for lack of consideration or partly void, to show that money borrowed from Guardian was used by the respondents to discharge a liability in them to Yiangos Arcadiou in respect of the Werribee transaction and the second mortgage. The matter relied on would also be relevant if the agreement between the bankrupt and the respondents had been that the mortgage was intended to secure the respondents against loss suffered as a result of the transaction with Yiangos Arcadiou rather than liability to Guardian. Whether this was so or not was a question of fact determinable by inference from the circumstances. Having regard to the circumstances as set forth above I have no doubt that what the respondents stipulated for and the bankrupt gave was security against the liability they were being asked to assume.

The matters relied on to support the contentions last referred to arose out of the existence of liability in the respondents on the face of the contracts for the purchase of the land at Werribee and the building of the house thereon, and the liability under the second mortgage on the Sunshine property. It was contended that when Yiangos Arcadiou received the sum of $25,000 from Guardian on 29 September 1976 the total liability referred to was discharged. It was said that, as a result, the money borrowed from Guardian could be seen to have been used for the benefit of the respondents and, at least, the amount for which the bankrupt had given security to the respondents should be reduced accordingly.
As to the suggested discharge of liabilities of the respondents to Yiangos Arcadiou it is to be observed that the mortgage to Guardian was entered into as part of a transaction initiated by Yiangos Arcadiou for his own purposes. The term of the mortgage, its amount and the rate of interest were all arranged by him. The amount and rate of interest stamped it as a transaction for getting money for his business. It is apparent that whatever obligations might have existed under the respondent's contract to buy or build the Werribee property and the mortgage on the Sunshine property were far from the mind of Yiangos Arcadiou in connection with the loan. The respondents had no intention or interest in the transaction. The building contract did not provide for interest. It would have been irrational for the respondents to borrow money at the rate of 14 per cent per annum from September 1976 to pay a debt which would not fall due until the following Christmas Day at the earliest. Considered as part of Yiangos Arcadiou's plan to borrow $110,000 for his business the mortgage to Guardian was a transaction involving and creating its own obligations as between the respondents, the bankrupt and Yiangos Arcadiou. The respondents would undertake the obligations under the mortgage and make the amount thereof available to Yiangos Arcadiou. He, by implication, undertook to pay to the mortgagee the amount of the mortgage money obtained by him. The bankrupt would give the respondents security against Yiangos Arcadiou's failure in that respect. This was a self contained package independent of other relationships between the parties. When Yiangos Arcadiou took advantage of the mortgage and the availability to him of funds thereunder to obtain sums from Guardian no inference arose from that circumstance that the liabilities of the respondents relating to the Werribee property or the Sunshine mortgage were discharged. And there is no evidence that the respondents or Yiangos Arcadiou intended such a result. The evidence is to the contrary. The evidence is that they did not consider there were any such liabilities to Yiangos Arcadiou in the respondents. But even assuming there were that did not prevent an obligation arising in Yiangos Arcadiou to repay in due course the money obtained from Guardian. The situation that would have arisen in that case, if he failed, was that there was a cause of action of one nature in the respondents against Yiangos Arcadiou in respect of that failure and a cause of action of a different nature in Yiangos Arcadiou against the respondents. On this basis if there ever were liability in the respondents in respect of the Werribee house and the second mortgage that liability has never been discharged.
It is to be observed that the respondents were at all times subject to the liability to Guardian for $50,000 and interest thereon and ultimately were called upon to meet that liability.
In the circumstances I am satisfied that the liability in question, if it existed in September 1976, was not discharged as a result of the transaction under which the respondents entered into the mortgage to Guardian and Yiangos Arcadiou, and Yiangos received money borrowed by the respondents thereunder.
It is of course contended by the respondents that there was no debt of $14,000 outstanding against them. It is said that there was an arrangement between the respondents and Yiangos Arcadiou whereby Yiangos Arcadiou acknowledged that there was a liability in him to the respondent Phillip Arcadiou of an amount for overtime worked by him for his father over a period of years, and that the liability for overtime was for more than enough to discharge the shortfall between the money received for the Sunshine house and the contract price for the land, buildings and dwelling at Werribee together with any amount outstanding on the second mortgage on the Sunshine property.
It appears that Yiangos Arcadiou controlled the sale of the Sunshine property and received all the moneys paid by the purchaser thereof. It also appears that Yiangos Arcadiou controlled the sale to the respondents of the Werribee property and the building contract. It is said that Yiangos Arcadiou and the respondents had agreed that the overtime worked by Phillip Arcadiou for Yiangos Arcadiou and the amount received by him on the Sunshine property should be considered as satisfying the respondents' obligations to him in respect both of Werribee and Sunshine.
Yiangos Arcadiou was a masterful man with a large business and a close family. Undoubtedly, during some years, Phillip Arcadiou had worked long hours in that business and had never received overtime. Both Yiangos Arcadiou and Phillip Arcadiou impressed me as truthful witnesses. It would be in character for Yiangos Arcadiou to take charge of the move from Sunshine to Werribee and to lay down the terms. Both he and Phillip say that Yiangos Arcadiou said to Phillip, in substance, that in view of all his past work he would provide the Werribee house for the money to come from the sale of the Sunshine property and that Phillip agreed to this on behalf of himself and his wife. And there is background support for this in the surrounding circumstances. Thus, Yiangos Arcadiou acquiesced in the transfer of the Sunshine property without purporting to allocate any of the purchase price to the second mortgage or making any claim to the title. He acquiesced in the transfer of the Sunshine property to the purchaser free of the mortgage. It was Yiangos Arcadiou who fixed the price of the Werribee property at precisely the sale price of the Sunshine property. It was a somewhat arbitrarily fixed price. But the fact that it was fixed by Yiangos Arcadiou at the sale price of the Sunshine property does suggest that there was a notional relationship between the sale price for Sunshine and Phillip's purchase price for Werribee. The notion was, Sunshine will pay for Werribee. Of course, it would only do so if the sum available from the sale price after deducting the amount payable on the first mortgage to the bank together with the accepted value of Phillip's claim for overtime was agreed between Yiangos Arcadiou and Phillip to satisfy the respondents' liability for Werribee and the second mortgage. The language of the foregoing is not that which was used as between Phillip and his father. But I feel satisfied that they understood and assented to the transaction outlined above. And that, notwithstanding that Phillip may have been thinking in terms of $8,000 for overtime and $6,000 by way of gift and Yiangos Arcadiou approaching the matter in more general terms. If one were considering a transaction between business men at arm's length one would in the search for contractual consensus look for a degree of specificity in the communications between the parties greater than appears in the evidence in this case. But as between a father and son in a family employment relationship that consensus may be evidenced with less particularity. The question is whether they understood the effect of the transaction which it is suggested was entered into between them and assented to it. Here, it is my view, Yiangos Arcadiou and Phillip Arcadiou both understood and intended that the money to be paid by the purchaser of the Sunshine property would satisfy the liability of the respondents for the completed Werribee house and the Sunshine mortgage and that Phillip would accept that arrangement in full discharge of his claims for overtime. That it appears to have been a favourable transaction for the respondents is explained by the personal relationship involved. An alternative explanation which is open on the evidence is that both in respect of the Werribee transaction and the Sunshine mortgage there was never any intention on the part of the parties that enforceable legal relations should exist.
Had it been otherwise then it might have been expected that at the family meeting at which Phillip Arcadiou was asked to sign the mortgage to Guardian and refused to do so, somebody at the meeting, perhaps even Mr Sotos, would have reminded Phillip that he had not yet paid for Werribee and needed money for that purpose. But there is no suggestion of anything of this nature. Had Yiangos Arcadiou regarded Phillip Arcadiou and his wife as in his debt for the second mortgage money or the building of the Werribee house he might well have stipulated that the security to be given by his wife should be reduced by what was owed or thought to be owed by Phillip and Sandra. But the conversations proceeded on the basis that Werribee belonged to the respondents, without strings, and the proposed mortgage was a pledging of their property for father's benefit to the full extent of $50,000. The parties concerned were aware that although the building at Werribee was well advanced there was still some work to be done to finish it.
If it is thought unlikely that Yiangos Arcadiou should have accepted the money to come from Sunshine and the finalisation of Phillip's overtime entitlement as full payment for Werribee and the Sunshine second mortgage at a time when he was in financial difficulty, it is necessary to remember that he was a proud and dominating man, a "big" man. I think he was confident that he would trade out of his difficulties. It could well be that he would not regard the provision of the house to Phillip as a matter of major business significance but rather as a practical step which he was able to take in the general sweep of his large business, a gesture in which he took pride.
However, as to the sum of $5,065 received by the respondents being part of the money the subject of the mortgage to Guardian, the security available to the respondents under the mortgage given to them by the respondent does not extend to that. It extends only to that part of the mortgage money received by Yiangos Arcadiou and interest thereon. No point was made at the hearing that the sums referred to in paragraph two of the disbursement order was money not received by Yiangos Arcadiou but if they were the security does not extend to them.
The court should declare that so far as money borrowed from Guardian was received by Yiangos Arcadiou the amount so received is the principal secured by the mortgage entered into by the bankrupt over her Mildura property and that that security has at all times subsisted and order that the application for an order that the mortgage entered into by the bankrupt on 28 September 1976 is void against the applicant is dismissed. Liberty to apply is reserved to each party.
The applicant should pay the costs of the respondent.

ORDER

Orders accordingly

[1985] FCA 192

23 MAY 1985