Re Clark, P.J. v Ex parte Kahlefeidt, B.H.

CATCHWORDS

BANKRUPTCY - Contract by bankrupt

- Claim by estate agent for

commission in respect

of sale of asset of estate

- Auction agency

agreement made by bankrupts before bankruptcy and orally adopted

by trustee - Sale to purchaser not introduced by claimant

Whether auction agency agreement binding upon trustee

- Effect of

non-disclaimer of contract

- Effect of oral adoption

of contract

- Whether recovery precluded by Auctioneers and Agents Act

Entitlement of agent to prove in the bankruptcy for contingent liability to pay commission.

Bankruptcv Act 1966

s s . 58, 82, 133, 134

Auctioneers and Aqents Act

1941 (NSW) ss. 20, 42AA

Luxor (Eastbourne) Limited v. Cooper C19413 A.C.

108, Alpha

Tradinq Limited

v. Dunnshaw-Patten Limited C19813

1 Q.B. 290.

Bentall, Horsley and Baldrv

v. Vicarv C19313 1 K.R. 253,

Bastable; ex parte The Trustee

(1901) 2 K.B. 518, Re Sneezum:

parte Davis (1876) 3 Ch. D. 463, Titterton

v. Cooper (1881) 9

Q.B.D. 473, Ellis and Company's Trustee

v. Dixon-Johnson C19243 1

Ch. 342 referred to.

WILCOX J.

SYDNEY

20 DECEMBER 1985

RE: PAMELA JUNE CLARK	Ex parte BRIM1 HENRY KAHLEFELDT
MALCOLM ALBERT CLARK

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY

)	No. W157 of 1985
1	(No. P917 of 1984)

GENERAL DIVISION

)

B:	PAMELA JUNE CLARK
(Now Ellis)

EX PARTE:

BRIAN HENRY KAHLEFELDT

Applicant

PAMELA JUNE CLARK (NOW

ELLIS)

DALGFTY-WIMCHCOMBE

F.G.C.

Respondents

JUDGE MAKING ORDER: WILCOX J.

OF ORDER:

20 DECEMBER 1985

WHERE MADE:

SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. It be declared that:

a) Dalgety -

Winchcomhe F.G.C.

is not entitled to be

paid commission by the trustee of the estate of Pamela

June Clark (now Ellis) as part of the costs, charges and

expenses of the

administration of the

bankruptcy

pursuant to s.109

(l)(a) of the Bankruptcv Act 1966;

b) Subject to proof of compliance with s.42AA(l)(d) and

(e) of the Auctioneers and Aqents Act 1941 (NSW)

IN THE FEDERAL COURT

OF AUSTRALIA

) )

NEW SOUTH W&ES DISTRICT REGISTRY	)	No. W157 of 1985
)	(No. P917 of 1984)
GENERAL DIVISION	)

G:	PAMELA JUNE CLARK
(Now Ellis)

M PARTE:

BRIAN HENRY KAHLEFELDT

Applicant

PAMELA JUNE CLARK (NOW

FLLIS)

DALGETY-WINCHCOMBE

F.G.C.

Respondents

JUDGE MAKING ORDER: WILCOX J.

DATE OF ORDER:	20 DECEMBER 1985
WHERE VmE:	SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. It be declared that:

DaIgety -

Winchcombe F.G.C. is not entitled to

paid commission by the trustee of

the estate of Pamela

June Clark (now Ellis) as part

of the costs, charges and

expenses of the administration of the

bankruptcy

pursuant to s.109 (1)

(a)

of the Bankruptcv Act 1966;

b) Subject to proof of compliance with s.42AA(l)(d) and ( e ) of the Auctioneers and Aqents Act 1941 (NSW)

in respect of the Auction Agency Agreement dated 13

February 1985 and made between Malcolm Albert Clark and

Pamela

June

Clark

the

one

hand

and

Dalgety

Winchcombe F.G.C. on the other, Dalgety

- Winchcombe

F.G.C. is entitled

to prove in the bankruptcy of Pamela

June Clark (now Ellis) in relation to the contingent claim for commission arising under that agreement and

, for

the

recovery

advertising

expenses

incurred

Dalgety - Winchcombe

F.G.C.

with

the

agreement

Malcolm Albert Clark and Pamela June Clark given before

the making of the sequestration order against Pamela

June Clark.

2 .

Brian

Henry

Kahlefeldt,

trustee

the state

Pamela

June

Clark

(now

Ellis),

pay

Dalgety

Winchcombe F.G.C. its costs of this application; such

costs being part of the costs, charges and expenses of

the administration of the bankruptcy of the said Pamela

June Clark (now Ellis) within the meaning	of s.109(1)	a)
of the Bankruptcy Act 1966.

3.	The costs incurred by Brian Henry Kahlefeldt in relat	i	on
to this application be paid as part of the cos	t	S ,

charges

and

expenses

the

administration

the

bankruptcy

of the said Pamela June Clark

(now Ellis)

within the meaning of s.l09(l)(a) of the Bankruptcv Act

1966

NOTE	:	Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

IN THE FEDERX COURT OF AUSTFGALIA

)

NFM SOUTH bIALES DISTRICT REGISTRY

)	No. W158 of 1985

)

(No. P918

of 1984)

DIVISION

GENERAL

)

RE :

MALCOLM ALBERT rr,Bx

EX PARTE:

BRIAN

HENRY

KWLEFELDT

Applicant

MALCOLM FLBERT CLARK

DIILGETY-WINCHCOMBE

F.G.C.

Respondents

MINUTE OF ORDERS

JUDGE W I N G ORDER:	WILCOX J.
DATE OF OFDER:	20 DECEMBER 1985
WHERE MADE:	SYDNEY

THE COURT 0RDEP.S

TH..T:

declared

that:

a)	Dalgety - Winchcombe F.G.C. is not entitled to

be paid commission by the trustee of the estate

of Malcolm Albert Clark as part of the costs,

charges and expenses

of the administration of

the bankruptcy pursuant to s.109 to

(1) (a) of

I N THE FEDERFL COURT OF AUSTRALIA	)
1

NFM SOUTH MALES DISTRICT	REGISTRY	)	N o . W158 of 1985
)	(No. P918 of 1984)

GENERAL

D I V I S I O N

M P.9RTE:

BRIAN HENRY KPHLEFELDT

Applicant

MALCOLM ALBERT CLARK

DIILGETY-WINCHCOMBE

F.G.C.

Respondents

M I E N T E OF

OPJ3Ep.S

JUDGE MAKING ORDER:	WILCOX J.
DATE OF ORDER:	20 DECEMBER 1985
W E R E MADE:	SYDNEY

THE COURT

ORDERS

TFET:

1. It be declared that:

a1	Dalget? - Winchcombe F.G.C. is not entitled to be paid commission by the trustee of the estate of Malcolm Albert Clark as part of the costs. charges and expenses of the administration of the bankruptcy pursuant to s.109 to (1) (a) of

the Bankruptcy Act

1966;

b) Subject to proof of compliance with

s.42AA

(1)

(d) and

( e ) of

the Auctioneers and Aqents Act

1941

(NSW)

in respect of the Auctlon Agency

Agreement

dated 13 February 1985 and

made

between Malcolm Albert Clark and Pamela June

Clark on the one hand and Dalgety

- Winchcombe

F.G.C. on the other, Dalgety-Winchcombe F.G.C.

entitled

prove

the

bankruptcy

Malcolm

Albert

Clark

relation

the

contingent claim

f o r

commission arising under

that

greement

and

to he

r covery

advertising

incurred

expen es

Dalgety-Winchcombe F.G.C. with the agreement of

Malcolm Albert Clark and Pamela June Clark given

before the making

of the sequestration order

against Malcolm Albert Clark.

Brian Henry Kahlefeldt, as trustee

the

estate

Malcolm Albert Clark pay to Dalgety-Winchombe F.G.C. its costs of this application; such costs being part

the

costs,

charges

and

expenses

the

administration of the bankruptcy of the said Malcolm

Albert Clark within the meaning of

s.109

(l)(a) of

the Bankruptcy Act

1966.

. 3

3 .

"he costs incurred by

Brim

Henry Kahlefeldt in

relation to this application be paid as part of the

costs, charges and expenses of the administration of

the bankruptcy of the said Malcolm Albert Clark

within the meaning of s.109 (l)(a) of the Bankruptcv

1966.

NOTE :

Settlement and entry of orders

is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDEFAL CQURT OF AUSTRALIA

)

NEW SOUTH PULES DISTRICT REGISTRY )

No. W157 of 1985

)	(No. P917 of 1984)

DIVISION

GENERAL

)

PAMELA JUNE CLARK

(Now Ellis)

EX PARTE:

BRIAN HENRY KlrMLEFELDT

Applicmt

PAMELA JUNE CLARK

(Now Ellis)

DALGETY-MINCHCOMBE

F.G.C.

Respondents

No. W158 of 1985

(No. P918 of 1984)

MALCOLM

A BERT

CLARK

EX PAF.TE: BRIAN HENRY KAHLEFELDT

Applicant

MALCOLM ALBERT CLARK

DALGETY-WINCHCOMBE

F.G.C.

Respondents

CORAM :

WILCOX J.

PLACE

SYDNEY

D S :

20 DECEMBER

1985

REASONS FOR JUDGMENT

This is an application for directions under 134(4) of

the Bankruptev Act 1966 made

by Brim Henry Kahlefeldt

as trustee

the bankrupt estates

of Pamela June Clark (now Ellis) and

Malcolm Albert Clark.

The issue raised by

the Application is

whether Dalgety Winchcombe F.G.C.

- hereafter "Dalgety"

entitled to payment out

of the assets of those estates of

commission as a result of the sale by the trustee to Mr. P.J.

Matchett of a motel known as

the "Cobra Motor

Inn" at Dubbo. The

issue has been argued, firstly,

in relation to the question

whether commission

payable by the trustee as

a cost of

administration and, secondly, whether Dalgety is entitled to

prove in the bankrupt estates for the commission and advertising

expenses said to have been incurred.

Mr and Mrs. Clark were each made bankrupt

on 26 February

1985. At that time they were the owners of the land upon which

the Cobra Motor

Inn was constructed. However, the business itself

was actually conducted by Cobra Motor Inn Pty Limited, which

'company was the owner of the fixtures, fittings and stock used	in
the motel.

About two weeks before the making of the sequestration

orders Mr and Mrs Clark instructed Dalgety to auction the real

estate. Apparently nothing was said about the business, fixtures,

fittings and stock. On

13 February 1985 Mr and Mrs. Clark entered

into an Auction Agency Agreement relating to the motel with

Dalgety. They were named in the agreement as "the,principal" and

Dalgety as "the Agent". The agreement contained the following

. provisions :

--_

whether Dalqety Hinchcombe F.G.C.

- hereafter "Dalqety"

entitled to payment out of the assets of those estates of	a
Commission as a result of the sale by the trustee to Mr. P.J.

Matchett of a motel known as the "Cobra Motor Inn" at D W o . The

issue has been argued, firstly, in relation to the question

whether commission

is payable by the trustee as

a cost of

administration and, secondly,.whether Dalgety

entitled

prove in the bankrupt estates for the commission and advertising

expenses said to have been incurred.

Mr and Mrs. Clark were each made bankrupt on

26 February

1985. At that time they were the owners of

the

land upon which

the Cobra Motor Inn was constructed. However, the business itself

was actually conducted by Cobra Motor Inn Pty Limited, which

company was the owner of the fixtures, fittings and stock used in

the motel.

About two weeks before the making

of the sequestration

orders Mr and

Mrs Clark instructed Dalgety to auction the real

estate. Apparently nothing was said about the business, fixtures,

fittings and stock.

On 13 February 1985

Mr and Mrs. Clark entered

into	an Auction Agency Agreement relating to the motel with

Dalgety. They were named in the agreement as

"the,principal"

and

Dalgety as "the Agent". The agreement contained the following provisions:

" This agreement

shall

commence

from

the

date hereof until	midnight on the thirteenth
day of July 1985	or such later date as the

Principal may .notify in writing provided

however that any authority to sell given

under a Selling Agency Agreement between the

parties entered into prior to

or on the same

date as this Agreement shall continue in

-accordance with the terms of such agreement.

The Agent is authorised to sell the property

for the reserve price of not less than

$T.B.A. or s'uch other price as the Principal

may agree to accept.

...

The Agent or his

auctioneer is authorised:

(a)	to submit the property to public

auction on the nineteenth day of April

1985 or as soon as practicable thereafter.

(b) to sign the Contract of Sale in the

terms to be provided by the Principal

his Solicitor.

...

The

Agent

granted

exclusive

selling

rights and shall be entitled to payment

5% first $15,000

3% next $45,000 2.5% next

$40,000 2% thereafter as his selling fee if

during the period of this Agreement or any

extension, EITHER the property is sold:

(a) by the Agent,

(b) by any other Agent

or by any other

person, or

OR a purchaser

introduced

the

Principal or

the property by

any of the

people referred to

in (a), (b) or (c)

above and he subsequently purchases the

property.

This fee is due and payable by the

principal on completion of the sale

upon

demand

the

sale

not

completed owing to the default of the

Principal.

On the same day Mr and Mrs Clark and Dalgety also signed

a document entitled "Sales Inspection Report and Selling Agency

Agreement" which referred to the intention to offer the property

at auction and which entitled the agent to commission, calculated

at the same rate as in the auction agreement, "in the event that

he effectively introduces to the Principal a purchaser of the

property who enters into a contract." In this document Dalgety

offered the opinion that a reasonable selling price would be

$1,3QQ,QQO.

Following

these

agreements

Dalgety

commenced

extensive

advertising

program.

some

stage,

which is not

disclosed by

;he

evidence, the auction date was changed to

March 1985. By that time, of course, the sequestration order had

been made and Mr

-Kahlefeldt

had been appointed as trustee. He

decided that the auction should proceed. He attended the auction

and concurred

with

a decision made by Mr and Mrs Clark, in

-conjunction with the agent, to

fix a reserve price of $1,200,000.

Mr Kahlefeldt indicated that,

in	the event of a sale, he would

execute the contract as trustee. However, the property was passed

in at

$900,000.

This was, apparently, a comprehensive bid for

realty, business, fixtures, fittings and stock; nobody adverted

to the different ownerships.

Subsequently, Mr P.J. Sparshott,

an agent employed in

the Dubbo office of Dalgety, entered into discussions with a	Mr
Tony Hocking, who was negotiating on behalf of Chantara Pty

Limited. Mr Hocking offered $950,000 subject

to finance within 28

days and contracts were prepared upon that basis. However,

immediately before the proposed exchange of contracts, on

8 May

- .- .

- . . --

at auction and which entitled the agent to commission, calculated

at the same rate as

in the auction agreement,

" i n the event that

he effectively introduces to the Principal

a purchaser of the

property who enters into a

contract." In this document Dalgety

offered the opinion that	a	reasonable selling price would be
$1,300,000.

Fallowing

these

agreements

Dalgety

commenced

extensive

advertising

program.

some

stage,

which

not

disclosed by $he evidence, the auction date was changed to

March 1985. By that time, of course, the sequestration order had

been made and

Kahlefeldt had been appointed as trustee. He

decided that the auction should proceed. He attended the auction

and concurred with

a decision made by

Mr and Mrs Clark. in

conjunction with the agent. to fix

a reserve price of

$1,200,000,

Mr Kahlefeldt indicated that,

the event of a

sale, he would

execute the contract as trustee. However, the property was passed

at $900,000.

This was, apparently, a comprehensive bid for

realty, business, fixtures, fittings and stock; nobody adverted

to the different ownerships.

Subsequently, Mr P.J. Sparshott, an agent employed

the Dubbo

office of Dalgety, entered into discussions with a

Tony	Hocking, who was negotiating on behalf of Chantara Pty

Limited. Mr Hocking offered

$950,000 subject to finance within

days and contracts were prepared upon that basis. However,

immediately before the proposed exchange of contracts, on 8 May

1985, Mr Don Olney,

a Dubbo solicitor, rang Mr Sparshott to

inquire whether contracts had been exchanged. Mr Sparshott told

him that

he was about to leave the office to effect exchange.

When Mr Sparshott reached the office of Mr Ken Baker, the

solicitor who had formerly acted on behalf of the bankrupts and

who was acting on behalf of the vendor, the trustee, in this

transaction he was told that an offer had been received from Mr

Olney's client, Mr Matchett, in the sum of $980,000 subject to

finance within

42 days. As a result of this

new offer the

prepared contracts were not exchanged. Negotiations with each of

the prospects proceeded, during which

Mr Sparshott learned for

the first time of the interest of Cobra Motor Inn Pty Limited. Mr

Matchett

raised

his

offer

to $985,000. Mr Hocking went

$965,000 and withdrew the condition relating

to finance. Mr

Kahlrfeldt decided to accept this offer. However, the sons of Mr

and Mrs Clark

- who were directors of Cobra Motor Inn Pty Limited

-	declined to execute documents of sale on behalf of that

company; and this notwithstanding that Mr Hocking eventually

raised his offer to $985,000. In the result the motel was sold to

Mr Matchett for the

sum of $985,000; apportioned as to $885,000

to the trustee for the real estate and $100,000

to Cobra Motor

Inn Pty Limited for the business, fixtures, fittings and stock.

At no time after his appointment did the trustee execute

any agreement with

Dalgety. Mr Kahlefeldt held, and expressed to

Dalgety, the view that he was bound by the terms of the Auction

Agency Agreement signed by the bankrupts. He assured

Mr Sparshott

that he regarded

himself

obliged

pay

Dalgety

commission on the sale to Mr Matchett.

Dalgety claims to be entitled to the sums of

$18,800 for

commission -

an amount calculated at the rates set out in the

Auction Agency Agreement on a consideration of $885,000 - and

$8649.98 for advertising expenses. However there is no evidence

before the Court as to the amount of advertising expenditure

.incurred

as to any authorization by any person of that

expenditure. It is clear that the trustee never authorized any

advertising expenditure. Mr and Mrs Clark may have done

so but

neither that fact nor the date or amount of the authorization has

.been proved.

Dalgety puts its claim for recovery upon three bases,

which are alternatives: firstly, that the trustee was

bound by

the terms of the Auction Agency Agreement which

he not only

failed to disclaim but in

fact orally adopted; secondly that -

regardless of the Auction Agency Agreement

- Dalgety is entitled

to commission as the effective cause of the sale to Mr Matchett:

and. finally, that if no commission

as such is payable, an amount

equal to the commission

on a sale of

$885,000 is payable because

the trustee breached an implied term of the contract for the

employment of Dalgety, namely that he would not frustrate the

earning of the commission by unreasonably failing to enter into	a
contract with a suitable and willing purchaser.

that he regarded

himself

obliged

pay

Dalgety

commission on the sale to

Mr Matchett.

Dalgety claims to be entitled to the sums of $18,800 for

commission -

an amount calculated at the rates set out in the

Auction Agency Agreement

on a consideration of

$885,000 - and

$8649.98 for advertising expenses. However there is no evidence before the Court as to the amount

advertising expenditure

.incurred or as to any authorization by any person of that

expenditure. It

is clear that

the trustee never authorized any

advertising expenditure- Mr and Mrs

Clark may have done so but

neither that fact nor the date or amount of the authorization has

been proved.

Dalgety puts its claim for recovery upon three bases,

which are alternatives: firstly, that the trustee was bound by

the terms of the Auction Agency Agreement which

he not only

failed to

disclaim but in

fact orally adopted; secondly that -

regardless of the Auction Agency Agreement

- Dalgety is entitled

to commission as the effective cause of the sale to Mr Matchett; and, finally, that if no commission as such is payable, an amount

equal to the commission

a sale of-$885,000 is payable because

the trustee breached an implied term of the contract for the employment of Dalgety, namely that he would not frustrate the

earning of the commission by unreasonably failing

to enter into a

contract with

a suitable and willing purchaser.

The	second and third submissions may be disposed of

shortly. There is no evidence that Dalgety procured Mr Matchett

as a	purchaser. Mr Sparshott does not claim to have introduced

him to the transaction. Counsel for Dalgety pointed out that the that Mr Olney knew that Dalgetg was involved in the matter. But mere knowledge by an ultimate purchaser, or his representative,

first mention of Mr Matchett was when Mr Olney telephoned Mr

that a particular real estate agent is acting in a particular

prospective sale does not mean that

e agent may be said to have

introduced that purchaser. The ultimate purchaser may

or may not

have been attracted by the activity of the aeent.

If the interest

sf the ultimate purchaser had been attracted by an advertisement

displayed by the agent, it might accurately be said that the

agent introduced the purchaser. If the interest of the ultimate

purchaser was excited by something told to him by the vendor,

by a friend of the vendor who knew of the property, it could not

be said that

he was introduced by the agent. In the present case

there is no evidence - from

Mr Matchett, from Mr Olney or from

anyone else

- as to the clrcumstances under which Mr Matchett

learned of the availability of the property for purchase. There

is evidence that a "For Sale" notice was exhibited at the motel

and that, some six weeks before Mr Matchett's first appearance in

the matter, there had been medla advertisements wlth which,

presumably, Dalgety's name was associated. But it would be mere

speculation to assume that Mr Matchett

- who did not live in

Dubbo and who is not proved to have visited Dubbo prior to the

offer -

learned of the property through either the "For Sale"

notice or the media advertisements. Introduction

is not proved.

In any particular case there may be

a question whether,

as a matter of law,

a principal is liable to

his agent for

damages for breach of contract

in the event that

fails or

refuses to enter into

contract with a suitable and willing

purchaser found by that agent: see Luxor (Eastbourne) Limited v

Cooper C19413 A.C. 108, Alpha

Tradins Limited v Dunnshaw

- Patten

Limited C19811

1 Q.B. 290. See also Bentall, Horsley and Baldrv

v. Vicary C19313 1 K.B. 253, a case where the principal put it out of the power of the agent to earn commission by finding his

own purchaser. As these cases all show, everything depends upon

:the precise terms of the contract between the principal and

agent. In the present case there was no written contract between

Mr Kahlefeldt and Dalgety.

will deal later with the question

whether Mr Kahlefeldt was bound by the agreements made by Mr and

Mrs Clark. There is no evidence

of any oral contract between any

persons, except in

far as this may arise out of general

conversations in which Mr Kahlefeldt assured Mr Sparshott that	he
regarded himself as bound by the Auction Agency Agreement and

Dalgety as entitled to

a commission on any sale actually made.

However,

it is not

necessary

relation

this

submission to determine whether, and if

so in what terms, a

contract

existed.

Nor

necessary

consider

the

enforceability of any such contract in the light

of s.42AA of the

offer -

learned of the property through either the "For

Sale"

notice or the media advertisements. Introduction

I s not proved.

In any particular case there may be

a question whether,

as a matter of law,

a principal is liable to his agent for

damages for breach of contract in the event that he fails or

refuses to enter into

contract with a suitable and willing

purchaser found by that agent: see Luxor (Eastbourne) Limited v Cooper C19413 A.C. 108, Alpha Tradins Limited v Dunnshaw - Patten

Limited C19813

1 Q.B. 290. See also Bentall. Horslev and Baldrv

v. Vicarv C19311

1 K.B.

253, a case where the principal put it

out of the power of the agent to earn commission by finding his own purchaser. As these cases all show, everyching depends upon the precise terms of the contract between the princlpal and

agent. In the present case there was no written contract between

Mr Kahlefeldt and Dalgety.

will deal later with the question

whether Mr Kahlefeldt was bound

by the agreements made by Mr and

Mrs Clark. There is no evidence of any oral contract between any

persons, except

far as this may arise out of general

conversations in which Mr Kahlefeldt assured Mr Sparshott hat he

regarded himself as bound by the Auction Agency Agreement and

Dalgety as entitled

to a commission on any sale actually made,

However,

not

necessary

relation

this

submission to determine whether. and if

so in what terms,

contract

existed.

Nor

it necessary

consider

the

enforceability of any

such contract in the light of

s.42AA of the

Auctioneers and Aqents Act 1941 (NSW) - to the terms of which I

shall return. The short answer to this third argument is that Mr

Kahlefeldt did not unreasonably decline to sell to the purchaser

found by Dalgety, Chantara Pty Limited. He was most anxious to

sell to Chantara Pty Limited but he rightly appreciated that his

powers extended

no further than the real estate. Unless Cobra

Motor Inn

Pty Limited was prepared to enter into an agreement

with Chantara Pty Limited for the sale of the business, fixtures,

fittings and stock no satisfactory arrangement could be made the

two contracts were intended to be interdependent; The directors

of the company refused to make such

an agreement. The intent

throughout was that the motel should be sold as

a going concern.

It was not unreasonable for Mr Kahlefeldt to maintain that

position and to decline to sell to Chantara Pty Limited the real

estate in isolation; even supposing

- which was not proved and

seems unlikely	- that the company was willing to proceed upon
that basis.

I return to the first

- and principal

- ground relied

upon by Dalgety. This ground depends entirely upon the Auction

Agency Agreement. The argument put by Dalgety is that, at the

date of the sequestration order, the agreement between the

bankrupts and Dalgety constituted an item of "property" within

the meaning of the Bankruptcv Act and, therefore, became vested

in the trustee

who, unless he disclaimed, became bound to the

obligations thereunder of the bankrupts.

Section 58(1)

of the Act provides that, subject to the

Act, where a debtor becomes

a bankrupt "the property of the

bankrupt ...' vests forthwith

in" the trustee. By s.5 the term

"property" is defined to mean "real

or personal property of every

description, whether situated in Australia

or elsewhere, and

includes any estate, interest or profit, whether present

future, vested or contingent, arising out of or incident to any such real or personal property". That a contract may constitute

"property"

apparent

from

5.133 of

the

Act

relating

disclaimer of onerous property. Subsection(1)

that section

provides that, subject to the section, "where any part of the

property consists

of ... property

... that is unsaleable or is

not readily saleable, the trustee may

... by writing signed by

him at any time disclaim the property." Before the commencement

of s.65

of the Bankruptcy Amendment Act

1980 on 1 February 1981

s.133(1) made express provision for disclaimer of "unprofitable

contracts". By 5.65 of the 1980 Act s.133(1) was amended so as to omit the reference to unprofitable contracts but to include

subss.(lA)	and (SA) dealing	with	contracts.	Subsection	(1Al
provides :

"(1A) Subject to this section, the trustee may at any time, by writing signed by him disclaim any contract that forms part of the property of

the bankrupt

. . .

Subsection (SA) provides that

a trustee is not entitled to

disclaim a contract (other than an unprofitable contract) without

the leave of the Court. By subs.(5B) the Court is empowered to

grant leave to disclaim a contract upon such terms, and to make

Section 58(1)

of the Act provides

that, subject to the

Act, where a debtor becomes a bankrupt "the property of the

bankrupt ...' vests forthwith in" the trustee. By

s.5

the term

"property" is defined to mean "real or personal property of

every

description, whether situated in Australia or elsewhere, and

includes any estate, interest or profit, whether present or

future, vested or contingent, arising out of or incident to any

such real or personal property". That

a contract may constitute

"property" is

apparent

from

9.133

the

Act

relating

disclaimer of onerous property. Subsection(l1

that section

provides that, subject to the section, "where any part

the

property consists of

... property

... that is unsaleable or is

not readily saleable, the trustee may ... by writing signed by him at any time disclaim the property." Before the commencement

of 5.65

of the Bankruptcv Amendment Act

1980 on 1 February 1981

s.133(1) made express provision for disclaimer of "unprofitable

contracts". By s.65 of the 1980 Act s.133(1) was amended	so as to
omit the reference to unprofitable contracts but to include

subss.(lA)	and (SA) dealing	with	contracts.	Subsection	(1A)
provides :

"(1A) Subject to this section, the trustee may

at any time, by writing signed by

him disclaim

any contract that forms part of the property

the bankrupt

. . .

Subsection

(5A) provides that

a trustee is not entitled to

disclaim a contract (other than an unprofitable contract) without

the leave of the Court.

By subs.(5B) the Court is empowered to

grant leave to disclaim a contract upon such

terms, and to make

'	such orders with respect to matters arising out of the contract, as it considers just and equitable.

Section 1 3 3 ( 6 ) enables

a person having an interest in a

property -

including a contract

- to disclaim. It provides:

(6) Where

(a)	an application	in wrlting has been made to
the trustee by	a person interested in

property requiring

him to decide whether he

will disclaim the property or not; and

(b)

the trustee has, for

a period of 28 days

after the receipt of the application,

such extended period as is allowed by the the property;

the trustee is not entitled to disclaim the

property under this section, and

in the case of a

contract, he shall be deemed to have adopted

it."

Subsections ( 7 ) and (8) deal

with

rescission

of a

contract by order

of the Court. They provide:

" ( 7 ) The Court may, on the application of

person who is, as against the trustee, entitled

to the benefit or subject to the burden

of a

contract made with the bankrupt, make an order

rescinding the contract on such terms as to

payment by or to either party of damages for the

non-performance of the contract,

or otherwise,

as the Court considers just and equitable.

(8) Damages so payable may be proved as a

debt in the bankruptcy."

The English Court of Appeal

in Re Bastable; ex parte The

Trustee

(1901) 2 K.B. 518

held that the provision in the United

Kingdom Act for disclaiming of unprofitable contracts did not

extend to

contract fer sale of land, pursuant to which the

purchaser had acquired an interest in the land. But there would

appear to be no other limitation upon the operation of the

section in relation

to contracts.

not think that the

agreement, as at the date of the sequestration order, could have

been termed an "unprofitable contract". It may have been the

means of obtaining a high price for the motel. It follows that

the contract could not have been disclaimed without leave but

this might have been sought.

No doubt leave would have been given

only upon terms fair to Dalgety. But, of course, Mr Kahlefeldt

made no such application.

The question arises as to the effect

of that omission.

Counsel for Dalgety submits that, in the absence of

a disclaimer,

the contract must be treated as binding upon the trustee in the

sense that the costs

or complying with its requirements are costs

of the administration of the bankrupt estates.

In re Sneezum; ex parte Davis

(1876) 3

Ch. D.

463

reference was made to the position in England in relation to

contracts upon bankruptcy. It appears that before

1869 there was

no provision for disclaimer. The contract remained

on foot and

the

trustee

bankruptcy

might

continue

to bserve

its

requirements. If

he failed to do so, he was not liable; either

personally or on behalf of the estate. The only remedy of the

other party was to bring

an action for damages against the

bankrupt.

The 1869

Act changed the law

as to preclude an

extend to

contract far sale of land, pursuant to which the

purchaser had acquired an interest in the land. But there would

appear to be

other limitation upon the operation of the

section in relation to contracts. I do not think that the

agreement, as at the date of the sequestration order, could have

been termed an “unprofitable contract“. It may have been the

means of obtaining

a high price for the motel.

It follows that

the contract could not have been disclaimed without leave but

this might have been sought.

No doubt leave would have been given

only upon terms fair to Dalgety. But, of course,	Mr Kahlefeldt
made no such application.

The question arises as to the effect of that omission.

Counsel for Dalgety submits that, in the absence

of a disclaimer,

the contract must be treated as binding upon the trustee in the

sense that the costs

01 complying with its requirements are costs

of the administration of the bankrupt estates.

In re Sneezum; ex parte Davis

(1876) 3

Ch.

463

reference was made to the position in England in relation

contracts upon bankruptcy. It appears that before

1869 there was

no provision for disclaimer. The contract remained on foot and

the

trustee

bankruptcy

might

continue

bserve

its

requirements. If he failed to do

so, he was not liable; either

personally or

on behalf of the estate.

The only remedy of the

other party was to bring

an action for damages against the

bankrupt.

The 1869 Act changed the law

so as to preclude an

action against the bankrupt and to substitute

a right to prove in

the bankruptcy for the damages occasioned by the breach: see

5.31

of that Act which is similar, although

not identical, to our

5-82.

The 1869 Act also provided for disclaimer, although in

terms somewhat different from those of 5.133 of our Act.

The

effect of a disclaimer, under 5.23

of the 1869 Act, was that the

contract

was

deemed

determined

from

the

date

adjudication of bankruptcy -but there was no provision, such as

that contained in s.133(6)

of our Act, that upon failure to

disclaim after receipt of a notice to elect whether to disclaim

the trustee was deemed to have adopted the contract. As Sneezum

itself demonstrates, there was no basis upon which the trustee

could be held liable, whether personally

on behalf of the

estate, notwithstanding that he might have continued to observe

the

contract

for

some

time

after

his

appointment,

and

notwithstanding that

he failed to disclaim. This principle

confined to contracts;

the position in relation to leases is

different because there is in that case privity

-of estate between

the lessor and the trustee as lessee: see Titterton v. Cooper

(1883) 9 Q.B.D.

473 at pp. 488, 493.

Section 133(6) of the Bankruptcy Act

1966 provides that,

upon failure to disclaim after notice, the trustee "shall be

deemed to have adopted" the contract. In discussing the similar

provision in the current United Kingdom Act, Williams and Muir

Hunter, "The Law and Practice in Bankruptcy" (19th ed. 1979) at

p. 395, suggest that, notwithstanding these words, the trustee is

not personally liable upon the contract but that the effect of

the deemed adoption is that

he is liable on the contract on

behalf of the body of creditors, that is out of the assets of the

estate as a cost of administration. The Sneezum position remains

-that in the absence of an adoption or

a deemed adoption after

notice there is no liability at all.

In	the present case no notice to elect was given by

Dalgety

the

,trustee.

There

was,

therefore,

deemed

adoption. However, Mr Kahlefeldt did expressly adopt the auction

agreement in conversations with Mr Sparshott. Although

I have

located no direct authority on the point, it seems to

me that a

party whose contract has been expressly adopted should not

be in

any worse position than one in relation to whose contract there

has ben a deemed adoption. But for one matter the express oral

adoption should enable Dalgety to recover from the trustees the

moneys payable under that agreement in the same way as if there

had been a deemed adoption after notice; the trustee bearing the

expense as a cost of the administration of the estates.

The one

matter is the terms of

s.42AA(1) of the Auctioneers and Asents

1941 (NSW), which provides:

"42 AA (11 A licensee shall not be entitled to

(a)

any

remuneration

way

commission, fee, gain or reward for

services performed by him	in	his
capacity as licensee; or

(b) any sum or

reimbursement

for

expenses

charges

incurred

connection with services performed

by him in his capacity as licensee,

-... .

14 .

not personally liable upon the contract but that the effect of

the deemed adoption is that

he is liable on the contract on

behalf of the body of creditors, that is out of the assets of the

estate as a cost of administration. The Sneezum position remains

-that in the absence of an adoption or

a deemed adoption after

notice there

is no liability at all.

In	the present case no notice to elect was given by

Dalgety to the

trustee.

There

was,

therefore,

no deemed

adoption. However, Mr Kahlefeldt did expressly adopt

the auction

agreement in conversations with

Sparshott. Although

I have

located no direct authority on the point, it seems

to me that a

party whose contract has been expressly adopted should not be in

any worse position than one in relation to whose contract there

has ben a deemed adoption. But for one matter the express oral

adoption should enable Dalgety to recover from the trustees the

moneys payable under that agreement in the same way as if there

had been a deemed adoption after notice; the trustee bearing the

expense as a cost of the administration of the estates.

The one

matter is the terms of

s.42AA(l) of the Auctioneers and Aqents

Act 1941 (NSW), which provides:

“ 4 2 AA

(1)

A licensee shall not be entitled to

(a)

any

remuneration

way

commission, fee,

gain or reward for

services performed by him in his

capacity as licensee; or

(b) any sum or

reimbursement

for

expenses

charges

incurred

connection with services performed

by him in his capacity as licensee,

from the person for whom

or on whose

behalf those services were performed

unless-

agreement

pursuant

which

those services were performed is in writing and signed by or on behalf

of -

(i) the licensee; and

(ii) that person;

(d)	the agreement contains such terms

(if any)

as pay be prescribed; and

(e)	a copy of the agreement was served

the

licensee

on that

person

within

48 hours of the agreement

being signed by or on behalf of that

per son.

Dalgety is apparently the holder of a corporation license under

s.20(3) of the Act, and

so a licensee within the meaning of

s.42AA(1): see s.3.

It follows that

s.42AA(1) would be effective

to prevent recovery of either commission

or expenses in an action

brought by Dalgety against Mr Kahlefeldt

as trustee; for there

never

was

written

agreement

between

Dalgety

and

Kahlefeldt. And this applies whether the claim was based upon

original contract said to have been made between Dalgety and Mr

Kahlefeldt

whether

it was based upon a contract between

Dalgety and Mr and

Mrs Clark said to have been adopted by

Kahlefeldt. In either case the appropriate recovery procedure

would be an action in debt against Mr Kahlefeldt; he bearing the

burden out of the assets of the estate. The action would be for

the recovery

remuneration by way

of commission and for

reimbursement of expenses from

a person, Mr Kahlefeldt, upon

whose behalf services were performed. The case is covered by the

section, which destroys the entitlement to recover in the absence

'of writing signed by

Kahlefeldt. It follows that Dalgety may

not recover either commission or expenses out of the estate,	as
costs of administration.

It	does not, however, follow that Dalgety is without

remedy. Section 82(1) of the Act provides that, subject to

certain

exceptions,

"all

debts

and

liabilities,

present

future, certain or contingent, to which

a bankrupt was subject at

the date of the bankruptcy, or to

which he may become subject

before hi5 discharge by reason of an obligation incurred before

the date

the bankruptcy, are provable in his bankruptcy".

Subsection(8) defines the word "liability"

so as to include

"an express

or implied engagement, agreement or

undertaking, to pay, or capable of resulting in

the payment of, money or money's worth. whether

the payment is

(i) in respect of amount - fixed or unliquidated;

(ii) in respect of time - present or future,

or certain or dependent on a

contingency; or

(iii) in respect of the manner

of valuation -

capable of being ascertained by fixed

rules or only as matter

of opinion.

That definition is wide enough to encompass the obligations of

and Mrs Clark to pay commission in accordance with

the agreement,

in the event of the satisfaction of the condition contained

therein, and to pay to the agent such advertising expenses as

they had in fact approved prior to the bankruptcy.

By way of alternative the trustee seeks a direction in

relation to the payment of Dalgety's claim out of the bankrupts'

estates upon the basis that Dalgety is an unsecured creditor.

of writing signed by

Kahlefeldt. It follows that Dalgety may

not recover either commission or expenses out of the estate, as

costs of administration.

It does not, however, follow that Dalgety is without

remedy. Section 82(1) of the Act provides that, subject to

certain

exceptions,

"all

debts

and

liabilities,

present

future, certain or contingent, to

which a bankrupt was subject at

the date

of the bankruptcy, or to which he may become subject

before his discharge by reason

an obligation incurred before

the date of the bankruptcy, are provable

in his bankruptcy".

Subsection(8) defines the word "liability"

so as to include

"an express or implied engagement, agreement or

undertaking, to pay,

or capable of resulting in

the payment of, money or money's worth, whether the payment is -	(1)	in respect of amount - fixed or unliquidated;
(ii)	in respect of time - present or future,
or certain or dependent on a
contingency; or

(iii) in respect of the manner of valuation

capable of being ascertained by fixed

rules or only as matter

of opinion."

That definition is wide enough to encompass the obligations

of Mr

and Mrs Clark to pay commission

in accordance with the agreement,

the event of the satisfaction

the condition contained

therein, and to pay to the agent such advertising expenses as

they had in fact approved prior to the bankruptcy.

By way of alternative the trustee seeks

a direction in

relation to the payment of Dalgety's

claim out of the bankrupts'

estates upon the basis that Dalgety

is an

unsecured creditor.

Although no proof of debt has yet been lodged, this alternative

direction raises the question of principle

as to whether the

claim is provable in the bankruptcy.	As the matter has been fully
-

argued and will inevitably arise as

soon as a proof of debt is

lodged, it is convenient

to deal with that matter in principle in

this application rather than upon an appeal against any rejection

of the proof. However, there is insufficient material to permit

quantification of

the claim; that must be

a matter for the

trustee to consider in the light of any claim which may be

submitted to him. Upon the matter of quantification

I merely

observe that the value of a contingent claim has to be estimated

as at the date of

the

sequestration order

see Ellis and

Companv's

Trustee v Dixon - Johnson C19243 1 Ch.

342

pp.356-357

- and that the provable advertising expenses are

limited to the amount authorized by Mr and Mrs Clark before the

making of the sequestration order. Mr and Mrs Clark were

not, of

course, able to incur any liability provable in the bankruptcy

for advertising expenses after that date.

Counsel for the bankrupts submit that

s.42AA

of the

Auctioneers and Aqents

Act

precludes recovery by way of proof of

debt. That submission cannot be accepted. The lodgement of a

proof of debt is

an action to recover, in accordance with the

procedure prescribed by the Bankruptcv Act, from the original

debtors, now

bankrupt. It is not

an action to recover from the

trustee. Provided that there has been a compliance with the

requirements of

42AA in relation to the original debtor, the

licensee creditor will be entitled to recover upon the written

contract by lodging a proof of debt against his bankrupt estate.

In the present case any proof of debt must necessarily

based

upon

the

Auction

Agency

Agreement;

agreement

complying with the terms of para

- apparently, this has

not been argued - para (d)

of the sub-section. Subject to proof

of compliance with the requirements of para (e), the requirements

of the sub-section appear to be satisfied.

At the hearing of this application counsel for the

trustee supported the claim made by Dalgety

but,

in subsequent

written submissions forwarded in accordance with an Invitation

made to counsel by

me, she changed her position. Her current

submission is that there is

no entitlement to commission. Nothing

has been said about recoupment

of expenses.

In relation to commission, counsel for the trustee draws

attention

the

inconsistency

between

the

Auction

Agency

Agreement and the Sales Inspection Report and Selling Agency

Agreement. The former provides an entltlement to commission

the event of

a sale of the motel on or before

13 July 1985

whether the sale be made by Dalgety, by any other agent, by any

other person

or by the principal

i.e. Mr and Mrs Clark.

The

latter agreement provides for commission only where the agent has

effectively introduced the purchaser. Under these circumstances

it is submitted that the two agreements must

be read together and

. .

licensee creditor will be entitled to recover upon the written

contract by lodging

a proof of debt against his bankrupt estate.

In the present case any proof

of debt must necessarily

based

upon

the

Auction

Agency

Agreement;

agreement

complying with the terms of para (c) and

- apparently, this has

not been argued - para (d)

of the sub-section. Subject to proof

of compliance with the requireme'nts of para

(e), the requirements

of the sub-section appear to be satisfied.

At the hearing of this applicstion counsel for the

trustee supported the claim made by Dalgety but, in subsequent

written submissions forwarded in accordance with

an invitation

made to counsel by

me, she changed her position. Her current

submission is that there is no entitlement to commission. Nothing

has been said about recoupment of expenses.

In relation to commission, counsel for the trustee draws

attention

the

inconsistency

between

the

Auction

Agency

Agreement and the Sales Inspection Report and Selling Agency

Agreement. The former provides an entitlement to commission in

the event of

a sale of the motel on or before 13 July 1985

whether the sale be made by Dalgety. by

any

other agent, by any

other person or by the principal

i.e. Mr and Mrs Clark.

The

latter agreement provides for commission only where the agent

h s

effectively introduced the purchaser. Under these circumstances

it is submitted that the two agreements must be read together and

that, as

a matter

construction

- they

being

mutually

inconsistent -

the Selling Agency Agreement must prevail. It is

said that "the extreme effect of the latter (ie the Auction

Agency Agreement) should not be presumed

to-have been intended to

prevail over the more reasonable effect of the former (the parties' minds were directed to sale by auction rather than

ongoing endeavours to find

a purchaser." But it

is precisely

because the

parties minds were directed

sale by auction that

effect should be given to the auction agreement. In the context

of a proposed auction an agreement for payment of

a commission in

the

event

a sale,

however

ffected,

readily

understandab1e.A competent agent, being retained to auction a

property, will take steps to publicise its availability

for sale;

necessarily disclosing the location of the property and, at least usually, the identity of the vendor. If the property be passed In at the auction but shortly thereafter be sold directly by the

principal, it may be that the sale was the direct result of the

efforts of the agent. But, except with the assistance of the

purchaser, it will usually be impossible for the agent	to
establish that fact in an action for commission against his

principal, the vendor.

doubt it was for those reasons that

Dalgety sought the acceptance by

Mr and Mrs Clark of the terms

the auction agreement. They did accept those terms. The fact that

they signed a further agreement, the printed form of which was

not directed specifically to auction sales and which was intended

continue

operation

after

expiration

the

auction

agreement, providing for payment

a commission under more

limited circumstances does not provide any reason for imputing to

the parties

an intention not to be bound by the terms of the

auction agreement. In my

opinion there is no reason in principle

to reject any claim against the bankrupt estates for commission

and advertising expenses which is based upon the Auction Agency

Agreement.

On	behalf of the bankrupts it is submitted that the

trustee should personally bear any commission payable to Dalgety

by reason of his failure to disclaim the contract.

is said

that it was negligent of him

to fail to disclaim a contract so

obviously disadvantageous to the estate as the Auction Agency

,Agreement. However, as at the date of the sequestratlon order it

'is far from clear that it was disadvantageous to proceed to

auction or that Dalgety would have been prepared to undertake the

work necessary for an effective auction upon any other terms. It

is not without significance that Mr and Mrs Clark had themselves

agreed to these terms less than two weeks previously. It is true

that

arrangement

became

less

advantageous

after

the

unsuccessful auction sale but

is highly improbable that the

Court would have granted leave to disclaim at that stage. It

would have been most unfair to Dalgety to allow the trustee to

take the benefit of its efforts to attract attention

to the motel

but to deny to it the chance to profit by any sale

which was

effected in the

subsequent

period.

I see no

basis

for

conclusion that Mr Kahlefeldt acted negligently in failing to

.. .

agreement,

providing

for

payment of

a commission under more

limited circumstances does	not provide any reason for imputing to
the parties an intention	not to be bound by the terms of the

auction agreement. In my opinion there is no reason in principle to reject any claim against the bankrupt estates for commission and advertising expenses which is based upon the Auction Agency

Agreement.

On behalf of the bankrupts it is submitted that the

trustee should personally bear any commission payable to Dalgety

by reason of his failure to disclaim the contract. It

is said

that it was negligent of him

to fail to disclaim a contract so

obviously disadvantageous to the estate as the Auction Agency

Agreement. However, as at the date of the sequestration order it

is far from clear

that it was disadvantageous to proceed to

auction or that Dalgety would have been prepared to undertake the work necessary for an effective auction upon any other terms. It is not without significance that Mr and Mrs Clark had themselves

agreed to these terms less than two weeks previously. It

is true

that

arrangement

became

less

advantageous

after

the

unsuccessful auction sale but

is highly improbable

that the

Court would have granted leave to disclaim at

that

stage.

would have been most unfair to Dalgety to allow the trustee to

take the benefit of its efforts to attract attention to the motel

but to deny to

it the chance to profit by any sale which was

effected

the

subsequent

period.

I see

basls

for

conclusion that Mr Kahlefeldt acted negligently

failing to

disclaim. In any event

I have held that the effect

of the

non-disclaimer, and oral adoption, of the contract under the

circumstances is merely to give Dalgety

a right to prove for the

claim as

at the date

of bankruptcy.

Mr Kahlefeldt had

disclaimed, Dalgety would have had that same right.

No damage

has been sustained by the estates as	a result of the course which
has been taken.

It is appropriate to dispose of the matter by making

declarations. I propose to declare that Dalgety is not entitled

to be paid commission by the trustee as part of the costs charges

and expenses of the administration of the bankruptcy pursuant to

s.l09(l)(a) of the Act but that, subject to proof of compliance

with the requirements of s.42AA(l)(d) and

(e) of the Auctioneers

and Aqents Act, Dalgety is entitled to prove

in the bankruptcies

of each of the respondents in respect of the contingent claim for commission arising 'out of the auction agreement and in respect of

all

advertising

expenses

incurred

it pursuant

any

authorization given by the bankrupts prior to the making of the

sequestration order.

The costs of the trustee and of Dalgety

should be paid out of the bankrupt estates.

It I s certified that this and the

preceding pages are

a true copy of

the Reasons for Judgment herein of

his Honour Mr Justice Wilcox.

Associate: q

Date: 23 December 1985

Counsel for the

Applicant:

MS D. Stewart

Solicitors for the

Applicant:

Messrs

R.J.

Nolan

& Co.

Counsel for Pamela June Ellis and

Malcolm

Albert

Chase:

Mr C. Darvall

Mr R.L. Walker

Solicitors for Pamela June

Ellis

and Malcolm Albert Clark:	Messrs Quirk Davidson	&
Baker
Counsel for Dalqety

Winchcombe

F.G.C.:

Mr D. Davies

Solicitors for Dalgety

Messrs Minter Simpson

Winchcombe

F.G.C.:

Date of Hearing:

6/12/85

. .

Counsel

for

the

Applicant:

MS D. Stewart

Solicitors for the Applicant: Messrs

R.J.

Nolan & Co.

Counsel for Pamela June Ellis

and

Malcolm Albert Chase:

Mr C. Darvall QC and

Mr R.L. Walker

Solicitors for Pamela June

Ellis

and Malcolm Albert Clark:	Messrs Quirk Davidson	&
Baker
Counsel for Dalgety

Winchcombe

F.G.C.:

MK D. Davies

Solicitors

for

Dalgety

Winchcombe

F.G.C.:

Messrs

Minter

Simpson

Date of Hearing:

61 12/05

[1985] FCA 637

20 Dec 1985