Rothwells Ltd (In liq) v Connell

[1993] QCA 481

THE COURT OF APPEAL	[1993] QCA 481
SUPREME COURT OF QUEENSLAND
Brisbane
Before	The President Mr Justice McPherson Mr Justice Williams

[Rothwells v. Connell]

Appeal No. 128 & 216 of 1993

BETWEEN

ROTHWELLS LIMITED (In Liquidation)

Appellant

AND

LAWRENCE ROBERT CONNELL

Respondent

Appeal No. 219 of 1992

BETWEEN

LAWRENCE ROBERT CONNELL

Appellant

AND

ROTHWELLS LIMITED (In Liquidation)

Respondent

JOINT REASONS FOR JUDGMENT - PRESIDENT AND WILLIAMS J.

Judgment delivered the 30th day of November 1993

These are two appeals and a cross-appeal at a very early stage in a proceeding whereby Rothwells Limited (in liquidation) seeks to recover $12 million from Mr. Connell. It is not yet suggested that he does not owe the money or has any defence, but questions arise as to (i) whether Rothwells' claim is presently enforceable and, if so, (ii) whether (a) the action can be maintained in the Supreme Court of Queensland and (b) Mr. Connell has been effectively served. Mr. Connell is a resident of Western Australia and was served there.

Question (ii) relates to subsection 11(1)(c) of the Service and Execution of Process Act 1901 (Commonwealth) as it stood at the time when Mr. Connell was served with the specially indorsed writ by which the action was commenced. Question (i) concerns the effect in this proceeding of sub-sec. 27(1) of the Stamp Act 1921 (Western Australia) upon a deed between the parties, or the material portion of that deed, which is relied on by Rothwells as the basis of its claim.

On 2 October 1992, a Judge in the Trial Division stayed Rothwells' action against Mr. Connell until further order. His Honour held that Rothwells' claim was in respect of a breach within Queensland of a contract "wherever made" within the meaning of subsection 11(1)(c) of the Service and Execution of Process Act, the breach being Mr. Connell's failure to pay Rothwells in Queensland the amount due under the deed. However, his Honour held that, by virtue of sub- sec. 27(1) of the Western Australian Stamp Act, Rothwells could not rely upon the deed in this proceeding until it had been duly stamped under that Act. Later, after payment of the duty assessed in relation to the material clause of the deed, that is to say the covenant by Mr. Connell upon which Rothwells relies in this proceeding, it applied to another Judge in the Trial Division for the stay to be lifted, but the application was refused on 1 July 1993. Rothwells has appealed to this Court against both the imposition of the stay and the refusal to set it aside. Mr. Connell has appealed against "that part of the judgment herein ... made on 2 October 1992 whereby it was adjudged that the provisions of Section 11(1) of the Service and Execution of Process Act 1901 (Commonwealth) have been satisfied", although that determination did not result in a formal order.

The parties debated a large number of points. It is convenient first to consider two questions, namely, (i) what is the proper law of the deed between the parties and (ii) where, under that deed, is the payment by Mr. Connell to Rothwells required or permitted to be made ?

On 3 November 1988, an order made in the Trial Division appointed Robert Allan Tuckey, a Brisbane accountant, and Ian Douglas Ferrier, a Sydney accountant, to be joint and several provisional liquidators of Rothwells; the order required them to take possession of the books, records and assets of Rothwells and to carry on its business "until further order". An order that Rothwells be wound up and appointing Messrs. Tuckey and Ferrier liquidators was made on 22 September 1989. Rothwells was incorporated in Queensland and has at all times maintained an office and carried on activities here.

The deed upon which Rothwells has sued Mr. Connell is dated 17 January 1989. Rothwells, Mr. Connell, and Messrs. Tuckey and Ferrier are all parties to it along with a number of other persons. The "Company" referred to in the deed is Rothwells. The deed recited a number of debts and claims, admitted or asserted but denied, and that:

"J. The Provisional Liquidators intend to propose a
scheme of arrangement between the Company and its
ordinary unsecured creditors the essential
features of which are that:-

(1) the depositors with the Company receive 100¢

in the dollar on their claims as at 3rd
November 1988;

(2) the other ordinary unsecured creditors of the Company receive such dividend as is capable of being paid on their claims after the payment of the dividend to the depositors;

(3) the depositors be entitled to the payment of their dividend prior in time to the payment of any dividend to the other ordinary unsecured creditors of the Company
("the Scheme")

K.   Subject to the conditions herein contained the parties have agreed to compromise their respective claims in the manner and upon the terms herein contained."

Claims 3, 8, 13 and 14 of the deed provided:

"3. Connell hereby covenants and agrees with the Company to pay to it the sum of $12,000,000.00 on the third anniversary of the date upon which the Supreme Court of Queensland (the "Court") approves the Scheme.

...

8.    Rothwells in consideration of the covenants on the part of Connell, .... which are herein contained hereby releases and forever discharges .. Connell ... from all actions claims and demands which it may have against [him] ... .

...
13.	This Deed shall be of no effect until it is approved by an order of the Supreme Court of Queensland and the Company and the Provisional Liquidators will use their best endeavours to obtain such approval.

14. This Deed may be executed in counterparts."

In the deed, Brisbane addresses were given for both Rothwells and the liquidators, and a Perth address was given for Mr. Connell.
The scheme of arrangement referred to in Recital J of the deed was approved by the Supreme Court of Queensland on 19 July 1989. It is desirable to set out a number of the provisions of the Scheme, including a number of clauses in the "Preamble". The "Company" referred to is again Rothwells. The "Connell Deed" is the deed dated 17 January 1989. The Court is the Supreme Court of Queensland.

"PREAMBLE

1.   This is a Scheme of Arrangement between the Company, its Creditors and its Depositors which is propounded for the purpose of regulating the claims of those creditors in the event of the Company being order to be wound up by the Court.

2. The Company is insolvent.

3.   By application made to the Court on [3 November 1988] the Company commenced proceedings for its winding up.

4.   Further on [3 November 1988] the Court on the application of the Company appointed the Provisional Liquidators as provisional liquidators of the Company.

5.   Prior to [3 November 1988] the Company was engaged, inter alia, in the business of accepting deposits from members of the public, including the Depositors, on varying terms and conditions.

6.   In addition to accepting deposits, the Company obtained loans from various financiers and incurred debts to others .... in and about the conduct of its business.

7.   The Company lent money either with or without security to various debtors and purchased shares in various companies.

8.   Following [3 November 1988] the Provisional Liquidators caused the Company to cease accepting deposits.

. . .

11.2 By the Connell Deed it was agreed that:-

...

(e)  Connell will pay to the Company $12 million in cash at the end of three years which obligation is unsecured and does not bear interest;

...
(g)	Connell and the companies with which he is associated will release the Company from any other claims against it and the Company will do likewise.

12.1 It appears to the Provisional Liquidators from their examination of the affairs of the Company that certain dispositions made by it within the six months preceding the commencement of the proceedings to wind up the Company would be void as against a liquidator of the Company on the ground that they constitute preferences. ... .

...

15.  The Scheme is believed to be in the best interests of creditors of the Company ... ...

THE SCHEME

1.   The claims of Creditors and Depositors including interest thereon shall be valued as at [3 November 1988].

2.   The Liquidator shall be entitled to admit claims of Creditors and Depositors to proof in the liquidation of the company and to make payments to Creditors and Depositors under this Scheme notwithstanding that such claims otherwise would not be admissible to proof in the liquidation of the Company.

3.   Subject to the payment of the claims of Preferential Creditors and the Small Trade Creditors the Liquidator shall distribute the funds available for the payment of the claims of the Creditors and Depositors in the following order or priority:-

. . .

5.   The Participating Creditors and the Participating Depositors shall accept their entitlements under this Scheme in full satisfaction and complete discharge of all debts or claims which they have or claim to have against the Company as at [3 November 1988] together with such interest as may have accrued or which may after the Fixed Date accrue on those debts or claims and each of them will, if called upon so to do, execute and deliver to the Company such forms of release of any such debt or claim as the Liquidator requires.

. . .

8.    This Scheme is conditional upon:-

(a)	the Court on or before 31 December 1990 ordering that the Company be wound up;
(b)	the execution of and the Court authorising and approving the execution by the Company and the Provisional Liquidators of:- (i) ... (ii) the Connell Deed;

. . .

and those Deeds becoming unconditional.

. . . "

One counterpart deed was duly stamped in Queensland and

another has been partially stamped in Western Australia.
The Western Australian stamp duty payable with respect to
clause 3 of the Deed has been assessed and paid, but the
duty assessed in relation to other parts of the Deed, an
amount in excess of $700,000.00, has not been paid.

Possibly because of the point at which the disputes between the parties have arisen, the information relative to the two questions presently under consideration is somewhat sketchy. A Perth solicitor acting for Mr. Connell has deposed that, at 3 November 1988, when the provisional liquidators were appointed to Rothwells, "its main office and principal place of business was in Western Australia", most of its directors were resident there and "directors' meetings and management committee meetings principally took place in Perth." In the course of argument, counsel for Mr. Connell also placed reliance on another paragraph of the solicitor's affidavit as to his belief, but that evidence, if admissible, is of little probative value.

Mr. Tuckey also swore an affidavit, which provided in

part:

"7. The registered office of the Plaintiff was at the time of execution of the Deed (17 January 1989), thereafter, and is presently, in Queensland. ...

8.    The company did not continue to trade once it was placed into Provisional Liquidation.

9.    Prior to being placed into provisional liquidation the company had places of business in Perth, Sydney and Brisbane.

10.  At the time the company was placed into Provisional Liquidation a substantial proportion of both the company's creditors and depositors in both number and value were resident in Queensland."

Mr. Tuckey's affidavit also referred to a letter sent

by him (from Queensland) to Mr. Connell on 10 July 1992.
Omitting formal parts, that letter provided:

"I refer to the provisions of clause 3 of the deed dated 17 January 1989 (the "deed") between, inter alios, yourself and Rothwells Limited (In Liquidation) ("the Company") under which you are required to pay to the Company on 19 July 1992 (being the third anniversary of the date of the approval of the Scheme as defined in the deed) the sum of $12 million.

As 19 July 1992 falls on a Sunday, would you please
deliver to my office at a time between 9 am and 5 pm on
Monday 20 July 1992, a bank cheque in that sum.
Alternatively, if you wish, you may arrange for that
sum to be telegraphically transferred by no later than
20 July 1992, into Rothwell's bank account details of

which appear below:

Rothwells Limited (In Liquidation)
Westpac Banking Corporation
Queen and Eagle Streets
BRISBANE QLD
Account No. 790111 BSB-034 003

If it is more convenient for you to make payment on Sunday 19 July 1992, would you please telephone me to arrange a time at which I could collect the cheque from you at my office on Sunday 19 July 1992."

It is on these facts that the two questions identified at the outset fall to be decided; that is to say, (i) what is the proper law of the deed between the parties and (ii) where, under that deed, is the payment by Mr. Connell to Rothwells required or permitted to be made?

There was a degree of fluidity in Mr. Connell's arguments concerning these questions. For example, at one point, reliance seemed to be placed upon section 118 of the Commonwealth Constitution as a source of a requirement that this Court apply section 27 of the Western Australian Stamp Act. As the argument proceeded, the point was rather that section 118 of the Constitution bears upon the determination of the proper law of the deed between the parties. However, that is not correct: Breavington v. Godleman (1988) 169 CLR 41, 150; McKain v. R.W. Miller & Co. (S.A.) Pty. Ltd. (1991) 174 CLR 1, 37. See also Permanent Trustee Co. (Canberra) Ltd. v. Finlayson (1968) 122 CLR 338; Stevens v. Head (1993) 176 CLR 433.

There was also a point at which it was submitted that the law of Western Australia determined the validity of the deed between the parties because, under Queensland law, that issue was to be decided by the law of the place where the deed was executed. The origin of this submission lay in a few early dicta to the effect that, if because it was not properly stamped a document was not merely inadmissible in evidence but altogether void by the law of the place where it was made, it could not be enforced in England: Alves v. Hodgson (1797) 7 TR 241; Clegg v. Levy (1812) 3 Camp 166; Trimbey v. Vignier (1834) 1 Bing N.C. 151; Bristow v. Sequeville (19850) 5 Ex 275. Since then, however, the concept of "the proper law of the contract" has been developed, and it is now settled that validity may be established by reference to either the law of the place where a document was executed or its proper law : see, eg. Cheshire and North Private International Law (11th ed.) 479-480; Dicey & Morris The Conflict of Laws (11th Ed.) 771; Nygh The Conflict of Laws in Australia (5th Ed) 280-281; Sykes & Pryles Australian Private International Law 615.

Again, there was a modification during the course of argument and, in the end, the significance of the fact that the deed was executed in Western Australia was as a factor supporting Mr. Connell's argument that the law of that State is the proper law of the deed and hence is required to be adopted under Queensland law.

The argument for Mr. Connell on this matter, and his argument that payment under the deed was not required to be made by him in Queensland, also relied on a number of other factors, namely that:

(a) he resided in Western Australia;
(b) Rothwells carried on business there;

(c)  the deed was not only executed but negotiated in Western Australia; and

(d)  "the Deed became immediately effective upon ... execution although the performance of certain obligations was dependent on the satisfaction of a condition which would be satisfied, if at all, outside Western Australia."

These matters were all referred to in the context of submissions (which may be accepted as correct for present purposes) that the questions as to (i) the proper law of the contract and (ii) the place where payment was required or permitted to be made were both dependent on the parties' intention; the former question was to be decided by reference to the terms of the deed (provided that any express choice was bona fide made) and the circumstances surrounding its execution; similarly, the latter question was one involving the interpretation of the deed in the context of any material surrounding circumstances: cf Shallay Holdings Pty. Ltd. v. Griffith Cooperative Society Ltd. (1983) VR 760.

In the absence of express agreement by the parties to a contract, the proper law of the contract, that is, the substantive law which the parties intended to govern their contractual relationship, is "the system of law by reference to which ... the transaction has its closest and most real connexion": Bonython v. The Commonwealth (1951) AC 201, 219; Oceanic Sun Line Special Shipping Co. Inc. v. Fay (1988) 165 CLR 197, 217, 259-260.
Although due weight must be given to the factors pressed by Mr. Connell, especially perhaps the circumstance that the deed was executed in Western Australia, Rothwell's connexions with Queensland, including its incorporation here and the fundamental dependence of the transaction upon Queensland law and the orders of the Supreme Court of this State, are also important. The deed is a step taken in the liquidation of Rothwells under and in accordance with Queensland law. It is necessary to go no further than to say that Mr. Connell has failed to demonstrate that the proper law of the deed is not the law of Queensland but the law of Western Australia.
Further, contrary to Mr. Connell's submissions, this is
the place where the debt owed by Connell is payable to
Rothwells. Many of the same considerations are applicable.
Whatever was the position while Rothwells was a going
concern, once the provisional liquidators were appointed,
they became its directing mind and will and Queensland
became its base. By the time of the deed between the
parties, it was evident that there was to be an
administration of Rothwells for the benefit of its creditors
and that, although there would also be offices and
activities elsewhere, that administration was to be located
in Queensland and conducted under the supervision of this
Court. In these circumstances, it is not correct to say
that Mr. Connell's debt was required to be paid to Rothwells
in Western Australia or that he had a choice as to where he
made payment. The parties' implicit intention was that
Rothwells be paid in Queensland by a payment to the
liquidators here.

Mr. Connell's cross-appeal depended wholly upon the premise that he was not required to make payment in Queensland. For the reasons given, payment in Queensland of the sum owed by Mr. Connell to Rothwells was required by the deed. Accordingly, his cross-appeal must be dismissed with costs to be taxed.

Rothwell's two appeals both depend upon sub-sec. 27(1) of the Western Australian Stamp Act which provides:

"27(1) Except as otherwise provided by this Act, no instrument chargeable with duty and executed in Western Australia, or relating, wheresoever executed, to any property situate or to any matter or thing done or to be done in Western Australia, shall, except in criminal proceedings, be pleaded or given in evidence or admitted to be good, useful, or available in law or in equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed."

No issue was raised with respect to the validity of section 27. It was accepted on both sides that it has a sufficient nexus with Western Australia to be a valid law for the peace, order and good government of that State. Further, neither party submitted that, by its own terms, section 27 operated directly in this proceeding; it was not suggested that section 27 was a command directed to the Supreme Court of Queensland or otherwise purported to apply outside Western Australia. Rather, the final argument for Mr. Connell was that, (i) by Queensland law, the validity of the deed is to be determined by its "proper law", (ii) the proper law of the deed is that of Western Australia, and (iii) the deed is presently a nullity under that law by virtue of sub-sec. 27(1) of the Western Australian Stamp Act: see, for example, Acclaim Holdings Pty. Ltd. v. Vlado (1989) 1 WAR 128, 131, 133; and Osborne Cold Stores Western Australia Pty. Ltd. v. Novacastrian Nominees Pty. Ltd. (1991) 6 WAR 350, 352.

As is immediately obvious, it is a lynch-pin of this argument that the proper law of the deed is the law of Western Australia. For reasons already given, that has not been established.

This conclusion makes it unnecessary to consider the other elements of Mr. Connell's argument or a variety of other points raised on behalf of Rothwell. However, we should not be taken as accepting that sub-sec. 27(1) of the Western Australian Stamp Act is applicable in this proceeding if the law of Western Australia is the proper law of the contract.
There are powerful arguments to the contrary; e.g., that, by the law of Queensland, (i) a foreign revenue law will not be enforced and (ii) it is the law of the forum, not the proper law of the contract, which determines the material issue in this proceeding; sub-sec. 27(1) of the Western Australian Stamp Act is not concerned with substantive but procedural or adjectival requirements and, on its proper construction, is confined to proceedings in Western Australia : see Barcelo v. Electrolytic Zinc Company of Australasia Limited (1932) 48 C.L.R. 391, 423; Wanganui-Rangatikei Electric Power Board v. Australian Mutual Provident Society (1934) 50 C.L.R. 581, 601.

Such an interpretation of sub-sec. 27(1) of the Western Australian Stamp Act, if made applicable in this proceeding by the conflict of laws rules in force in Queensland, sits more comfortably with sub-sec. 22(5) of the Stamp Act 1898 as amended (Queensland), which provides:

"(5) Every instrument stamped with the particular stamp, denoting either that it is not stampable with any duty or that it is duly stamped, shall be admissible in evidence and available for all purposes, notwithstanding any objection to duty."

If we are in error in concluding that Western Australian law has not been shown to be the proper law of the contract and Mr. Connell is otherwise correct in the elements of his argument to which reference has been made, we remain of the opinion that Rothwells is nonetheless entitled to succeed.
In a proceeding in a Queensland Court, sub-sec. 22(5) of the Queensland Stamp Act prevails over an inconsistent statutory provision of another State if it purports to apply in the proceeding and over Queensland common law rules if they would otherwise apply that other statutory provision. It is the clear and explicit effect of sub-sec. 22(5)of the Queensland Stamp Act that, once stamped under that Act, the deed is "admissible in evidence and available for all purposes", i.e. not merely admissible but valid.
In the circumstances, it is unnecessary to consider the other elements of Mr. Connell's argument or other points made by Rothwells; for example, that the part of the deed which has been stamped in Western Australia may, in any event, be pleaded, tendered in evidence, etc., in this action.

Accordingly, Rothwells' appeals succeed and the stay is set aside. Mr. Connell must pay Rothwell's taxed costs of and incidental to the proceeding, including reserved costs, if any.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[Rothwells v. Connell]

Appeal No. 128 & 216 of 1993

BETWEEN

ROTHWELLS LIMITED (In Liquidation)

Appellant

AND

LAWRENCE ROBERT CONNELL

Respondent

Appeal No. 219 of 1992

BETWEEN

LAWRENCE ROBERT CONNELL

Appellant

AND

ROTHWELLS LIMITED (In Liquidation)

Respondent

The President
Mr Justice McPherson

Mr Justice Williams

Judgment delivered 30/11/93

Joint reasons for judgment by the President and Williams J. and separate reasons by McPherson J.A. All agreeing as to the Order.

APPEALS ALLOWED. STAY IMPOSED ON 2 OCTOBER 1992 REMOVED. CROSS APPEAL DISMISSED WITH COSTS TO BE TAXED. RESPONDENT CONNELL TO PAY APPELLANT'S COSTS OF AND INCIDENTAL TO THE PROCEEDINGS, INCLUDING RESERVED COSTS IF ANY.

CATCHWORDS	STAMP DUTY - CONSTITUTIONAL LAW - Whether s.27(1) Stamp Act 1992 (W.A.) applies to a deed admitted in proceedings in QueenslAnd - Full faith and credit to be given to the laws of each State under s.118 Constitution (Cth) - Determining the proper law of a deed executed in Western Australia - Deciding where payment under the deed may be effected.
Counsel:	P. Keane Q.C., with him J. Kimmins for the appellant
E. Lennon Q.C. for the respondent
Solicitors:	Blake Dawson & Waldron for the appellant
Clayton Utz for the respondent

Hearing Date: 15 November 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Williams

[Rothwells v. Connell]

Appeal No. 128 & 216 Of 1993

BETWEEN

ROTHWELLS LIMITED (In Liquidation)

Appellant

AND

LAWRENCE ROBERT CONNELL

Respondent

Appeal No. 219 of 1992

BETWEEN

LAWRENCE ROBERT CONNELL

Appellant

AND

ROTHWELLS LIMITED (In Liquidation)

Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 30th day of November 1993

The details of these proceedings, including the two appeals and the cross-appeal now before this Court, are set out in the joint reasons for judgment of the President and Williams J., which I have had the advantage of reading. For present purposes it is enough to say that the action is one in which the plaintiff Rothwells Limited is seeking to recover a sum of $12,000,000, together with interest, which by cl.3 of a deed dated 17 January 1989 the defendant Connell covenanted to pay on the third anniversary of approval of a scheme of arrangement into which Rothwells was planning to enter. The order approving the scheme was made in the Supreme Court of Queensland on 19 July 1989.

Rothwells was ordered to be wound up on 22 September 1989, and the persons who had previously been appointed provisional liquidators were continued in office as the liquidators of the company.

The deed, which is in the form of an indenture, to which some 10 individuals and companies were parties, was executed by signature or sealing in Perth on or about the date it bears. There is no dispute that, when executed and for a considerable time thereafter, it was not stamped according to the law of Western Australia; nor that it has been duly stamped in Queensland. The question raised in the action and now on appeal is whether, if the deed is still not duly stamped, s.27(1) of the Stamp Act 1921 (W.A.) operates to preclude reliance on it in legal proceedings being conducted in a Queensland court. Section 27(1) says that no instrument chargeable with duty and executed in Western Australia "shall ... be pleaded or given in evidence or admitted to be good, useful or available in law or equity, unless it is duly stamped ...". No more than a remote and general connection between the legislative subject matter and the State is needed to sustain the validity of a State enactment having extra-territorial operation : Union Steamship Co. of Australia Pty. Ltd. v. King (1988) 166 C.L.R. 1, 14. According to this test, execution by delivery of the instrument in Western Australia provides a sufficient legislative nexus : Barcelo v. Electrolytic Zinc Co. (1932) 48 C.L.R. 391, 427. The contrary is not suggested here.

It is another question whether, although it has the power, the Parliament of Western Australia in enacting s.27(1) intended it to have extra-territorial effect in the manner or to the extent now contended for. Whether the power exists and whether it has been exercised are distinct matters. There is a presumption that an enactment even of a legislature having plenary power is intended to operate within and not beyond territorial limits. In Barcelo v. Electrolytic Zinc Co. (1932) 48 C.L.R. 391, 423, Dixon J. described the presumption as "the settled, if artificial, rule of construction for confining the operation of general language in a statute to a subject matter under the effective control of the Legislature". To similar effect are remarks of the same learned judge in Wanganui-Rangatikai

Electric Power Board v. Australian Mutual Provident Society

(1934) 50 C.L.R. 581, 601. See also Freehold Land Investments Pty Ltd. v. Queensland Estate Pty Ltd. (1970) 123 C.L.R. 418, 440, per Walsh J.; 44 Halsbury's Laws of England, 4th ed., para. 928, at 577; Pearce : Statutory Interpretation, 3rd ed., paras. 5.1 to 5.7.

Before Connell's contention can succeed it must displace the interpretative presumption by showing that the general language of s.27(1) of the Stamp Act 1921 (W.A.) is intended to regulate what is really a matter of procedure or evidence in legal proceedings being conducted in Queensland.

Simply to state the proposition is to expose its difficulties. Judicial power is an aspect of sovereignty into which other countries do not ordinarily seek to project their authority: cf. British Nylon Spinners Ltd. v. Imperial Chemical Industries Ltd. [1953] Ch.19, 25. The imposition and collection of stamp duty has traditionally been considered an activity that is subject to territorial limits. It is noteworthy that in speaking of a similar provision in Shepherd v. Felt & Textiles of Australia Ltd. (1931) 45 C.L.R. 359, 383, Evatt J. said its effect was:

"to set up a general rule that documents unstamped or insufficiently stamped shall not be made use of or treated as having any legal efficacy in proceedings in the State."

Far from displacing the presumption that the operation of s.27(1) is confined to proceedings in that State, there are various indications in the Stamp Act 1921 (W.A.) that it was not the intention of the legislature in enacting it to trespass upon the workings of judicial systems outside Western Australia. Under the Act, if applicable, a judge or magistrate anywhere in Queensland would be required by s.29(1) to "take notice" of any "insufficiency of stamp" on an instrument said to fall within s.27(1). In Western Australia one way of avoiding the exclusion of an unstamped instrument is by paying the amount of the duty to an officer of court, who by s.29(3) is required to transmit that payment to the Commissioner of State Taxation in Western Australia. Even if this can somehow be read as requiring judges and officers of court in Queensland to carry out tasks and incur responsibilities not cast upon them here by State law, it is not easy to see what sanction there would be for failure to perform those duties. Presumably the audit and public service statutes of Western Australia would not apply here.

In Queensland a different procedure is prescribed by statute to enable an unstamped document to be received in the course of legal proceedings. By s.4A(a) of the Stamp Act 1894 (Qld.), it is sufficient for a solicitor to give a written undertaking to pay the duty without having to pay it at the time the instrument is tendered. It is only one of a number of provisions that give rise to inconsistencies in the stamp duty legislation of the two States. Perhaps the most striking is afforded by s.22(5) of the Queensland Act, which declares that "every instrument" denoted as duly stamped "shall be admissible in evidence and available for all purposes" notwithstanding any objection relating to duty. On behalf of Connell, Mr Lennon Q.C. sought to minimise the effect of s.22(5) by saying it is confined to Queensland stamp duty. So it is; but the critical point is that if the Queensland duty is appropriately denoted on the instrument, as in fact it has been here, it must in accordance with s.22(5) be admitted in evidence in proceedings in Queensland. That is so although the instrument is one on which the requisite Western Australian stamp duty has not been paid, in which case s.27(1) of the Stamp Act 1921 (W.A.) asserts that the instrument is not to be given in evidence.

It is not possible to resolve an inconsistency like this except by preferring one statutory provision to the other. It is impossible to give full faith and credit to both. In the United States, from which the provision in s.118 of our Constitution is derived, it has been held that the requirement of full faith and credit does not compel one state to substitute the statute of another state for its own statute in a matter in which it is competent to legislate.

Otherwise, it is said, the absurd result would ensue that, whenever a conflict arises, the statutes of each state must be enforced in the courts of another state, but cannot be enforced in its own courts : 16A Am Jur 2d §867, at 1091- 1092. In Australia, selecting the applicable rule is not a function of Const. s.118, which it has been held leaves it to common law principles of private international law to determine the choice between conflicting laws, to which s.118 only then gives recognition and effect : McKain v. R.W. Miller & Co. (S.A.) Pty Ltd. (1991) 174 C.L.R. 1, 36- 37; Stevens v. Head (1993) 176 C.L.R. 433.

It is a settled rule of private international law that the courts do not assist the enforcement of foreign revenue laws, or claims made under those laws. See Government of India v. Taylor [1955] A.C. 491; and the Irish case Peter Buchanan Ltd. v. McVey, reported as a note to that decision at [1955] A.C. 516. It is not clear to me why we were not invited to apply that principle in the present case. It may be because of a statement in Monroe : The Law of Stamp Duties, 5th ed., at 22, that it does not apply to foreign stamp duty; contrast 44 Halsbury, 4th ed., para. 603, at 393. The authorities cited in Monroe do not, in my opinion, support that view of the law, which, despite some earlier decisions to the contrary, had by the middle of the century been settled in the opposite sense. In James v. Catherwood (1823) 3 Dow. & Ry. 190, Abbott C.J., speaking for the King's Bench in refusing a motion for a new trial in which an unstamped French receipt had been admitted at the hearing below, said (at 191):

"This point is too plain for argument. It has been settled, or at least considered as settled, ever since the time of Lord Hardwicke, that in a British Court we cannot take notice of the revenue laws of a foreign state. It would be productive of prodigious inconvenience, if in every case, in which an instrument was executed in a foreign country, we were to receive in evidence, what the law of that country was, in order to ascertain whether the instrument was or was not valid.

Nothing must be taken by the motion."

Perhaps it may be regretted that the decision was not more widely reported. It was accepted as correct by the Court of Exchequer in Bristow v. Sequeville (1850) 5 Exch. 275, 279- 280; 155 E.R. 118, 120. Those two decisions make it clear that the policy of not assisting enforcement of foreign revenue law extends to indirect means of enforcing it, such as excluding it from evidence. The position, it may be noted in passing, may well be different if a foreign revenue claim has been reduced to judgment before it is sought to enforce it abroad : State of Victoria v. Hansen [1960] V.R. 582; but that is not the case here.

However this may be, Mr Keane Q.C. on behalf of Rothwells elected to rely on another rule of private international law, according to which he submitted the question whether s.27(1) applies in this action depends on the proper law of the deed; if the proper law is the law of Queensland and not Western Australia, then (so it was argued) the provisions of the Stamp Act 1921 (W.A.) are not enforceable in the action. Mr Keane referred to a passage in the speech of Lord Somerville in Government of India v. Taylor [1955] A.C. 491, where his Lordship said:

"Tax gathering is an administrative act, though in setting the quantum as well as the final act of collection judicial process may be involved. Our courts will apply foreign law if it is the proper law of a contract the subject of a suit. Tax gathering is not a matter of contract but of authority and administration as between the State and those within its jurisdiction."

Although Mr Lennon Q.C. seemed ready enough to adopt this approach to the matter, a close reading of the passage fails to persuade me that what his Lordship was saying was that the enforceability here of a foreign tax law falls to be determined according to the proper law of the contract.

Rather he appears to have been rejecting such a proposition in favour of the broader principle of private international law applied in Government of India v. Taylor, which precludes enforcement of foreign revenue laws. It is, in any event, not the contract but the foreign revenue law that Connell wishes to enforce here. He is not seeking to enforce the claim for unpaid stamp duty (which he has no interest in doing); but simply wishes to avail himself of the penalty imposed by the Western Australian Act excluding the instrument from evidence.

It may be accepted that, in relation to contracts, the general rule is that matters of essential validity are governed by the proper law. It does not follow that wherever it goes the proper law of a contract carries with it the provisions of foreign legislation relating to the imposition and enforcement of foreign tax. The two are by no means inseparable. The position is, however, said to be different "where a transaction is invalid or a nullity by the law of the place where the transaction takes place owing to the omission of formalities or a stamp" : Republica de Guatamala v. Nunez [1927] 1 K.B. 669, 691, per Scrutton L.J.

That case was concerned not with the enforcement of a contract, but with the validity of a purported gift in Guatamala of an amount standing to the credit of a London bank account, and with the impact on it of a rule of Guatamala law avoiding a gift not executed with certain public formalities. The judgments, therefore do not directly touch the question before us now, except that in his reasons Scrutton L.J. mentioned some of the early decisions on foreign stamp duties as authority for saying that a contract which is void in the place where it was made cannot be enforced abroad.

It was this proposition that formed the cornerstone of Mr Lennon's argument. He submitted that s.27(1) has the effect of making a contract void if it is not stamped in accordance with the Stamp Act 1921 (W.A.), with the consequence that it is not enforceable in Queensland. The submission is rested on a series of decisions beginning with Dent v. Moore (1919) 26 C.L.R. 316 which involved a claim for commission on a sale of land that it was sought to prove without putting in evidence the unstamped agreement for sale. The claim failed because s.15 of the Stamp Act 1898 (N.S.W.) provided that an unstamped instrument should not "be admissible in evidence, or available or effectual for any purpose whatsoever in law or equity". The decision in Dent v. Moore was, it was said in Ash Street Properties Pty. Ltd. v. Pollnow (1987) 9 N.S.W.L.R. 80, applied in Shepherd v. Felt & Textiles of Australia Ltd. (1931) 45 C.L.R. 359, although in truth the only question decided in that case was whether an unstamped instrument could be made available by subsequent stamping : cf. per Rich J. 45 C.L.R. 359, 371.

In Ash Street Properties Pty. Ltd. v. Pollnow it was evidently considered that no significance attached to the fact that, after Dent v. Moore was decided, s.15 of the Stamp Act 1898 (N.S.W.) was replaced by s.29 of the Stamp Duties Act 1920 (N.S.W.) from which the words "or effectual" were omitted, and which is in the same form as s.27 of the Stamp Act 1921 (W.A.). The Court considered that it was bound by Dent v. Moore to refrain from seeking to distinguish what their Honours called "the broad principle" on which that decision was based (9 N.S.W.L.R. 80, 101).

See also Acclaim Holdings Pty Ltd. v. Vlado (1989) 1 W.A.R.
128, 131.

The provision in s.27(1) of the Stamp Act 1920 (W.A.) does not contain the words "or effective", nor does it include the words "for any purpose whatsoever", used in the 1898 version of the New South Wales provision. In my opinion the absence of those words makes a difference to the operation and effect of the section. That accords with the view of the majority (Bray C.J., Walters J.) of the Full Court of South Australia (Zelling J. dissenting) in Re Dehy Fodders (Australia) Pty. Ltd. (1973) 4 S.A.S.R. 538, which as to this point received the specific approval of Barwick C.J. in Commercial Banking Co. of Sydney v. Love (1975) 133 C.L.R. 459, 472. Speaking of s.22 of the South Australian Stamp Duties Act 1923 which is similar to s.27(1) of the Western Australian Act; Bray C.J. said (4 S.A.S.R. 538, 544):

"Firstly, the use of a word like 'available' instead of a word like 'valid' is of great significance. The more expanded phrase in s.22 'admitted to be good, useful, or available' also deserves attention. It looks as if what is being struck at is not the validity of the instrument but the admission of its validity. Secondly, the argument involves reading s.22 as if the last phrase read 'until duly stamped', not 'unless duly stamped'. Thirdly, the impediments imposed by s.22 are restricted to civil process. It would be odd if a mortgage were a good security for the purposes of the criminal law, but not for the purposes of the civil law. Fourthly, it is apparent, I think, from s.21 that, once the unstamped instrument has been received in evidence after payment of the duty and the penalty, it must be received as good for all purposes, subject to all just exceptions for other reasons, as from the date of its execution. If it had been intended that it should only be valid as from the time that the duty and penalty were paid to the judge's associate, not for the interval between execution and stamping, that would surely have expressly so stated."

Likewise Walters J. (at 556) considered that s.22 "dealt only with the admissibility or availability of the document in evidence and not with the effectiveness or validity of the instrument". Likewise, Barwick C.J. in Commercial Banking Co. of Sydney Ltd. v. Love (1975) 133 C.L.R. 459, 472, thought it involved only "a denial of enforceability".

If the question were simply one of the overriding authority of Dent v. Moore, I might, like the Court of Appeal in Ash Street Properties Pty. Ltd. v. Pollnow, be bound to hold that a provision, even in the restricted form now found in s.29 of the Stamp Duties Act 1920 (N.S.W.) deprives an unstamped instrument of all effect. However, s.27(1) of the Stamp Act 1921 (W.A.) does not in terms affect to render an unstamped instrument either void or invalid, so as to bring it within the scope of what was said by Scrutton L.J. in Republica de Guatamala v. Nunez [1927] 1 K.B. 669, 691; and even if it did set out to nullify or avoid an instrument for want of a stamp, it would remain an open question whether effect would be given to it under the law of Queensland. Being a matter that falls to be decided according to the common law rules of the private international rules, it is for the courts of Queensland, before applying it, first to determine the true character of the provision of the Western Australian law that is relied on by Connell. We do not blindly accept what foreign law tells is the nature or effect of their rule. Is the provision in s.27(1) a genuine attempt to regulate the formal validity of deeds or contracts executed in Western Australia? Or is it really no more than a penal device which uses form as a means to secure the State's interest in protecting its revenue, and does so only for as long as it remains unpaid?

There can be only one answer to this question. The legislative provision does not, like that mentioned by Kitto J. in Kay's Leasing Corporation Pty. Ltd. v. Fletcher (1964) 116 C.L.R. 124, 143, insist on a particular form in order to suppress practices considered by the legislature to be oppressive or unjust. Section 27(1) is not in any sense a consumer protection measure. It is not even one in which considerations of form of execution are given primacy.

Although by s.27(1) an instrument is to be stamped "at the time when it is first executed", the Act does not require its engrossment and execution on stamped paper, but allows a period of as much as 3 months for the instrument to be lodged for stamping : s.20(1)(a). Execution is thus the occasion rather than the reason for imposing the requirement of form, which in any event operates independently of whether or not the transaction is otherwise immediately binding as a contract or obligation.

The traditional common law view has been that an indenture like this is an act or "deed", which becomes binding not when the instrument is executed but only when it is delivered : Xenos v. Wickham (1867) L.R. 2 H.L. 296, 323.

In the present case the deed was by cl.13 subject to a suspensive condition, which meant that it remained an escrow until the condition was fulfilled on the happening of the relevant event in Queensland (Ibid). Stamping was however mandatory, whether or not the condition was fulfilled, because the instrument had been executed in Western Australia. Above all, in this collocation of reasons for doubting that the statutory requirement is genuinely one of form, it is important to notice that the disqualifying consequence of failure to stamp can be removed simply by paying the duty under ss.29 or 30 or s.17(2)(a) without first satisfying the obligation under the Act of stamping the document. That is scarcely distinctive of a true requirement of form.

For all these reasons it is in my opinion not possible to classify s.27(1) of the Western Australian Stamp Act as a provision prescribing a form of execution which, if omitted, affects the intrinsic validity, or the existence, or even the efficacy of the deed, considered as a contract or a covenant that it is now sought to enforce in Queensland.

The statutory disqualification or disability is therefore properly to be considered as one going only to enforceability and thus to procedure, rather than to the substance of the obligation. This means that it is the lex fori, which here is the law of Queensland, by which the admissibility and enforceability of the indenture falls to be determined : cf. Leroux v. Brown (1852) 12 C.B. 801; 138 E.R. 1191; McKain v. R.W. Miller & Co. (S.A.) Pty. Ltd. (1991) 174 C.L.R. 1, 26, 56; Davis v. F.C.T. (1989) 86 A.L.R. 195, 216. Under the Stamp Act 1894 (Qld.), it is s.22(5) that is the critical provision. Having been stamped in accordance with the Queensland statute, s.22(5) makes the indenture admissible in evidence and available for all purposes.

The final point relied on by Rothwells in support of the appeals is that the covenant in cl.3 of the deed has, since its execution, been stamped in Western Australia, and consequently that s.27(1) has no application to or disqualifying effect upon it. A copy of the deed in the record bears at the foot of the first page a stamping imprint dated 11 November 1992 of the State Taxation Department of Western Australia over a handwritten notation, which reads:

Stamped

"As to covenant in clause 3 only item 13 duty

$30,000

Sec. 20(2) fine $

6,000

Sect. 20(3) fine $

3,600

$39,600"

An accompanying letter dated 11 November 1992 from the Assistant Commissioner (Stamp Duties) to solicitors for Rothwells confirms that the covenant contained in cl.3 of the indenture "has been charged with duty under item 13 of the second schedule of the Stamp Act, as a separate instrument for the purposes of section 19 of the Act"; and, further, that payment of the duty and penalties had been received and the relevant amounts had been stamped on the instrument.

Stated simply, Rothwells contends that the covenant in cl.3 to pay $12,000,000 represents a separate "instrument" within the meaning of the Stamp Act, which, having now been duly stamped, is available and enforceable against Connell in these proceedings. The submission starts with the word "instrument", which is defined in s.4(1) of the Act to include:

"every document in writing or duplicate or counterpart thereof and every matter or thing enumerated or set forth in the Second Schedule."

The second schedule to the Act contains the familiar "headings" enumerating and identifying various categories of instruments and specifying the duties with which they are charged pursuant to s.16 of the Act. Item 13, which is mentioned in the stamping notation and the letter of 11 November 1992, is the relevant category including as it does the heading "Mortgage ... Bond, Debenture, Covenant ...", etc. What is put on behalf of Rothwells is that the covenant in cl.3 is thus "a matter or thing enumerated or set forth in the second schedule", and consequently in terms of the definition an "instrument" which has now been duly stamped.

Not unexpectedly, Connell disputes the right of Rothwells, or it may be the power of the State Taxation Commissioner, to stamp only one of the covenants in the instrument. The deed is, it is said, a single document containing other matters chargeable with duty pursuant to cl.6 and the second schedule. Disregarding fines imposed for late stamping, the total amount of stamp duty assessed on the whole instrument is said to be not merely $30,000 but $731,339.50, which is the amount visible as a handwritten notation at the top of the face of the deed alongside the State Taxation Department imprint, which is dated 14 January 1991. According to Connell's contention, the definition of instrument in s.4(1) refers to two distinct subjects, viz. (1) a document in writing; and (2) a matter enumerated in the second schedule. The latter simply describes an additional class of things that are instruments; it is one that in the present case adds nothing of relevance because the indenture here already satisfies the first of the two descriptions. It is, in terms of the statutory definition, a "document in writing", which, it is submitted for Connell, is the single physical entity itself which is chargeable to duty in accordance with its "leading and principal object".

The latter expression comes from Limmer Asphalt Paving Co. v. Commissioners of Inland Revenue (1872) L.R. 7 Exch. 211, 217. There is no doubt about the principle of law it embodies, which is that the stamp on an instrument that is stamped for its "main object" covers everything accessory to that object; but it has no useful application to the question in issue here. Instead, the relevant provision is, as was explained in the Assistant Commissioner's letter of 11 November 1992, s.19(a) of the Stamp Act 1921 (W.A.).

Subject to any other express provision to the contrary, it provides that:

"(a) an instrument containing or relating to several distinct matters is to be separately and distinctly charged, as if it were a separate instrument with duty in respect of each of the matters."

The word "matters" in this subsection is plainly enough a reference back to the word "matter" in the definition of instrument in s.4(1), so that one effect of s.19(a) is, in the case of a particular instrument, to enable stamp duty to be assessed on each distinct "matter" in that instrument as if each of them was a separate instrument. In some if not all of such cases the amounts of those assessments may then be aggregated.

Provisions in the form of s.19(a) are found in stamp duty legislation in other jurisdictions. In the Stamp Act 1894 (Qld.), the corresponding provisions are ss.14(2) and 15(a). They all have a legislative history that can be traced back to s.24 of a statute of 1713, which is 12 Anne, st.2, c.9, which was not repealed in England until 1870.

See the note appended to Freeman v. Commissioner of Inland Revenue (1871) L.R. 6 Ex. 101, at 107-108. We were not referred to any reported decision on the particular question, and recent editions of standard texts on stamp duty like Monroe, Sergeant, Alpe and Halsbury are not of much assistance. To locate any helpful treatment of the matter I have had to go back to Starkie on Evidence 3rd ed. 1842, vol.3, at 1052, where it is said that:

"If different matters wholly unconnected be written on the same parchment or paper they may it seems be considered as distinct and detached instruments with reference to stamp duties."

And again at 1053:

"Where the same paper contains several different contracts by different persons relating to different things, and bears but one stamp, the contract may be read [in evidence] to which the stamp is applicable, if such application can properly be made."

Among the authorities cited in Starkie are Powell v. Edmunds (1810) 12 East 6; 104 E.R. 3; Davis v. Williams (1811) 13 East 232; 104 E.R. 358; and Doe d. Copley v. Day (1811) 13 East 240; 104 E.R. 363. See also Ramsbottom v. Davis (1839) 4 M. & W. 584; 150 E.R. 1553, which is really an illustration of the converse class of case in which a single stamp is held to cover several apparently distinct promises in one instrument for the reason that they form one transaction.

For present purposes it is not necessary to go beyond Doe d. Copley v. Day, which arose out of an action of ejectment in which the plaintiff lessor was compelled to tender the written tenancy agreement in order to establish the starting point of the lease. It turned out to be a document containing a series of agreements by the lessor with various of his tenants of different agricultural properties at different rents. At trial the objection was taken that these were several independent lettings each of which should have been stamped whereas the single stamp, which had been very recently affixed, was apparently referable only to the defendant's letting.

The objection having been overruled at trial, the judgments in the Court of Queens Bench focussed mainly on the question whether the stamp affixed had in fact been appropriated to the defendant's agreement for lease. Lord Ellenborough C.J., with whom Grose J. agreed, while plainly disapproving what he described as a "contrivance" to enable the lessor to escape "from bearing his fair share of the burthens of the country", nevertheless accepted that the tenancy agreement with the defendant was sufficiently stamped to let it into evidence. Bayley J. considered that "the single stamp was meant to be applied to this particular contract" among the variety of independent contracts with different tenants contained in the document. In the present context, the reasons of Le Blanc J. for admitting the instrument are perhaps the most instructive (at 247-248):

"The plaintiff produced it as the best evidence of the time from which the tenancy commenced; and the objection was taken that it was not properly stamped; and I find no fault with such a objection, which goes to support the obligation of the Revenue laws. But the landlord having made his several agreements with all his tenants on the same piece of paper was no bar to his application to the Stamp-Office to affix a stamp upon any one of them which he pleased; though the commissioners were to judge whether, in the exercise of their discretion, they would affix the stamp upon it.

They have, however, thought proper to do so; and there was sufficient evidence at the trial that they meant to apply the single stamp to the defendant's name ... It appears, therefore, that the instrument was properly received in evidence for this purpose."

From this it appears that at a time when a comparable statutory provision was in force, commissioners of stamps were regarded as having a discretion whether or not to stamp only one of the "matters" in a single document. No doubt it really stemmed from their power of impounding the instrument until the duty was fully paid on all the "matters" it contained. If they were prepared to release it, they would presumably also have been willing to stamp one among a number of dutiable agreements contained in the instrument.

However that may be, it is clear that in this case the Commissioner of State Taxation or his deputy decided to assess to stamp duty the covenant in cl.3 separately. The decision was justified because the covenant in cl.3 to pay $12 million is plainly an independent and distinct matter.

As appears from the formal assessment, which is contained in the letter dated 28.5.91 forming part of ex.NPG2 to an affidavit of Connell's solicitor, the assessment always was of duty of $30,000 charged on the cl.3 agreement to pay $12,000,000, and $701,339.50 charged on cll. 6 & 7, which are described as "release of debts". There can be no doubt that those two matters are treated by the Commissioner as distinct, and have accordingly been assessed to duty separately. It follows, on the authority of Doe d. Copley v. Day and the other decisions mentioned, that the covenant in cl.3 that is sued upon here has been validly stamped in Western Australia.

One reason for considering these matters fully and at length is that I have some reservations about whether Queensland law is the proper law of the indenture. In that respect the law of the scheme of arrangement itself could admit of little doubt; it clearly is governed by the law of Queensland. But the deed is an instrument distinct from and antecedent to the scheme. True, Rothwells by its provisional liquidators is a party to it, and its and their address is given as of Brisbane in Queensland, where the company was incorporated. That goes to suggest a Queensland connexion; but the individuals and corporations who are the other parties are all identified as being of Perth or elsewhere in Western Australia, which is where the deed was executed and where it was physically delivered.

The subject matter of the deed is a series of debts or claims and cross-claims asserted between or among the parties, which the deed sets out to compromise or settle by means of various assignments, releases, discharges, and associated representations and warranties. The material in the record is not sufficient to enable it to be said whether the situs of the debts and claims so dealt with is Western Australia, but the names of some of the debtors together with the business history of Rothwells strongly suggest it may be so. Connell's covenant in cl.3 of the deed is only one among several given by parties to the deed. It would be surprising if each one of the promises contained in the deed were subject to Queensland law; yet it would be even less orthodox to hold that the other covenants by, or in favour of, the various parties to the indenture were governed by a different legal system, such as the law of Western Australia. The rules of private international law do not favour such fragmentation in the case of a deed like this.

See Dicey & Morris : The Conflict of Laws, 11th ed., vol.2., at 1163-1164.

A conclusion that the proper law of the deed as a whole was the law of Western Australia would not in any way deter me from holding that Queensland was the place for payment of the sum of $12,000,000 which by cl.3 Connell has agreed to pay. The country of the proper law of the contract, and the place where a particular obligation is to be discharged by making a money payment, are not necessary concomitants. In this context the place where Rothwells formerly conducted its principal business is, contrary to the submission that was made to us, quite irrelevant. Apart from exceptional cases, the appointment of provisional liquidators puts an end to the power of the directors to conduct the business, which, together with custody of the corporate assets, then passes under the control of those liquidators. Their place of business is in Queensland. It would present no difficulty at all to Connell to arrange for the money, if he has it, to be transmitted from his own bank account to that of the liquidator in Queensland.

When all these matters are considered, there is nothing to disturb the natural expectation that payment of the sum specified in cl.3 was to be made to the creditor, which was Rothwells, in Brisbane in the state of incorporation of the company. See Earthworks & Quarries Ltd. v. F.T. Eastment & Sons Pty. Ltd. [1966] V.R. 24, 26; Coates v. Charles Porter & Sons Pty. Ltd. (1990) 2 A.S.C.R. 733, 736. It follows that there was, within s.11(1)(c) of the Service & Execution of Process Act 1901 (Cth.), a breach within Queensland of a contract made elsewhere that is sufficient to found jurisdiction under that Act.

I accordingly agree, although for somewhat different reasons, with the orders proposed in the joint judgment of Fitzgerald P. and Williams J. for disposing of these appeals and the cross-appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

[Rothwells v. Connell]

Appeal No. 128 & 216 of 1993

BETWEEN

ROTHWELLS LIMITED (In Liquidation)

Appellant

AND

LAWRENCE ROBERT CONNELL

Respondent

Appeal No. 219 of 1992

BETWEEN

LAWRENCE ROBERT CONNELL

Appellant

AND

ROTHWELLS LIMITED (In Liquidation)

Respondent

The President
Mr Justice McPherson

Mr Justice Williams

Judgment delivered 30/11/93

Joint reasons for judgment by the President and Williams J. and separate reasons by McPherson J.A. All agreeing as to the Order.

APPEALS ALLOWED. STAY IMPOSED ON 2 OCTOBER 1992 REMOVED. CROSS APPEAL DISMISSED WITH COSTS TO BE TAXED. RESPONDENT CONNELL TO PAY APPELLANT'S COSTS OF AND INCIDENTAL TO THE PROCEEDINGS, INCLUDING RESERVED COSTS IF ANY.

CATCHWORDS	STAMP DUTY - CONSTITUTIONAL LAW - Whether s.27(1) Stamp Act 1992 (W.A.) applies to a deed admitted in proceedings in QueenslAnd - Full faith and credit to be given to the laws of each State under s.118 Constitution (Cth) - Determining the proper law of a deed executed in Western Australia - Deciding where payment under the deed may be effected.
Counsel:	P. Keane Q.C., with him J. Kimmins for the appellant E. Lennon Q.C. for the respondent
Solicitors:	Blake Dawson & Waldron for the appellant Clayton Utz for the respondent

Hearing Date: 15 November 1993