Reported Decision : (2002) Aust Torts Reports 81-677 New South Wales Supreme Court CITATION : Fatimi Pty Ltd v Bryant & Ors [2002] NSWSC 750 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1444/98 HEARING DATE(S) : 29/7/02-1/8/02, 5/8/02 JUDGMENT DATE : 20 September 2002 Fatimi Pty Limited (Plaintiff) Elizabeth Charlotte Bryant (First Defendant) Richard Michael Joseph Bryant (Second Defendant) PARTIES : NN&D Pty Limited (Third Defendant) Robert Bruce McCullough (Fourth Defendant) Nirmal Fernando (Fifth Defendant) Joseph Richard Bryant (Sixth Defendant) JUDGMENT OF : Campbell J COUNSEL : M B Evans (Plaintiff) F Kunc; M Henry (Defendants) SOLICITORS : John Cunningham (Plaintiff) John Samuel Sheehy (Defendants) CATCHWORDS : TORTS - MISCELLANEOUS TORTS - conspiring to injure - meaning of "predominent purpose to injure the plaintiff" - factual findings about whether plaintiff suffered any loss in consequence of any conspiracy - TORTS - MISCELLANEOUS TORTS - conspiracy to injure by unlawful means - meaning of "purpose to injure the plaintiff" - meaning of "common intention to use unlawful means" - whether "unlawful means" needs to be activity which, if committed by one person alone without any conspiracy, would be actionable in damages - JUDGMENTS AND ORDERS - order made "until further order" - PROCEDURE - miscellaneous procedural matters - Mareva Orders - duration of Bankruptcy Act 1966 (Cth) Conveyancing Act 1919 Corporate Law Reform Act 1992 (Cth) Corporations Act 1990 (NSW) LEGISLATION CITED : Crimes Act 1900 Evidence Act 1975 Industrial Relations Act 1996 (NSW) Law Reform Miscellaneous (Provisions) Act 1946 Real Property Act 1900 Supreme Court Act 1970 AG Australia Holdings Pty Ltd v Burton [2002] NSWSC 170 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637 Attorney General of the Commonwealth v Davids Holdings Pty Ltd (1993) ATPR 41-247 Balfour Williamson (Australia) Pty Ltd v Douter Luingner (1979) 2 NSWLR 844 Baxter v Obacelo Pty Ltd [2001] HCA 66 Belmont Finance Corporation v Williams Furniture Limited (No 2) [1980] 1 All ER 393 Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484 Bolton v London School Board (1878) 7 Ch D 766 Briginshaw v Briginshaw (1938) 60 CLR 336 Cabasi v Vila (1940) 64 CLR 130 Coal Miners' Industrial Union of Workers of Western Australia Collie v True (1959) 33 ALJR 224 Cox v Journeaux (No 2) (1935) 52 CLR 713 The Cunard Steamship Company Limited v Stacey [1955] 2 Ll R 247 Deputy Commissioner of Taxation v Winter (1988) 92 FLR 327 G Scammell & Nephew Limited v Hurley [1929] 1 KB 419 Devlin v Collins (1984) 37 SASR 98 Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 G Scammell & Nephew Limited v Hurley [1929] 1 KB 419 Galland v Mineral Underwriters Ltd [1977] WAR 116 Giblan v National Amalgamated Labourers' Union of Great Britain and Ireland [1903] 2 QB 600 Green v Pulsford (1839) 2 Beav 75; 48 ER 1105 Gold Coast City Council v Pioneer Concrete (QLD) Pty Ltd (1998) 157 ALR 135 CASES CITED : Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 328 In the Marriage of I H & S A Millar (1983) 9 Fam LR 5 Inez Investments Pty Limited v Dodd (9 July 1979, unreported) Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245 LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 Lonrho Plc v Fayed [1992] 1 AC 448 Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 McKernan v Fraser (1931) 46 CLR 343 McWilliam v Penthouse Publication Ltd [2001] NSWCA 237 Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493 Mogul Steamship Company v McGregor, Gow & Co [1892] AC 25 Northern Territory of Australia v Mengel (1995) 185 CLR 307 O'Brien v Dawson (1941) 41 SR (NSW) 295 O'Brien v Dawson (1942) 66 CLR 18 Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 13 ACSR 117 Pritchard v Briggs [1980] 1 Ch 338 R v Associated Northern Collieries (1911) 14 CLR 387 R v Churchill [1967] 2 AC 224 Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 Said v Butt [1920] 3 KB 497 Sorrell v Smith [1925] AC 700 Southan v Grounds (1916) 16 SR 274 Stewart Chartering Ltd v C & O Managements SA [1980] 1 All ER 718 Williams v Hursey (1959) 103 CLR 30 DECISION : Suit dismissed IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST CAMPBELL J 20 SEPTEMBER 2002 1444/98 FATIMI PTY LTD v ELIZABETH CHARLOTTE BRYANT & ORS JUDGMENT Nature of the Claim 1 HIS HONOUR: Fatimi Pty Ltd ("Fatimi") obtained a judgment which required Rylegrove Pty Ltd ("Rylegrove") to pay it money. Fatimi took some steps towards using the Court's processes for execution of judgment to sell a block of land which Rylegrove owned. However, while those processes were still under way, Rylegrove transferred the land to another company. The terms of the contract under which the transfer was made were ones which Fatimi says were very disadvantageous to Rylegrove. Indeed, Fatimi says that the purpose of the transfer was to harm Fatimi by stopping it from levying execution on the block of land. 2 When Fatimi found out that the block of land had been sold, it decided to go ahead with a winding up summons which it had issued against Rylegrove, rather than continue trying to levy execution against the block of land. Ultimately, Rylegrove was wound up on that summons. However, when Fatimi proved in the winding up, it received much less money than it would have received if it had been able to sell the block of land and Rylegrove was not wound up. 3 The directors of Rylegrove, at the time the block of land was transferred from Rylegrove, were the first defendant in this case, Elizabeth Charlotte Bryant ("Mrs Bryant"), and her son, the second defendant ("Michael Bryant"). Mrs Bryant's husband, Joseph Richard Bryant ("Mr Bryant") had, by the time of that transfer taking place, become bankrupt, and had given up a position he had formerly held as a director of Rylegrove. However, Fatimi says he was still very actively involved in the decision to have Rylegrove transfer the land. 4 In these proceedings, Fatimi says Mrs Bryant, Michael Bryant, and Mr Bryant have committed the tort of conspiracy. Fatimi claims as damages the difference between the amount it actually received from the winding up of Rylegrove, and the true value of the land which Rylegrove transferred, minus the expenses Fatimi would have incurred in selling it. Fatimi says that if the transfer had not taken place, it would have been able to sell that block of land, and so have received the full value of the block of land (minus selling expenses) in partial satisfaction of its judgment. As well, Fatimi says that the circumstances in which the transfer occurred were such as to entitle it to exemplary damages, against each of these defendants. Background to the Dispute 5 Rylegrove had operated since August 1987 as trustee of the Bryant Family Trust. In 1994 and up to August 1995 it had two parcels of Real Property Act land vested in it. The first was Lot 2 in Deposited Plan 733945, which was a parcel of vacant rural land located at Little Hartley ("Lot 2 Little Hartley"). The second was a parcel of land located at Kemps Creek. Rylegrove at no time engaged in transactions in its own right. The only asset it held in its own right was $2.00 paid up capital. Further, the only activities which it carried on as a trustee, were activities connected with the Bryant Family Trust. At all times from 1987 to 26 June 1995 there were two directors of Rylegrove, namely Mr Bryant, and Mrs Bryant. 6 On 30 September 1992 Rylegrove ceased to be trustee of the Bryant Family Trust. Synergy Concepts Pty Ltd, another company under the control of Mr and Mrs Bryant, became trustee of the Bryant Family Trust. However, the two parcels of land at Lot 2 Little Hartley, and Kemps Creek, remained vested in Rylegrove. 7 Now, Fatimi is effectively controlled by Robert William Dean ("Mr Dean"). Fatimi had, in 1987 and 1988, operated as a joint venture between Mr Dean, and interests associated with Mr Bryant, in the construction industry. Mr Dean held 400 shares in Fatimi, and (as Young J has held) J R Bryant (Holdings) Pty Ltd, a company controlled by Mr Bryant, held the remaining 600 shares. In 1988 Mr Bryant requested Mr Dean to arrange for some building work to be done on a property at Hunters Hill. That work was carried out. 8 From about June, July or August 1989, Mr Dean worked for Mr Bryant as Administration Manager for various companies which Mr Bryant controlled, connected with the construction industry. In January 1992, Mr Dean left that employment, after an incident where he was not prepared to carry out an instruction which Mr Bryant gave him relating to a dispute which Mr Bryant had with the Commonwealth Bank. 9 On 7 March 1992 Fatimi served on Rylegrove a notice under section 460 of the Corporations (New South Wales) Act 1990, demanding payment of a debt of $69,520, together with interest at the rate of 15% from 1 March 1988. The debt was an amount of money which Fatimi claimed was still owing to it from the building work which had been carried out at Hunters Hill in 1988. 10 On 7 September 1992 Fatimi filed a summons in proceedings number 4703 of 1992 in the Equity Division of the Supreme Court of New South Wales, seeking the winding up of Rylegrove. That summons was returnable on 22 October 1992. The Court made an order on 17 November 1992 that Rylegrove be wound up, and appointing a liquidator. However, on Rylegrove's application, that winding up order was vacated on 27 November 1992. By this time, J R Bryant (Holdings) Pty Ltd was in liquidation. I would infer that Mr Dean has at some time purchased or in some other way acquired effective control over the 600 shares which that company held in Fatimi. Since at least September 1992 Mr Dean has been very closely involved in all litigation between Fatimi and Rylegrove, aware of every step taken in it by Fatimi, and present at every court hearing concerning that litigation. 11 On 22 April 1993 Fatimi filed an Amended Summons in proceedings 4703 of 1992. That summons named Rylegrove as the first defendant, J R Bryant (Holdings) Pty Ltd (which by this time had changed its name to "(Holdings) Pty Ltd (in liquidation)") as second defendant, and Mr Bryant as the third defendant. That amended summons sought: an order that Rylegrove be wound up; that leave be granted to commence proceedings against (Holdings) Pty Ltd (in liquidation); a declaration that (Holdings) Pty Ltd (in liquidation) was the valid and beneficial holder of 600 shares in the capital of Fatimi; a declaration that Mr Bryant had been validly removed as a director of Fatimi on 27 November 1992; and an order that Mr Bryant be restrained from purporting to act or hold himself out as a director of Fatimi, or otherwise acting on behalf of Fatimi. As well, a Mareva Order was sought, that: "… pending further order the first defendant be restrained from transferring, disposing of, encumbering, mortgaging or otherwise dealing with any real property of which it is registered proprietor so as to reduce the value thereof below the sum of $130,000 or such other amount as the court thinks fit." 12 Prior to 6 August 1993, Fatimi had sued Rylegrove in the District Court, in connection with the same alleged debt to which the statutory demand which founded proceedings 4703 of 1992 related, and had obtained a default judgment. On 6 August 1993 that default judgment was set aside. 13 On 9 August 1993 Hodgson J made orders in proceedings 4703 of 1992. Those orders were ultimately made by consent. They included a requirement for Rylegrove to file and serve all affidavits on which it intended to rely to dispute Fatimi's debt and to prove its own solvency and that of the trust of which it was trustee. Hodgson J granted Rylegrove leave to further amend its summons to make an alternative claim against Rylegrove in debt. As well, Hodgson J ordered: "That, until further order, the first defendant be and is hereby restrained from disposing of, encumbering or otherwise dealing with any of its assets or assets of which it is trustee other than in the ordinary course of business, provided that the net value of all such assets must not in any event reduce below the value of $150,000." 14 On 16 August 1993, pursuant to the leave which Hodgson J had granted, an amended summons was filed in proceedings 4703 of 1992, claiming an alternative order to the prayers for winding up, namely, that judgment be entered against Rylegrove "in the sum of $69,520 together with interest thereon at the rate of 15% per annum from 1 July 1988 or such other date as the court thinks fit to the date of judgment." That was the only amendment made to the summons. 15 By consent of the parties, the whole of the proceedings in 4703 of 1992 were referred to a Master for hearing. The proceedings were heard by Master Macready over six days, three days in December 1993, and three days in May 1994. Master Macready delivered reasons for judgment on 20 May 1994. He found that Fatimi had made out its claim that it was owed $69,520 by Rylegrove, but (notwithstanding suspicions that he had about the solvency of the trust, and thus of Rylegrove) was not satisfied that Rylegrove was insolvent. The final paragraph of Master Macready's reasons for judgment was: "Accordingly, there will be judgment for $69,520 in favour of the plaintiff with interest at 15% from 31 March 1989. The balance of the amended summons is dismissed. I will hear argument on costs." 16 An order to give effect to Master Macready's judgment was not taken out until 13 October 1994. 17 Notwithstanding that the order had not been taken out, Rylegrove filed a Notice of Appeal against the decision of Master Macready on 17 June 1994, together with a notice of motion seeking a stay pending that appeal. On 11 July 1994 consent orders were made whereby Rylegrove would pay into court by 18 July 1994 $10,000 as security for its appeal, and, conditionally upon that security being provided, execution of the judgment "be stayed until determination of the said appeal". 18 On 27 July 1994 Young J dismissed Rylegrove's appeal from the decision of Master Macready. 19 On 24 August 1994, Rylegrove filed a Notice of Appeal Without Appointment in matter 4703 of 1992. It appealed against the decisions of Young J on 21 April 1992 [sic], Hodgson J on 9 August 1993, Master Macready on 20 May 1994, and Young J on 27 July 1994. That appeal became matter 40484 of 1994 in the Court of Appeal. 20 Also on 24 August 1994, Fatimi sought to issue a Writ for Levy of Property. A draft writ was filed in court, but no writ was actually issued. On 30 September 1994 Fatimi made another attempt to issue a Writ for Levy of Property, by filing a draft writ in the court. Again it was not issued. A sufficient reason for it not issuing was that the draft incorrectly stated that it was in respect of a judgment entered on 28 September 1994 – at this time no judgment had been entered at all in matter number 4703 of 1992 let alone entered on 28 September 1994. 21 On 26 October 1994 Fatimi finally succeeded in obtaining the issue of a Writ for Levy of Property against Rylegrove. That writ directed the Sheriff to levy the property of Rylegrove which is authorised at law to be taken in execution for the amount payable under the judgment (being $137,687.65 on 21 October 1994, plus interest from that date at the rate of 15% per annum, or on so much of $137,687.65 as is from time to time unpaid, subject to any payment in reduction thereof) together with the costs of the writ, and Sheriff's fees. That writ came to be registered on the title of Lot 2, Little Hartley, as dealing U756810. 22 In the course of November 1994, Mr Dean sent the Writ for Levy of Property to the Sheriff's office, together with a document which took the form of an affidavit sworn 3 November 1994, entitled as though it was for filing in proceedings 4703 of 1992. Notwithstanding the way that the affidavit was entitled, it was in fact not filed in proceedings 4703 of 1992, nor was it served on Rylegrove. That affidavit was sworn by Mr Dean, stated the amount of indebtedness which Rylegrove had to Fatimi pursuant to Master Macready's judgment of 20 May 1994 and said, "Verily I say that the defendant does not own any property other than real property situated at Hartley in New South Wales." He went on to give the title reference to Lot 2, Little Hartley. 23 On 18 November a Sheriff's officer made a report that on 14 November 1994, "Execution attempted at Lot 2 in Deposited Plan 733945, Great Western Highway, Hartley. This is a vacant block of land with no assets or dwellings situated on it. No assets found at this [illegible] which a seizure could be effected." 24 On 8 March 1995 Fatimi filed in the Supreme Court, and sought to have issued, a Writ of Possession relating to the Lot 2 Little Hartley land. Unsurprisingly, in the circumstances where Fatimi did not have the benefit of an order for possession of that land, the Court Registry declined to issue the Writ. 25 On 9 March 1995 Mr Bryant lodged a caveat, registered number 075541 P against the title to Lot 2 Little Hartley. The estate or interest he claimed in the land was "Registered owner trustee for beneficial owner". 26 On 5 May 1995 Fatimi served a Statutory Demand on Rylegrove, at its registered office. The Statutory Demand was served under cover of a letter from Mr Dean, which referred to the judgment of 20 May 1994, and stated that the total due inclusive of interest was, by then, $147,391.67. The letter went on: "Accordingly please find enclosed section 459E notice in accordance with section 220(2) of the Corporations Law. Your attention is drawn to paragraph 4 of the 459E notice which gives substantial benefits to us should you do nothing in relation to this notice." 27 Paragraph 4 of the Statutory Demand said that: "The creditor may rely on a failure to comply with this demand within the period for compliance set out in subsections 459F(2) as grounds for an application for a court having jurisdiction under the Corporations Law for the winding up of the company." 28 On 30 March 1995 the Federal Court of Australia had made a sequestration order against Mr Bryant, on a bankruptcy notice which had been issued by the Commonwealth Bank. The date of commission of the act of bankruptcy on which the sequestration order was founded was 15 March 1994 – thus I infer that there had been some interlocutory proceedings in those bankruptcy proceedings, which had delayed the making of the final sequestration order. The sequestration order was stayed on the day it was made, and several further stays were obtained, until 27 June 1995, when Burchett J declined to further extend the stay of the sequestration order. 29 On 26 June 1995 Mr Bryant had resigned as a director of Rylegrove. David Bryant (an adult son of Mr and Mrs Bryant) was appointed as a director in his place, on 26 June 1995. 30 On 3 July 1995 matter 4703 of 1992 came before Brownie J. His Honour ordered, in substance: – Fatimi be given leave to apply for the release of the $10,000 held in court as security for costs - the caveat which Mr Bryant had filed against Lot 2 Little Hartley be removed, and Mr Bryant be restrained from filing any further caveat against Lot 2 - Rylegrove to pay the plaintiff's costs of the motion - the orders made that day be stayed until and including 17 July 1995. 31 On 11 July 1995, the Court issued, at Fatimi's request, a notice in the form of Form 57A, addressed to Rylegrove. It said: "To the judgment debtor: 1 A Writ of Execution has been registered against the title to your land described in the Schedule below and the land is bound by the writ. 2 Unless the writ is satisfied or you make arrangement as mentioned in paragraph 3 or obtain an order mentioned in paragraph 4, your land, described in the Schedule below, may be sold by the Sheriff under the Authority of the writ. 3 You may make arrangements for the sale or mortgage of the land by you subject to the judgment creditor's consent. That consent will only be given on condition that an amount for the proceeds of the sale or mortgage, stipulated by the judgment creditor, is paid to the Sheriff towards satisfaction of the writ of execution. If you wish to make any such arrangements you should contact the judgment creditor's solicitor immediately. 4. You may apply to the Court for an order staying proceedings on terms which may include terms as to payment by instalments of the money to be levied under the writ." 32 On 13 July 1995 Fatimi's solicitor handed to Rylegrove's solicitor this Form 57A, in the waiting room of the Court of Appeal Registry, as purported service of the Form 57A on Rylegrove. 33 On 17 July 1995, Fatimi filed a winding up summons against Rylegrove, returnable on 15 August 1995. That winding up summons was the initiating process in proceedings number 2889 of 1995. 34 A notice of motion which Rylegrove had taken out in the Court of Appeal, in proceedings 40484 of 1994, was returnable on 17 July 1995. That summons sought the following orders: "1. An Order that the judgment handed down by Master Macready on 20 May 1994 in proceedings ED 4703 of 1992 be stayed pending the final determination of the appeal against the Master's decision. 2. An Order that the Order entered on 28 September 1994 pursuant to the judgment handed down by Master Macready on 20 May 1994 in proceedings ED 4703 of 1992 be stayed pending the final determination of the appeal against the Master's decision. 3. An Order that the Writ of Levy of Property issued on 26 October 1994 pursuant to the judgment handed down by Master Macready on 20 May 1994 in proceedings ED 4703 of 1992 be stayed pending the final determination of the appeal against the Master's decision. 4. An Order restraining the respondent from taking any further action to enforce the Order entered on 28 September 1994 pursuant to the judgment handed down by Master Macready on 20 May 1994 in proceedings ED 4703 of 1992 pending the final determination of the appeal against the Master's decision." 35 That notice of motion was adjourned by the Court of Appeal to 17 August 1995. 36 On 18 July 1995 Fatimi's winding up summons, in proceedings 2889 of 1995, was served at the registered office of Rylegrove. 37 On 24 July 1995, Fatimi filed a notice of motion, in proceedings 2889 of 1995. That motion sought, in substance, the following: - a declaration that a transfer of Lot 1, Deposited Plan 733945 from Rylegrove to Synergy Concepts Pty Ltd on 2 July 1993 is void - orders to bring about the result that Rylegrove was once again the registered proprietor of Lot 1 in DP 733945 Lot 1 in DP 733945 is land which adjoins Lot 2 Little Hartley. Together, Lots 1 and 2 in DP 733945 are called "Killarney" . Lot 1 in DP 733945 had been transferred from Rylegrove to Synergy Concepts Pty Ltd after Rylegrove had ceased to be the trustee of the Bryant Family Trust. However, as Lot 1 DP 733945 had been an asset of the Trust at the time that Rylegrove's debt to Fatimi had been incurred, resulting in the judgment debt found by Master Macready, Rylegrove would be entitled to seek indemnity for its obligations from Lot 1 DP 733945. It is clear enough that Fatimi's purpose in seeking the orders in this Notice of Motion was to ensure that the land in Lot 1 DP 733945 was vested once again in Rylegrove, so that that land would be available to meet the judgment debt which Fatimi had against Rylegrove. 38 On 24 July 1995 Rylegrove filed a Notice of Appeal Without Appointment in the Court of Appeal, appealing against the decision of Brownie J made on 3 July 1995. 39 On 31 July 1995 an interlocutory process in that Appeal came before Meagher JA. His Honour asked Miss Black (counsel for Rylegrove), "You currently have a judgment against you for around $150,000 give or take, what security does the plaintiff have?" She replied, "There was at some stage an undertaking given by my clients not to dispose of assets below $150,000, it still has those assets." Meagher JA also asked Miss Black, "Do you have any sworn evidence to show that Hodgson J's order has been complied with?" She replied, "No, I did not expect that to be raised today, but I could get it, if it's required." 40 Mr Bryant gave evidence before Meagher JA on 31 July 1995. Mr Glissan, counsel for Fatimi, asked Mr Bryant, "What assets are there to comply with the orders of Hodgson J made on 9 August 1993?" Mr Bryant replied, "The Trust assets". Mr Glissan asked, "What are they?". Mr Bryant replied, "There is a parcel of land at Little Hartley, valued at approximately $300,000 to $400,000." Mr Bryant said, in evidence, that one of the reasons why that land at Little Hartley had not been transferred from Rylegrove (to the new trustee of the Bryant Family Trust) was because there had been a writ on the title, which had lapsed. This referred to a writ which had been registered on the title in 1992 by Mann Judd. He also said that a second reason was that there was an order of Hodgson J, which he did not believe prevented the transfer, but certainly complicated it, so it was better to leave it there. Mr Dean was present in court when all these remarks were made. 41 On 1 August 1995 Rylegrove filed a notice of motion in proceedings 4703 of 1992, seeking to set aside the purported service of the Form 57A, which had occurred on 13 July. 42 On 3 August 1995, Brownie J heard three notices of motion in proceedings 2889 of 1995. Though Fatimi's notice of motion, filed on 24 July 1995, was before him, Fatimi sought different relief to that foreshadowed by the notice of motion. On Fatimi's application, but ultimately with Rylegrove's consent, (after some argument) Brownie J made an order: "The defendant within seven days of the date of this order file and serve on the applicant a list, verified by one of its directors, of all assets owned by it, whether as trustee or otherwise, showing the nature, location and value of each asset, and the net value of all assets presently owned by the respondent whether as trustee or otherwise, after allowing for all liabilities of the respondent whether as trustee or otherwise." 43 Brownie J also had before him two notices of motion filed by Rylegrove (one seeking consolidation of 2889 of 1995 with 4703 of 1992, the other seeking security for costs) each of which his Honour dismissed. At a later date in August 1995, Rylegrove lodged an appeal (by a Notice of Appeal Without Appointment) against "the decision of Brownie J" on 3 August 1995. 44 In the course of evidence before Brownie J on 3 August 1995, Mr Gildea, the solicitor for Rylegrove, gave evidence. He was shown the orders of Hodgson J made on 9 August 1993, and asked what documentation there was to show that there had been compliance with those orders. He replied, "That order has been complied with, it has not been breached." Mr Bryant also gave evidence on that occasion. He was shown the transcript of his evidence before Meagher JA, and asked whether that evidence was true, to which he replied, "Yes". Mr Bryant stated that the order of Hodgson J of 9 August 1993 had been complied with. Mr Glissan asked him, "Where is the evidence to show that the order of Hodgson J has been complied with?" Mr Bryant replied, "The Trust assets". Mr Glissan asked, "What are they?", and Mr Bryant replied, "A parcel of land at Little Hartley, it is still there, it has not been moved." Mr Bryant's cross-examination continued: "Q. You are aware that a Notice of Intention to Sell land has been served? A. Yes. Q. That has not come to fruition? A. Correct. Q. Would it be a good idea for the land to be sold and for the money to be placed in the Supreme Court, or into an interest bearing account, so that we might know what the value of the land is? A. That would be a reasonable approach, but there is nothing to be gained by it, it is best to leave it there until the outcome of the appeal and it will be worth a lot more at a later stage, I don't think there is anything to be gained by doing as you are suggesting." 45 There was no suggestion, in the evidence given on 3 August 1995 by Mr Bryant, that any dealing with the land was proposed. 46 In his reasons for judgment delivered on 3 August 1995, Brownie J observed, in the course of giving reasons for judgment as to why Fatimi should not be required to provide security for costs, "It is conceded today that the defendant did not comply with that statutory demand. In those circumstances Ms Black of counsel, who appears for the defendant, has been unable to suggest any basis on which the defendant can successfully resist the making of a winding up order. Section 459C(2)(a) of the Corporations Law appears to indicate that upon the hearing of the summons the court must presume a state of affairs from which it follows that there is a deemed insolvency." 47 On 27 July 1995 David Bryant had ceased to be a director of Rylegrove. Michael Bryant, another adult son of Mr and Mrs Bryant, had, also on 27 July 1995, been appointed as a director of Rylegrove in his place. On 10 August 1997 Michael Bryant swore an affidavit, which was served on Fatimi. That affidavit said: "1. I am a Director of Rylegrove Pty Limited. 2. Rylegrove Pty Limited acted as Trustee of the Bryant Family Trust until October 1992. 3. Rylegrove Pty Limited's total assets have never exceeded $2. 4. I have made enquiries and have satisfied myself that at this time on the 10 August 1995 Rylegrove's asset position remain and are $2. 5. Annexed hereto marked with the letter A is a true copy of the balance sheet 30 June 1995." 48 The balance sheet of Rylegrove as at 30 June 1995, which was annexed, showed that it had a nominal capital of $2.00, represented by a current asset of cash on hand of $2.00. 49 On 8 August 1995 Shaw McDonald, solicitors acting for the Commonwealth Bank of Australia, wrote to Mr Cunningham. Mr Cunningham was Fatimi's solicitor. Shaw McDonald gave notice of intention to appear at the hearing of the summons to wind up Rylegrove on 15 August 1995. 50 On 9 August 1995 Shaw McDonald wrote again to Mr Cunningham, referring to, "our discussions on 9th August 1995", and continuing: "We confirm that during discussions you advised as follows:- 1. You have not been served with a Notice of Appearance on behalf of the Defendant/Debtor, Rylegrove Pty Limited. 2. Rylegrove Pty Limited served upon you a Subpoena to Produce Documents on 14th August, 1995 and you are instructed to file a Notice of Motion to strike out the Subpoena. 3. You do not have an address for service for Rylegrove Pty Limited. 4. You will keep us informed of any further matters." 51 On 15 August 1995, the first return date of Fatimi's winding up summons against Rylegrove, the Commonwealth Bank appeared before Master McLaughlin as a supporting creditor. Rylegrove had at some time filed a Notice of Motion seeking to set aside the statutory demand, and also seeking dismissal of the winding up summons. All these processes were adjourned to 29 August 1995 for mention, to fix a hearing date. 52 On 15 August 1995, Master McLaughlin was told (as the learned Master records in a judgment he gave on 5 September 1995): "… that there had been a number of appeals instituted by the defendant from that decision of Master Macready and that an appeal by the defendant to Mr Justice Young had been unsuccessful and had been dismissed by his Honour with costs on 27 July 1994, and that subsequently the defendant had lodged a notice of appeal in the Court of Appeal. I was also informed that there was pending an application by the defendant to the Court of Appeal seeking a stay of execution upon the judgment entered at the direction of Master Macready and from the order of Mr Justice Young dismissing an appeal from the Master's decision." 53 On 17 August 1995 Bryson J had before him Rylegrove's notice of motion, in proceedings 4703 of 1992, seeking to set aside the service of the Form 57A on Rylegrove's solicitor. Notwithstanding the vigorous curial exercise which had been conducted in Fatimi's name, Fatimi had in fact been deregistered on 2 September 1994. It was not until 3 July 1995 that the Court made an order that Fatimi be reinstated pursuant to section 574(3) of the Corporations Law. That court order was not entered until 28 July 1995, and the court order was not lodged with the Australian Securities Commission until 4 August 1995. From at least 3 July 1995 (the date when he referred to it in an affidavit) Mr Bryant had been aware that Fatimi had been deregistered. One of the grounds upon which Rylegrove sought to persuade Bryson J that the Writ for Levy of Property issued on 26 October 1994 was defective, was that at the time it was obtained Fatimi was deregistered, and hence did not exist. His Honour was unpersuaded. He said (at page 3 of his judgment delivered on 17 August 1995): "Until the process of reinstatement was completed with lodgment with the Australian Securities Commission it was right to say that the action under the writ, including the delivery of the notice under section 57A, was not authorised by the company, as the company had no existence. Now the effect of sub-s 574(4) of the Corporations Law is that the reinstatement has retrospective effect and the company is deemed to have continued in existence. Under sub-s (4) the court has power, if need be, to make consequential orders affecting the rights of parties, arising during the interim, but it appears to me that the simple effect of sub-s (4) is enough to breathe life and effect into everything which was done purportedly for the company with respect to the writ of execution." 54 Bryson J accepted that the service of the Form 57A on Rylegrove's solicitor in the precincts of the court was irregular. On the basis that there was evidence that by 25 July 1995 Rylegrove had notice of the Form 57A, his Honour directed that service of that notice be deemed to have been effected on 25 July 1995, notwithstanding the requirement for personal service contained in Supreme Court Rules Part 45, Rule 15(3). 55 On 8 August 1995 Rylegrove had entered into a contract with NN&D Pty Ltd ("NN&D") for the sale of Lot 2 Little Hartley, and had also executed a transfer of the land to that company. The transfer was registered promptly, and a new edition of the folio identifier was created on 14 August 1995. Mr Dean annexes to an affidavit which he swears, a search of the title of Lot 2 Little Hartley, which was made up to 8.00am on 18 August 1995. That search shows the registered proprietor as being NN&D Pty Ltd. Mr Dean had first discovered that the land had been transferred to NN&D Pty Ltd on 17 August 1995, when Mr Bryant, in cross examination before Bryson J, said that the land had been sold. (Mr Dean was aware that Lot 2 Little Hartley had previously been registered in the name of Rylegrove, because Mr Andrew, the liquidator of certain of the Bryant companies, had provided Mr Dean with a list of properties owned by Bryant companies in the course of 1994. As well, in November 1994 Mr Dean had directed the Sheriff's attention to Lot 2 Little Hartley as an asset available to be executed against (see paragraph 22 above), and he had been instrumental in bringing the proceedings, which resulted in an order being made on 3 July 1995 for the removal of Mr Bryant's caveat on the title to that land, and the injunction against Mr Bryant lodging a further caveat on it (see paragraph 30 above).) 56 On 21 August 1995 Fatimi returned to court in matter 4703 of 1992. On that day, Fatimi was granted ex parte relief in substance as follows: - leave granted to join as defendants Mrs Bryant, David Bryant, Michael Bryant, and NN&D Pty Ltd - until further order, Rylegrove, and each of the newly joined defendants, be restrained from disposing of, encumbering or otherwise dealing with the proceeds of sale of Lot 2 Little Hartley - until further order, the newly joined defendants be restrained from disposing of encumbering or otherwise dealing with the land being Lot 2 Little Hartley. 57 Fatimi was also granted abridgment of time for service of a notice of motion seeking relief of the kind which had been granted on an ex parte basis, together with orders for all defendants to pay into court the net proceeds of sale of the land, and to deliver up to the Registrar the documents of title to the land. 58 On 24 August 1995 that Notice of Motion was before the court. On that occasion the injunctions which had been granted ex parte were, by consent, continued until 1 September 1995. As well, leave was given to join as sixth and seventh defendants Mr McCullough and Mr Fernando (the two directors of NN&D), and the ex parte injunctions were amended so as to apply to Messrs McCullough and Fernando. The joinder of these extra defendants prompted an application on their part for security for costs, which had not been resolved by the time Rylegrove was ordered to be wound up, on 7 September 1995. 59 On 27 August 1995, Michael Bryant swore a further affidavit. It said: "1. I am a Director of Rylegrove Pty Limited. 2. Rylegrove Pty Limited acted as Trustee of the Bryant Family Trust until October 1992. 3. I have made enquiries and have satisfied myself that Rylegrove Pty Limited has registered in its name one parcel of land being Lot 125 in deposited plan 32140 at Kemps Creek NSW certificate of title 125/32140. 4. The above identified land is the property of the Bryant Family Trust. 5. The above identified land has not been at any time the property of Rylegrove Pty Ltd. 6. The above identified land at the time of purchase by the Bryant Family Trust was registered in the name of Rylegrove Pty Limited as trustee. 7. The above identified land is subject to a mortgage by the Commonwealth Bank of Australia. Annexed hereto and marked A is a true copy of certificate of title dated 23 August 1995. 8. My enquiries indicate that as the total borrowings secured by the said mortgage were the subject to a judgment included in the total against other securities that there is no current outstanding liabilities under the mortgage the [???] of legal [??] liability position I am so far unable [???]. 9. My enquiries indicate that the current market value of the said property would be over $400,000. (The copy of this affidavit in evidence has part of paragraph 8 illegible.) 60 On 29 August 1995, matter 2889 of 1995 was mentioned before Master McLaughlin. 61 On 29 August 1995 Master McLaughlin was informed that Rylegrove's application for a stay of execution upon the judgment which Master Macready had given, and upon Mr Justice Young's decision dismissing the appeal, would come before the Court of Appeal on 4 September 1995. Master McLaughlin fixed the hearing of the contested winding up proceedings for 5 September 1995 so as to not pre-empt the Court of Appeal's decision about whether a stay should be granted. 62 On 1 September 1995, 4703 of 1992 was before Simos J, as Duty Judge. Fatimi made application to continue the injunctive relief in relation to Lot 2 Little Hartley. Mr Bryant asserted, in the course of cross-examination that day, that the Mareva Order of Hodgson J had not been breached. He reiterated that the evidence he had given before Meagher JA on 31 July 1995 was correct, though stated that putting the value of the Little Hartley land at $300,000 to $400,000 was an estimate. Mr Bryant was reminded of the order which Brownie J had made on 3 August 1995, requiring the supply of a list of assets within seven days. The following evidence was then given: "Q. How is it that some five days after that order was made, this sale took place? A. There had been negotiations for some considerable time, over a period of months and it was just the time, the culmination of the negotiations. Q. It was a most inconvenient time to sell the land. A. Any time would be a most inconvenient time to sell the land, on the basis of his Honour Justice Hodgson's order." 63 Simos J asked Mr Bryant how the price for the transfer of the land was arrived at. Mr Bryant replied that the figure was put at $161,000 so it did not contravene the orders of Justice Hodgson. 64 On 4 September 1995, Rylegrove's application for a stay of execution of the judgment of Master Macready was in the Court of Appeal, but not heard. Rylegrove made no application for any interim stay of execution. Nor was the Court of Appeal informed that the contested winding up proceedings were listed before Master McLaughlin the next day, as a special fixture. 65 On 5 September 1995 the winding up summons came before Master McLaughlin. First, Rylegrove made an application for an adjournment of the hearing. Master McLaughlin refused that application, taking the view that Rylegrove had been given every opportunity to seek a stay of execution, and no explanation had been given to the learned Master as to why the Court of Appeal had not been informed of the hearing fixed before the Master, or of why no interim stay of execution had been sought from the Court of Appeal. 66 In the course of the morning, a representative of Rylegrove approached the Court of Appeal, and obtained a listing at 2.00pm for an urgent interim stay application. On being told of this development, Master McLaughlin adjourned the proceedings he was in the course of hearing, to a date to be fixed. 67 At 2.00pm on 5 September 1995 Sheller JA heard, and refused, Rylegrove's application for a stay of execution. 68 On 7 September the winding up application was before Master McLaughlin again. By that time, Rylegrove had dismissed its lawyers. Mr Bryant sought leave to appear for the company, and was refused that leave. Michael Bryant then made an application for adjournment, which was also refused. On 7 September 1995 Master McLaughlin made an order that Rylegrove be wound up, and appointed Mr Andrew as its liquidator. 69 Undeterred, on 10 October 1995 Mr Bryant filed a Notice of Motion in proceedings 4703 of 1992, seeking orders that the judgment of Master Macready, the judgment of Young J given on 27 July 1994, and the Writ of Levy of Property issued on 26 October 1994, all be set aside on the ground of fraud. He also sought an injunction against Fatimi taking any further action pursuant to Master Macready's judgment and orders. The evidence does not disclose what became of that application. 70 On 29 September 1995 Rylegrove (now in liquidation) took out a Summons against NN&D seeking to have declared void the transfer of Lot 2 Little Hartley. Bryson J heard those proceedings, and on 22 April 1996 ordered that Lot 2 Little Hartley be transferred from NN&D to Rylegrove. The Transfer from Rylegrove to NN&D 71 NN&D was incorporated on 26 July 1995. On 26 July 1995 Mrs Bryant and David Bryant were appointed as directors of NN&D, but ceased to be directors on that same day. On 26 July 1995 Mr McCullough (who had been the accountant to Mr Bryant and the various Bryant companies for many years, and whose office was the registered office of Rylegrove) and Mr Fernando (a business acquaintance of Mr Bryant) were appointed as directors of NN&D. Also on 26 July 1995 Mr McCullough was appointed as secretary of NN&D. That day, two shares in NN&D were allotted to Kelbeam Pty Ltd. That company had its office at 760 Old Northern Road, Middle Dural, which was the place where Mr McCullough maintained his office. It was a company of which Mr McCullough had been a director since 1993, of which Rosemarie Alison McCullough had been a director since 1993, and the shares in which were beneficially held by Mr McCullough and Rosemarie Alison McCullough. 72 The reader will recall that it was on 27 July 1995 that David Bryant ceased to be a director of Rylegrove, and Michael Bryant was appointed as a director in his place. 73 On 8 August 1995 a contract was entered between Rylegrove and NN&D Pty Ltd, for the sale of Lot 2 Little Hartley. The contract is in the form of the 1992 edition of the Law Society/Real Estate Institute Standard Form, with two pages of special conditions. The contract discloses no vendor's agent, no vendor's solicitor, and no purchaser's solicitor. In fact, no real estate agent acted in connection with the sale, nor did a solicitor act for either side in connection with the sale. 74 The contract makes provision for a price of $161,000, and a deposit of $1,000. There is no evidence that the deposit was actually paid. 75 The portion of Schedule 1 of the Contract concerning possession of the land shows a tenant "Classline Pty Ltd" which is said to have a "lease" with an expiry date of "1998.30.6", an option period of "6 years 3 x 2 year" and a rent of $200 per anum. No evidence has been put before me that any such lease existed. A diary note of the Commonwealth Bank made on 10 October 1995 records that, as at that date, Classline had been deregistered due to failure to lodge returns. The evidence does not disclose how long before 10 October 1995 Classline had been so deregistered. 76 The Contract contained two separate pages of non-standard conditions. The first of them was as follows: "1. Rylegrove Pty Limited as the registered proprietor of the vacant land identified as Lot 2 Great Western Highway Hartley New South Wales, Certificate of Title No 2/733945 the property of the Bryant Family Trust agrees at the request of the Trustee Synergy Concepts Pty Limited to sell the subject land on the terms as set out below. 2. NN&D Pty Limited agree to purchase the abovementioned property and to the terms as here set out. 3. Terms: deposit $1000.00 on exchange of contracts. 4. Annual interest $2000 pa each year 1996 to 2019 inclusive until final principal repayment. 5. 1st Principal repayment $8000.00 due on the 10th August 2000. 6. Subsequent principal repayments $8000.00 PA due on 10th August each year until 2019 inclusive. 7. Total principal repayments $160,000.00 8. Total interest $50,000.00 9. Default in the payment of one interest payment or one interest and principal payment or one principal payment for a period exceeding three calendar months will render this contract null and void, on default the ownership of the subject property will revert to the Bryant Family Trust. 10. Default by the purchaser in the payment of local Council rates and charges or other land ownership costs will invoke clause 9 & 11 of these conditions. 11. On default the purchaser agrees to complete the required forms and pay all the costs to transfer the subject property back to the outright ownership of the Bryant Family Trust within 6 months of any default." 77 The second set of Special Conditions is as follows: "1. This schedule sets out the arrangements entered into in the form of a lease back contract. 2. The arrangement governing all aspects of the sale of property is the lease back to the Bryant Family Trust or its nominee by NN&D Pty Limited of the completed development of the proposed Vineyard, orchard and retail/wholesale storage complex. 3. The lease back shall on practical completion transfer to the Bryant Family Trust the total operation of all aspects of the completed development. 4. The arrangement will provide that the total of all of the operational costs of the business connected with or in conjunction with the project including the cost of development spread over 20 years will be funded from the project income of which the remainder will be the net profit. 5. NN&D Pty Limited will participate in the net profits of the operation of the development on a fixed twenty five percent of net profit basis. 6. Should NN&D Pty Limited wish for any reason whatsoever to divest itself of ownership of the project the following conditions should be met. 1. First option of purchase must be provided to the Bryant Family Trust at cost price. 2. Any and all potential purchasers be subject to Bryant Family Trust or its nominee approval in writing prior to any agreement whatsoever. 3. The Bryant Family Trust retains a right at all times to the refusal of sale to a non approved purchaser. 7. Appointment of Accountants and or Auditors for the project, including the project associated ongoing businesses of the Bryant Family trust, or its nominee requires the written approval of NN&D Pty Limited and The Bryant Family Trust. Such approved persons are subject to replacement at the written request of either party. 8. The above arrangement to form the basis of any subsequent contract or agreements." 78 Not only was this contract executed on 8 August 1995, but a transfer of the land to NN&D Pty Ltd was also executed on that day, very promptly stamped, and lodged for registration. 79 The Contract was entered into, on Rylegrove's part, by execution under its common seal. Mrs Bryant and Michael Bryant signed as witnessing the affixing of the common seal. The common seal was affixed three times to the contract – once to the printed form, and once to each page of Special Conditions. Mrs Bryant and Michael Bryant signed alongside each such affixing of the common seal. Further, they each initialled each page of the printed form. 80 The transfer of the land was also executed under common seal, with Mrs Bryant and Michael Bryant signing alongside that common seal. The transfer stated the consideration for the sale as being $161,000. The box on the transfer form intended to be filled in by the person who lodges the document, was filled in by showing the name and address of Mr Bryant. The Role of the Commonwealth Bank 81 On 27 October 1993 Levine J gave judgment in proceedings 11346 of 1992 in the Common Law Division of this Court. That was an action brought by the Commonwealth Bank against Mr Bryant. The bank was awarded judgment in the sum of approximately $2.427 million, and possession of five security properties. Those security properties did not include either Lot 2 Little Hartley, or the Kemps Creek property registered in the name of Rylegrove. Mr Bryant lodged an appeal against that judgment of Levine J. So far as the evidence reveals, that appeal never came on for hearing. 82 The Kemps Creek property registered in the name of Rylegrove, had at all relevant times been mortgaged to the Commonwealth Bank. That mortgage was a third party mortgage, which in its terms gave the bank security over the land for all monies owing by Mr Bryant. It also contained a personal covenant, whereby Rylegrove agreed to pay to the Bank all monies owing by Mr Bryant. 83 On 4 November 1994, Hulme J gave judgment in proceedings number 4938 of 1991 in the Equity Division of this Court. Those proceedings were ones brought by the Commonwealth Bank against various companies associated with Mr Bryant, including Rylegrove. On 4 November 1994, Hulme J made a declaration that certain chattels were held by Rylegrove on trust for the Commonwealth Bank, and that the Commonwealth Bank was entitled to delivery up of those chattels. The court ordered that Rylegrove pay the Commonwealth Bank damages which it had suffered in consequence of Rylegrove's conversion of those chattels on or about 31 July 1990, that it be referred to the Master in Equity to assess the amount of damages, and that Rylegrove pay the Commonwealth Bank's costs of the proceedings. That order was entered on 24 November 1994. On 30 November 1994, Rylegrove lodged a Notice of Appeal against that judgment, by filing a Notice of Appeal Without Appointment. 84 On 25 January 1995 consent orders were made in proceedings number 4938 of 1991, whereby the Commonwealth Bank gave up title to the chattels in return for $5,000, but otherwise the orders previously made would stand. 85 On 5 July 1995, notwithstanding the reference to the Master of the question of damages for conversion, Windeyer J delivered a judgment in proceedings 4938 of 1991, assessing the damages for conversion at $43,695.36 (made up of $29,847 principal, together with interest of $13,848.36). Rylegrove was ordered to pay the costs of those proceedings. The entry of judgment was postponed to 19 July 1995. On 25 July 1995 Rylegrove filed a Notice of Appeal against both the decision of Hulme J on liability, and the decision of Windeyer J on quantum, in that matter. Again, it was a Notice of Appeal Without Appointment. 86 Even though it had a guarantee from Rylegrove of the debts of Mr Bryant, the Commonwealth Bank had not, to this time, sought to take action against Rylegrove under the personal covenant in the mortgage relating to the Kemps Creek property. An internal record of the bank, dated 29 March 1994 explains why. "At the time the mortgage was taken, we obtained an advising from your office on the trust aspects and conflict of interest. The advising indicated that conflict of interest and duty arose and that this conflict could not be resolved by either the articles of the trustee or the provisions of the trust deed. Notwithstanding this advising, a commercial decision was taken and the transaction (the purchase of the Kemps Creek property) was allowed to proceed." 87 This nervousness on the bank's part, about whether its taking a mortgage of trust property to secure debts of a director of the trustee could be justified, also explains why the bank had not sought possession of the Kemps Creek property at the time it was obtaining possession of other security properties from Levine J. The judgment of Windeyer J given on 5 July 1995, however, put the bank on much firmer ground so far as being able to claim from Rylegrove was concerned. The bank set about taking advantage of that situation. A diary note of a bank officer on 10 July 1995 said: "The bank has been awarded costs in this matter. Will now instruct Shaw McDonald to proceed with appointment of a cost consultant to prepare the bill of costs." 88 On 31 July 1995 Shaw McDonald wrote to the bank saying: "We are now arranging for Mr Justice Windeyer's order of 5 July 1995 to be entered in the records of the Supreme Court. Once the judgment against Rylegrove is formally entered we shall arrange for the issue to it of a notice to wind up the company seeking the sum of $43,695.36. In our view it would be prudent for the order to be entered before any steps are taken to enforce it in case Mr Bryant sought to extend the stay directed by Justice Windeyer …" 89 In other words, by this time the bank was instructing its solicitors to issue a statutory demand for the amount which Windeyer J had held due, without waiting for costs to be assessed. 90 On 1 August 1995 an internal note of a bank officer records: "In an action brought against Rylegrove by Fatimi P/L (former business partner), the matter proceeds to court on 15 August with Fatimi seeking orders to wind up Rylegrove and set aside transfers of a property at Hunters Hill and another at Little Hartley (not "Lyndoch"). Should Fatimi be successful then Rylegrove, with some real assets, would be under control of a liquidator. CBA recovery would be then more likely and sooner." ( "Lyndoch" was land at Little Hartley which at all relevant times was held in Mr Bryant's own name.) 91 On 3 August 1995 the Commonwealth Bank entered judgment in 4938 of 1991 against Rylegrove. 92 While there is no evidence which suggests that anyone from Rylegrove was aware that the Commonwealth Bank was actually taking the steps which I have just outlined, consequent on Windeyer J's judgment of 5 July 1995, it would have been obvious to anyone who had followed the course of events up to Windeyer J's delivery of judgment that the Commonwealth Bank was in a position where it would shortly be able to seek either to levy execution against the assets of Rylegrove, or to wind Rylegrove up. 93 There is no evidence that Rylegrove had any creditors, in August 1995, other than Fatimi and the Commonwealth Bank. Evidence Against the Individual Defendants 94 None of the Bryants gave evidence before me. 95 Answers to interrogatories sworn by Mrs Bryant and Michael Bryant, were tendered. Those two defendants gave substantially identical answers to some of the interrogatories, as follows: "Q. Do you understand that when a person accepts the responsibility of being a director of a company such as Rylegrove Pty Ltd, that person has to comply with the Corporations Law as far as it is relevant to that company? A. Yes. Q. Do you understand that when a Supreme Court judge makes an order preserving assets or restraining a company such as Rylegrove Pty Ltd from divesting itself of assets, that a person who has the position and responsibility as director of a company such as Rylegrove Pty Ltd is required to ensure that the order of the court is complied with? A. Yes. Q. Were you aware prior to 3 August 1995 of the order of Hodgson J made in the Supreme Court of New South Wales on 9 August 1993 in the following terms: "That until further order, the first defendant be and is hereby restrained from disposing of, encumbering or otherwise dealing with any of its assets or assets of which it is trustee other than in the ordinary course of business, provided that the net value of all such assets must not in any event reduce below the value of $150,000." A. Yes. Q. [Did] you understand that the order made by Hodgson J applied to assets in Rylegrove's own name as beneficial owner, and as also to any assets held by Rylegrove as trustee? A. Yes. Q. At the 3rd August 1995 what assets did Rylegrove Pty Ltd have in its custody or power or control that complied with the order of Hodgson J made 9 August 1993? A. The only asset beneficially owned by Rylegrove was $2.00 shareholding. It remained the registered proprietor of land known as Lot 2/2733945 Little Hartley and property at Lot 125 Mount Vernon Road Kemps Creek (FI 125/32140). However, the trustee of both parcels of land as and from 30 September 1992 was Synergy Concepts Pty Ltd for the beneficial owner, the Bryant Family Trust. A formal Real Property Act transfer of Lot 2 from Rylegrove to Synergy was effected on 2 July 1993. Stamp duty was paid on that day. Q. What was the identity and type, location and estimated value of such asset or assets? A. The [first/second] defendant relies on estimated values placed on the aforesaid properties by the Managing Director, Joseph Bryant at the time as follows: Kemps Creek $450,000 Lot 2 Little Hartley $160,000 to $300,000, depending on the use to which the buyer wanted to use the property After enquiries made by me, the Bryant Family Trust also owned land as follows: Banners Lane - Little Hartley $100,000 Hunters Hill - $1.1 Million Lot 1/733945 Little Hartley - $130,000 Hire Plant & Equipment $400,000 (subject to depreciation). Q. Were you aware of the order of Brownie J made in the Supreme Court of New South Wales on 3 August 1995. A. No. Q. As at 11 August 1995 what asset or assets were being held to comply with the order made by Hodgson J made on 9 August 1993? A. The answer to this interrogatory is the same as to question [numbered 2 previously] except that as at 11 August 1995, a joint venture business contract, had been entered into for the sale of Lot 2, Little Hartley at the direction of Synergy Concepts Pty Ltd, the Trustee of the Bryant Family Trust for the sum of $161,000. In addition the land at Hunters Hill was mortgaged for $250,000 on 25 September 1995. Q. What was the identity and type, location and estimated value of such asset or assets? A. The [first/second] defendant relies on the answer given to question [numbered 3 previously] and question [numbered 1 previously] to answer this interrogatory except to say that [she/he] assumes that the value of all real estate held by the Trust was appreciating in value between 1993 and 1995. … Q. Are you aware that the plaintiff did ask in late 1994 early 1995 that the sheriff department of New South Wales sell a parcel of Real Property at Little Hartley and being Lot 2 in Deposited Plan 733945 and registered in the name of Rylegrove Pty Limited at the time so as to obtain satisfaction of the judgment against Rylegrove? A. The [first/second] defendant is unable to say what the plaintiff asked the sheriff." The affidavit verifying each of these sets of answers to interrogatories was sworn by the appropriate defendant on 2 September 1997. Thus any answers given which related to the present understanding of the defendant would need to be understood as speaking as at 2 September 1997. 96 Fatimi took the forensically unusual step of tendering some witness statements which the Bryants had made. Mr Bryant, in his witness statement, said as follows: "On 26 October 1994 Fatimi filed in the Supreme Court a writ for possession of the Lot 2 property. It was my understanding at the time that the writ was not enforceable, because I was advised by my legal adviser that the writ was ineffective should the property not be sold within 3 months of the writ being filed at the Land Titles Office. Also I was advised that any sale by the sheriff should first attach to goods and chattels prior to attaching to land. In addition there was an appeal on foot against the decision of his Honour Justice Young which I thought would have automatically stayed enforcement of the judgment. The appeal was filed on 15 August 1994. To my knowledge this appeal was still on foot on the date of my bankruptcy. I was struck out as an appellant on 1 May 1995 for reasons which I cannot recall. The appeal was based on the fact that Rylegrove had not contracted with Fatimi and that the work done had been paid for in full and that the Court had come to an incorrect conclusion on the evidence presented. Subsequent to the appeal being filed fresh evidence came to light confirming that the moneys had been paid in full. On this basis I then alleged that the judgment had been obtained by fraud and perjury by Robert William Dean, a director of Fatimi Pty Ltd. On page 25 of the transcript of proceedings 4703/92 before Master Macready (Index document number 11), Mr Dean admits that the cost of work on the Gladesville property (this should read 57 Gladesville Rd, Hunters Hill) was in fact invoiced through Update Investments Pty Limited ("Update"). In fact Update had been paid in full for the work which it had invoiced. Update Investments Pty Ltd was struck off by the ASC on 27 February 1992. However, the records of that company were soon thereafter deliberately destroyed by its director, Mr Robert Dean. On 7 March 1992 Fatimi wrote to Rylegrove seeking payment of the alleged debt of $69,520.00. At the time I did not respond to the demand because I believed that it was a nonsense and was purely sour grapes on behalf of Mr Dean whom had been sacked by me on or about 31 December 1991. It has always been the case that Rylegrove did not owe any money to Fatimi Pty Ltd as Rylegrove had not entered into any contract with Fatimi Pty Limited. I had difficulty in fighting this case at the time because the Commonwealth Bank had seized certain records and computers of the family companies around December 1991. These records would have confirmed that Rylegrove was not liable for any debt as alleged. I believe I now have information in my possession which can prove that Fatimi is not owed any money and I have given that information to the director of the trustee for the trust for onforwarding to the solicitor for the trust for consideration. In addition, the liquidator of Rylegrove is aware of the perjury and fraud claims alleged by me but is paying no regard to them. Despite the fact that an appeal had been filed and not heard, Fatimi continued legal proceedings against Rylegrove to enforce the judgment. It was my understanding at the time that once an appeal was lodged it prevented any enforcement proceedings. However, a stay application against Fatimi to prevent it selling the land by auction through the sheriff was part heard on 17 July 1995. This was partly determined and adjourned to 17 August 1995. I am not certain as to the outcome of these proceedings as Rylegrove was placed into liquidation on 7 September 1995. In hindsight Rylegrove should have sought a stay of proceedings on the earlier judgment itself. Fatimi issued a winding up summons against Rylegrove on 17 July 1995. In giving evidence in proceedings before Brownie J on 3 August 1995 I estimated that the land at Hartley had a value of between $300,000 - $400,00. See page 22 of the transcript (item 12 of the List of Documents). The trust accounts recorded the book value of the Little Hartley land as $229,999.00. At the time of those proceedings I was confused as to what was or was not trust land. It was my understanding that the Killarney land had been rezoned to allow subdivision into one acre residential blocks. I estimated that this would make the land worth around $300,000 to $400,000 for development use. It would not be valued at this amount by a prospective purchaser who wished to farm the land and depending on what the purchaser saw as an appropriate commercial use it could be valued anywhere between $160,000 to $300,000. The price would depend on the use that a prospective purchaser had in mind. He or she would obviously pay an amount bearing in mind the gain to be derived from the use of the property. In fact I stated this in my evidence on page 7 before Simos J in proceedings 4703/92 (see List No 29). It was my belief then and now that the order of Hodgson J made 3 August 1993 was not breached by the sale of the Little Hartley property, 2/733945 as the trust assets were not depleted below $150,000 at any stage. At no stage has Rylegrove since its inception as Trustee in 1987 owned assets in excess of $2. The trust, by contract dated 8 August 1995 sold the lot 2 land to NN&D Pty Ltd. I was authorised to negotiate this sale with the buyer on behalf of the trust. At that time I had received my authority from Elizabeth Bryant through her capacity as director of Rylegrove and Synergy. To the best of my knowledge she had conveyed any conversation I had with her to the other directors of Rylegrove and Synergy. The contract was expressed to be entered into "at the request of the Trustee Synergy Concepts Pty Limited." The contract noted as vendor "Rylegrove Pty Limited. The Bryant Family Trust". The total purchase price was $161,000 with a deposit of $1,000. The purchase price was to be paid by instalments of $8,000 each year with the first payment due 10 August 2000. Interest payable over the term was $50,000, payable $2,000 each year and commencing 1996. There was a provision that if a default occurred in any interest or capital payment, ownership would revert to the trust. Also, this scenario occurred if rates, charges or other costs were not paid. In schedule 3 of the contract special conditions noted that the trust was entitled to lease back from NN&D Pty Ltd the completed development proposed on the land. The trust would operate the completed development and NN&D Pty Ltd would receive 25% of the net profit of the business. The trust was to retain ownership to the development. To reinforce the rights of the trust under the contract it was agreed that the title deeds to the property were to be retained by the trust in the form of an equitable mortgage. Prior to the sale by the trust to NN&D Pty Ltd, negotiations had been held for a joint venture enterprise with Robert McCullough and Nirmal Fernando. At the time Mr McCullough was the accountant for the family business and Mr Fernando was a business associate. To my knowledge the company NN&D Pty Limited was a shelf company which was initially acquired for a proposed venture by the family business, involving the manufacture of concrete sleepers. At the time, it was determined that a new entity was required for that venture. That venture fell through and Mr McCullough then retained the company for his own purposes concerned with the proposed venture at Lot 2 Little Hartley. The joint venture negotiations commenced about late 1994 to early 1995. At that time the existing retail business operating from the Lyndoch property was under threat from the Commonwealth bank and an alternative business retail enterprise was discussed operating from the Killarney property. I told him that we needed to keep the current operation alive and it would be best to establish a new retail storage complex across the road from the existing shop and incorporate a vineyard, to be established on the land. I said we would need to finance this using the property as security. I said: "I'm looking to doing this as a joint venture with someone who can supply the capital of $200,000. Who do you know, who might be interested?" He replied: "I could be interested in that, could you come back to me with some idea of the return." We had various discussions following this first discussion which culminated in the terms of the contract. Mr McCullough had also prepared projections on the return of the project. I understand that Nirmal Fernando was happy to join in the venture based on his discussions with Mr McCullough. In reference to the order made by Hodgson J on 9 August 1993 I state that I was aware of the orders made as I was present at the time. In fact the orders were made by consent of the parties. In consenting to the terms of the orders I understood that the effect of them was that the assets of the trust could be sold in the course of business provided that the total assets were not to be depleted below $150,000. At that time I did not explain the orders to Elizabeth Bryant as co-director because I had full responsibility to handle all the legal affairs of the family companies. Elizabeth Bryant was engaged in the administrative side of the business in her role as director. However, in the time following the date of my bankruptcy and at a time of a few weeks prior to the sale of Lot 2 to NN&D Pty Limited I gave a general briefing to Elizabeth as director of Rylegrove and of the trustee Synergy of the order of Hodgson J. I told her that the sale of lot 2 to NN&D Pty Limited was a business venture which would benefit the trust by a lease back arrangement when the proposed development was established. I told her that the trust assets would not be depleted below the level of $150,000 and therefore the order would not be breached as the trust had ample assets in the form of hire plant and equipment and other real estate. Upon my counsel in these matters she agreed that the sale should proceed. In addition my wife as a director of the trustee of the trust requested and authorised me to finalise the contract negotiations and terms for the proposed joint venture with the company of which Robert McCullough and Nirmal Fernando were directors. I have been established in St Marys, through various family companies, as an earth drilling contractor for about 40 years. The directors of those various companies have been my wife and I. At various stages our sons, including David Bryant and Richard Michael Bryant, Leslie John Bryant and other family members were also part of the family business acting as directors of a number of the companies. Due to my expertise in the earth drilling business I have always adopted the role of managing director of the companies. I would also take full responsibility for all accounting and legal affairs of the companies. My wife, and at times my sons when they were directors, had responsibility for the daily administrative operation of the business. This dichotomy of work responsibility was necessary so that the business could function efficiently. Since about late 1989 there has been considerable litigation arising from disputes with the Commonwealth Bank resulting in legal proceedings between the Bank and I and Rylegrove and the Bank. This litigation has occupied a lot of my time. Owing to the complex nature of the legal proceedings together with the ongoing need to keep the family business running it was not humanly possible for my co-directors to keep abreast with the legal actions. They were informed by me of the legal proceedings in a general way to keep them updated with developments. However at all times I was the only director with the full knowledge of the legal affairs of Rylegrove. I appeared for myself and on behalf of Rylegrove in many matters before the Court. At other times, legal representatives were instructed. Owing to the fact that I was involved with all the litigation surrounding the family business and the trust I provided all information and signed when required by the directors, affidavits for the trust, explaining the basis to the litigation. My counsel to the first and second defendants in these proceedings was at all times based on the facts as I saw them and believed to be the truth at all times. Owing to the fact that I undertook a lot of the legal work I was well acquainted with the law to give an a true belief of the legal position as it related to the trust and to the family business. I was placed into bankruptcy on the petition of the Commonwealth Bank on 30 March 1995. The petition was based on a judgment debt which I was appealing against. At the time when I was made bankrupt the appeal had not been heard and I believe that this was a miscarriage of justice. I was personal guarantor of certain debts allegedly owed to the bank by a number of the family companies. As and from that date Elizabeth Bryant, as director of Rylegrove, requested I give her gratuitous assistance to assist in explaining to her the content and current status of the legal proceedings against Rylegrove brought by Fatimi Pty Ltd. Those proceedings and associated matters had been running since 2 March 1992. I explained the legal position to Elizabeth as best I could but noted that she found it difficult to comprehend due to the very complexity of the matters and the length of time they had been running. She continued to take my counsel on these matters due to my intricate understanding of the issues as stated above. Without my involvement, in providing the relevant information, she would not have been able to fulfil her role as a director." 97 Mrs Bryant's witness statement contains the following: "During the time I was a director of Rylegrove, Joseph and I were directors of various companies which operated our business interests. Owing to the large amount of work this generated, the director's duties were defined between us for the daily efficient operation of the businesses. I was involved with the overseeing of wages, accounts and general office administration. Joseph would deal with the daily work commitments in the field as well as liaise with accountants and legal advisers. To keep legal costs at a minimum Joseph, with my consent, undertook a lot of the legal work for and on behalf of all our company entities, including Rylegrove. In general conversation with Joseph I was told that litigation was increasing following disputes with the Commonwealth Bank over the business finances around August 1991. Joseph made mention of this litigation to me but I could not interpret the information as I found it too complex. As the litigation was becoming a full time task, Joseph was with my consent, able to devote a majority of his time to it, as I believed this was in the best interests of the businesses. This required me to devote all my energies into the daily operations of the businesses. I am aware that Joseph was to handle all of Rylegrove's affairs relating to the litigation which emerged after Mr Robert Dean was sacked by Joseph around December 1991. I was not aware of the detail of the litigation where Rylegrove was a party as this was left to Joseph to manage on behalf of the Rylegrove. I was aware at all times that Rylegrove held as Trustee, assets of real estate and plant and equipment for the trust. I wasn't sure of the value of these assets but believed it was substantial. On 26 June 1995 Joseph ceased to be a director of Rylegrove as he had become a bankrupt. My son David Lindsay Bryant ("David") was appointed director on 26 June 1995. On 27 July 1995 my son Richard Michael Joseph Bryant became a director contemporaneous with the resignation of David on that day. To be effective in my duties to Rylegrove, I sought information from Joseph as to the previous litigation. After being briefed by him I still found the extensive previous issues and trials difficult to understand and continued to seek information from him up to the time of the liquidation of Rylegrove. Joseph was also asked to assist me in my discussions concerning the proposed vineyard development of the Little Hartley property by the trust. I requested he, on my behalf and on behalf of the trust, continue the discussions with the accountant to ensure the development proceeded. When he informed me that NN&D Pty Ltd were ready to proceed I made a conscious decision that the development would proceed as it was a sound business venture for the trust. Rylegrove's seal was affixed with the consent of the trust through its Trustee, Synergy. My understanding of the contract was that the trust would receive certain profits from the joint venture with the other party in addition to the sale price. I understood that Rylegrove was to hold the title deeds to the property as security in the event that the joint venture was breached by the other party. At the time of the contract between Rylegrove and NN&D Pty Ltd I was a co director of Synergy with my son, David Lindsay Bryant. We agreed that the contract would be a benefit to the trust. Having been briefed by Joseph on the litigation involving Rylegrove it was my view that the sale of the Little Hartley property was not affected by an order made by the court to restrict the sale of the trust assets below $150,000. The assets of the trust well exceeded this amount and the sale was a business venture which would benefit the trust." 98 Michael Bryant's statement referred to his having become a director of Rylegrove on 27 July 1995 at the request of his mother. He continued: "At the time of my appointment I was aware that Rylegrove had been the trustee company of the Bryant Family Trust ("the trust"). I had worked for many years in my parents' family business prior to my appointment as director of Rylegrove. At the time of my appointment I was not working in the family business. In conversation with Elizabeth I was told that Rylegrove was no longer the Trustee and that another Company had been appointed Trustee of the trust. In addition I was told that my father, Joseph Richard Bryant, ("Joseph") was a bankrupt and was thereby prevented from being a director. I was informed by Elizabeth that certain trust real estate assets remained registered in the name of Rylegrove and therefore the company had to continue its existence. She said that Joseph was assisting in providing information as to the complicated litigation which was currently in the course and in completing negotiations for the development of the Little Hartley trust property into a vineyard and storage retail complex. I concurred with her on this point. She said that the title deeds for certain real estate at Little Hartley and Kemps Creek noted Rylegrove as the registered proprietor even though it was the property of the trust. I was aware of a joint venture plan to develop the trust asset at Little Hartley by the trust with a company owned in part by the accountant to the businesses. As Rylegrove was still shown as the registered proprietor I was told that when contracts were prepared I would need to sign as a director of Rylegrove even though the ultimate consent for the transaction came from the trust. I saw no difficulty with this as I concluded it was a business transaction that would benefit the trust. Having cited the contract for sale between Rylegrove and NN&D Pty Ltd I signed as director of Rylegrove believing at the time that the seal was affixed for and on behalf of the trust. I saw the joint venture proposal as a sound method of developing the subject land which was vacant land and which was being used for water catchment. Prior to becoming a director of Rylegrove I was generally aware of certain litigation that was taking place between Rylegrove and Fatimi Pty Ltd ("Fatimi"). At all times my understanding was that Rylegrove was denying any alleged liability for a debt claimed by Mr Dean through Fatimi. I was of the understanding that appeals were pending against earlier court decisions which went against Rylegrove. I was surprised to learn that Fatimi was still claiming debts in relation to work done some years before at the Hunter's Hill property. My father, Joseph Bryant was religious in paying the bills of the family business. I was working for the family business when the work at Hunters Hill was being done. I recall that after that work was completed Mr Dean worked for some years with the family business. During that time Mr Dean made no mention to me of an alleged debt owed to him or his companies. After I left the family business and at a time when I was a co-director with Mr Dean in a Company not associated with the family business, he did allege to me that my father owed him money. This put me in an embarrassing position and I told him that he will have to sort it out with my father. When I became director of Rylegrove I became more aware of the considerable amount of litigation between Rylegrove and Mr Dean. All of this appeared to be contrary to my understand of what I believed to be the true situation. My understanding was, through my father, whom I did not doubt, that Mr Dean and his companies had been paid for the work done by one of the family business entities. I sought further understanding of the litigation issues from Joseph Bryant, as he had the carriage of the matters for Rylegrove prior to becoming a bankrupt. He informed me that an order had been made by a judge which restricted disposal of the trust assets below $150,000. I had no concerns about the sale of the Little Hartley property as it was a business transaction which would make money for the trust and which in any event would not reduce the assets of the trust below the amount of $150,000. At the time I became director negotiations were well under way in respect of the joint venture. I am aware that Elizabeth had requested Joseph Bryant to continue the negotiations on behalf of the trust. Also, I was told by Elizabeth that Joseph was assisting in providing information to her to continue to operate the trust and complete the development contract at Little Hartley." 99 Fatimi also tendered a statement of Mr McCullough. That statement explained that Mr McCullough had had the Bryant group of companies as clients since the early 1980's, and that he had, in that time, also acted as accountant for the Bryant Family Trust, Mr and Mrs Bryant, David Bryant, and Michael Bryant. His statement continued: "At various times while I was the accountant for the Bryant Group of Companies, Bryant said to me words to the effect of "With the property at Hartley, I want to develop it into a vineyard and storage complex for the apples. That will use it to much better advantage than growing apples on it." On or about 5 October 1994, I began discussions with Bryant in relation to purchasing and developing Lot 2 at Hartley ("the Hartley property") owned by Rylegrove as trustee for the Bryant Family Trust. Annexed hereto and marked "B" is a true copy of a diary note made by me on 5 October 1994. To the best of my recollection, I made that note after a telephone conversation with Bryant on that day. We had a conversation to the following effect: He said: "Due to difficulties I'm having through Robert Dean and the bank, I foresee difficulty raising finance for the property at Hartley. If you participated with me, I might be able to overcome those difficulties. I would like you to arrange the finance for me." I said: "We had better look at it more closely to see what would be in it for me." He said: "I've been looking into it and I think we could grow grapes to sell for about $500,000 per annum, and they will cost about $360,000 to grow per annum. That would leave profit of $140,000 per annum. I would give you 25% of the profit, $35,000." I said: "But the distribution of profit would be after you have recovered project capital, the cost of putting up the building and planting the vines." He said: "I think the land is worth $160,000, and the building and plant will cost about $200,000." I said: "That is $350,000. If you amortise that over 5 years, the cost is $70,000 per annum, leaving a distributable profit of $70,000. My 25% of that would be $17,500 per annum. On that basis, it looks pretty good to me, and I would be happy to join in. I think I could arrange the money from my contacts. The land would have to be security." He said: "The land will be available as security. However, if you ever want to get out, I will have to be able to get the land back so I can proceed with it some other way." Bryant and I discussed this project on a number of other occasions between 5 October 1994 and 8 August 1995. I cannot recall the dates of the conversations. In those conversations we discussed how the project could be structured. On one occasion, he said to me "I think we should structure it this way. The Trust will sell the land to a company, with you as a director. We might bring Nim Fernando in as a participant too. The price will be the value of the land. You will pay me a small deposit. That is necessary to make it self-funding. I'll keep the title deeds as security until we raise the money. You can then arrange the finance, and mortgage the land. You'll need to arrange about $200,000 on security of the land, which will be worth $350,000 when it's developed. The balance of the purchase price will be paid over 20 years. That way, it will be self-funding. As you get your share of the profit, you can use it to pay for the land". I knew Nim Fernando personally, as a business associate of Bryant and director of a company which was a client of mine. I did not discuss the proposal with him initially. I did later discuss it with him, after I understood that he and Bryant had discussed it. I said to him words to the effect of "I think it will self-fund, and I am willing to do it". He said "I am too." Sometime in July 1995, Bryant telephoned me and said words to the effect of "I have prepared a contract of sale for the Hartley project. I'll send you a copy of it." I later received a copy of the contract which was later signed. It was consistent with the discussions we had had. Also at about this time, Bryant said to me "We are negotiating to supply concrete sleepers to the State Rail Authority. Can you get a shelf company to take up that business?" I then arranged to acquire a company for the purpose of the project. That company was the Third Defendant, and Elizabeth Bryant and David Bryant became directors. Shortly afterwards, in a conversation, Bryant said to me words to the effect of "The sleeper deal has fallen through. We could use the company for the Hartley project." As a result of this, the company changed its directors to Mr Fernando and myself. To the best of my recollection, the documents were all dated 26 July 1995 as a matter of convenience as the company had never taken up the project for which it was initially intended. … . Following these discussions and negotiations, a contract for the sale of the Hartley property by the Plaintiff to the Third Defendant was entered into on 8 August 1995. … . At the time of entering the contract, I believed that as Trustee of the Bryant Family Trust, which I understood to have assets as set out in its financial statements, it had the backing of those assets. I did not believe that the transaction prejudiced Rylegrove or any creditors of Rylegrove because Rylegrove exchanged one asset, the land, for another asset, the rights under the contract." 100 The diary note, which is referred to as annexure B to Mr McCullough's statement, reads as follows: "BRYANT/HARTLEY 5.10.94 Proposed development of vineyard/storage complex at Hartley Sales 500,000 Cost of Sales & Production 360,000 Profit before recovery of capital 140,000 25% $35,000 Amortise capital costs land/bldg 70000 350 70000 5 25% $17500" How Fatimi Puts Its Case – Conspiracy to Injure 101 There are six defendants to the action, namely Mr and Mrs Bryant, Michael Bryant, NN&D, Mr McCullough, and Mr Fernando. Though Mr Bryant remains an undischarged bankrupt, the case has proceeded on the basis that the action against him is not stayed under s 58(3) Bankruptcy Act 1966 (Cth) because the proceedings claim from Mr Bryant unliquidated damages for tort, and so, pursuant to s 82(2) Bankruptcy Act 1966 (Cth), do not make a claim of a kind which is provable in his bankruptcy. The action against NN&D, Mr McCullough and Mr Fernando has been settled, but they continue to play a role in the pleading of Fatimi's case. Fatimi pleads its case in two alternative ways. The first is as a conspiracy the predominant purpose of which was to injure Fatimi. The second is as a conspiracy to injure Fatimi by unlawful means. 102 The Second Further Amended Statement of Claim pleads the conspiracy the predominant purpose of which was to injure Fatimi as follows: "13. From about 25 July 1995 to about 10 August 1995 the Defendants, or in the first alternative the natural defendants, or in the second alternative the first, second and sixth defendants ("the Bryants") conspired to injure the plaintiff in that they agreed, combined and acted in concert to injure the plaintiff in circumstances in which their predominant purpose was to injure the plaintiff by preventing the plaintiff from enforcing the judgment referred to in paragraph 8 above by execution of the Writ by means of the sale of the property being the property comprised in Folio Identifier 2/733945 and thereby rendering nugatory the said judgment. PARTICULARS OF PREDOMINANT PURPOSE (a) the contract between Rylegrove and NN&D for the sale of the land was not on commercial or genuine commercial terms; (b) there were no other reasons at the time, that is as at 3 August 1995, for the sale of the land by Rylegrove, other than to prevent the plaintiff from enforcing the Writ; (c) a Summons seeking the winding up of Rylegrove at the suit of the plaintiff was served on 18 July 1995 based on the judgment obtained on 20 May 1994 and a statutory demand made on 5 May 1995 for the amount of the judgment debt; (d) NN&D was formed on 26 July 1995 for no apparent commercial purpose; (e) Mr McCullough, director of NN&D and signatory on both the contract and transfer for the sale of the land, worked as the accountant for the Bryant group of companies from the early 1980s to 1995; (f) NN&D performed no other commercial or other functions during its existence other than to act as purchaser of the land from Rylegrove; (g) the true value of the land at the time of the sale was in the order of $170,000; (h) Rylegrove did not take or attempt to obtain any mortgage back over the land to secure payment of the balance of the purchase money due under the contract; (i) the contract did not provide for the payment of a realistic or commercial sum by way of deposit. 14. In pursuance and in furtherance of the said conspiracy to injure, the Defendants, alternatively the natural Defendants, alternatively the Bryants did or caused the following overt acts: (a) On or about 26 July 1995 McCullough purchased NN&D as a shelf company for and on behalf of Mrs Bryant, Michael Bryant, McCullough, Fernando and Joe Bryant, alternatively for and on behalf of Mrs Bryant, Michael Bryant and Joe Bryant; (b) On 26 July 1995 McCullough and Fernando became Directors of NN&D; (c) On 27 July 1995 Michael Bryant became a Director of Rylegrove; (d) On 31 July 1995 Joe Bryant gave evidence before His Honour Mr Justice Meagher in proceedings numbered 40484 of 1994 in the Court of Appeal of the Supreme Court of New South Wales that Rylegrove's ownership of the Land then complied with an order made by His Honour Mr Justice Hodgson on 9 August 1993, with the consent of Rylegrove and Joe Bryant, in the said proceedings numbered 4703 of 1992 in the Supreme Court of New South Wales in its Equity Division, that, until further order, Rylegrove be and is hereby restrained from disposing of, encumbering or otherwise dealing with any of its assets or assets of which it is Trustee, other than in the ordinary course of business, provided that the net value of all such assets must not in any event reduce below the value of $150,000 ("the Mareva Injunction"); (e) On 3 August 1995 Joe Bryant gave evidence before His Honour Mr Justice Brownie in proceedings numbered 2889 of 1995 in the Supreme Court of New South Wales in its Equity Division that the Land was then the only asset he could think of that might comply with the Mareva Injunction, and Rylegrove had not dissipated the assets below the $150,000 limit set by Mr Justice Hodgson; (f) On 8 August 1995 Rylegrove transferred the Land to NN&D pursuant to a Contract for Sale also dated 8 August 1995 ("the Contract"); (g) The Contract provided that NN&D pay a deposit of $1,000.00 on exchange of contracts, annual interest of $2,000.00 pa until the balance of the purchase price of $161,000.00 had been paid and $8,000.00 principal from 10 August 2000 until 10 August 2019 inclusive; (h) Rylegrove affixed its Common Seal to the Contract and the Transfer in the presence of Mrs Bryant and Michael Bryant; (i) NN&D affixed its Common Seal to the Contract and the Transfer in the presence of McCullough and Fernando; (j) Rylegrove and NN&D completed the transfer of the Land without Rylegrove taking or NN&D giving any security over the Land in respect of the unpaid balance of $160,000.00 of the purchase price of $161,000.00; (k) On or about 9 August 1995 the defendants or alternatively Mrs Bryant, Michael Bryant, and Joe Bryant, caused the Transfer to be lodged at the Land Titles Office, subsequently being registered number 0449206 on 14 August 1995; (l) On 10 August 1995 Michael Bryant swore an Affidavit in the said proceedings numbered 2889 of 1995 in the Supreme Court of New South Wales in its Equity Division in which he deposed that Rylegrove's total assets had never exceeded $2.00 and that he had made enquiries and had satisfied himself that on 10 August 1995 Rylegrove's asset position remained and was $2.00; (m) In the said affidavit of 10 August 1995 Michael Bryant failed to disclose to the court the sale of the land by Rylegrove to NN&D and the terms of the Contract; (n) On 27 August 1995 Michael Bryant swore a further affidavit in proceedings No 2889 of 1995 in which he deposed that Rylegrove was the proprietor of a block of land being Lot 125 in DP 32140 at Kemps Creek ("Kemps Creek") and, in effect, that while Kemps Creek was subject to a mortgage in favour of the Commonwealth Bank of Australia, there were no current outstanding liabilities under the said mortgage affecting Kemps Creek and that the value of Kemps Creek was in the order of $400,000; (o) The said affidavit of 27 August 1995 also failed to disclose the sale of the land by Rylegrove to NN&D and the terms of the Contract. 14A. The effect of the said sale of the land by Rylegrove to NN&D was that Rylegrove was effectively deprived of any assets which could satisfy the plaintiff's judgment. 14B. Had title to the land remained in the name of Rylegrove after 8 August 1995 the plaintiff would have executed the judgment by sale of the said land by the Sheriff in execution of the Writ. 14C. By reason of the sale of the land by Rylegrove to NN&D, the plaintiff was deprived of the right to execute the writ over the land and thereby deprived of the fruits of its judgment against Rylegrove or, in the alterative, of a reasonable opportunity of obtaining the fruits of its judgment through the sale of the land in execution of the writ. 15. Each of the acts specified in paragraph 14 above was done by the person or persons therein alleged on behalf of himself or themselves and his or their co-conspirators alternatively on behalf of Mrs Bryant, Michael Bryant, and Joe Bryant as co-conspirators in furtherance of the said conspiracy." Law – Conspiracy to Injure 103 The tort of conspiracy is an unusual one because it depends not just on the nature of the conduct of the defendants, and the consequences of that conduct, but also on the purposes which the defendants seek to achieve by their conduct. As Evershed MR said in The Cunard Steamship Company Limited v Stacey [1955] 2 Ll R 247 at 257, "The civil tort of conspiracy is, of course, notoriously difficult to establish." It is conventionally recognised that there are two sub-species of the tort of conspiracy, commonly called "conspiracy to injure", and "conspiracy to injure by unlawful means". 104 The elements of the first of these sub-species are: (1) An agreement between the defendants. To make clear that this agreement is not necessarily a contractual one, the cases frequently refer to it as a "combination" (eg McKernan v Fraser (1931) 46 CLR 343 at 362 per Dixon J (with whom Rich and McTeirnan JJ agreed), 378 per Evatt J) (2) The agreement must be one which has as its predominant purpose the inflicting of injury upon the plaintiff. As Dixon J expressed it in Cox v Journeaux (No 2 ) (1935) 52 CLR 713 at 717: "To succeed in an action for conspiracy to injure where there is no illegality actual or threatened in the end in view or the means adopted by the defendants, a plaintiff must establish that, in combining, the defendants were animated by a desire to harm him." Dixon J had expressed it in McKernan v Fraser, at 361-2 by saying that one of the grounds of liability alleged in that case was that the defendant/appellant: "… was party to a combination which had for its object the wilful infliction of damage upon the respondents. This assumes that the end is not in itself unlawful, and that no threat of an illegality is made in furtherance of the combination. It appears now to be settled that, for a combination or acts done in furtherance of a combination to be actionable in such circumstances, the parties to the alleged conspiracy must be impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, true, or the dominating, or main purpose of their conspiracy." This element of the tort looks at the motive with which the defendants are acting together, what is driving them in acting together. Quite unlike the situation in the tort of negligence, it is not enough that it be reasonably foreseeable, or indeed actually foreseen, that damage to the defendant will result from the course of action which the defendants have agreed upon. As Dixon J put it in McKernan v Fraser at 362, "To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough." Further, this tort operates with a recognition that sometimes, the legitimate advancement of a person's own interests can be achieved only by damaging the interests of an adversary. Competition in business often proceeds that way. Thus, in Mogul Steamship Company v McGregor, Gow & Co [1892] AC 25 no tort of conspiracy was committed when (in days before there was any restrictive trade practices legislation) ship owners combined to reduce to an unremunerative level the rates of freight which they charged, for the purpose of driving the plaintiffs (who were ship owners trading to the same ports) out of the trade. Their action was taken, not merely to injure the plaintiffs, but to protect their own trade interests, and so did not have as its real objective the infliction of injury on the plaintiff. In McKernan v Fraser a union organiser combined with union members to ensure that two men who were the promoters of a rival union did not get work, yet the tort was not committed. Dixon J said, at 362 that: "… what actuated the meetings of the Branch and the appellant in pursuing the policy which the Branch adopted and he probably advocated, was the desire and purpose of compelling the promoters of the rival union to desist from the project by depriving them of employment and making manifest to their followers the unwisdom of adhering to them." That motive was not in itself a motive to injure the plaintiffs. Dixon J expressed the test, at 362 by saying: "Nor is it enough that this result [of injuring the plaintiff] should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests." While the element can conveniently be described as "predominant purpose to injure the plaintiff" , it is possible for the tort to still be committed if the predominant purpose is to injure several people, one of whom is the plaintiff. In Williams v Hursey (1959) 103 CLR 30 the trade unionists who were the defendants had an objective of harming two particular dissident unionists. Each dissident succeeded in an action for conspiracy. Though they sued in the one action as co-plaintiffs, it is hardly to be supposed that the result would have been any different if they had sued in two separate actions. (3) The agreement must be carried into effect, and thereby cause damage to the plaintiff. In Marrinan v Vibart [1963] 1 QB 234 Salmon J said, at 238: "… the gist of the tort of conspiracy is not the conspiratorial agreement alone, but that agreement plus the overt act causing damage. It is true that the crime of conspiracy is the very agreement of two or more persons to effect an unlawful purpose, and any overt acts done in pursuance of the agreement are merely evidence to prove the fact of the agreement. The tort of conspiracy, however, is complete only if the agreement is carried into effect so as to damage the plaintiff. Accordingly, the acts that are done in pursuance of the agreement are an integral part of the tort: Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435". (An appeal to the Court of Appeal was dismissed – Marrinan v Vibart [1963] 1 QB 528, with Sellers LJ saying, at 533-534, "I would be content to decide this case in the same terms as the clear judgment of Salmon J …" and Willmer LJ, said at 537, "I find myself completely in agreement with the decision of Salmon J, and with the reasons he gave for it." ) Was There an Agreement Between the Defendants, the Predominant Purpose of Which was to Injure the Plaintiff? 105 While the plaintiff pleaded in the alternative that there were three separate groups of conspirators (all the defendants, or all the natural defendants, or the Bryants) it will suffice, for present purposes, to examine whether this contention is made out so far as the Bryants are concerned. 106 In reaching a conclusion about whether there was such an agreement, and what its dominant purpose was, I bear in mind s 140 Evidence Act 1975. In particular, s 140(2)(c) expresses principles similar to those articulated for the common law by Briginshaw v Briginshaw (1938) 60 CLR 336. 107 In the present case, as commonly occurs in conspiracy cases, there is no direct evidence of the agreement which is alleged. The court is asked to infer the existence of the agreement from the overt acts which are pleaded. This is the process of reasoning described by Isaacs J in R v Associated Northern Collieries (1911) 14 CLR 387, at 400: "… thought primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of preconcert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge." 108 In is clear enough that the three Bryant defendants were of the common view that the contract for sale to NN&D should be executed and carried into effect. 109 That contract is one which has some highly unusual features. The absence of any solicitors, or real estate agent, is unusual. The deposit of $1,000 represents a deposit of 0.62% of the total purchase price, substantially below the usual 10% deposit. The contract required no part of the principal of the purchase price to be paid, apart from the deposit of $1,000, for, in effect, five years. During those five years, interest of $2,000 per annum would be paid. On the outstanding purchase price of $160,000, that represents a return of 1.25% per annum. After the first five years, principal repayments are made, at the rate of $8,000 per annum, yet the amount of interest remains constant each year, at $2,000 per annum. This is a highly unusual arrangement. 110 The provision for the principal not to be repaid until 2019 – that is, so that the last principal is not repaid until 25 years after the contract is entered – is one which, in the ordinary course of events, would be highly disadvantageous to a vendor. While I was not presented, in evidence or submissions, with any discounted cash flow calculation, which showed the net present value, as at 8 August 1995 of the instalment of purchase price, I am satisfied that any properly done net present value calculation would show that the net present value of the total consideration payable under the contract was very substantially less than $161,000. 111 The arrangement set out in the second set of Special Conditions to the Contract (see paragraph 77 above) are ones which are replete with uncertainties. While it appears that some form of lease back to the Bryant Family Trust of a completed development is proposed, there is only the sketchiest statement of what that development will consist of, or how the development is to be financed and carried into effect. I cannot accept that the contract was a commercial arrangement which Rylegrove entered to obtain commercial benefits. Rather, it seems to me that the contract was entered into to remove assets from Rylegrove, so that they would either be inaccessible, or less accessible, to creditors of Rylegrove. In reaching this conclusion, I take into account the statements of the Bryants and Mr McCullough, which have been tendered in evidence. However, I cannot regard the contents of those statements as outweighing the terms of the arrangement itself, the speed with which the contract was entered into, the transfer executed, and the transfer registered, and the coincidence in time between those events and both Fatimi's taking steps to enforce its judgment, and the Commonwealth Bank having obtained the judgment in proceedings 4938 of 1991. While Mr McCullough's note of 5 October 1994 shows that a proposal for Mr McCullough to himself invest in some sort of development relating to Lot 2 Little Hartley had been discussed since at least 5 October 1994, that does not explain why the project suddenly needed to take the form of legal documentation, and be completed, on 8 August 1995. 112 I am satisfied that it was Mr Bryant who was the instigator of the entry into of the contract and transfer on 8 August 1995. However, even in relation to Mr Bryant, I am not satisfied that his predominant motive in entering the arrangement was to harm Fatimi. Rather, it seems to me his predominant motive was to seek to protect Rylegrove's assets. He would have clearly realised that the inevitable consequence of him succeeding in protecting Rylegrove's assets in this way would be that Fatimi would not be able to execute against those assets – but, in accordance with McKernan v Fraser, that is not enough to show that the "predominant purpose to injure the plaintiff" element of the tort of conspiracy has been committed. As well, Mr Bryant had come to the view that Fatimi had obtained its judgment from Master Macready by fraud and perjury. He said so not only in the witness statement which I have earlier quoted, but also in an affidavit which he swore in proceedings 40484 of 1994 in the Court of Appeal, on 28 August 1995; part of that affidavit, where Mr Bryant so swore, was tendered in these proceedings by Fatimi. When that was Mr Bryant's view, and he had appealed against Young J's rejection of an appeal from the decision of Master Macready, a plausible hypothesis to explain what he was aiming at in having the land transferred was that it was being put somewhere where execution against it would be more difficult, until such time as the Court of Appeal could set matters right, by overturning Master Macready's judgment. The evidence does not enable me to find that this hypothesis is in fact correct, but neither does it provide sufficient grounds for rejecting the hypothesis. 113 Further, even if Mr Bryant had engineered the execution of the contract for the purpose of harming Fatimi, it would not be enough, for the tort of conspiracy to be committed, that the three Bryants co-operated in execution of the contract and transfer, in circumstances where one of them had a predominant motive to harm Fatimi. 114 The way that not everyone who assists to carry out a purpose to injure a plaintiff is themselves a conspirator is illustrated by Taylor J in Williams v Hursey (1959) 103 CLR 30, at 108, concerning two men who had attended a union organised picket line: "While there can be no doubt that, on these occasions, these defendants made common cause with the others then present I think it may be carrying inference too far to say that the evidence established that they were parties to the agreement pursuant to which the "picket lines" were so consistently established. It is, of course, clear enough that on occasions they lent their assistance to the conspirators but this is not to say they were conspirators themselves." 115 Before a case of conspiracy is made out against Mrs Bryant and Michael Bryant all three of them must have agreed that they would act so as to harm Fatimi. I am not satisfied that either Mrs Bryant, or Michael Bryant, had any such purpose. I would infer, from Mrs Bryant's statement that she was briefed by her husband concerning the litigation, that she knew of the judgments which had been obtained by Fatimi and the Commonwealth Bank. I would infer that she knew that each of those judgments had been appealed against. However, I would not be prepared to infer, or find, that her purpose in causing Rylegrove to enter the contract with NN&D was to harm Fatimi. 116 I would reach a similar conclusion concerning Michael Bryant. 117 Fatimi sought to place substantial weight on Michael Bryant swearing his affidavit of 10 August 1995. That affidavit is one which Fatimi would have been entitled to assume, when it was served on it, was an affidavit sworn in compliance with Brownie J's orders of 3 August 1995. However, Michael Bryant has sworn in his answers to interrogatories that he was not aware of that order of Brownie J. In those circumstances, I am not prepared to infer that his swearing of the affidavit was in any way an attempt to mislead or confuse Fatimi. 118 Fatimi also relied on Michael Bryant's affidavit of 27 August 1995 as an overt act from which the conspiracy could be inferred. I cannot regard the affidavit of 27 August 1995 in that way. By 27 August 1995 the fact that the transfer of the land had taken place was known to Fatimi, and Fatimi had injunctions in place freezing the land and its proceeds of sale. By that time, it was too late, even if there had at one time been a conspiracy, for the Bryants to be continuing to put it into effect. I note that the conspiracy is pleaded in paragraph 13 of the Second Further Amended Statement of Claim, to have been on foot from about 25 July 1995 to about 10 August 1995. Thus 27 August 1995 falls outside the time of Fatimi's own allegation of when the conspiracy was on foot. 119 As will appear later in this judgment, the essential reasons why Fatimi has received much less, as events have turned out, than it would have received had it been able to proceed, completely unhindered, to levy execution against the land, are that (a) Rylegrove was wound up, and (b) in the winding up, Fatimi received a very small dividend, partly because the liquidator's costs and disbursements were large, and partly because the liquidator admitted to proof claims against Rylegrove of millions of dollars, in addition to the claim of Fatimi. Some of the liquidator's costs and expenses would have been attributable to running the litigation to undo the transfer of the Little Hartley land from Rylegrove to NN&D. Even so, I see no basis for believing that any of the Bryants were trying, when they co-operated in having Lot 2 Little Hartley transferred to NN&D, to bring about a situation where Fatimi was injured through Rylegrove going into liquidation, the liquidator incurring the significant expenses, and large proofs of debt being admitted, in addition to the proof of debt of Fatimi, in the winding up of Rylegrove. Indeed, I see no basis for concluding that the Bryants had a purpose of achieving any of these means by which Fatimi was actually put in a worse position than it would have been if it had been able to levy execution unhindered. There is no legal requirement that a defendant in an action for conspiracy should aim to achieve the particular means by which a plaintiff has actually suffered damage – the requirement is just that the defendant should be seeking to achieve the purpose of harming the plaintiff. However, when there is reason to believe that the defendants were not trying to achieve the means by which the plaintiff has actually suffered harm, that is a relevant fact for a court to take into account in deciding whether it is satisfied that any defendant was seeking to harm the plaintiff. Overt Acts, Causing Damage 120 If (contrary to the finding I have just made) the "predominant purpose" element of the tort had been made out, Mrs Bryant and Michael Bryant signing the contract would have been, I shall assume, a sufficient overt act carrying out the conspiracy. (I say, "I shall assume" because a question was argued before me about the circumstances in which company directors can commit the tort of conspiracy when they take concerted action to cause the company to adopt some particular course of conduct – O'Brien v Dawson (1941) 41 SR (NSW) 295 at 307-308; O'Brien v Dawson (1942) 66 CLR 18 at 32; Said v Butt [1920] 3 KB 497; G Scammell & Nephew Limited v Hurley [1929] 1 KB 419; De Jetley Marks v Greenwood [1936] 1 All ER 863 at 872-873; Mc Kernan v Fraser (1931) 46 CLR 341 at 361; Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231 at [115]-[146]; Idoport Pty Limited v National Australia Bank Limited [2001] NSWSC 328; LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 886 at [79]-[99]. In light of other conclusions to which I have come, it is not necessary for me to examine this question.) 121 Fatimi contends that, if it were not for the transfer of the land to NN&D, Fatimi would have not pressed on with its application to wind up Rylegrove, would have levied execution against the land, and received the entire value of the land (minus expenses of sale) in reduction of its judgment debt. Instead, Fatimi says it has suffered significant loss because, as things eventuated, it received only a small dividend in the winding up of Rylegrove, instead of the full net value of the land, that it would have received if the land had remained available for Fatimi to levy execution on. 122 The Bryants contend that, even if I were to find that there had been a conspiracy of the type alleged, it did not cause damage to Fatimi. They point out that it was only nine days after the date of the contract that Fatimi found out about the transfer, that it was only 13 days after the transfer that Fatimi obtained ex parte relief effectively freezing the land in NN&D's hands, and that the transfer of the land was reversed by the order of Bryson J on 22 April 1996. The Bryants contend that, even if the land had not been transferred from Rylegrove to NN&D, Fatimi would have been no better off. The Bryants say that this situation would have arisen because either the Commonwealth Bank would have wound up Rylegrove, or else Fatimi itself would have wound up Rylegrove. Analysis of this contention requires one to consider what financial outcome emerged from Rylegrove's winding up, and what is likely to have happened, if the transfer of Lot 2 had never occurred, and Fatimi had persisted in its attempts to levy execution against that land. The Financial Outcome of the Winding Up 123 Fatimi's case on damages depends on a comparison of the actual amount it received in the winding up, and the value of the land. After Rylegrove was ordered to be wound up, the Commonwealth Bank promptly lost its diffidence about relying on the mortgage which Rylegrove had given it. On 25 September 1995, the bank made a demand on the liquidator of Rylegrove for $4,335,485.79, being the amount claimed to be owing by Rylegrove to the bank under the registered mortgage over the Kemps Creek property. By 10 October 1997 an internal memorandum of the bank records that Mr Andrew (who was also the liquidator of two other Bryant companies) would lodge proofs of debt for $1million and $125,000 respectively for those companies on Rylegrove. 124 Fatimi was admitted to proof in the winding up of Rylegrove for an amount of $240,688.12. This was made up of the judgment debt of $133,520, interest to 7 September 1995 of $26,118.12, and various costs orders which Rylegrove owed Fatimi totalling $81,050. Of those costs, $12,540 were costs which Fatimi had incurred as petitioning creditor, and therefore were paid in full. 125 The total proofs of debt admitted by the liquidator were $2,915,962.62. The total receipts of the liquidator were $676,255.58. This included $145,100 as the gross proceeds of sale of Lot 2 Little Hartley. The payments of the liquidator included $325,999.15 in legal costs (in addition to the $12,540 costs payable to Fatimi as petitioning creditor) and $185,000 as liquidator's remuneration. After payment of all costs and expenses, a little over $114,000 was distributable amongst the creditors. This resulted in a first and final dividend of 3.9 cents in the dollar being paid. Thus, on its total proof of debt, Fatimi received its costs as petitioning creditor of $12,540, plus an amount of $9,386.84. Value of the Little Hartley Land 126 Two registered valuers, Mr Hopcraft and Mr Hodgson, had expressed opinions about the value of the land. An experts' conference, pursuant to Part 36, Rule 13CA of the Supreme Court Rules, was held between those two valuers on 29 November 2001, resulting in agreement between them that the value of the property did not change between August 1995 and April 1996, and that during that period its value was $158,000. Their joint report to that effect was admitted without objection. 127 The Bryants contend that the Court ought not adopt this figure arrived at by the valuers, because the valuers have failed to take into account an absolutely fundamental matter, namely the sale price that was achieved for the land itself. The liquidator of Rylegrove sold Lot 2 Little Hartley by contract made 1 May 1997 for $145,100. That sale was effected by private treaty, after a public auction had been held on 19 April 1997. The auctioneer reported to the liquidator that the auction was well attended, with some 18 people in attendance. He continued: "After the reading of the contract document Mr Joe Bryant took the floor and proceeded to address the audience. Despite my repeated requests for Mr Bryant to cease his obvious attempts to intimidate any or all prospective purchasers he continued to use our auction for his political platform. Eventually he refrained and took up a position at the rear of the room. Mr Bryant's son attempted to open the bidding at $50,000. As I felt this bid was not in the best interest of the vendor I referred to page three of the contract and subsequently refused to accept the bid. The bidding commenced at $100,000 and rose to $122,000. The property was passed in …" 128 Following that auction, the real estate agent negotiated with the man who had been the highest bidder at the auction, and with the eventual purchasers (who had not been at the auction at all). Mr Ashcroft, one of the purchasers, gave evidence that the amount for which he had purchased it was the amount that he was prepared to pay – in other words, that he would not have been prepared to pay more. 129 I accept that a sale of the actual piece of land being valued, at a time close to the date as at which it is being valued, is a very important consideration to take into account in determining the value of land. In Inez Investments Pty Limited v Dodd (9 July 1979, unreported), Carmichael J held that a valuer who failed to take into account an actual sale of the property being valued was negligent. However, in the present case, it seems to me that the actual sale was achieved following a flawed sale process. Mr Bryant's behaviour at the auction was behaviour clearly calculated to dissuade purchasers, and it would be unsafe for me to proceed on any basis other than that there is a realistic prospect that he might have succeeded in dissuading one or more purchasers who might have otherwise been interested in the land. Likewise, the attempt by "Mr Bryant's son" to open the bidding at $50,000 was an act calculated to achieve a low selling price. When the actual sale was achieved for a price which was not the free produce of market forces, I am not prepared to regard it as a reason for departing from the opinion of the valuers. 130 There is some other evidence to support the opinion of the valuers. Mr Bryant stated, in the statement which was tendered in these proceedings by Fatimi: "I am aware that the property at Lot 2 Little Hartley was sold by the liquidator by private treaty contract dated 1 May 1997 for the sum of $145,000. I believe that this price was under the value of the land. I understand that the purchaser is a real estate agent and it is likely that the land will be developed into one-acre blocks. Having regard to the likely use of the land I believe that the value should have been well above this figure and as previously stated by me in evidence in various cases to date." 131 The answers to interrogatories which both Mrs Bryant and Michael Bryant gave (see paragraph 95 above) put the value of Lot 2 Little Hartley, as at 3 August 1995 as being, "$160,000 to $300,000, depending on the use to which the buyer wanted to use the property." 132 In all these circumstances I find that the value of the Little Hartley land was $158,000. 133 There is evidence from Mr Hawley, a real estate agent at Little Hartley, that if there were to be a sale of land by private treaty, the likely expenses would be agents fees comprising 4% of the sale price, advertising costs of $2,000, and disbursements of $300. No evidence has been presented to suggest that a sale by the Sheriff would incur expenses which were any different. On the basis of a sale price of $158,000, the total expenses of sale would therefore be $8,620. The net proceeds of sale which Fatimi would have received, if it had sold the land by execution, are $149,380. The Processes Which Need to be Gone Through for Execution of a Judgment by Sale of Land 134 Part 45, Rule 4 Supreme Court Rules prescribes an order of realisation of assets which the Sheriff must follow: "(1) Where it appears to the Sheriff that the property subject to levy under a writ is more than sufficient to satisfy the money to be levied, he shall first take or realise so much of the property as appears to him to be sufficient. (2) In taking or realising property under subrule (1), the Sheriff shall take or realise the property— (a) in such order as seems to him best for the speedy execution of the writ without undue expense; (b) subject to paragraph (a), in such order as the debtor may direct; and (c) subject to paragraphs (a) and (b), in such order as seems to the Sheriff best for minimising hardship to the debtor and other persons. (3) Land shall not be sold under the writ before all other property liable to sale under the writ has been sold unless— (a) the debtor requests that the land be sold before any other property liable to sale under the writ is sold; or (b) the Sheriff is satisfied, after making reasonable attempts to inquire of the debtor and such other person as the Sheriff thinks fit, that the sale of the land before the sale of all other property liable to sale under the writ would minimise hardship to the debtor and other persons." 135 It is not completely clear whether, in mid 1995, Rylegrove had any goods on which execution could have been levied. The reader will recall that, in proceedings 4938 of 1991, the Court had made a declaration that certain chattels: "… are held by [Rylegrove] on trust for [the Commonwealth Bank of Australia] 2. [the Commonwealth Bank of Australia] is entitled to have delivered up to it by [Rylegrove]" those items. The agreement between the bank and Rylegrove made on 25 January 1995 concerning those items was noted by the court as follows: "[the bank] as beneficial owner of the items listed … ("the sale items") shall sell each of the said items, in their present state of repair and in their present situation, to [Rylegrove] or its nominee …" 136 A bank internal file note of 3 July 1996 records: "The bank sold the goods to Bryant for $5,000 (to avoid the likelihood of further legal action by Bryant if any damage was caused to Bryant's property when taking possession of the items.)" From this it seems that there may have been chattels belonging to Rylegrove available for execution at some stage in the course of 1995. However, the question was not really explored in evidence, and, for all his energy in taking legal points, Mr Bryant does not seem to have taken the point, in 1995, that one of the reasons why the writ could not be executed against Lot 2 Little Hartley, was because there were chattels which remained unrealised. Perhaps if Mr Bryant had been served with the affidavit which Mr Dean swore on 3 November 1994 (see paragraph 22 above) he would have tumbled to the point - but he was not served with it. In these circumstances, it would not be appropriate to treat the possibility of delay arising from the need to realise chattels before the land could be sold, as a factor to be taken into account in deciding by what time Fatimi might have been able to receive money in consequence of levying execution against the land. 137 Part 45 of the Supreme Court Rules lays out a procedure to be followed when land is sold in execution of a judgment. Part 45, Rule 15 requires the creditor to obtain a sealed copy of a Form 57A, and serve it on the debtor personally. Pursuant to the order of Bryson J, that was deemed to have been done by 25 July 1995. 138 Part 45, Rule 17 says: "(1) Where a creditor— (a) files an affidavit of service of a notice under rule 15(2) in respect of the writ; (b) files a notice of sale and lodges with the registrar six copies of the notice; and (c) furnishes to the Sheriff such information as he has in his possession, or can reasonably obtain, which is relevant to the ascertainment of the value of the interest to be sold, including particulars of the value most recently assigned by the Valuer General to the land the subject of the interest and particulars of the title to that land as revealed by a recent search at the office of the Registrar-General, the Sheriff may proceed to sell the land or, where the nature and apparent value of the property are such that it is, in the opinion of the Sheriff, reasonable to do so, appoint an auctioneer to sell the land, being a person who holds an appropriate licence under the Property, Stock and Business Agents Act 1941. (2) The Sheriff or auctioneer selling land under the writ shall— (a) fix a date for the sale, which date shall be not less than four weeks after the service on the debtor of the notice mentioned in rule 15(2); and (b) insert the date so fixed in each copy of the notice of sale lodged with the registrar under subrule (1)(b) and forward two sealed copies of the notice so completed to the creditor." 139 By the time Mr Dean discovered, on 17 August 1995, that Lot 2 had been transferred to NN&D, no steps had been taken to get the Sheriff, or any auctioneer selling the land, to fix a date for sale, pursuant to Rule 17(2)(a). 140 In selling the land, the Sheriff would be required to comply with obligations under the following Rules in Part 45: "5 Subject to rule 4, the Sheriff shall put up for sale all property liable to sale under the writ as early as may be with due regard to the interests of the parties and to the avoidance of sacrifice of the reasonable value of the property. 7 The Sheriff shall put up for sale property liable to sale under a writ at the place which seems to him best for a beneficial realisation of the property. 8 (1) The Sheriff shall, before putting property up for sale under a writ, give notice of the time and place of sale and of particulars of the property in the manner which seems to him best to give due publicity to the sale. (2) An auctioneer appointed by the Sheriff under rule 6(1) to sell property may, with the approval of the Sheriff, give such notice, by advertisement in a newspaper or otherwise, as appears to him necessary to give due publicity to the sale. 9 (1) The Sheriff shall, before proceeding to sale under a writ, fix, so far as he can do so by the exercise of diligence which is, having regard to all the circumstances of the case, reasonable, the approximate market value of the property, but need not communicate the value so fixed to any person before the sale. (2) Without limiting the generality of subrule (1), for the purpose of fixing a value under that subrule a Sheriff may if he thinks fit require the creditor to furnish to him any information known to, or reasonably capable of ascertainment by, the creditor in respect of the property, and where the creditor unreasonably fails to furnish any information so required the Sheriff shall report the failure to the registrar, and may refuse to proceed further towards the sale of the property. (3) Without limiting the generality of subrule (1), for the purpose of fixing a value under that subrule, where the nature and apparent value of the property concerned are such that it is, in the opinion of the Sheriff, reasonable to do so, the Sheriff may engage a suitably qualified and experienced valuer to provide him with an opinion as to the value sought to be fixed. (4) The Sheriff or an auctioneer shall not under a writ sell property by public auction for a price substantially below the approximate market value of the property fixed by the Sheriff under subrule (1)." 141 For the Sheriff to satisfy himself about these matters, before fixing the date for the sale, would inevitably take some time. The evidence does not enable me to say with any precision how long would be involved, but it seems to me it would be likely to result in the Sheriff fixing a date for sale which was considerably later than the bare minimum time allowed by Part 45, Rule 17(2)(a), of four weeks after 25 July 1995. 142 There is evidence from Mr Dooley, a Sheriff's Officer at Katoomba. Little Hartley has fallen within the area controlled by the Katoomba office of the Sheriff from at least 1990. Mr Dooley has searched the records of the office from 1 January 1990 through to 31 December 2000, and has been unable to locate any court orders that relate to the sale of rural properties at Little Hartley. Indeed, over that 11-year period there has only been one court order for sale of real estate processed through the Katoomba office of the Sheriff's Department (which was an order for a sale of residential premises at Katoomba). That selling land under a writ was an unfamiliar process would be likely to contribute to the Sheriff taking longer than the four week minimum to fix a date for sale. 143 The requirement for the judgment creditor to insert the date of sale fixed by the Sheriff or auctioneer in each copy of the Notice of Sale lodged with the registrar under sub-rule 17(1)(b), and to endorse on a sealed copy of the Notice of Sale a memorandum in Form 57B (as required by Part 45, Rule 18), and to serve a copy so endorsed on the debtor at least one week before the date fixed for sale, does not seem to be likely to be productive of any unusual delay. 144 In fixing the date for sale, the Sheriff would also need to take into account the requirements of Part 45, Rule 20(1): "The Sheriff or auctioneer selling land under the writ shall cause notice of any such sale, including a full description of the property to be sold, to appear by way of advertisement in the Gazette, and in a newspaper circulating in the district in which the land is situated, at least one week before the date fixed for the sale." 145 Under Part 44, Rule 8 Supreme Court Rules, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue. Thus, the writ for levy of property which was issued on 26 October 1994 to Fatimi, would have expired on 26 October 1995. If the sale had not been fixed to occur prior to 26 October 1995, the writ would therefore need to be extended. It would have taken only small effort on Fatimi's part to have the writ extended, or a new writ issued. However, given Fatimi's previous history of difficulties in obtaining the issue of the writ which was issued on 26 October 1994, there is a realistic possibility that the need to have the writ extended or renewed would have occasioned some delay. 146 When the Sheriff sells land, Part 45, Rule 12 provides: "(1) The Sheriff may, notwithstanding Part 62 rule 3, from time to time postpone or require any auctioneer to postpone any sale of property under a writ, if the Sheriff thinks it proper to postpone the sale to avoid a sacrifice of the reasonable value of the property or to comply with a request by the creditor for the postponement. (2) Any postponement under subrule (1) shall have the effect of continuing the validity of the writ until the sale, notwithstanding Part 44 rule 8." (Part 62, Rule 3 obliges the Sheriff not to suspend the execution of any process.) This power to postpone sale, under Part 45, Rule 12, creates a further possible source of delay in execution against the land being completed. 147 Some slight assistance in deciding how long it might have taken for Fatimi to have money in its hands following a sale by the Sheriff can be gained from evidence given by Mr Hawley. He is a real estate agent at Little Hartley. He says that, in the normal course of events, six to eight weeks would elapse from the date of his receiving written instructions to sell land to the date of an auction. He says that, on the basis that a contract allowed for a six weeks settlement, a period of 12 weeks to 14 weeks including the pre-sale period would be a realistic period to market and sell, and receive the proceeds of sale of the property. These are estimates which Hawley gives from his experience in selling for vendors of a non-official type – he has no experience in selling property for the Sheriff's Office of New South Wales, or for any liquidator or trustee in bankruptcy. 148 I have also considered whether some guidance as to the time which might have been taken to achieve a sale of Lot 2 Little Hartley through the Sheriff's Office, can also be gained from the time it took to actually sell Lot 2 Little Hartley, when the liquidator of Rylegrove sold it. The first instructions to sell from the liquidator were given to the selling agent on 21 February 1997. An Agency Agreement was entered on 2 March 1997. The auction was held on 19 April 1997. That auction did not result in a satisfactory bid being received. Thereafter, offers to sell by private treaty were entertained. This resulted in a Contract for Sale being entered on 1 May 1997, which was completed on 19 August 1997. The period between contract and completion in that sale is longer than would be allowed for a sale by the Sheriff – Part 45, Rule 13(1)(a)(ii) requires the Sheriff to sell land on terms so that the balance of the purchase price is payable within not more than six weeks after the sale. I am not prepared to place any significant weight on the times involved in that sale, in deciding how long it would be likely to take for Fatimi to sell the land exercising its rights of execution. 149 Taking all these matters into account, in my view if Fatimi had been able to sell the land in Lot 2 by execution of the writ, without any interference by either any of the Bryants, any Bryant company, or the Commonwealth Bank in that process, Fatimi would have received money from the sale no earlier than mid-November 1995, and probably later than that. Would the Commonwealth Bank have Wound Up Rylegrove, and if so by When? 150 I have earlier outlined the steps which the Commonwealth Bank had taken up to 8 August 1995 to recover money from Rylegrove. 151 On 9 August 1995 Shaw McDonald wrote to the Commonwealth Bank, confirming that they would attend court on 15 August 1995 as a supporting creditor to Fatimi's application to wind up. Shaw McDonald advised their client that there were two difficulties with Fatimi's application. The first was that Fatimi had filed its winding up summons at a time when it was deregistered. Shaw McDonald said: "Though it is arguable that the relevant provisions of the Corporations Law allow the filing of the summons to occur, there is certainly some uncertainty and in our view such uncertainty may lead to the matter being delayed." (That uncertainty was not dissipated until Bryson J gave his judgment on 17 August 1995 – see paragraph 53 above.) 152 The second problem which the Fatimi application had, according to Shaw McDonald, was that the advertisement notifying creditors of the winding up of Fatimi was not advertised in the Commonwealth Government Gazette but rather in the New South Wales State Gazette. Shaw McDonald said, "Exactly why this occurred is unclear but in our view this is a fatal flaw to the matter proceeding on the 15th. It is a flaw which can be cured by way of an adjournment and readvertising but we do not believe that it is something which can be ignored particularly as the advertising is not for the benefit of the parties but for the benefit of other creditors." 153 Shaw McDonald therefore advised against the bank becoming a substituted creditor on Fatimi's application, and enclosed a statutory demand for the bank to execute, with a view to starting its own proceedings. That statutory demand, based on a debt of $43,695.36, was executed by the bank on 11 August 1995. Shaw McDonald posted that statutory demand to Rylegrove at its registered office (Mr McCullough's office at 760 Old Northern Road Middle Dural) on 16 August 1995. Section 109Y(b) of the Corporations Law would deem service to have been effected at the time when the letter would have been delivered in the ordinary course of post, unless the contrary was proved. The evidence does not enable me to say precisely when the Commonwealth Bank statutory demand was actually received at Mr McCullough's office, or when it would have been deemed to have been received under s 109Y(b). Mr McCullough passed that statutory demand on to Mr Bryant under cover of a letter 21 August 1995. The time for compliance with that statutory demand either had just expired, or would very soon expire, when Rylegrove was ordered to be wound up, on 7 September 1995. 154 There was some communication between the lawyers for Fatimi, and the lawyers for the Commonwealth Bank, in the period preceding Fatimi's winding up of Rylegrove. However, the evidence does not allow me to say to what extent each became informed of the plans of the other through those communications. 155 Mr Dean gave oral evidence, which I accept, that he had a conversation outside the court on 15 August with Mr Tim Evans, the solicitor for Shaw McDonald who was handling the matter: "I said to Mr Evans, "What are you doing here today?" And he said, "We've just come to have a look." I replied, I said to him, "If Fatimi does not proceed with this winding up what would the attitude of your clients be towards the, towards Rylegrove, would they continue?" He said to me, "We would have great difficulty doing that." I asked him, "Why is that?" He said, "I am unable to say." 156 This conversation was nothing more than Mr Evans giving an honest account of his attitude to the bank becoming a substituted creditor on Fatimi's application to wind up. It did not disclose anything about the bank's plans to bring its own winding up proceedings. Mr Dean could not reasonably have drawn from that conversation any conclusion about the bank's plans to bring its own proceedings, nor did he do so. 157 Mr Dean has conducted an analysis of all available advertisements within the New South Wales private advertisement section of the Commonwealth Government Gazette for the period from 5 September 1995 to 30 October 1996. He has identified all advertisements within that period which contained a date of filing of an application to wind up a company, and a return date of the application. He has then calculated the number of days elapsing between the filing date, and the return date. The results range from a low of 29 days, to a high of 202 days, with an average of 55.5 days. 158 There was no basis on which Rylegrove would have been able to resist winding up pursuant to the Bank's statutory demand. As the results of its liquidation showed (see paragraph 123 ff above) Rylegrove was indeed insolvent. (It was insolvent even if one takes into account the possibility that the Commonwealth Bank may have proved for more than it was really entitled to prove for. I should make quite clear that the evidence does not affirmatively establish that the Commonwealth Bank actually proved for more than it was entitled to prove for, and indeed, given the total amount of proofs admitted in the liquidation, its proof must ultimately have been admitted for an amount considerably less than the amount, exceeding $4.3million, for which it made demand on Rylegrove on 25 September 1995.) Rylegrove had in fact made no application, under s 459G of the Corporations Law, to set aside the Bank's statutory demand by the time it was wound up. When the Commonwealth Bank's demand was based on a judgment debt, which had not been stayed, there is no apparent ground on which any application to set aside the statutory demand, even if it had been made, might have succeeded. In all these circumstances, it seems to me likely that, if Fatimi had not sought and obtained the winding up of Rylegrove, but rather had tried to recover its judgment debt through execution, the Commonwealth Bank would have succeeded in winding up Rylegrove by, no later than mid-March 1996. If the Bryants did not seek to delay the making of the winding up order, the Commonwealth Bank would have succeeded in winding up Rylegrove by mid-November 1995. It is to take account of the prospect of the Bryants trying to drag out the procedures for winding up, notwithstanding their lack of real basis for doing so, that I have made the finding that the Commonwealth Bank would have succeeded in winding up Rylegrove by no later than mid-March 1996. If Commonwealth Bank Had Sought a Winding Up Order, Effect on any Execution by Fatimi 159 Section 570 of the Corporations Law provides: "(1) subject to this section, where a Sheriff: (a) receives notice in writing of an application to the Court for the winding up of a company … in is not competent for the Sheriff to: (c) take any action to sell property of the company pursuant to any process of execution issued by or on behalf of a creditor; or (d) pay to the creditor by whom or on whose behalf the process of execution was issued or to any person on the creditor's behalf the proceeds of the sale of property of the company that has been sold pursuant to such a process … (9) the Court may, if in a particular case it considers it is proper to do so: (a) permit a Sheriff to take action to sell property or make a payment that the Sheriff could not, by reason of sub-section (1) otherwise validly take; or (b) permit the making of a payment which would, by reason of sub-section (3), otherwise be prohibited." 160 If Fatimi had not wound up Rylegrove, it is likely that the Commonwealth Bank would have issued a winding up summons by the end of September 1995. As soon as the Commonwealth Bank had issued its winding up summons, both it, and the Bryants, would have the capacity under s 570, to bring any attempt by Fatimi to execute against the land to a halt. 161 If the Commonwealth Bank had actually obtained a winding up order, the winding up would, pursuant to section 513A(e) of the Corporations Law, in the form it had in 1995 and 1996, be taken to have commenced on the day when that order was made. (The Corporate Law Reform Act 1992 (Cth) introduced new provisions, contained in section 513A-513C, to govern the date when a winding up is taken to begin. Those new provisions, amongst other things, did away with the provisions which previously existed, whereby, in the ordinary case of a winding up by the Court, based on failure to comply with a statutory demand, the winding up was taken to commence at the date of the filing of the summons on which the winding up order was made, thus allowing a limited form of "relation back".) 162 Section 468(4) of the Corporations Law, in the form it then had, says, "Any attachment, sequestration, distress or execution put in force against the property of the company after the commencement of the winding up by the Court is void." While there are some difficulties in deciding what counts as execution being "put in force" so far as land of a company is concerned (McPherson, The Law of Company Liquidation, 4th edition, page 260), it is not necessary for me to resolve those difficulties for the purpose of the present application because of the view to which I have come concerning the application of s 569 of the Corporations Law . 163 Section 471B Corporations Law provided: "While a company is being wound up in insolvency or by the Court … a person cannot begin or proceed with: (a) a proceeding in a court against the company or in relation to property of the company; or (b) enforcement process in relation to such property; except with the leave of the Court and in accordance with such terms (if any) as the Court imposes." If the execution against Lot 2 Little Hartley was not complete by the time the Commonwealth Bank obtained its winding up order, this section would prevent it from continuing, unless the Court granted leave for the execution to continue. I can see no reason (and none was suggested to me in argument) why the Court would grant leave to allow Fatimi to proceed with its execution,. It is, after all, a basic policy of the law concerning winding up, that creditors should share equally in the assets of the company, and that any particular creditor should not be able to obtain an advantage by levying execution on a company in its death throes. 164 Section 569 of the Corporations Law says: "(1) where: (a) a creditor has issued execution against property of a company … within six months immediately before the commencement of the winding up; and (b) the company commences to be wound up; the creditor shall pay to the liquidator an amount equal to the amount (if any) received by the creditor as a result of the execution … less an amount in respect of the costs of the execution … (2) where the creditor has paid to the liquidator an amount in accordance with sub-section (1), the creditor may prove in the winding up for the creditor's debt as an unsecured creditor as if the execution or attachment or the enforcement of the charge or the charging order, as the case may be, had not taken place. (3) subject to sub-sections (4) and (5), where a creditor of a company receives: (a) notice in writing of an application to the Court for the winding up of the company … it is not competent for the creditor to take any action, or any further action, as the case may be, … to enforce a charge or a charging order against property of the company (6) notwithstanding anything contained in this Division, a person who purchases property in good faith: (a) under a sale by the Sheriff in consequence of the issue of execution against property of a company that, after the sale, commences to be wound up … acquires a good title to it against the liquidator and the company (7) in this section: "charge" means a charge created by a law upon registration of a judgment in a registry; "charging order" means a charging order made by a court in respect of a judgment 165 In my view, even if Fatimi had sought to continue with execution against the land, and had been able to receive the proceeds of execution before the Commonwealth Bank obtained a winding up order against Rylegrove, the Commonwealth Bank would still have obtained its winding up order against Rylegrove within six months of Fatimi receiving those proceeds of sale. Thus, Fatimi would have had to have put back into the liquidation fund the execution proceeds it had received. That this would have happened, if Fatimi had endeavoured to levy execution against the land, is a sufficient reason why Fatimi would have suffered no damage, even if there had been a conspiracy to injure of the type which it alleges. 166 As well, an amount received by a creditor shortly before a winding up can, in some circumstances, be recovered by a liquidator as an unfair preference, under section 588FA-588FG of the Corporations Law. A liquidator seeking to recover an amount which an execution creditor had recovered shortly before the commencement of a liquidation would usually not rely on the unfair preference provisions, because those preference provisions give the creditor the possibility of availing himself of a defence under section 588FG(1) (broadly, that the person received no benefit because of the transaction, or received the benefit in good faith and with no reasonable grounds for suspecting the company was insolvent). There is no defence analogous to section 588FG available to a liquidator's action brought under section 569. Section 588FE(2) allows an unfair preference to be set aside if it was entered, "during the six months ending on the relation-back day". Under the definition of "relation-back day" in s 9 of the Corporations Law, the relation-back day would, in the case of Rylegrove, be the date on which an application for the winding up order was filed. Thus a liquidator can attack, as a preference, an execution which was received at an earlier date than the date back to which s 569 automatically requires the proceeds of an execution to be paid into the liquidation fund. Given my satisfaction that s 569 would have been adequate to ensure that Fatimi refunded any proceeds of execution it might have received, there is no need for me to consider further the unfair preference provisions. Would Fatimi Itself Have Wound Up Rylegrove if the Land Transfer Had Not Taken Place? 167 The reader will recall that Fatimi itself had served a statutory demand on Rylegrove on 5 May 1995, and filed a winding up summons on Rylegrove on 17 July 1995. It was on Fatimi's winding up summons that Rylegrove was actually wound up. In achieving the winding up, Fatimi pressed on notwithstanding significant obstructive tactics on the part of the Bryants on both 5 September and 7 September 1995 – see paragraph 65-68 above. The Bryants submit that, even if the transfer to NN&D had not taken place, Fatimi would have wound up Rylegrove in any event. 168 In assessing this submission, it is relevant that Mr Dean had had, by mid 1995, substantial practical experience concerning some types of legal matters. He had had practical control of debt collection matters for Mr Bryant's group of companies when he was working as Mr Bryant's employee, running around 100 matters in the Local Court, and four or five in the District Court. His office at Mr Bryant's headquarters had on the shelves legal books relating to contracts, legal institutions, company law and building and construction law. He had appeared for himself in litigation, and for a company which he controlled in an arbitration concerning a building contract. He had developed a computer software programme to produce the documents necessary for debt collection exercises (and, indeed, the letter of demand and statutory demand served on Rylegrove in 1995 were the product of that computer software programme). He ran a course in practical advocacy for small business people, for which he prepared documentation, presented lectures, and used the facilities of the Liquor Licensing Court, and a retired magistrate, to give his students practical experience in appearing in court. 169 Mr Dean was, by mid 1995, familiar with the substance of the concept of abuse of process (though perhaps not the actual term "abuse of process"). He knew that, if you started litigation "you had to have a genuine belief in the cause of action". He accepted that, "having commenced it you understood you had to have a serious intention of following it through unless it settled". By May 1995, Mr Dean's strategy was to "fire both barrels" – ie, proceed to recover the debt from Rylegrove through both execution, and winding up proceedings. He said, "We got fed up with the amount of appeals that were being thrown at us and applications for stays and we just decided to put things back in control." 170 Mr Dean says that it was his discovery, on 17 August 1995, that the land had been sold which made him decide to continue to seek the winding up order. He says, and I accept, that the transfer of the land gave rise to the need for litigation to get the land back, that Fatimi had no money to pursue that litigation, and that as well Fatimi was faced with demands for security for costs, that it could not have met, from the defendants to the proceedings which Fatimi had instituted to freeze Lot 2 and the proceeds of sale of Lot 2. He also says, and I accept, that there are serious disadvantages for a creditor in putting a company into liquidation, by comparison with levying execution, if the creditor has any choice about it. I can readily accept that, given a completely unfettered choice between levying execution on Lot 2 and winding up Rylegrove, Fatimi would have chosen to levy execution. 171 However, if the transfer of the land from Rylegrove to NN&D had never taken place, Fatimi would not, in the period on and after 17 August 1995, have been in the situation of having a completely unfettered choice about whether to pursue execution or winding up. Even if the land had not been transferred, Fatimi would still have had to have contended with the prospect that, if Fatimi did not wind up Rylegrove itself, the Commonwealth Bank might do so instead. 172 Mr Dean says that, if need be, Fatimi would have simply discontinued its winding up proceedings. Clause 5.8 of the Corporations Law Rules provides, "An application for an order that a company be wound up may not be discontinued except with the leave of the Court". While Mr Dean was not aware of that rule, in August 1995, it is inevitable that he would have become aware of it once he was actively considering discontinuing the winding up proceedings. If he had applied for leave to discontinue on the ground that he wished to levy execution against Lot 2, it seems to me likely that the Commonwealth Bank would have been present in Court to hear that application, and that it would have led to the Bank ensuring, under s 570 of the Corporations Law, (see paragraph 159 above) that Fatimi's execution attempt went no further. 173 As well, though, if Fatimi were to discontinue, it would not be entitled to its costs as a partitioning creditor. When Rylegrove was actually wound up, on Fatimi's application, Fatimi received $12,540 as its costs. It seems to me that there is a very real possibility, though I cannot say it is more likely than not, that Fatimi, faced with the prospect of the Commonwealth Bank winding up Rylegrove if Fatimi did not wind Rylegrove up itself, would have chosen to go ahead with its own winding up application, so as to preserve its position concerning costs. 174 In summary, if the transfer of the land had not taken place, it is likely that either Fatimi would have wound up Rylegrove itself, or else an application by Fatimi to discontinue its winding up proceedings would have resulted in the Commonwealth Bank ensuring, under s 570 of the Corporations Law, that Fatimi's execution against the land went no further. Further, even if Fatimi took some steps towards execution of the judgment, or indeed actually executed the judgment, the Commonwealth Bank would have wound Rylegrove up, in circumstances where Fatimi would either not get, or not retain, the benefit of execution against the land. Either way, Fatimi is no worse off, in consequence of the transfer of the land, than it would have been if that transfer had not taken place. Thus, the action based on conspiracy to injure also fails because Fatimi has not proved damage. How Fatimi puts its Case – Conspiracy by Unlawful Means 175 Fatimi pleads the conspiracy by unlawful means as follows: 15A. Further or in the alternative to 13 above, from about 25 July 1995 to about 10 August 1995 the defendants, or in the first alternative the natural defendants, or in the second alternative the first, second and sixth defendants ("the Bryants") conspired to engage in certain acts, some of which were unlawful, by which means they sought to injure the plaintiff by unlawful means in that they agreed, combined and acted in concert to prevent the plaintiff from enforcing the judgment referred to in paragraph 8 above by execution of the Writ by means of the sale of the property being the property comprised in Folio Identifier 2/733945 and thereby rendering nugatory the said judgment. PARTICULARS OF OVERT ACTS (a) The plaintiff repeats the matters listed in paragraph 14 above. PARTICULARS OF UNLAWFUL MEANS Effecting a sale and transfer of land with the intent to defraud creditors contrary to s 37A Conveyancing Act 1919 (formerly 15A). (b) effecting the contract for sale and transfer from Rylegrove to NN&D with the intent of defrauding creditors or a creditor, the plaintiff, contrary to s 37A of the Conveyancing Act 1919 (NSW), the said contract and transfer being fraudulent in that: (i) On 18 July 1995 the plaintiff caused a summons seeking the winding up of Rylegrove to be served on that company, the Summons having been issued on 17 July 1995; (ii) NN&D was formed on 26 July 1995; (iii) NN&D entered into the contract within 8 days of being formed on 18 July 1995; (iv) the agreement under the contract for the sale of land for the payment of a deposit at less than a commercial or reasonable figure; (v) payment on terms by instalments stretching over 25 years, without any provision for security for payment of such instalments; (vi) setting a price which was, effectively, about 60% of the true market value of the land; (vii) completing the contract and transfer with extreme haste when there were no other commercial reasons for such haste; (viii) completing the contract and transfer within the time within which Rylegrove was required, by orders made by Brownie J in proceedings No 2889 of 1995 in this court on 3 August 1995, to file a verified list of the assets it held "whether as trustee or otherwise"; (ix) the failure, on the part of Michael Bryant to disclose the contract or the debt said to arise from the contract in affidavits sworn by him in supposed compliance with the orders of Brownie J in proceedings 2889 of 1995 on 10 August 1995 and 27 August 1995; (x) the absence of any operation or development concerning the land which could or might give the contract some genuine commercial basis or explanation; (xi) the absence of any provision entitling the vendor to call for balance of the purchase money on demand; (xii) the sale by Rylegrove was to a company effectively controlled by a person who had been the accountant to the Bryants for approximately 15 years; (xiii) the said sale had the effect of depriving the plaintiff of the fruits of the judgment pleaded in paragraph 8 above on the basis of the facts and matters pleaded in paragraphs 14A, 14B and 14C above. Transfer with intent to defraud creditor of company contrary to s 596 Corporations Act (c) the conduct of the first and second defendants, as directors of Rylegrove, was in breach of s 596 Corporations Act in the sense that it was a transfer entered into and carried out with the intent to defraud creditors, or a creditor, the plaintiff, in contravention of s 596(b) and the plaintiff repeats and relies on the matters pleaded and particularised in para 15A(b) above. Attempt to pervert the course of justice contrary to s 319 Crimes Act (d) The conduct of Mrs Bryant, Michael Bryant and Joe Bryant referred to in sub-paragraphs 14(c),(d),(e),(f),(g),(h),(j) and (k) constituted an attempt to perved the course of justice of the court by preventing the Sheriff from enforcing the Judgment, and constituted an offence under Section 319 of the Crimes Act, 1900. Selling and transferring the land for the purpose of defeating a judgment creditor's rights in execution of a judgment (e) The conduct of the defendants in engaging in the said conspiracy and in committing the overt acts pleaded in paragraph 14 above and the conduct of the defendants in causing or procuring the sale and transfer of the land from Rylegrove to NN&D on 8 August 1995 in the terms pleaded in sub-paragraph 15A(b) above was done with the intent to defeat the plaintiff's rights as a judgment creditor to execute the judgment it had obtained contrary to s 96 of the Supreme Court Act 1970. Preventing execution of a judgment and a writ of execution contrary to the Supreme Court Act and Rules (f) The conduct of the defendants in engaging in the said conspiracy and in committing the overt acts pleaded in paragraph 14 above and the conduct of the defendants in causing or procuring the sale and transfer of the land from Rylegrove to NN&D on 8 August 1995 in the terms pleaded in sub-paragraph 15A(b) above without the consent of the plaintiff as judgment creditor and without the leave of the court with the intent to prevent the plaintiff from obtaining the fruits of its judgment and/or to defeat or prevent the execution of the said judgment by the plaintiff by execution of the writ by the sheriff contrary to s 98A of the Supreme Court Act and Pt 45 r 15 of the Supreme Court Rules. Effecting a sale and transfer of the land contrary to an order of the court (g) The conduct of the defendants in participating in and procuring the sale and transfer of the land from Rylegrove to NN&D in the manner pleaded and particularised above in paragraph 14 constituted a breach of the terms of Order 6 of the orders made by Hodgson J on 9 August 1993 in proceedings No 4703 of 1992 which order was still in force as at 8 August 1995 or, in the alternative, which order the defendants or the Bryants are estopped from denying was still in force on the said date by reason of representations made by the legal representatives of the defendants or the Bryants to the plaintiff and to Meagher JA on or about 31 July 1995 and to the plaintiff and to Brownie J on or about 3 August 1995 which representations were to the effect that the said order was still in force and that Rylegrove retained assets of sufficient unencumbered value to comply with the said order and the plaintiff also relies on the matters pleaded in paragraph 17 below. 16. By reason of the matters aforesaid, the Plaintiff was prevented from executing the Writ by sale of the Land by the Sheriff and was thereby prevented from enforcing the Judgment and has been put to considerable trouble, inconvenience and expense and has thereby suffered loss and damage and has been injured." Law - Conspiracy by Unlawful Means 176 This second sub-species of the tort of conspiracy has as its elements: (1) an agreement or combination between the defendants; (2) that agreement or combination being one which has as at least one of its motives or purposes to injure the plaintiff; (3) where it is part of the agreement or combination that unlawful means will be used to effect that injury; (4) where the agreement or combination is actually carried out, and (5) where the carrying out of it causes damage. 177 It is only the second and third elements which differ from the elements of the first sub-species of the tort of conspiracy, so I shall discuss only those two elements. Purpose to Injure the Plaintiff 178 In Lonrho Plc v Fayed [1992] 1 AC 448 the House of Lords held that it was not necessary, where a conspiracy involved unlawful means, for an intention to injure the plaintiff to be a predominant purpose (at 468H). 179 In Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, at 104-107, R D Nicholson J reviewed the Australian law on this topic. His Honour rejected the contention, "that it is unnecessary for specific intent to be proved where a conspiracy involves unlawful acts or unlawful means". The High Court, in Northern Territory of Australia v Mengel (1995) 185 CLR 307, at 342 said that, "… the torts of intimidation and conspiracy, both … require an intention to cause economic harm." The position is clearly summarised by Drummond J in Gold Coast City Council v Pioneer Concrete (QLD) Pty Ltd (1998) 157 ALR 135 at 150, as follows: "The requirement that a plaintiff claiming damages for the second form of conspiracy must plead overt acts evidencing not just an agreement to commit an unlawful act but an agreement made with an intention to injure the plaintiff is no mere technical requirement: it is an essential element of the second form of conspiracy … that the agreement to commit the unlawful act be made with an intention to injure the plaintiff (even though that need not be the conspirators' predominant intention for combining)." 180 In McWilliam v Penthouse Publication Ltd [2001] NSWCA 237, at [13] Mason P (with whom Handley and Hodgson JJ agreed) said, concerning a conspiracy to engage in unlawful conduct, at [13]: "… a plaintiff in a case such as the present must establish intent to injure the plaintiff. It is not enough to establish that the acts of the conspirators necessarily involved injury to the plaintiff or that the plaintiff was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage …" 181 This element of "intent to injure" needs to be understood, in my view, as referring to the real purpose which the conspirators are trying to achieve. The tort of conspiracy to injure (the first sub-species of the tort) reflects an uncontroversial moral view that for A and B to gang up with the principal objective of hurting C is wrong, regardless of the means which are used, and a policy judgment that if such conduct occurs and occasions damage, then an action for damages should lie. In this second sub-species of conspiracy, the policy judgment being made is that, if A and B gang up with one of their objectives being to hurt C, and where they intend to achieve that objective by the use of unlawful means, an action for damages should likewise lie. The policy judgment is made that the additional element of agreement to use unlawful means to effect the harm justifies lowering the bar from a "principal purpose to harm" to a "purpose (not necessarily principal) to harm" test. However, the "purpose to harm" must still be what is actuating the defendants in acting. That the defendants realise that damage to the plaintiff is a likely, or indeed an inevitable, consequence of their action is not enough to satisfy this element of the tort. Rather, damage to the plaintiff must be one of the things which the defendants are trying to achieve. "Unlawful Means" 182 Before the tort is committed, there must be a common intention to use unlawful means. This raises a question concerning what means count as unlawful, and also concerning what is involved in there being a common intention to use such means. What Means are Unlawful? 183 Mr Kunc, counsel for the Bryants, invited me to follow the decision of Laddie J in Michaels v Taylor Woodrow Developments Ltd [2001] Ch 493. That case held, at [49], that: "… for a conspiracy by unlawful means to exist, it must be shown that the unlawful activity was actionable against at least one of the conspirators absent the co-operation between them." 184 The conclusions which Laddie J drew about the state of the law were as follows (at[66]): (1) Not all wrongful or illegal acts will support an action for conspiracy by unlawful means. (2) Save in exceptional circumstances, a wrongful act which is sufficient to support an action for unlawful interference with business will be sufficient to support an action for conspiracy by unlawful means and a wrongful act which is insufficient for one will be insufficient for the other. (3) A major difference between "conspiracies to injure" and a "conspiracy by unlawful means" is that in the former, activities which are not actionable in their own right can be rendered actionable by virtue of their being performed in concert if there is a predominant intention to injure. By contrast, in a "conspiracy by unlawful means" , the means must be actionable in its own right against at least some of the conspirators. (4) Where a wrongful act consists of the breach of the provisions of a statute or of subordinate legislation, it will only support an action for conspiracy by unlawful means if it is determined that the intention of the legislature was that such causes of action should be available to enforce the provisions of the legislation." 185 In my view, this decision does not represent the law which a first-instance judge in New South Wales can apply. In Coal Miners' Industrial Union of Workers of Western Australia, Collie v True (1959) 33 ALJR 224 Dixon CJ said, at 227: "… the individual defendants all contemplated the dismissal of the plaintiff, or his inevitable resignation under pressure, if he continued his refusal to make his contribution to the levies, and … they combined their wills to that end. The means they used were a threat of a strike, a threat they knew would be carried into effect, if it did not prove a sufficient intimidation in itself. As a strike is unlawful by the law of the State of Western Australia it was a threat of an unlawful act. A combination to threaten and if necessary carry out an unlawful act as a means of securing an end is actionable as a civil conspiracy." (Emphasis added) 186 Fullagar, Taylor, and Windeyer J agreed with Dixon CJ. Menzies J made remarks to similar effect. Thus, it was not regarded as an essential part of the basis of liability that an action for a breach of statutory duty should lie against any individual who engaged in or organised the strike in question. 187 In Southan v Grounds (1916) 16 SR 274, a decision of the Full Court of the New South Wales Supreme Court, a conspiracy was found to exist to remove the plaintiff from his employment by unlawful means consisting of an illegal strike. However, no element of the reasoning which led to this conclusion considered whether the statute which made the strike illegal was one which conferred a private right of action. 188 In Williams v Hursey (1959) 103 CLR 30, at 78-80 Fullagar J (with whom Dixon CJ and Kitto J agreed) gave reasons for holding that there was, in that case, a conspiracy involving unlawful means. At 78-79, his Honour held that there were sufficient "unlawful means" involved in the maintenance of a picket line. That picket line involved the commission of two torts – an action on the case consisting of obstructing the plaintiff from traversing a path he was entitled to traverse to get to work, and the tort of assault arising from the threat of violence implicit in the picket line. His Honour went on to hold that there were also two infringements of statutes involved in the unionists' conduct, and that each statute should not be construed as intended to create a civil duty enforceable by one waterside worker against another, or by a waterside worker against any person whomsoever. His Honour went on to say, at 79, "This view is, of course, of small practical importance in the present case, since I have held that there was a clear infringement of a common law right." He did not, however, say that the fact that an individual would have had no action for breach of statutory duty against a waterside worker who breached those statutory provisions was a reason why the tort of conspiracy was not available if several defendants conspired to breach such a statute. 189 Taylor J, at 108 said: "The question whether or not the means agreed upon and used to prevent the plaintiffs from presenting themselves for or obtaining work were illegal and was debated at length before us. But it is sufficient to say that the "picket lines" constituted clear breaches of s 44(1) of the Stevedoring Industry Act 1956 and that the course consequently adopted necessarily involved breaches of s 44(2) of that Act whenever it was pursued. That being so, the plaintiffs clearly succeeded in showing that they had suffered damage as a result of the unlawful acts of the defendants … performed in furtherance of a common agreement to prevent them, by those means, from obtaining employment. This was adequate proof of an actionable wrong …" 190 Menzies J said, at 122: "It is, I think, quite clear that an agreement to do something, either as an end or as a means to an end, it being something that would, if it were done by an individual, be a criminal offence, is a tortious conspiracy if another suffers damage by reason of action pursuant to the agreement. There is no suggestion here that it is necessary that the unlawful means be one which would, if done by an individual, give rise to a civil right of action. 191 This view, that any criminal breach of a statute can constitute "unlawful means", has been applied in various first instance decisions in Australia. In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637, at 687 Booking J held that industrial action contrary to s 312 of the Industrial Relations Act 1988 (Cth) amounted to "unlawful means", for the purpose of the tort of conspiracy there alleged, without pausing to enquire whether a breach of s 312, committed by one person alone, would have conferred a particular right of damages on someone who was injured by that breach. 192 In Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 104, R D Nicholson J said, "For the purposes of civil conspiracy by unlawful means, the 'unlawfulness' may be a tort or an activity constituting a breach of statute." Until such time as an appellate court says otherwise, it seems to me that R D Nicholson J has accurately expressed the present state of authority in Australia on this topic. 193 I recognise that there might well be some unpersuasive policy judgments involved in this state of the law. Breaches of statute can range from the extremely serious to the comparatively trivial, and it is hard to see why all breaches of statute should be on the same footing so far as civil liability for conspiracy is concerned. Statutes can create not only legislative norms which, if breached are punishable by criminal sanctions, but also norms which, if breached, are punishable by civil penalties, or by private actions for damages. Each of these types of statute create conduct which can, in one sense of the expression, be called "unlawful means", yet it is not obvious that breach of any of these kinds of statutory norm should count as "unlawful means" for the purpose of the law of conspiracy. However, if one bears firmly in mind that, even in conspiracy to injure by unlawful means, it is still necessary to prove that one of the things the defendants were trying to achieve was damage to the plaintiff, the tort is kept within acceptable bounds. 194 Further, if Michaels v Taylor Woodrow correctly states the present English law, insofar as it decides that there are "unlawful means" only when an action for damages would have lain against a defendant if he or she had committed the unlawful act alone rather than in concert with another, the English law in that respect has changed over the last century. In Giblan v National Amalgamated Labourers' Union of Great Britain and Ireland [1903] 2 QB 600 at 621 Stirling LJ said: "It was contended in argument that unlawful means must be such as would be wrongful if committed by a single individual: I cannot agree." 195 Any clarification by an appellate court by what counts as "unlawful means" for the purposes of the tort of conspiracy, will need to take into account the line of authority which says that if a combination of persons do an act, which, if done by one of them would amount to a tort, an averment of conspiracy to do that act is "mere surplusage": Sorrell v Smith [1925] AC 700 at 716, Cabasi v Vila (1940) 64 CLR 130 at 142-143, 151; O'Brien v Dawson (1942) 66 CLR 18 at 27. Some cases go further and say that, in consequence, it is not open to a party to plead, as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that substantive wrong: Galland v Mineral Underwriters Ltd [1977] WAR 116 at 119-120; McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 445; Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 13 ACSR 117 at 128. It is a consequence of the law as stated in Michaels v Taylor Woodrow that it is only in those cases where a single defendant could have been sued for the tort of breach of statutory duty that an action for conspiracy will lie against more than one defendant, by reason of there being unlawful means consisting of the breach of a statute. 196 There are some circumstances where, notwithstanding that there might have been concerted action to harm someone by breaching a statute, public policy prevents an action for conspiracy from being brought. Thus, even if there were to be a conspiracy to pervert the course of justice by giving false evidence in court, the principle that no liability can attach to a person for the evidence that person gave in court prevents an action for conspiracy from succeeding: Cabasi v Vila (1940) 64 CLR 130. The same result follows if the overt act which is alleged to cause damage consists of speaking out on any other occasion which is absolutely privileged. Marrinan v Vibart [1963] 1 QB 234; Marrinan v Vibart [1963] 1 QB 528. 197 I mention also that the third of the conclusions set out in Michaels v Taylor Woodrow Developments Ltd (quoted at paragraph 184 above) does not state the law of New South Wales. That third conclusion omits the element of the tort of conspiracy by unlawful means which is essential in New South Wales, namely that there be a purpose (though not necessarily a predominant purpose) to harm the plaintiff. What is Involved in an Agreement to Use Unlawful Means? 198 In R v Churchill [1967] 2 AC 224 Viscount Dilhorne said, at 237 (concerning a case of criminal conspiracy): "… I would say that mens rea is only an essential ingredient in conspiracy insofar as there must be an intention to be a party to an agreement to do an unlawful act; that knowledge of the law on the part of the accused is immaterial and that knowledge of the facts is only material insofar as such knowledge throws a light on what was agreed … . The question is "what did they agree to do?" If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon." 199 In Belmont Finance Corporation v Williams Furniture Limited (No 2) [1980] 1 All ER 393 at 404 Buckley LJ (with whom Goff LJ and Waller LJ agreed) said that the defendants were not exempt from liability for the tort of conspiracy, "… on account of counsel's opinion or because they may have believed in good faith that the transactions did not transgress section 54. If all the facts which made the transaction unlawful were known to the parties, as I think they were, ignorance of the law will not excuse them: see Churchill v Walton [1967] 2 AC 224 at 237. That case was one of criminal conspiracy, but it seems to me that precisely similar principles must apply to a conspiracy for which a civil remedy is sought." See also Pritchard v Briggs [1980] 1 Ch 338, at 415 per Goff LJ. (Goff LJ's judgment in Pritchard was, so far as the tort of conspiracy was concerned, a dissenting one, but that does not affect the persuasiveness of this particular observation.) It follows that, before there is an agreement to use unlawful means consisting of breach of a statute, there must be an intent to use means which involve every element of the statutory offence. It will not do if there is a common intent to use means which involve only some of the elements of the statutory offence. Was There a Purpose to Injure Fatimi? 200 For reasons I gave in considering the "conspiracy to injure" aspect of the case, I do not accept that injuring Fatimi was even part of what the Bryants were trying to achieve in transferring the land. They may well have expected that damage to Fatimi would be a consequence of the transfer, but that was not what they were trying to achieve. I am not persuaded that they were trying to achieve anything other than keeping Rylegrove's assets under Bryant family control for as long as possible. This is a sufficient reason why the "conspiracy by unlawful means" case must fail. The Pleaded Unlawful Means – Section 37A of the Conveyancing Act 1919 201 Section 37A Conveyancing Act 1919 provides: "… every alienation of property … with intent to defraud creditors, shall be voidable at the instance of any person thereby prejudiced." 202 In my view, s 37A does not make any conduct unlawful. Rather, it provides for a legal consequence to follow (voidability) if there is conduct of a certain type (alienation of property with intent to defraud creditors). It creates no prohibition on conduct. Breach of s 37A cannot provide the "unlawful means" needed for the tort of conspiracy. Section 596(b) of the Corporations Law 203 Section 596 of the Corporations Law provides: "A person who, while an officer of a company: … (b) with intent to defraud the company or a related body corporate, or members or creditors of the company or of a related body corporate, makes, or purports to make, or causes to be made or purported to be made, any gift or transfer of, or charge on, or causes or connives at the levying of any execution against, property of the company or of a related body corporate … contravenes this section. The particular breach of s 596 which Fatimi alleges was the "unlawful means" here, was a breach of that portion of s 596 which reads: "A person who, while an officer of a company … with intent to defraud … creditors of the company … makes … or causes to be made … any … transfer of … property of the company … contravenes this section." 204 The only people who were officers of Rylegrove at the time the alleged conspiracy occurred were Mrs Bryant and Michael Bryant. For there to have been an actionable conspiracy by means of a breach of s 596(b) it would be necessary for the conspirators (if they were to intend to carry out every element of the statutory offence) to have had a common intention that Fatimi would be hurt by a transfer of Rylegrove's property being made by one or more of Rylegrove's officers effecting that transfer with intent to defraud Fatimi. I am not satisfied that either Mrs Bryant, or Michael Bryant, intended to defraud Fatimi. Nor am I satisfied that the three Bryant defendants came to an agreement that Fatimi would be injured by a transfer of Rylegrove's property being made by one or more of Rylegrove's officers effecting that transfer with intent to defraud Fatimi. Thus, I am not satisfied that there was any common intention to do anything to Fatimi by means of a breach of s 596 of the Corporations Law. Section 319 of the Crimes Act 1900 205 Section 319 Crimes Act 1900 says: "A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years." That section needs to be construed in the light of s 312 of the Crimes Act 1900 . "A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law." 206 In AG Australia Holdings Pty Ltd v Burton [2002] NSWSC 170 at [105] to [108] I gave some consideration to the common law which influences the content of s 319. The relevant portion of the judgment is as follows: "The case law concerning the offence of perverting the course of justice is strongly weighted with cases concerning interference with the processes of the criminal law. They include a doctor giving a medical certificate which falsely states that an accused is unfit to stand his trial: R v Edelsten (1990) 21 NSWLR 542; attempting to influence a judicial officer concerning the disposition of a case before him: R v Murphy (1985) 4 NSWLR 42 (even if the case is a committal proceeding R v Murphy (1985) 158 CLR 596); an accused providing self bail: R v Freeman (1985) 3 NSWLR 303 at 309; a solicitor representing a client in court when the client is charged under a name which the solicitor knows is not the client's real name: Hatty v Pilkinton (1992) 35 FCR 433; pressuring an accused to plead guilty Meissner v R (1995) 184 CLR 132; and making an accusation of crime one knows is false to the police, and planting items one intends to be taken to be evidence of the truth of the accusation: R v Rowell [1978] 1 WLR 132. … Notwithstanding the preponderance of cases concerning perverting the course of justice being ones which related to interfering with criminal proceedings, there are some cases concerning the offence of perverting the course of justice, which relate to interference with civil proceedings. R v Vreones [1891] 1 QB 360 held that the offence was established when the accused had tampered with samples of goods, the quality of which was disputed, with intent to deceive arbitrators. R v Kellett [1976] 1 QB 372 held that the offence was committed where a respondent to a divorce case threatened to sue a potential witness in that case for slander for a statement which that person had made to an enquiry agent, with the intent of causing that potential witness not to give evidence in the case. The ratio decidendi of that case was that: "… a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered, or withheld." (at 393) 207 I would accept that the Court's processes of execution are part of the administration of justice. They are carried out pursuant to an order of the Court (namely, the relevant Writ of Execution), and are a necessary part of the Court's machinery for ensuring that court orders will be complied with. 208 I am prepared to infer that there was an agreement between the Bryants that the land would be transferred to NN&D, intending to keep it safe – or at least safer than it otherwise might have been - from possible seizure under legal process. While I am not persuaded that Mrs Bryant and Michael Bryant knew that the Form 57A Notice had been served, I do not think that matters. It is enough, it seems to me, that Mrs Bryant and Michael Bryant knew that judgments had been given against Rylegrove, and that there was a realistic possibility that steps would be taken to enforce one or other of those judgments. Nor does it matter that Fatimi had, in fact, taken no steps towards enforcement of its judgment beyond serving the Form 57A Notice. In Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245, at 258 Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ said, at 258: "It was submitted on behalf of the respondent that conduct otherwise lawful can amount to a contempt of court if done with a particular intention. That is correct, but the intention must be to do something likely to interfere with the course of justice. Thus it may be lawful for one man to advise another to take a holiday in Brazil, but the giving of the advice may constitute a contempt of court if the advice is given for the purpose of keeping the witness out of the way to avoid service of a subpoena. It may be lawful to dismiss a servant or to deprive a man of his office in a trade union, but if this is done for the purpose of punishing him for having given evidence it is a contempt of court: Rowden v Universities Co-Operative Ltd (1881) 71 Lt Jo 373; Attorney General v Butterworth [1963] 1 QB 696. In those cases, the purpose, intention or motive of the act was to do the very thing that would interfere with the course of justice – to keep the witness out of the way or to victimise the witness." 209 Just as keeping a witness out of the way to avoid service of a subpoena which might not yet have issued can interfere with the administration of justice, so transferring land to keep it out of the way of an execution process which might not yet have issued, can be obstructing the course of justice or the administration of the law. 210 Each of the Bryant defendants knew and intended, it seems to me, that the transfer of the land would help save it from possible execution of process. Even if it were the case that this was intended as a temporary measure until the Court of Appeal could overturn the judgment of Master Macready, the Bryants were still saving the land from possible execution of process by a self-help remedy, not by the means which the law provides for deciding whether a judgment should be enforceable pending appeal – namely, an application for a stay of execution pending appeal. Thus, it seems to me that there was an agreement between the Bryants that they would use means which amounted to a contravention of s 319 to effect the transfer. 211 The Bryants submitted that Fatimi must establish that the offence had been committed beyond reasonable doubt. I do not agree. It is correct to say that it is a necessary element of the tort to prove that the agreement has been carried out – and, in the case of a conspiracy to use unlawful means, that involves proof that those unlawful means have in fact been used. However, the tort of conspiracy is a civil action, and (paying due attention to s 140 of the Evidence Act) it is the civil standard of proof which is applicable to each element in it. 212 Notwithstanding that I am satisfied that there was an agreement between the Bryants that they would use means which amounted to a contravention of s 319 to effect the transfer of the land, my failure to be satisfied that this was done with the objective of harming Fatimi still means that the tort has not been committed. Section 96 of the Supreme Court Act 1970 213 Section 96 of the Supreme Court Act 1970 says: "(1) Any judgment or order of the Court for the payment of money shall have the effect of a judgment at law. (2) Subject to sections 98 and 99 and subject to the rules, a person to whom money is payable under a judgment or order of the Court— (a) may have execution on the judgment or order; and (b) shall be entitled to the remedies given to a judgment creditor by the Judgment Creditors' Remedies Act 1901 . (3) Subject to the rules, the effect of a judgment for possession of land shall be the same as the effect of a judgment for the claimant in ejectment immediately before the commencement of this Act." 214 Section 96 confers various rights on a judgment creditor. It does not, of itself, proscribe any conduct. The fact that s 96 exists, and creates the rights it does as part of the Act governing the Supreme Court, is a relevant consideration to take into account in reaching the conclusion that the Bryants agreed to use unlawful means, namely a breach of s 319 of the Crimes Act, but s 96 provides no separate head of unlawful conduct which they agreed to engage in. Section 98A of the Supreme Court Act and Part 45 Rule 15 of the Supreme Court Rules 215 Section 98A of the Supreme Court Act provides: "(1) In this section— notice of consent means the notice referred to in subsection (2)(a) . (2) Where land is affected by a writ of execution particulars of which have been recorded in accordance with section 105 of the Real Property Act 1900, or which has been registered in the register of causes, writs, and orders affecting land in accordance with section 186 of the Conveyancing Act 1919, and— (a) the judgment creditor consents, by notice in writing, to the sale or mortgage of the land by the judgment debtor; and (b) the judgment creditor stipulates, in the notice of consent, the minimum amount that should be paid to the Sheriff out of the proceeds of the sale or the money advanced in respect of the mortgage; and (c) the notice of consent is filed with the Sheriff; and (d) the Sheriff, after due inquiry, endorses the notice of consent with a certificate to the effect that the land has not been sold under the writ, the endorsement of the notice with that certificate operates to prohibit the sale of the land under the writ during the prescribed period. (3) Where during that prescribed period— (a) the judgment debtor sells or mortgages the land; and (b) in the case of a sale — the amount of the deposit (if any) is paid to the Sheriff, to be held by the Sheriff as stakeholder; and (c) an amount (including any deposit paid to the Sheriff as referred to in paragraph (b)) that is not less than— (i) the minimum amount referred to in subsection (2)(b); or (ii) if the judgment creditor notifies the Sheriff in writing that he or she consents to payment of a specified amount that is less than that minimum amount — that specified amount, is paid to the Sheriff out of the proceeds of the sale or money advanced in respect of the mortgage, any liability of the purchaser or mortgagee for payment to the judgment debtor of those proceeds or that money is extinguished to the extent of the amount so paid to the Sheriff, and the Sheriff shall, upon production to the Sheriff of the instrument evidencing the sale or mortgage, and if satisfied as to the matters referred to in paragraphs (a), (b) and (c), endorse the instrument with his or her consent to the sale or mortgage. (4) The interest of the purchaser or mortgagee evidenced by the instrument endorsed with the Sheriff's consent shall not, in relation to the land, be affected by anything done or purporting to have been done, whether before or after the endorsement of the consent, under the writ of execution. (5) The amount paid to the Sheriff, as referred to in subsection (3)(c), shall, subject to and in accordance with the rules— (a) be paid to or at the direction of the judgment creditor; and (b) be in reduction of the judgment debt." 216 Part 45, Rule 15, of the Supreme Court Rules provides: "(1) The creditor may file an affidavit verifying the registration, or recording of particulars, of a writ at the Registrar-General's Department and the receipt by the creditor of advice from the Sheriff to the effect that the Sheriff cannot obtain satisfaction of the writ by proceeding further against the goods of the debtor. (2) On filing an affidavit mentioned in subrule (1) the creditor may lodge with the registrar in duplicate, and the registrar shall seal, a notice in Form 57A advising the debtor of— (a) the registration or recording of particulars of the writ; (b) the creditor's intention to proceed to the sale of the land of the debtor after the lapse of four weeks; (c) the debtor's right to effect his own disposition of the land and the conditions pertaining thereto; and (d) the debtor's right to make an application for a stay of execution. (3) The creditor shall cause any notice sealed under subrule (2) to be served on the debtor personally." 217 An example of a Notice in the form of Form 57A is set out earlier in this judgment at paragraph 31. 218 Fatimi's contention was that the effect of these legislative provisions, together with the prescribed form of Form 57A, is that a judgment debtor is prohibited from selling the land upon being served with a Form 57A. Fatimi contends that the defendants caused Rylegrove to transfer Lot 2 in breach of that prohibition. 219 I do not accept that s 98A, Part 45, Rule 15, or Form 57A either individually or in any combination, have the effect of making it unlawful for a judgment debtor to sell land. Section 98A provides a mechanism whereby, provided the judgment creditor consents, the judgment debtor can have the carriage of the sale of the land, on terms that a certain part of the proceeds of sale is paid to the Sheriff. In that case, the Sheriff is, for a limited period, prevented from selling the land pursuant to the writ. That section is purely permissive, so far as the judgment debtor is concerned. 220 As s 98A(2) makes clear, s 98A needs to be read along with s 105 of the Real Property Act 1900, and s 186 of the Conveyancing Act 1919. No writ affecting Lot 2 Little Hartley was ever registered under s 186 of the Conveyancing Act, so that section does not need to be further considered. Section 105 of the Real Property Act 1900 says: "(1) A writ, whether or not it is recorded in the Register, does not create any interest in land under the provisions of this Act. (2) Subject to subsections (3), (5) and (6), the Registrar-General may record a writ in the Register pursuant to an application in the approved form which: (a) identifies, by reference to a folio of the Register or to a registered dealing, the land in respect of which the recording is sought, (b) is accompanied by an office copy of the writ, (c) incorporates, or is accompanied by, a statutory declaration that, to the satisfaction of the Registrar-General, identifies the judgment debtor named in the writ with the registered proprietor of the land comprised in that folio or registered dealing, and (d) is lodged not later than six months after the date of issue of the writ. (3) Where application is made under subsection (2) for the recording of a writ and it appears to the Registrar-General that the land to which the application relates is held by the registered proprietor in a fiduciary capacity the Registrar-General may refuse to record the writ unless it is proved to the Registrar-General's satisfaction that the writ was issued pursuant to a judgment against the registered proprietor in that fiduciary capacity. (4) A writ recorded in the Register with respect to a registered mortgage, charge or lease may be executed by the sale and transfer, in the approved form, of the mortgage, charge or lease. (5) Where a writ is recorded in the Register, the Registrar-General shall not, unless the Registrar-General cancels that recording, record in the folio of the Register, or upon the registered dealing, upon which the writ was recorded a renewal of the writ or a second or subsequent writ that was issued on the same judgment. (6) Where, at the time of lodgment of an application for the recording of a writ, a dealing for valuable consideration affecting the land identified under subsection (2) (a) in the application is awaiting registration and is in registrable form, the Registrar-General shall not record the writ unless: (a) the dealing is withdrawn from registration, or (b) the dealing does not dispose of the whole estate and interest in the land so identified and the application indicates to the satisfaction of the Registrar-General that, unless the dealing is subsequently withdrawn from registration, its registration is to precede the registration of any transfer giving effect to a sale under the writ." 221 Section 105A of the Real Property Act provides: "(2) Where a writ is recorded under section 105 and a dealing (other than a dealing to which, by the operation of subsection (1), this subsection does not apply) that affects the land to which the recording relates is lodged for registration within the period of three months that next succeeds the recording of the writ, the Registrar-General shall not, during that period of three months, register the dealing unless the writ is referred to in the dealing as if it were a prior encumbrance. (3) Notwithstanding anything in subsection (7), where a writ has been recorded under section 105 and a transfer by the judgment debtor is lodged for registration, being a transfer that: (a) is in registrable form, (b) comprises the whole of the land to which the recording relates, and (c) bears an endorsement of a consent given under section 62B (3) of the Local Courts (Civil Claims) Act 1970 , section 112 (3) of the District Court Act 1973 or section 98A (3) of the Supreme Court Act 1970 , the Registrar-General shall register the transfer and cancel the recording of the writ. (4) Notwithstanding anything in subsection (7), where a writ has been recorded under section 105 and a transfer or mortgage by the judgment debtor is lodged for registration, being a transfer or mortgage that: (a) is in registrable form, (b) in the case of a transfer, comprises part of the land to which the recording relates or, in the case of a mortgage, comprises the whole or part of that land, and (c) bears an endorsement of a consent given under section 62B (3) of the Local Courts (Civil Claims) Act 1970 , section 112 (3) of the District Court Act 1973 or section 98A (3) of the Supreme Court Act 1970 , the Registrar-General shall register the transfer or mortgage. (5) Where: (a) a writ which has been recorded in the Register is referred to in a dealing as if it were a prior encumbrance, and (b) a transfer in registrable form pursuant to a sale under the writ is lodged for registration, the Registrar-General shall, whether or not: (c) the dealing referred to in paragraph (a) has been registered, or (d) the judgment debtor named in the writ is registered as proprietor of the land comprised in the transfer referred to in paragraph (b), make such recordings in the Register as will register the transferee under the transfer referred to in paragraph (b) as proprietor of the land comprised in that transfer, freed from any estate or interest created by the dealing referred to in paragraph (a). (6) Where a writ recorded under section 105 has not, within the period of three months that next succeeds that recording, been executed by sale of the land to which the recording relates, a dealing with that land lodged for registration before the writ is so executed may be registered notwithstanding the recording of the writ. 222 Section 105C provides: "(1) Upon the registration of a transfer or other dealing that for valuable consideration disposes of the whole estate or interest in land affected by a recording of a writ (not being a transfer pursuant to a sale under the writ) the writ lapses in relation to that land unless the transfer or other dealing refers to the writ as if it were a prior encumbrance. (2) Upon the registration of a dealing that for valuable consideration disposes of or creates an estate or interest less than the whole estate or interest in land affected by a recording of a writ, the writ lapses in respect of the estate or interest so disposed of or created unless the dealing refers to the writ as if it were a prior encumbrance. (3) Upon the expiration of the currency of a writ recorded under section 105, the writ lapses in respect of the land to which the recording relates unless it was, during its currency, executed by sale of that land." 223 In the present case, as at 8 August 1995 more than three months had elapsed since Fatimi had registered its writ against the title of Lot 2 Little Hartley. Section 105A(6) of the Real Property Act therefore permitted a dealing with the land to be registered, notwithstanding the recording of the writ. This reinforces the way that it is part of the statutory intent in s 98A of the Supreme Court Act that there is no prohibition on transferring land which is subject to a writ, at least once three months from registration of the writ has passed. Even before that three months has passed, s 105A(2) permits a transfer which is subject to the writ. 224 Nor is there anything in Part 45, Rule 15 which, of itself, made it unlawful for Rylegrove to transfer the land in August 1995. 225 I reject the submission that anything in s 98A of the Supreme Court Act or Part 45 Rule 15 of the Supreme Court Rules, made the transfer an unlawful act. Transfer Contrary to the Mareva Order 226 When Hodgson J made the Mareva Order on 9 August 1993 (paragraph 13 above) it was in proceedings 4703 of 1992. It was an order expressed to be made, "until further order". The suit in proceedings 4703 of 1992 was disposed of by Master Macready on 20 May 1994. The orders then pronounced are set out at paragraph 15 above. Thus, apart from the money judgment and the foreshadowed costs order, the Summons (including the prayer for Mareva relief) was dismissed. 227 Daniell's Chancery Practice, 7th edition (1901), page 1369 says: "An interlocutory injunction may be discharged at any time before the trial of the action, and is ipso facto discharged by the dismissal of the action ( Bliss v Collins 2 Mer 62, Green v Pulsford (1839) 2 Beav 75 [48 ER 1105]". See also, to similar effect, Seton's Judgments and Orders, 7th edition (1912), page 517, Kerr on Injunctions , 5th edition (1914), page 679. Green v Pulsford was a case where a bill was dismissed entirely, not a case where one order was made in a suit, and the balance of the prayers for relief dismissed. For that reason, I would not regard the principle expressed by Daniell as governing the present fact situation. 228 Regardless of that general principle, the Mareva Order was expressed to be made, "until further order". In Attorney General of the Commonwealth v Davids Holdings Pty Ltd (1993) ATPR ¶41-247 Drummond J said, at 41,349: "The expression "until further order" in the restraint on Davids, imposed as it was at an interlocutory hearing, is the classic formulation of an order intended to have interlocutory operation only, ie intended to operate only until judgment in the action is given. That it was intended to have that effect is, I think, clear. The intent of the order was to restrain Davids only until the rights of the parties were determined by judgment. I cannot accept that it is open to a reading that would give the restraint a continuing operation even if Davids had obtained a final judgment in the action in its favour from the trial judge." See also In the Marriage of I H & S A Millar (1983) 9 Fam LR 5, at 6-7 per Nygh J, Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593, at 399 per McPherson SPJ. 229 One application of the rule of construction that an order made, "until further order" is interlocutory is shown by authorities which decide that an injunction expressed to be made "until (a particular date, or the happening of some specified event) or further order" is one which stops automatically on that particular date or on the happening of that specified event, but can stop earlier if the court so orders: Bolton v London School Board (1878) 7 Ch D 766, at 771; In the Marriage of King (1976) 13 ALR 401, at 404-405: 230 A particularly persuasive reason why Hodgson J's order should be construed in the fashion of most interlocutory orders, as lasting until judgment, is that, if that were not so, it would be, potentially, an order which had perpetual effect. If a perpetual order is within the scope of the Court's power concerning the granting of Mareva Orders, it would only be in a rare case that it would be appropriate. There is nothing in the wording of this order to show it is perpetual. There is no other sensible end point for a non-perpetual order, which could be read into the order as a matter of implication, than the determination of the suit. 231 In Blacktown Concrete Services Pty Ltd v Ultra Refurbishing & Construction Pty Ltd (in liq) (1998) 43 NSWLR 484, at 491-2 Santow J said: "To the extent that there is ambiguity in the orders, the authorities on construing court orders are usefully reviewed in a note by Justice Young (1998) 72 ALJ 117-118. "The court order is construed according to accepted applicable guides of construction so that, in the case of real ambiguity extrinsic material such as the reasons for judgment may be considered: Gordon v Gonda [1955] 1 WLR 885; Australian Energy v Leonard Oil NL (No2) [1988] 2 QDR 230 at 232, and see also Repatriation Commission v Nation (1955) 57 FCR 25 at 33-34."" 232 The preferable construction of the order of Hodgson J, in my view, is that the order terminated in accordance with the usual principles for construing an order made "until further order", upon the termination of the suit. However, if I be wrong in that, it would be possible to look to the reasons for judgment as an aid to construction. The reasons for judgment of Hodgson J contain no hint that he was intending to make an order which was anything other than a conventional interlocutory order. 233 It is, of course, possible for a Mareva Order to continue in force after judgment has been obtained, if there are reasons to fear that assets of a judgment debtor might be dissipated, and execution thereby frustrated: Balfour Williamson (Australia) Pty Ltd v Douter Luingner (1979) 2 NSWLR 844. However, in that case it is usual to make an express order at the time of judgment, that the Mareva Injunction continue in force in aid of execution (Stewart Chartering Ltd v C & O Managements SA [1980] 1 All ER 718 at 719, per Robert Goff J; Devlin v Collins (1984) 37 SASR 98 at 99 per King CJ, 105 per Zelling J, 116 per White J; Deputy Commissioner of Taxation v Winter (1988) 92 FLR 327 at 329-330 per Yeldham J). 234 Thus, the Mareva Order of Hodgson J had, in fact, ceased to apply at the time Rylegrove transferred the land to NN&D. The order cannot be a potential source of "unlawful means". 235 Fatimi alleged that the Bryants were estopped from denying that the Mareva Order continued in effect. The estoppel pleaded was an estoppel by representation. 236 I have some doubt about whether, even if an estoppel of the type alleged could be made out, that would suffice for the proof of "illegal means" for the tort of conspiracy. However, I will not seek to resolve those doubts. I am not satisfied that Mr Dean relied upon any representations made by any of the Bryants to the effect that the Mareva Order was still on foot. Each of the Bryant defendants in fact, believed that the Mareva Order was still on foot, and there were some statements by Mr Bryant, in evidence which he gave around the time of the transfer, which manifested that belief of his. Mr Dean heard those statements. However, (regardless of whether the statement should be regarded as a representation that the Mareva Order was on foot and ignoring for the moment on whose behalf those statements were made) I do not find that Mr Dean relied on them. Mr Dean was himself of the view that the Mareva Order was still on foot. That view was one which was shared by his then counsel. While Mr Dean heard the evidence which Mr Bryant gave which betrayed his belief that the Mareva Order was still on foot, that did not cause Mr Dean to divert one whit from the course of action which he would otherwise have adopted. Mr Dean accepted, in cross-examination, that he would not rely on the Bryants for a legal opinion. In these circumstances, the alleged estoppel is not made out. Causation of Damage 237 For the same reasons as I gave concerning the tort of conspiracy to injure, Fatimi has not proved it has suffered damage in consequence of any agreement between the Bryants which had a purpose of harming Fatimi by illegal means. That is a sufficient reason why Fatimi's case of conspiracy by unlawful means should fail. The Release of the Other Alleged Joint Tortfeasors 238 These proceedings, at one time, named as defendants NN&D, Mr McCullough, and Mr Fernando. 239 In October 2000 Fatimi settled with NN&D, McCullough and Fernando. A deed was entered between Fatimi, Dean, NN&D, McCullough and Fernando, which contained the following relevant provisions: "1. NN&D, McCullough and Fernando will pay $10,000 to Fatimi on the date of this deed. 2. Upon NN&D, McCullough and Fernando complying with clause 1, Fatimi and Dean release NN&D, McCullough and Fernando and each of them from all claims and liabilities whatsoever and this deed may be pleaded in bar to any proceedings asserting such a claim or liability. 3. NN&D, McCullough and Fernando release Fatimi and Dean from all claims or liabilities whatsoever and this deed may be pleaded in bar to any proceedings asserting such a claim or liability. 4. The parties will do all things and sign all documents necessary to completion of the proceedings, on the basis of the Terms of Settlement annexed and marked "A" and "B". 5. The parties agree that the terms of this deed are confidential and not to be disclosed to any other person without written agreement of the other party, other than for purposes of enforcement of this deed, or as required by law, except that the parties may disclose the settlement to professional advisers for the purpose of obtaining advice." 240 The Terms of Settlement which were annexed and marked "A" were Terms of Settlement in proceedings 4703 of 1992 (to which NN&D, McCullough and Fernando had been added as defendants in the circumstances set out in paragraph 58 above). Annexure "B" were Terms of Settlement of the claim in these present proceedings, number 1444 of 1998. They read: "By consent, order that: 1. Application by 3rd, 4th and 5th Defendants for security for costs is dismissed. 2. Judgment for the Plaintiff against the Third, Fourth and Fifth Defendants in the sum of $10,000. 3. No order as to costs of the proceedings or of any interlocutory applications made during the course of the proceedings." 241 The Bryants had pleaded that section 5(1)(b) of the Law Reform Miscellaneous (Provisions) Act 1946, and the rule against double satisfaction, had the effect that this settlement with NN&D, Mr McCullough and Mr Fernando had the effect of disentitling Fatimi from recovering any further damages from the Bryant defendants. In light of the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635 that defence could succeed only if the Deed of Settlement was construed as showing that Fatimi was accepting $10,000 in full satisfaction of the loss it claimed to have sustained. I do not construe the Deed of Settlement as showing any such intention on Fatimi's part. Thus, if I were wrong in the conclusion I have come to concerning liability, the entering into of the release would not, of itself, provide the Bryants with a defence. 242 Fatimi has actually received the $10,000 payable under that Deed. If I were wrong in the conclusion I have come to concerning liability, $10,000 would need to be taken into account in any assessment of damages to which Fatimi is entitled in the present proceedings. Order (1) Suit dismissed. (2) Plaintiff to pay defendants' costs. ********** Last Modified: 09/25/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.