Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Beefeater Sales International Pty Ltd v MIS Funding No 1 Pty Ltd [2016] NSWCA 217 Hearing dates: 5 May 2016 Date of orders: 22 August 2016 Decision date: 22 August 2016 Before: Bathurst CJ at [1]; Gleeson JA at [110]; Payne JA at [111] Decision: Appeal dismissed with costs Catchwords: CONTRACTS – construction – loan agreement as part of managed investment scheme – whether advancement of funds authorised by loan agreement – whether payment for "Hectares" pursuant to loan agreement required transfer of interest in land CONTRACTS – loan agreement – whether funds in fact advanced – whether assignee of lender entitled to issue Dobbs certificate Legislation Cited: Conveyancing Act 1919 (NSW), s 163 Corporations Act 2001 (Cth), s 9 Income Tax Assessment Act 1997 (Cth), s 8-1 Cases Cited: Australian Softwood Forests Proprietary Limited v Attorney General for the State of New South Wales [1980] HCA 49; 148 CLR 121 Dobbs v National Bank of Australia Limited [1935] HCA 49; 53 CLR 643 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 G L Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 National Australia Bank v Sampson (Supreme Court (NSW), Young J, 9 September 1991, unrep) Norman v Federal Commissioner of Taxation [1962] HCA 21; 109 CLR 9 Rava v Logan Wines Pty Ltd [2007] NSWCA 62 Shomat Pty Ltd v Rubinstein (1995) 124 FLR 284 Victoria v Tatts Group Ltd [2016] HCA 5; 90 ALJR 392 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrine & Remedies (5th ed 2015, LexisNexis) Category: Principal judgment Parties: Beefeater Sales International Pty Limited (First Appellant) Representation: Counsel: A J Sullivan QC / J S Emmett (Appellants) P D Crutchfield QC / D C Price (Respondent) Solicitors: Esplins Solicitors (Appellants) K&L Gates (Respondent) File Number(s): 2015/262391 Decision under appeal Court or tribunal: New South Wales Supreme Court Jurisdiction: Equity Division Citation: [2015] NSWSC 1109 Date of Decision: 11 August 2015 Before: Ball J File Number(s): 2014/63709 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Willmott Forests Limited (WFL) was the manager of a forestry investment scheme. Under the scheme, participants purchased "Hectares" either through an upfront payment of $8,250 per hectare or through a finance option, whereby the participant would pay a deposit of $1,650 per hectare and the balance would be financed through WFL's wholly owned subsidiary, Willmott Finance Pty Limited (WFIN). The appellant (Beefeater) applied for 67 hectares under the scheme, which involved entering two agreements with WFL: a forestry management agreement and a lease agreement. The application also gave WFL a power of attorney to execute project documents on behalf of Beefeater. Beefeater elected to take the finance option. To support this financing, Beefeater executed a loan agreement with WFIN, and the second appellant, Mr Woodland, executed a guarantee. Under the loan agreement, cl 11 authorised WFIN to pay the principal to WFL in payment for the hectares and to make payments on Beefeater's behalf under the forestry management and lease agreements. "Hectares" was defined as the 67 hectares for which Beefeater had applied pursuant to its application form including Beefeater's right, title and interest under the forestry management and lease agreements. Clause 14 enabled "You", defined as WFIN, to issue a certificate about an amount payable under the agreement (a Dobbs certificate). The effect of the certificate was to reverse the onus of proof as to the amount due by Beefeater. The forestry management agreement and lease agreement were executed by WFL on behalf of Beefeater under its power of attorney. However, the power of attorney was not registered, nor was the lease registered. As a result, neither a legal nor equitable lease was created. WFL and WFIN then entered into a loan transfer deed with the respondent (MIS) under which the loan with Beefeater was assigned to MIS. Under the loan transfer deed, MIS was assigned WFIN's entire right, title and interest in, to and under the loan agreement. WFL and WFIN were placed into receivership and the forestry management scheme failed. MIS alleged that Beefeater fell into default under the loan agreement and demanded payment of outstanding principal and interest. A business client manager of MIS purported to issue a certificate under cl 14 stating that the amount due by Beefeater was $644,153.43. The issues on appeal were: 1 Whether cl 11 of the loan agreement did not authorise WFIN to pay the principal to WFL, unless and until a legal or equitable lease was granted in respect of the 67 hectares applied for. 2 Whether MIS, as assignee of the loan agreement, was entitled to rely on a certificate issued under cl 14. 3 Whether WFIN in fact advanced the principal to WFL. The Court held (Bathurst CJ, Gleeson and Payne JJA agreeing) dismissing the appeal: Authorisation (i) Contractual construction will be determined by what a reasonable business person would have understood it to mean, taking into account the language, surrounding circumstances and commercial purposes of the contract. The contra proferentem rule is only to be employed when ambiguity remains after all other avenues of construction have been exhausted: [65]-[66] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104; Victoria v Tatts Group Ltd [2016] HCA 5; 90 ALJR 392; Rava v Logan Wines Pty Ltd [2007] NSWCA 62; G L Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62 applied (ii) Where nothing in cl 11 stated that payment was conditional on the grant of a leasehold interest, "Hectares" was defined to include contractual rights and Beefeater's liability under the forestry management agreement was not contingent upon the grant of a leasehold interest, WFIN was authorised to make the payment to WFL in circumstances where no lease was granted: [67]-[71] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). (iii) Even where the conferral of a leasehold interest was intended by the parties to the scheme, the failure to obtain a leasehold interest did not affect MIS's ability to enforce the loan agreement: [72]-[73] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). Dobbs certificate (iv) The right to confer a "Dobbs" certificate is a chose in action capable of assignment. In assessing whether a contractual chose in action has been assigned, the correct approach is to ask whether the contract as a whole creates rights enforceable by action and to treat as a complete chose in action the aggregate of the legal rights, privileges, powers and immunities conferred by the contract: [96] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). Norman v Federal Commissioner of Taxation [1962] HCA 21; 109 CLR 9 applied (v) Where the assignment involved the assignment of the right, title and interest of the assignor to and under the loan documents, this encompassed the right to issue a Dobbs certificate under cl 14: [97] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). (vi) Whether the right to issue a Dobbs certificate is personal to a particular party will depend on the proper construction of the contract. Where the lender, as distinct from a particular person, was nominated to issue the certificate and the clause merely reversed the onus of proof rather than provided conclusive evidence, the right was not personal to the assignor. Furthermore, there is no reason to conclude that after the assignment of a loan, the assignee would have less knowledge of the amount due than the assignor: [98]-[101] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). Shomat Pty Ltd v Rubinstein (1995) 124 FLR 284; National Australia Bank v Sampson (Supreme Court (NSW), Young J, 9 September 1991, unrep) distinguished (vii) MIS was entitled to give a certificate under cl 14 of the loan agreement and thus the onus fell on Beefeater to prove that it was incorrect: [102] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). Advancement of moneys (viii) Beefeater failed to discharge its onus to prove that the certificate was incorrect in circumstances where the available evidence demonstrated that the scheme was operating as intended and the records documented a loan. Absent any evidence to suggest that the records were incorrect, the evidence was sufficient to show that the advance has been made: [103]-[104] (Bathurst CJ); [110] (Gleeson JA); [111] (Payne JA). Judgment 1. BATHURST CJ: These proceedings arise out of a failed forestry investment scheme. The respondent (MIS) sued the first appellant (Beefeater) for the recovery of monies which it alleged were advanced to Beefeater to fund its participation in the scheme. The second appellant (Mr Woodland) guaranteed Beefeater's obligations. 2. The primary judge found in favour of MIS and entered judgment against each appellant in the sum of $650,282.90. The appellants have appealed from that judgment. Background 1. The forestry investment scheme in question was promoted by a company, Willmott Forests Limited (WFL). A wholly owned subsidiary, Willmott Finance Pty Limited (WFIN), funded some participants' investment in the scheme. Referring to the information memorandum used in the promotion of the scheme, senior counsel for the appellants submitted that it could be inferred that two of the directors of WFL and WFIN, Mr Marcus Derham and Mr Jonathan Madgwick, were persons who would be expected to have intimate knowledge of the forestry scheme. The information memorandum described Mr Derham as being involved in the forestry industry for 15 years at both middle and senior management level, whilst Mr Madgwick was described as being involved in an advisory capacity for WFL's commercial forestry projects over the past 9 years. 2. The information memorandum was dated 12 June 2001. A number of its provisions are relevant to the issues raised in the appeal. 3. In the overview of the project, contained in the information memorandum, the investment was described as "a sound investment in a softwood plantation project". It was said to cost $8,250 per hectare, with no ongoing payment for maintenance or lease rental, and that these costs would be deducted from gross timber proceeds. 4. The information memorandum stated the project involved two agreements: a "Forestry Management Agreement", which was described as having two parts, "Preparation and Planting $8,250 per Hectare" and "Maintenance 7% of Gross Timber Proceeds"; and a "Lease Agreement", which referred, presumably by way of rental, to "2% of Gross Timber Proceeds". 5. Under the heading "How does the Project work?", the information memorandum stated that growers apply for a minimum of 67 hectares and if the application is accepted, WFL would administer the project, lease the land to growers, plant seedlings at a minimum rate of 1,000 per hectare, pre-purchase 50% of first thinning proceeds, arrange harvesting operations on request and distribute harvesting proceeds to growers. 6. The information memorandum described the payment options as either a cash payment of $8,250 per hectare or a finance option, requiring payment of a deposit of $1,650 per hectare, with a balance of $6,600, financed through WFIN by way of an interest only facility for the first 10 years and thereafter a 5 year principal and interest facility (the finance option). 7. In a section of the information memorandum headed "The Process", further information was provided concerning the scheme. The following matters are of relevance: "Allocation of Hectares A Grower will be allocated Hectares upon acceptance of an Application (see Application Form on page 27). Project Land is drawn from land within the Bombala Supply Zone (100km radius of Bombala). It may include land the Manager is presently considering for the purposes of the Project and land already owned by the Manager. Agreements After allocation of Hectares a director of the Manager will execute on behalf of the Grower the Forestry Management Agreement and Lease Agreement and will forward these documents, together with the Allocation Plan delineating the Growers Leased area, to the Grower. … Harvesting Operations Income is generated from harvesting operations anticipated to be undertaken in years 14, 19 and 25 (as growth rates and market conditions can vary, the actual timing of Harvesting is also subject to variation). The Manager will advise Growers of the available markets, prices, recommended timing of Harvesting in order that the Grower can make an informed decision. … Wood Purchase Agreement The Manager has entered into a Wood Purchase Agreement (WPA) with Softwood Development Corporation (SDC) for the purchase of both sawlogs and pulp marketed or sold through the Manager from plantings made by it on behalf of growers pursuant to the Project. … Distribution of Timber Proceeds Timber Proceeds are received by the Manager. The Manager will forward these Timber Proceeds to Growers accordingly. There can of course be no guarantee that Timber Proceeds at a particular point of time will produce a profit for Growers." 1. The information memorandum also contained a section headed "Questions and Answers". In that section it stated that the grower was in control of the investment but had the benefit of the manager's expertise in the day-to-day administration and management of the project. It also stated, under the heading "What are the Criteria for Selecting Land?", that the manager would apply appropriate and practical criteria for selection of optimum sites. The following information was given under the heading "How is my timber marketed/sold?": "Prior to Harvesting the Manager will conduct a detailed assessment of the wood volume carried on the Plantation per Hectare. This data is compiled and actual wood volume is projected forward. This enables the Manager to commence discussions with potential wood purchasers. (Refer to Wood Purchase Agreement on page 11). The Manager will advise Growers of the available markets, prices, recommended timing of Harvesting etc., in order that the Grower can make an informed decision. At all times, marketing / sale of timber is the Grower's decision. The Grower may engage the Manager to arrange for these works to be carried out at the appropriate time. The Manager's fees and expenses for doing so will not exceed 1% of Gross Timber Proceeds (Harvesting Fees). Whilst it is expected that the majority of the timber will be used domestically (as a substitute for imported timber) the Plantation will be ideally situated should an export market develop in the future. Details of the Wood Purchase Agreement entered into by the Manager with Softwood Development Corporation Pty Ltd are on page 11." 1. The question and answer section also stated that seedlings would be planted in accordance with the forestry management agreement, that trees would be planted on an identifiable area of land and that the plan delineating the particular area would be attached to the lease agreement. 2. The information memorandum also contained a taxation report from KPMG which opined that investors could obtain a deduction for lease payments and forestry management fees under s 8-1 of the Income Tax Assessment Act 1997 (Cth). In reaching that conclusion, the author of the report made the following remarks: "The Commissioner has released taxation ruling TR 2000/8 which discusses the business of afforestation and what factors should be considered when determining whether a business of afforestation is being carried on. Paragraph 35 of the ruling states 3 factors which would ordinarily indicate a business of afforestation is being carried on: The investor has an interest in specific trees and a right to harvest or sell the timber from those trees; The investor carries out, or a manager carried out on the investor's behalf, afforestation activities; and The activities of the investor have a significant commercial purpose. Examining the Information Memorandum, it is apparent that each investor will have an identifiable interest in specific trees, along with the right to harvest and sell the timber from those trees. This interest ordinarily continues until maturity of the trees. It is possible, however, that in some circumstances an investor may conduct the business with the intention of maintaining that interest until clearfell, only to subsequently choose to sell their interest in the standing timber before that time, on commercial terms. This in our view should not detract from the conclusion that the investor is conducting the business of afforestation until that time. The fact that the day to day running of the Project is delegated to the Manager does not preclude the investor being taken to be carrying on a business. The extent of the delegation can not be so complete that the Manager is the only one undertaking the necessary tasks. This is a question of fact and each afforestation project would therefore need to be considered individually to ascertain the actual position. From the information provided, it appears that the contemplated delegation to the Manager should not preclude the investor from running a business of afforestation." 1. The information memorandum contained a glossary of terms. Of relevance are the following provisions: "Gross Timber Proceeds The total royalties received from thinnings and clear fell. Hectare An area of land and Trees which equates to 1 Hectare (2.471 Acres). Investment Deed The Investment Deed dated 12 June 2001 under which the Project is established. Timber Proceeds The Gross Timber Proceeds less Harvesting Fees totalling 1%, fees for the Forestry Management Agreement and Lease Agreement totalling a further 9% and less a further 50% of 1st thinnings pre-sold to the Manager." 1. On 26 June 2001, Beefeater completed an application form, applying for 67 hectares. It elected to take the finance option, paying a deposit of $110,550. The application recorded that the balance payable was $442,200. The application stated that Beefeater agreed to be bound by the terms of the investment deed and irrevocably appointed a director for the time being of WFL as its attorney to do, among other things, anything necessary to execute and deliver project documents. A copy of the application form in evidence indicated that it was accepted by WFL on 28 June 2001. 2. The application form indicated that the finance option was applied for, although it noted the $442,200 was payable within 30 days. A loan application was also completed indicating that Mr Woodland had agreed to guarantee the loan. A guarantee was executed by Mr Woodland on 26 June 2001. 3. The investment deed referred to in the application form was dated 12 June 2001. The following provisions of the Deed are relevant: "2 Assets held on trust 2.1 The Manager must hold the Assets on trust for Growers." (It should be noted that "Assets" were defined as "all the property, rights and income of the Project, but not application money or property in respect of which Hectares have not yet been issued".) "3 Application Price for Hectares 3.1 A Hectare must only be issued at an application price which is the amount payable as specified in the relevant Information Memorandum and set out in the Project Documents in respect of the issue of each Hectare." ("Hectare" was defined as "an interest in one Hectare of the Land and all improvements to that Land pursuant to a Project Documents [sic]", whilst "Land" was defined as "any Land acquired by the Manager for the purpose of the Project".) "4 Application Procedure Application Form 4.1 An applicant for Hectares must complete a form approved by the Manager if the Manager so requires. The form may be transmitted electronically if approved by the Manager. … Payment 4.2 Payment in a form acceptable to the Manager, or a transfer of property of a kind acceptable to the Manager and able to be vested in the Manager (accompanied by a recent valuation of the property, if the Manager requires), must: (a) accompany the application; or (b) be received by or made available to the Manager within such period before or after the Manager receives the application form as the Manager determines from time to time. If the Manager accepts a transfer of property other than cash, any costs associated with the valuation or transfer of the property are payable or reimburseable out of the Assets. … Issue date 4.5 Hectares are taken to be issued when the Manager accepts the application. Uncleared funds 4.6 Hectares issued against application money paid other than in cleared funds, or in consideration of a transfer of property, are void if the funds are not subsequently cleared or the property does not vest in the Manager within 30 days of receipt of the application. Procedure following issue 4.7 Within 30 days of the issue of Hectares pursuant to clause 4.5 the Manager shall notify in writing the applicant of such acceptance. 4.8 Following the issue of Hectares, the Manager will prepare and forward to the applicant at least 2 copies of each of: (a) the Lease Agreement; and (b) the Forestry Management Agreement; and the applicant will within 14 days of receipt (or such longer period as the Manager may in writing approve) lodge or cause to be lodged with the Manager each such copy signed by or on behalf of the applicant. … 4.9 Within 2 months of receipt of the documents signed by the applicant pursuant to clause 4.8, or such other time as the Manager and the applicant agree, the Manager will: (a) enter the name of the person described in the Forestry Management Agreement as the Grower and the date of issuing the Hectares in the Register; and (b) forward to the Grower one copy of each of the Project Documents. … 4.11 Except as otherwise provided in this Investment Deed, the Manager shall recognise the Grower or the Grower's executors or administrators as the absolute owner of the Hectares as set out in the Register and the Manager shall not except: (a) as otherwise provided in this Investment Deed; (b) as ordered by a Court of competent jurisdiction; or (c) as required by statute, Be bound to take notice of any trust or equity (whether express implied or constructive) affecting the ownership of any Hectare or any incidental rights and the receipt by such Grower or the Grower's executors or administrators for any moneys payable in respect of the Hectares is [to] be a good discharge to the Manager. Joint tenancy 4.12 Persons Registered jointly as the holder of a Hectare hold as joint tenants and not as tenants in common unless the Manager otherwise agrees." 1. On 17 July 2001, Beefeater also executed a loan agreement, which was dated 28 June 2001. The principal amount of the loan was said to be $442,200, whilst "Hectares" was defined in the following terms: "'Hectares' means the 67 Hectares for which we have applied pursuant to an Application Form dated 28 June 2001 and includes my/our right, title and interest in the Forestry Management Agreement and Lease Agreement (together 'Agreements') between me/us and Willmott Forests Limited and all rights to or in connection therewith including on the exercise of any option thereunder." 1. "Mortgaged Property" was defined in the loan agreement as "the Hectares (and any part thereof) and includes the Trees". "Trees" was defined as "the trees referred to in the Agreements". 2. The following operative provisions of the loan agreement are of relevance: "1 I/We acknowledge and declare the Loan is made to me/us for the purpose of carrying on the business of primary production (particularly forestry operations) and is to be applied in investing in Hectares. … 5(a) In consideration of the Loan receipt of which I/we acknowledge, I/we, as mortgagor and as beneficial owner, hereby convey to WFIN all my/our interest in the Hectares (including the Trees) to hold to and to the use of WFIN for securing payment of all Moneys Owing and the performance of my/our covenants herein. I/we agree to comply on time with the Agreements. … 6 I/We agree not to create or allow to exist any security interest or other interest in the Mortgaged Property (or cut down or remove any Trees) except this agreement and not to dispose (or agree to dispose) or part with possession of the Mortgaged Property without WFIN's prior written consent. … 8 If I/We are in default: (a) you may give me/us a notice that we are in default. Upon the giving of the notice, to the extent not already due for payment, the Principal, interest and all other Moneys Owing becoming immediately due for payment; and/or (b) you may do one or more of the following as well as anything else the law allows you to do as a mortgagee: (i) sue me/us for any Moneys Owing; (ii) take possession of the Mortgaged Property; (iii) do anything an owner or receiver or receiver and manager of the Mortgaged Property could do, including improving, selling or leasing it; (iv) appoint a receiver or receiver and manager to do any of these things and anything else the law allows a receiver or receiver and manager to do. … 11 I/We authorise WFIN to pay the Principal to Willmott Forests Limited in payment for the Hectares and to make on my/our behalf any payments under the Agreements. … 14. You may give us a certificate about a matter or about an amount payable under this agreement. The certificate is sufficient evidence of the matter or amount unless it is proved to be incorrect. If you do not exercise a right or remedy fully at any given time you can still exercise it later. You are not liable for loss caused by the exercise or attempt to exercise or failure to exercise or delay in exercising a right or remedy. Your rights and remedies under this agreement are in addition to any other rights and remedies you may have by law or independently. This agreement or a right created under it may not be waived or varied except in writing. … 16 Capitalised terms not defined have the meaning given to them in the Investment Deed constituting the Project and/or the Information Memorandum." It should be noted the expression "You" is said to mean WFIN. 1. On 4 July 2001, the forestry management agreement was executed. It was executed on behalf of Beefeater under the power of attorney referred to above at [14]. It was stated to commence on 28 June 2001. It described the "Grower's Leasehold Property" (leasehold property) as being located on a plantation named "Delegate 8" and identified the certificate of title on which it was situated. 2. The forestry management agreement stated that WFL agreed to provide the works and services set out in the schedules in respect of the leasehold property. It should be noted that the obligation did not appear to be limited to, or specifically relate to, the blocks the subject of the lease agreement between WFL and Beefeater, which was entered into on the same day. 3. Clause 1 of the forestry management agreement provided that the fees payable in Parts 1 and 3 of the schedule to that agreement were payable at the time set out in those schedules. Part 1 of the schedule provided for the fee for preparation and planting. That fee was said to be payable by a deposit of $1,650, on approval, and the balance of $6,600 per hectare within 30 days (referring to the finance option). 4. On the same day, a lease agreement between Beefeater and WFL was executed by Beefeater under the power of attorney I referred to above at [14]. The lease described the leased area as certain blocks on the land in the certificate of title and the plantation referred to in the forestry management agreement. The land in question was sought to be identified by blocks referred to in a plan attached to the lease. 5. The lease was for a term of 24 years with an option to renew for a further term of 5 years, or until the trees were harvested and the land made good, whichever was sooner. 6. The lease provided that rental should be an amount equal to 2% of the gross timber proceeds received from thinning and clear felling of the trees on each hectare of the land. It provided that the lessee authorised the lessor, in its capacity as manager of the managed investment scheme, to deduct the rent from the gross timber proceeds prior to distributing these proceeds to the lessee. 7. The lease contained the following covenants: "1 a) The lessee may use the land only as part of a managed investment scheme by which investors including the lessee ('Growers') participate in the establishment and maintenance of trees ('Trees'), which scheme is managed by the lessor. For that purpose the lessee, may, without derogating from the generality of the permitted use of the land: … iii) plant and maintain Trees in accordance with proper plantation management principles; and … (iv) harvest the Trees following their maturity. … 4 At the expiration of the lease the lessee shall deliver up the land in such state of repair as is reasonable having regard to the terms and conditions of this lease. … 8 The lessor must give to the lessee quiet possession of the land without any interruption by the lessor or anyone connected with the lessor, so long as the lessee does what it must under this lease. … 11 The lessor may re-enter the land and end this lease if - (a) the lessee does not pay the rent for 30 days – no demand is necessary; or (b) the lessee does not meet its other obligations under: (i) this lease (ii) the Forestry Management Agreement or (iii) any other agreement between the lessor or a related person which relates to the land or anything done on the land and on the part of the lessee to be observed or performed. … 12 b) If the lessor re-enters the land in accordance with the provision of this lease, the property in the Trees shall vest in the lessor on and from the date of re-entry, provided that upon the sale of the trees by the lessor following tree maturity or earlier, the sale proceeds shall be applied as follows:- i) First, towards payment of any moneys owing to the lessor or any related party whether under this lease, the Forestry Management Agreement or any other agreement with a related party; ii) Secondly, towards payment of any costs, expenses or damages incurred or suffered by the lessor arising from the default of the lessee and iii) Thirdly, the balance being payable to the lessee. … 19 a) The lessor will upon the written request of the lessee delivered to the lessor not less than three months prior to the expiration of the term and so long as there shall not be any existing breaches or non-observances of any of the covenants conditions agreements and provisos on the part of the lessee herein contained renew this lease for the further term as set out in this lease upon the same terms and conditions as are herein contained but excluding this clause for renewal at the rental specified in paragraph (a) under the heading 'Rental'. … 21 Wherever herein appearing unless repugnant to the context the word 'lessor' shall be deemed to mean the person or company for the time being entitled to the reversion of the land and the word 'lessee' shall be deemed to mean and include the lessee his or her heirs executors administrators and permitted assigns or (being a company) its successors and permitted assigns and all covenants and agreement by the respective parties if consisting of more than one person or company shall be deemed to mean and include such persons or companies both jointly and severally." 1. On 30 June 2006, WFL and WFIN entered into a deed with MIS (the loan transfer deed), which was described as setting out the terms on which the seller (described as WFL or WFIN as appropriate) would sell "Loans and corresponding Loan Rights" to MIS. 2. The following definitions in the Loan Transfer Deed are relevant: "'Loan' means any debt or part of a debt owing by a Debtor to a Seller or the Purchaser under the loans identified in the Settlement Report. 'Loan Application' means, in relation to a Loan, the application documents in relation to that Loan signed by the Debtor in respect of that Loan. 'Loan Documents' in relation to a Loan means: (a) the Loan Application relating to that Loan; (b) the Loan Agreement relating to that Loan; (c) any document which documents the terms of, or evidences the grant of, any Related Securities (if any) in respect of that Loan and title documents (if required to be held by Willmott Forests in accordance with the Originating Guidelines (as defined in the Origination and Management Deed) with respect to any assets the subject of such a Related Security; … 'Loan Files' in relation to a Loan means such books, records, paper and electronic files (whether originals or copies) relating to that Loan and any Related Security (other than the Loan Documents) which a Seller or a related body corporate of a Seller has in its custody (including, without limitation, all correspondence and any agreements with a Debtor or provider of a Related Security). 'Loan Rights' means, in respect of a Loan, each of the items (together with all rights, title and interest in each of those items) referred to in clause 2.1 assigned, or which may be assigned, as the case may be, in accordance with this Deed to the Purchaser. … 'Settlement Report' means a report setting out information relating to all Loans assigned to the Purchaser under clause 2 containing the information and substantially in the format specified in the relevant part or parts of Schedule 1. For the avoidance of doubt 'Settlement Report Part 1' means such a report containing the information set out in Part 1 of Schedule 1, and equivalent phrases have an equivalent meaning. … 'Title Perfection Event' means each event referred to in clause 6." 1. It should be noted that the loan of $442,200 from WFL to Beefeater was one of the loans identified in the settlement report. 2. Clause 2 of the deed effected the assignment of the lease. So far as is relevant, it provided as follows: "2.1 Assignment by Seller Subject to the terms of this Deed, the Purchaser offers to purchase the Seller's entire right, title and interest in, to and under the following: (a) (Loans): each of its Loans identified in the Settlement Report Part 1; (b) (Payment Rights): all moneys, present and future, actual or contingent, owing at any time in respect of or in connection with each of its Loans referred to in clause 2.1(a) under the corresponding Loan Documents, including all principal, interest, reimbursable costs and expenses and any other amounts incurred by or payable to the Seller (including any payments made by the Seller on behalf of the Debtor in relation to the Loan) irrespective of whether: (i) such amounts become due and payable before or after the Assignment Date; and (ii) such amounts relate to advances made or other financial accommodation provided by the Seller to the Debtor before or after the Assignment Date. (c) (Related Securities): all Related Securities in existence from time to time in relation to each Loan referred to in clause 2.1(a); and (d) (Loan Documents): all Loan Documents in existence from time to time in relation to each Loan referred to in Clause 2.1(a). The Sellers may accept this offer by and only by paying an acceptance fee of $10 to the Purchaser. 2.2 Payment of Purchase Price If the Sellers accept the Purchaser's offer made under clause 2.1 of this deed, the Purchaser must pay to the Seller on the Assignment Date the aggregate of the Purchase Prices for the Seller's Loans set out in the Settlement Report provided by the Seller to the Lender on or before the Assignment Date less 3% by depositing such amount into an account nominated by the Seller. 2.3 Effect of Assignment (a) Payment of the Purchase Price in respect to a Loan constitutes an immediate assignment with effect on and from the date of such payment of the entire right, title and interest in the Loan Rights for that Loan free from all Encumbrances, Adverse Claims and other third party rights and interests whatsoever. (b) The Purchaser's right, title and interest in such Loan rights is at all times subject to the terms of this Deed and the Origination and Management Deed. 2.4 Limit of Purchaser's rights (a) (Assignment in equity): An assignment of Loan Rights in accordance with this Deed takes effect initially in equity only unless and until the Purchaser perfects legal title to those Loan Rights in accordance with clause 6. (b) (Purchaser must not communicate, disclose or perfect title): The Purchaser must not: (i) take any steps to perfect the Purchaser's title to any Loans or the corresponding Loan Rights; (ii) give any notice to, or communicate in any other way with, a Debtor in relation to a Loan; or (iii) disseminate or disclose any information in respect of the assignment of the Loans or the corresponding Loan Rights, except in accordance with the terms of this Deed. … 2.7 Loan Documents A Seller must take all necessary action to locate and deliver to the Purchaser (or its nominated agent) on the relevant Assignment Date all Loan Documents which relate to the Loans assigned on that date (including, without limitation, all Loan Documents deposited with a solicitor (acting on behalf of a Seller), a stamp duties office, a land titles office or other Government Agency)." 1. Clause 6.1 provided that a "Title Perfection Event" included an "Insolvency Event". I have not set out the definition of insolvency event, but it is not disputed that it included the appointment of receivers to WFL or WFIN. 2. The effect of a title perfection event is set out in cl 6.2 of the loan transfer deed. It is in the following terms: "6.2 Effect of Title Perfection Event (a) (Direct Seller to take action): If a Title Perfection Event occurs in relation to a Seller and subsists the Seller at the request of the Purchaser must notify the relevant Debtors of the sale of the Loans and Related Securities and inform the relevant Debtors that they should make payments under the Loans to an account nominated by the Purchaser. At any time on or after the day falling 5 Business Days after the Purchaser has notified the Seller of its intention to exercise its rights under this clause 6.2(a), the Purchaser may take any action set out in this clause 6.2(a) which the Seller may take and the Purchaser may also take all necessary steps to perfect the Purchaser's legal title to the Loans and corresponding Loan Rights, including lodgement of transfers with the land titles office of the appropriate jurisdiction to achieve registration of any Related Securities in respect of those Purchased Loans. (b) (Possession of Loan Files): At any time on or after the occurrence of a Title Perfection Event in relation to a Seller, the Purchaser may take possession of all of the Seller's Loan Files (subject to the Privacy Act) and Loan Documents in relation to the Loans. The Purchaser may, if necessary to obtain possession, enter into the premises of the Seller at which the Loan Files or Loan Documents are stored." 1. On 6 September 2010, each of WFL and WFIN were placed into receivership. On 13 October 2010, MIS notified Beefeater of the assignment to MIS of WFIN's rights under that company's loan agreement with Beefeater. 2. MIS alleged that Beefeater fell into default under the loan agreement. It demanded from each of Beefeater and Mr Woodland payment of outstanding principal and interest. Liability was denied and as a consequence, the proceedings the subject of this appeal were commenced. The primary judgment 1. The primary judge noted that MIS claimed it was entitled to succeed on two bases. First, it claimed that it was entitled to recover the money paid under the loan agreement. Second, it claimed that if the loan agreement was unenforceable, it was entitled to recover on its claim for money had and received. 2. The primary judge noted that, on 24 July 2015, Mr Mohammed Fahad, a business client manager of MIS, purported to give a certificate pursuant to cl 14 of the loan agreement stating that the amount owing by Beefeater under the loan agreement was $644,153.43. 3. The primary judge noted that the claim was resisted on two grounds. First, MIS had not established that funds were advanced, it being asserted that there was no evidence that any payment was made by WFIN to WFL as contemplated by the loan agreement. Second, even assuming the funds were paid, they were not paid to acquire hectares as Beefeater had acquired neither a legal nor an equitable interest in land. The primary judge pointed out that it was contended that the lease was not registered, so there was no grant of a legal interest, whilst no equitable lease was created because the power of attorney under which it was executed was not registered, as required by s 163 of the Conveyancing Act 1919 (NSW) as it existed at the relevant time. He noted that Beefeater also submitted that the lease was void for uncertainty as it did not clearly identify the land the subject of the lease. 4. The primary judge also noted that the claim of money had and received was resisted, first, on the basis that no money was advanced and second, on the basis that, to the extent WFIN had such a claim, it was not assigned to Beefeater. 5. The primary judge concluded that it was more likely than not that funds were advanced by WFIN to WFL. First, he referred to the certificate given under cl 14 of the lease agreement by Mr Fahad. He rejected the submission that the certificate could only be given by WFIN and the right to give it could not be assigned. He stated that the right to give the certificate was a right conferred under the loan agreement. He stated that there was nothing to indicate that the right was personal to WFIN and that there was no reason the parties should not have intended that an assignee could be the beneficiary of that right. Further, he submitted the expression "You" in cl 14 could reasonably be interpreted as an employee or agent of WFIN or its assignee. 6. The primary judge also rejected the submission that the certificate could not be given because the loan never came into existence. He stated the question was not whether the loan came into existence but whether the loan agreement did. 7. The primary judge also rejected the submission that the evidentiary presumption arising from the giving of the certificate had been rebutted. He stated that records which should have recorded the payment of $442,200 were not records of MIS and, as a consequence, nothing could be inferred from their absence. He pointed to the fact that WFIN was required to make the payment in accordance with its contractual obligations under the loan agreement and that the payment was made to discharge Beefeater's contractual obligation to WFL. He pointed out that there was no suggestion that contractual obligations were not complied with, stating that there was evidence that WFL sought to develop the scheme, in particular, the annual reports in relation to progress. He also pointed to the fact there were computerised financial records maintained by WFIN, which showed a loan owed by Beefeater. 8. In relation to the contention that monies were not paid to acquire "Hectares", as authorised by cl 11 of the loan agreement, the primary judge accepted that no lease, legal or equitable, came into existence and that, on its face, it did not appear possible to identify the precise boundaries of each block. However, he concluded that, whether or not the lease agreement gave rise to purely contractual rights, WFIN complied with cl 11 of the agreement. 9. The primary judge stated that the loan agreement authorised WFIN to pay the funds to WFL to acquire a particular bundle of rights known as "Hectares". He pointed out that the bundle of rights was defined in the loan agreement by reference to the bundle of rights Beefeater had applied for, pursuant to its application form of 26 June 2001, including rights under the forestry management agreement and the lease agreement. He stated that "Hectares" was not defined in a way which sought to identify independently the nature of those rights, so as to put WFIN on inquiry as to whether those rights were obtained. He stated there was nothing to suggest that hectares were only acquired if a leasehold interest was acquired over the relevant blocks. His Honour stated that the parties to the agreement may have assumed, because of the obvious indications in the lease agreement, that it was intended for that agreement to grant a lease which could be registered, but stated that it did not follow that there was a promise by WFIN only to pay the monies for the purpose of a scheme which had, as one of its attributes, that the blocks on which the trees were to be grown would be subject to a legal or equitable lease. 10. The primary judge also concluded that there was nothing in the loan agreement identifying what qualities "Hectares" had to have before the principal could be paid, other than the qualities of the rights applied for in the application. He said WFIN was a lender, who had lent money to enable Beefeater to invest in a project chosen by it, and provided that the money was paid for that purpose, it was paid in the manner authorised by cl 11. He said that if Beefeater did not receive what it was promised, that was a matter between it and WFL. 11. However, the primary judge concluded that MIS was not entitled to succeed on its claim for money had and received. He stated that any right WFIN may have had to recover funds from Beefeater, on the basis that it had advanced the funds in the mistaken belief that the loan agreement was enforceable, was not assigned to MIS. The appeal 1. The appellants relied on the following grounds of appeal: "1 The learned trial judge erred in holding that, if any funds were advanced by the second respondent (WFIN) purportedly under the Loan Agreement (as defined in paragraph 1 of the judgment below), those funds were authorised to be advanced by WFIN under clause 11 of the Loan Agreement, in circumstances where: a. the first appellant (Beefeater) did not receive an interest in land, legal or equitable, in return for the purported advance by WFIN; and b. for that reason, any such funds were not advanced in payment of 'Hectares' (as defined in the Loan Agreement) within the meaning of clause 11, … 2 Further to appeal ground 1, the learned trial judge erred in holding that obtaining an interest in land was not an essential quality of 'Hectares' as defined in the Loan Agreement … 3 In the alternative, the learned trial judge erred in: a. finding that WFIN in fact advanced $442,200 to Willmott Forests Limited (WFL) in furtherance or purported furtherance of the Loan Agreement; b. to the extent that Beefeater bore any onus of proof on this issue, failing to find that WFIN did not advance $442,200 to WFL in furtherance or purported furtherance of the Loan Agreement, … 4 Further to appeal ground 3, the learned trial judge erred in holding that the first respondent (MIS) was entitled to rely on the certificate purportedly issued pursuant to clause 14 of the Loan Agreement to prove that $442,200 (or any other amount) was in fact advanced under the Loan Agreement (judgment below at paragraphs 42 to 47); 5 By reason of the foregoing, the learned trial judge erred in: a giving judgment for MIS against the appellants; and b failing to consider further the cross claim and failing to give judgment for the cross claimants on the cross claim". 1. The respondent relied on a notice of contention which raised the following grounds: "1 The Court ought to have found that cl 2.1 of the Loan Transfer Deed did not preclude the respondent from bring [sic] an action against the appellants for monies had and received. 2 The Court ought to have found that the appellants were estopped from asserting that the Loan Agreement was unenforceable. 3 The Court ought to have found that the appellants had admitted that: a. they had directed Willmot [sic] Finance Pty Ltd (WFIN) to advance funds [to] Willmot [sic] Forests Ltd (WFL); and b. that they had a valid and binding obligation to repay those monies. 4 The Court ought to have found that the respondent did not have to establish that WFIN had provided consideration under the Loan Agreement dated 28 June 2001, on the basis that the Loan Agreement was executed by the parties as a deed. 5 The Court ought to have found that the second appellant was liable to indemnify the respondent for any loss or damage that the respondent suffered if the Loan Agreement dated 28 June 2001 was unenforceable against the first appellant for any reason." 1. Ground 1 and 3 of the grounds of appeal and Ground 2 of the notice of contention deal in essence with the issue of the enforceability of the loan agreement, having regard to the fact that neither a legal nor an equitable lease was obtained. It is convenient to deal with these grounds together. The parties' submissions on Grounds 1 and 2 of the grounds of appeal and Ground 2 of the notice of contention The appellants 1. The appellants submitted that, in construing the loan agreement, the Court should pay regard to the fact that the contra proferentem rule applies, albeit as a rule of last resort. They submitted that the restrictions on WFIN's mandate to pay funds to WFL was clear, namely, that WFIN was only authorised to make payments to WFL for hectares or as payment under the forestry management agreement or lease agreement. 2. The appellants submitted that this restriction required the acquisition of hectares by Beefeater. They submitted that if no hectares were acquired, no payment could be due under the forestry management agreement or the lease agreement, as both took leasehold property as their criterion of operation. They submitted that the primary judge erred in concluding that the expression "Hectares" did not require the acquisition of a leasehold interest in land. 3. The appellants submitted the expression "Hectares" was defined in the ordinary sense as a unit of measurement of an area of land. They submitted that, consistent with that ordinary meaning of hectares, the definition in the loan agreement also picked up the forestry management agreement and the lease agreement, each of which, they submitted, took the grant of a leasehold interest as their criterion of operation. 4. The appellants also sought to derive support from the various portions of the information memorandum to which I have referred above at [11]-[13]. They pointed to the definition of "Hectares", the statement that the trees would be planted on an identified area of land and the tax report, which stated that the investor had an interest in specific trees. 5. Senior counsel for the appellants submitted that the expression "Hectares", when defined in the loan agreement, means hectares pursuant to the application form, which referred to the manner in which the expression was defined in the information memorandum. He stated the expression "Hectares" was used in the generic sense as referring to land. He referred to the statements in the information memorandum under the headings "Allocation of Hectares" and "Agreements", which, he stated, demonstrated a clear intention to create an interest in land. He also referred to the taxation report and the statement in the information memorandum that growers were in control of the investment. He submitted it was clear that this envisaged that the investor would have an interest in specific trees, pointing in particular to cll 1 and 19 of the lease agreement. 6. The appellants also called in aid what they described as the close relationship between WFL and WFIN. They submitted that this meant there was every reason to read cl 11 according to its terms as requiring WFIN to advance funds to its related company only in payment for the acquisition of the actual interests offered under the scheme, namely an interest in land. 7. In that context, the appellants submitted that the payments were not made pursuant to the mandate in cl 11 and, as a consequence, no loan was made to Beefeater and there was nothing to assign to MIS. 8. The appellants submitted that the fact that Beefeater was not obliged to borrow funds from WFIN was not to the point. They submitted the only authority WFIN had to advance monies to a third party was that contained in cl 11. 9. Senior counsel for the appellants acknowledged that the payment that Beefeater was obliged to make was payable under the forestry management agreement but said that the payments were predicated on the grant of a leasehold interest. He submitted that the mandate to the lender was only to make the payment under the forestry management agreement when there was a valid lease in existence. He submitted that, as the funds were paid to WFIN in breach of that mandate, there was no liability on Beefeater to repay the monies. 10. In relation to Ground 2 of the notice of contention, the appellants pointed to the fact that, to the extent what was relied on was a common assumption as to Beefeater's liability under the loan agreement, Beefeater was not aware of the involvement of MIS until notified of the assignment and that subsequent payments of interest were made without admission of liability. MIS 1. MIS submitted that the loan agreement was independent of the lease agreement. It submitted there was nothing in cl 1 of the loan agreement to bind WFIN to advance loan monies only if Beefeater had acquired enforceable rights against WFL, submitting that it would not acquire such rights until payment was made. It submitted that cl 11, which contained the authorisation to pay the monies, was not expressed to be conditional on Beefeater obtaining rights under the forestry management agreement or the lease agreement. It also submitted there was no obligation on Beefeater to obtain funds from WFIN and that it could have paid the money due from another source. 2. Senior counsel for MIS submitted that what Beefeater obtained was an interest in a managed investment scheme. He pointed to cl 2 of the investment deed, which provided that the manager must hold the assets on trust for the growers. He pointed to the fact that it was intended that the trees could be chopped down and the proceeds pooled. 3. Senior counsel for MIS submitted that cl 16 of the loan agreement did not operate to incorporate the definition of "Hectares" contained in the investment deed or the information memorandum as the expression "Hectares" was specifically defined in the loan agreement (see above at [17]). He pointed to the fact that the advance was spent on preparation and planting under the forestry management agreement and the use did not depend upon the growers obtaining an interest in a particular parcel of land. He submitted that, in those circumstances, interest in hectares was the equivalent to the issue of units in a managed investment scheme. 4. In relation to Ground 2 of the notice of contention (the estoppel ground), MIS relied both on estoppel by convention and estoppel by representation. So far as estoppel by convention was concerned, MIS submitted that it assumed there was a loan agreement in place when it agreed to extend the loan to Beefeater and that Beefeater also held this assumption as it paid arrears and continued to claim tax deductions and to record the liability in its accounts. It submitted that departure from this assumption would cause it a detriment as it had agreed to extend the term of the loan on the assumption that a loan was in existence. 5. It also submitted that Beefeater was estopped from denying that the loan was made by virtue of the representations it made to MIS. It submitted that Beefeater represented to WFIN that it agreed to be bound by the terms of the loan agreement by making the payments required under that agreement and that it made a similar representation to MIS by requesting that the loan be extended and by paying outstanding arrears. MIS submitted that it relied on the representation by extending the loan and it would therefore be unconscionable for Beefeater to depart from that representation. Consideration 1. The essence of the appellants' submissions is that cl 11 of the loan agreement did not entitle WFIN to pay the principal sum referred to in the agreement to WFL, unless and until a lease conferring a legal, or at least an equitable, interest in the land the subject of the 67 hectares applied for was granted. 2. Whether this contention is correct depends on the construction of cl 11 of the loan agreement. That will be determined by what a reasonable business person would have understood it to mean, which requires consideration of the language, surrounding circumstances known to the parties and the commercial purposes and objects to be secured by the contract: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 at [46]-[51]; Victoria v Tatts Group Ltd [2016] HCA 5; 90 ALJR 392 at [51]. 3. The appellants sought to rely on the contra proferentem rule. It is now well settled, certainly outside the area of contracts of guarantee, that the rule is one of last resort, applying only when ambiguity remains after all other avenues of construction have been exhausted: Rava v Logan Wines Pty Ltd [2007] NSWCA 62 at [54]-[56]; G L Nederland (Asia) Pty Ltd v Expertise Events Pty Ltd [1999] NSWCA 62 at [27]. In the present case, the meaning of cl 11, taken in context and having regard to its purposes, is, in my view, clear. There is no need for the application of the contra proferentem rule. 4. Clause 11 of the loan agreement does not state in terms that any payment is conditional upon the grant of a leasehold interest in the 67 hectares. The authority is to make the payment for the hectares and to make payments under the "Agreements" (defined as the forestry management agreement and the lease agreement). "Hectares" is defined to include the right, title and interest in the lease agreement and the forestry management agreement. 5. At the time of the execution of the loan agreement, namely 17 July 2001, Beefeater was liable to pay the balance due under the forestry management agreement, namely the sum of $442,200. Having regard to the date the forestry management agreement was said to commence, namely 28 June 2001, the liability to make the payment had arisen and was payable by 19 July 2001. Even if the time for payment only ran from the date of execution, the liability to pay was not contingent on the grant of a leasehold interest over any particular block. It follows, in my view, that WFIN was entitled to pay the funds in question. 6. That construction is consistent with the context in which the loan agreement was entered into. On 26 June 2001, Beefeater applied for the 67 hectares. On acceptance, which took place on 28 June, it became bound by the investment deed. Clause 4.2 of that deed provided for payment within such period as the manager (WFL) determined from time to time. In the present case, the accepted application provided for payment within 30 days. It was not contingent on the grant of the lease, although cl 4.8 obliged the manager, following the issue of the hectares, to forward two copies of the lease agreement and forestry management agreement to the applicant, which were to be returned to the manager within 14 days of receipt. Clause 4.5 of the deed provided that the hectares were to be issued on acceptance of the application, whilst cl 4.9 required the manager to forward copies of the project documents to the applicant within two months of receipt of the documents signed pursuant to cl 4.8. 7. It is evident from those provisions that the structure of the arrangement was that hectares were deemed to be issued on acceptance of the application, in this case 28 June 2001, and that, having regard to the fact the finance option was chosen, a liability to make the payment within 30 days was incurred at that time. The liability, as expressed in the application form, was not stated to be conditional on the grant of the lease or execution of the forestry management agreement. Indeed, the investment deed made it clear that grant of the lease and the execution of the forestry management agreement was to take place following the issue of the units, those steps being described as "Procedure following issue". 8. Having regard to that material, it seems to me that liability to make the payment was not conditional on the grant of a lease over the 67 hectares applied for in the application form. Clause 11 of the loan agreement permitted payment to be made by WFIN to WFL to meet the obligation which arose on the issue of the hectares and to meet the obligations of Beefeater under the forestry management agreement. 9. It is not necessary, in these circumstances, to reach a final conclusion on whether Beefeater was entitled to a legal or equitable interest over the blocks allotted to it. However, it seems to me that it was the intention of the parties that at least an equitable lease would be granted over the land. The provisions of the lease agreement itself, particularly the covenant for quiet enjoyment in cl 8 and the other covenants to which I have referred above at [26], tend to indicate that this was the intention of the parties. That is consistent with the summary of the lease agreement in the information memorandum and the fact that the information memorandum and the taxation report both proceeded on the assumption that the grower would have an interest in specific trees. 10. It does not seem to me that it is material that what Beefeater obtained was, as senior counsel for MIS contended, an interest in a managed investment scheme. There is no reason why the acquisition of rights or benefits produced by the scheme could not include a leasehold interest in the land, the contribution made by each of the participants in the acquisition and development of such land being pooled to produce financial benefits: see the definition of "Managed Investment Scheme" in s 9 of the Corporations Act 2001 (Cth) and, in relation to earlier legislation, Australian Softwood Forests Proprietary Limited v Attorney General for the State of New South Wales [1980] HCA 49; 148 CLR 121 at 132. 11. Nor is it necessary in the present case to determine what rights, if any, Beefeater would have against WFL by reason of its failure to obtain a leasehold interest in the blocks allocated to it. 12. It is also strictly unnecessary to deal with Ground 2 of the notice of contention. However, if, contrary to the view I have expressed above, the loan agreement was unenforceable against Beefeater as WFIN had no right to make the payment to WFL, then Beefeater, in my view, was not estopped from relying on such unenforceability. There is nothing to suggest that Beefeater and MIS proceeded on a common assumption in relation to the loan agreement. Further, the only detriment asserted was a renewal of the loan. If the loan agreement was unenforceable, the purported renewal did not affect MIS at all. MIS would be in the position of taking an assignment of an agreement which, both before and after the extension of the loan, was unenforceable. 13. However, as I indicated, the loan agreement, in my view, was enforceable and WFIN was entitled to pay the funds due by Beefeater to WFL. In these circumstances, Grounds 1 and 2 of the grounds of appeal have not been made out. Grounds 3 and 4 of the grounds of appeal and Grounds 3 and 4 of the notice of contention 1. These grounds relate to the question of whether WFIN in fact advanced monies to WFL on behalf of Beefeater. 2. The appellants submitted that the primary judge erred in relying on the "Dobbs Certificate" purportedly issued under cl 14 of the loan agreement: Dobbs v National Bank of Australia Limited [1935] HCA 49; 53 CLR 643 (Dobbs). They submitted, relying on the decision of Young J (as his Honour then was) in National Australia Bank v Sampson (Supreme Court (NSW), Young J, 9 September 1991, unrep) (Sampson) and Shomat Pty Ltd v Rubinstein (1995) 124 FLR 284 (Shomat), that such clauses must be strictly construed. 3. The appellants referred to the fact that such certificates were required to be given by "You", defined in the loan agreement as WFIN. They submitted the primary judge was in error to hold that the right to give the certificate extended to any assignee of WFIN. 4. The appellants submitted that it was a significant matter for the benefit of a Dobbs Certificate to be assigned. It submitted that if a party wished to rely on such a certificate, the party must ensure that the certificate is prepared by a properly qualified official. It submitted it was one thing for a counterparty to submit a certificate prepared, after investigation, by the person with whom the contract was made, but different if prepared by anyone to whom the original contracting party had assigned the benefit. They submitted that clear language would be necessary to achieve this effect. 5. The appellants submitted that the contractual context in the present case pointed to the non-assignability of cl 14. They submitted the rights were granted to WFIN, the entity authorised to deal with WFL in relation to Beefeater's investment in the scheme. 6. The appellants also submitted that the benefit of cl 14 was not in fact assigned. It submitted that all that was assigned were the loans, the payment rights, the related securities and the loan documents. It submitted the assignment did not extend to the right given by cl 14. 7. Senior counsel for the appellants submitted there was no difference in substance between a clause which provided that a certificate was to be conclusive evidence of liability and one which, as in the present case, only reversed the onus of proof. He submitted there were two special qualities which rendered the right to give such a certificate unassignable. The first, he submitted, "as set out in Dobbs", was that the person who is chosen by the parties to give the certificate "becomes special" and the second, he submitted, was that it would be the original lender who would be presumed to have full knowledge of the advance and to be able to do all things necessary to certify the amount due. 8. The appellants submitted that, in those circumstances, the onus was on MIS to establish the advance was made. They contended that the matters upon which the primary judge relied could not establish the fact that the funds were advanced. They submitted the first matter relied on, namely, that WFIN was obliged to make the payment, was not clear from the loan agreement, which only authorised it to do so. Second, they submitted that even if there was such an obligation, it did not carry any weight in the present circumstances where WFIN's related entity, WFL, had not provided the leasehold interest which was promised. It submitted there was no legal principle that a person contractually obliged to do something had in fact done it. 9. In relation to the second reason relied upon by the primary judge, namely the "scant" evidence that WFIN had sought to develop the scheme, the appellants accepted that that may have carried weight but for the relationship between WFIN and WFL. They submitted that the evidence did not establish how much work was done. They submitted the Court knew WFL received at least $1,650 per hectare from investors, regardless of whether the investors chose to finance the balance of the investment through WFIN. They submitted there was no basis for an inference one way or the other that WFL needed more funds. 10. The appellants also submitted that electronic records of WFIN, relied on by the primary judge, were no more than evidence that WFIN believed there was a loan. 11. The appellants submitted that this evidence must be considered against the background that MIS was unable to provide direct evidence that the funds were advanced. They pointed to the fact that MIS was able to produce a scheme application form, loan application form, loan agreement, guarantee and Beefeater's cheque for the deposit but, although called for, no record of the payment of $442,500. The appellants pointed to the fact that cl 6.2 of the loan transfer deed would have entitled MIS to possession of such records. This, they submitted, led to the conclusion that the advance was not made. They submitted that if the documents relating to the advances were destroyed, a presumption arises that such documents would have told against any such advance actually being made. 12. The appellants submitted that, in those circumstances, even if the Dobbs Certificate reversed the onus, the Court would be satisfied that the advances were not made. The appellants submitted that it was only within the power of MIS to produce documents evidencing the advances. The failure to do so, they submitted, led to the conclusion that the appellants had discharged any onus they had to prove the advance was not made. 13. MIS submitted that, pursuant to cl 2.1 of the loan transfer deed, MIS purchased WFIN's entire right, title and interest in and under all loan documents in existence from time to time in relation to each loan, submitting that this was wide enough to include the right to give a certificate under cl 14. 14. MIS pointed to the following evidence which, it submitted, demonstrated that the advance was made. First, Beefeater's financial statements for the year ended 30 June 2010 indicated that an advance of $442,200 for preparation and planting had been made. Second, the loan statements issued to Beefeater recorded an advance of $442,200 being debited to that company's loan account with WFIN. Third, the settlement report, generated in accordance with the requirements of the loan transfer deed, recorded the advance. In that context, senior counsel for MIS referred to the evidence of Mr Fahad, which referred to the entry in the settlement report of the loan amount of $442,200 as relating to the loan by WFIN to Beefeater. 15. In support of Ground 4 of the notice of contention, MIS relied upon the fact that the loan agreement was a deed such that consideration was not required to enable it to enforce the obligation to repay the loan contained in cl 2 of that agreement. The appellants submitted that that point was not raised in the Court below and that the trial would have proceeded differently had it been, as consideration would have been given to bringing a cross-claim for breach of mandate with an equitable set-off being sought. In any event, they submitted, the question was not whether the loan agreement was enforceable but whether any advance was made, it being contemplated the advance would occur after the loan agreement was entered into. 16. MIS also relied on Ground 3 of the notice of contention, submitting that Beefeater had recorded a liability for the loan in its books and records and recorded the interest payments as an expense. It submitted there was no other explanation than that Beefeater admitted it was liable to repay the loan. 17. The appellants submitted that the evidentiary value of the admission was non-existent because Beefeater had no way of knowing whether WFIN had advanced funds to WFL and the admission was one of mixed fact and law, which did not provide a basis for finding liability. 18. The appellants also submitted that internal records cannot amount to an admission inter partes and that Beefeater's solicitors expressly reserved any rights Beefeater had and stated that payments were not an admission of liability. Consideration 1. It is convenient to deal first with Ground 4. The appellants' submissions seem to involve two related propositions. First, as a matter of construction, the "Dobbs Certificate" could only be given by WFIN and second, irrespective of the proper construction of the clause, the rights conferred under it were incapable of assignment. It is convenient to deal with the second proposition first. 2. It is well settled that, subject to particular exceptions, anything which can be regarded as an existing subject of ownership, whether it be a chose in possession or a chose in action, can be assigned: Norman v Federal Commissioner of Taxation [1962] HCA 21; 109 CLR 9 at 21. Further, as is pointed out in J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrine & Remedies (5th ed 2015, LexisNexis) at 6-010, in assessing whether a contractual chose in action has been assigned, the correct approach is to ask whether the contract as a whole creates rights enforceable by action and to treat as a complete chose in action the aggregate of the legal rights, privileges, powers and immunities conferred by the contract. As the learned authors pointed out, all the parties' contractual rights being part of a chose in action have a proprietary character for the purpose of the law of assignment and are prima facie assignable, even though they, or some of them, for a particular reason, may be individually unassignable. Applying these principles to the present case, it seems to me that all rights and powers conferred on WFIN would pass on the assignment of WFIN's rights under the loan agreement. 3. The assignment in the present case included the assignment of the right, title and interest of the assignor to and under the loan documents, which were defined to include the loan agreements in respect of each assigned loan. The assignment of the rights under those agreements would, in my opinion, include the rights conferred on the assignor by such documents, which, on its face, includes the right to give a certificate under cl 14. 4. The appellants contended that the rights were not assignable as they were personal to WFIN. They relied, first, on the two decisions, Sampson and Shomat, in which Young J stated that clauses of this nature were to be strictly construed. However, each of the clauses considered by his Honour related to certificates which were said to be conclusive evidence of the truth of their contents. In Sampson, Young J also stated that it would not have been the intention of the parties that the certificates could be given on the "skimpiest of information". In Shomat, he noted that in argument in Dobbs, the bank's counsel agreed that the manager issuing the certificate must satisfy himself as to the correctness of the various items and referred to cases involving certificates under building contracts, which, he said, made it clear the certifier either had a contractual or fiduciary duty to investigate the facts and give an impartial decision: at 288. Ultimately, his Honour concluded that it was best to approach the matter on the proper construction of the contract: at 288. I respectfully agree with the latter comment. 5. In the present case, the certificate under cl 14 is not conclusive evidence of the indebtedness. Rather, it casts on the borrower the onus of proving that the certificate is incorrect. There is nothing in the text to indicate that the right to give the certificate, along with the other rights conferred on the lender in the loan agreement, is incapable of assignment. 6. Although cl 14 states that "You may give a certificate", "You" being defined as WFIN, senior counsel for the appellants accepted correctly, in my view, that that did not prevent the right under cl 8, which used a similar expression, from being capable of assignment. He submitted, however, that the assignment could not change the identity of the person giving the certificate. That may be so when a particular person is nominated, but that is not the present case, where no particular person, as distinct from the lender, is nominated. 7. The appellants also sought to draw support from the fact that the original lender would have knowledge of the advance and the amount due under the loan, whereas an assignee may not. In considering this submission, again it must be borne in mind that the clause is not a conclusive evidence clause. Further, there is no reason to conclude that after the assignment, an assignee of a loan would have any less knowledge than the assignor of the amount due. 8. In these circumstances, in my opinion, the rights under cl 14 were assigned to MIS along with the other rights conferred on WFIN by the loan agreement. It follows that MIS was entitled to give the certificate under cl 14 and the onus fell on Beefeater to prove that it was incorrect. 9. In my opinion, this onus was not discharged. There is no suggestion that the loan was ever repaid. The contention is that it was never made. Such evidence as there is, is to the contrary. First, the scheme continued for a number of years. Mr Woodland stated in his affidavit of 21 August 2014 that each year from 2001, he received grower reports and made payments of interest to WFIN. There is no reason not to infer that the scheme was operating as envisaged, with WFIN advancing the loan funds to WFL to enable it to perform its obligations under the forestry management agreement. Second, as the primary judge pointed out, the computerised records of WFIN show a loan in the sum of $422,000. The primary judge pointed out that the first entry is dated 1 December 2002. The opening balance, as at 1 July 2002, was shown as $442,000. Third, the settlement sheet, which was provided by WFIN to MIS at the time of the loan transfer, records as one of the loans an advance by WFIN to Beefeater in the amount in question. There was no evidence to demonstrate that this material was incorrect. In those circumstances, in my view, Beefeater failed to discharge the onus cast upon it as a result of the issue of the certificate under cl 14. 10. Even if the certificate was ineffective, in my opinion, the evidence was sufficient to establish the advance was made. It is correct that there was a failure to produce material which may have provided further, indeed better, evidence of the making of the advance. However, absent any evidence to suggest that the records which were supplied were incorrect, it does not mean it was necessary to conclude that the evidence in fact tendered was insufficient to show the loan was made. Thus, whilst it may be accepted the loan files produced to MIS pursuant to the loan transfer deed did not provide any evidence of the advance, that does not lead to the conclusion that the advance was not made, in circumstances where there was evidence that in fact it was. 11. It follows that Grounds 3 and 4 of the grounds of appeal have not been made out. 12. It is not necessary to deal in any detail with Grounds 3 and 4 of the notice of contention. However, the fact that Beefeater recorded a liability in its accounts goes no further, in the circumstances of the present case, than to provide evidence that Beefeater assumed that WFIN had made the payment to WFL. 13. In relation to Ground 4 of the notice of contention, this matter was not raised at the trial and should not be permitted to be raised on the appeal. If it had been, as the appellants contended, the case may have been run differently. In the circumstances leave should not be granted: Water Board v Moustakas [1988] HCA 12; 180 CLR 491; Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447. Ground 5 of the notice of contention 1. It is unnecessary to deal with this matter having regard to my conclusion on the other matters the subject of the appeal. Conclusion 1. In the result, the appeal should be dismissed with costs. 2. GLEESON JA: I agree with Bathurst CJ. 3. PAYNE JA: I have read the judgment of the Chief Justice in draft and agree with his Honour's reasons and the orders he proposes. ********* 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. Decision last updated: 22 August 2016