Deputy Commissioner of Taxation v Rathner [2004] VSC 352

5. The defendant had been appointed an Administrator pursuant to s.436A of the Corporations Act 2001 (Cth) ("the Corporations Act") on 28 April 2003, and on 23 May 2003 the creditors had resolved that the Company should enter into the said Deed of Company Arrangement, whereupon the defendant became the Deed Administrator pursuant to s.444A(2) of the Corporations Act. The Deed of Company Arrangement provides for a fund to be administered by the defendant for the pro-rata payment of creditors and the deed also provides for the usual proof of debt mechanism to establish the identity of creditors and the amounts of their debts.

8. By the originating process dated 30 September 2003 the plaintiff appealed, pursuant to s.1321 of the Corporations Act and reg.5.6.54(2) of the Corporations Regulations 2001 (Cth), against the partial rejection by the defendant on 15 September 2003 of the plaintiff's proof of debt dated 7 May 2003. Subsequently, the plaintiff raised amended assessments dated 9 July 2004, for the years ended 30 June 2001 and 30 June 2002, and submitted a revised proof of debt dated 13 July 2004, for various tax debts of the Company. That proof of debt was partially rejected by the defendant by notice of rejection dated 25 August 2004.

11. There was an amended originating process dated 6 August 2004 but that document still dealt with the initial rejection of the plaintiff's proof of debt on 15 September 2003 and not the more recent rejection. Strictly speaking, the amended originating process now requires further amendment and some associated orders are also required. However, the parties proceeded on the basis that the Court should not be concerned with technical difficulties and should treat the proceeding as, in substance, an appeal by the plaintiff against the defendant's partial rejection on 25 August 2004 of the revised proof of debt dated 13 July 2004.

14. The revised proof of debt was for the total sum of $336,112.18 covering a number of tax debts most of which are not the subject of any dispute. By his notice of rejection dated 25 August 2004, the defendant disallowed the plaintiff's proof of debt "to the extent of $92,391.24 relating to the Superannuation Guarantee Charge". The debt "in dispute" thus relates to the superannuation guarantee charge debt of the Company (for the years ended 30 June 2001 and 30 June 2002). Before considering the submissions made on behalf of the parties, it is necessary to set out the legal and factual background giving rise to this dispute.

17. Section 19 of the Superannuation Guarantee (Administration) Act 1992 (Cth), as amended and applicable at the relevant times, ("the SGA Act"), provided in substance that an employer's individual superannuation guarantee shortfall for an employee was to be worked out by using a formula contained in the section. It was common ground that, for the relevant financial years,[1] the individual superannuation guarantee shortfall equalled 8% (called "the charge percentage") of the total salary or wages paid by the employer to the employee. Section 16 of the SGA Act provided that the superannuation guarantee charge imposed[2] on the employer's superannuation guarantee shortfall was payable by the employer. Section 17 of the SGA Act provided that if an employer had one or more individual superannuation guarantee shortfalls for a relevant period, the employer had a superannuation guarantee shortfall for that period worked out by adding together (a) the total of the employer's individual superannuation guarantee shortfalls, (b) the employer's nominal interest component[3] and (c) the employer's administration component.[4] Sections 22 and 23 of the SGA Act respectively provided for the reduction of "the charge percentage", in relation to various classes of superannuation schemes and funds. The effect of those sections was that the charge percentage was reduced by the employer's actual contribution rate to the relevant fund or scheme in respect of each employee. In other words, for present purposes, if the employer contributed 8% of each employee's total wages to a fund or scheme, the charge percentage would be reduced to nil and, accordingly, the employer would not be subject to a superannuation guarantee charge. However, importantly for the present case, in order to avoid the superannuation guarantee charge, the employer had to make the contributions to the fund or scheme either in the year in question or, at least, not later than 28 July (i.e. not later than 28 days after the end of the year).[5]

20. The legislative scheme does not impose any obligation on the employer to make a superannuation contribution in respect of any employee. Rather, the scheme provides for the imposition of the superannuation guarantee charge on an employer and for the liability for that charge to be reduced to the extent that the employer makes contributions at the defined rate either within the period or no later than 28 days thereafter.

23. It is unnecessary to set out the details of the provisions for the calculation of the superannuation guarantee charge as the calculation is not in issue. It is sufficient for present purposes to refer to the documents relied upon by the plaintiff which show the relevant calculation of the charge or tax imposed on the Company. The original proof of debt (based on default assessments) showed that the charge was comprised of a shortfall amount for each of the two years, together with a number of specified additional amounts, namely, "nominal interest", "administration component", "Part 7 penalty" and "additional superannuation guarantee charge". Attached to the proof of debt was a table setting out both the shortfall of contributions in relation to each named employee and the additional amounts or components. [6]

26. In his first notice rejecting the proof of debt, insofar as it related to the superannuation guarantee charge, the defendant said that:

"The ground for my decision is that, according to: - the individual employees' superannuation contributions statements from [names omitted]; and to - the company's cheques (sic) butts, transaction listings and bank statements the employees' compulsory superannuation contributions up to the financial year ending 30 June 2002 were paid up to date."

30. The ATO responded to this rejection by, inter alia, referring the defendant to a decision of the Commonwealth Administrative Appeals Tribunal - Taxation Appeals Division in Re Jarra Hills Pty Ltd v Federal Commissioner of Taxation ("Jarra Hills"). [7] In that case the employer had failed to make sufficient contributions by 28 July 1994 in respect of remuneration paid during the year ended 30 June 1994. The employer argued that the assessment was unfair and inequitable because the "required contributions" had been made to the superannuation fund on 28 September 1994 and the employer was being penalised by having to pay twice for the same employees (most of whom had since left their employment and therefore the contributions could not be applied to future contributions). The Tribunal held that the liability under the assessment had been correctly imposed once the contributions were not made by 28 July and there was no discretion under the legislation to extend the time or to remit any component of the charge.[8]

33. The defendant answered by letter dated 19 September 2003, noting that Jarra Hills dealt with "a normal ongoing entity". The defendant went on to say that:

"An incapacitated entity ... is subject to section 553, Debts or Claims that are provable in Winding Up, of the Corporations Act. I refer you to ... the rule against double proof."

37. The ATO replied to the defendant by letter dated 22 September 2003 contending, in substance, that the rule against double proof did not apply because the liability to make contributions and the taxation liability for the superannuation guarantee charge were separate and distinct liabilities and not the same, or essentially the same, kind of liability.

40. The foregoing correspondence broadly raised the issue which is brought by the parties before the Court on this appeal.

43. The defendant, in an affidavit sworn 21 November 2003, deposed that he had "compiled a schedule of superannuation payments made on behalf of the employees of the Company for the financial years ended 30 June 2001 and 30 June 2002", which schedule he exhibited. After explaining the way the schedule was structured, the defendant deposed that the "total amount paid in superannuation payments for the two years ended 30 June 2002 is $122,646.05, i.e. well in excess of the $100,343.27 alleged by the Plaintiff to be owing for the years ending 2001 and 2002. In its proof of debt, the Plaintiff appears not to have accounted for the amounts of superannuation paid by the Company in the two relevant years".

46. It can be seen, from an examination of the exhibited schedule, that the defendant has not sought to identify which of the superannuation contributions made by the Company were made prior to 28 July of either of the years in question (if any at all) and which of those contributions were made after 28 July of each of the years in question. An examination of the schedule suggests that at least a considerable number of the payments were made after 28 July 2002 and therefore must have been "late contributions" i.e. contributions which could not be taken into account under the SGA Act. As I understand it, the plaintiff considered that none of the contributions could be taken into account for the purpose of calculating the superannuation guarantee charge payable by the Company because all were "late". The defendant did not contest the plaintiff's position on that for the purposes of this appeal,[9]

but simply said that all of the contributions were, in due course, in fact made, albeit "late". It is not clear from the schedule that even that is so in all cases because, on the face of it, some recorded payments may not have been "contributions" but instead amounts paid directly to employees rather than to their superannuation funds. It is sufficient for present purposes to assume, for reasons which will appear, that there were a number of "late contributions" to the superannuation funds of relevant employees.

51. To complete the history of the matter, the plaintiff reconsidered the calculation of the superannuation guarantee charges in the light of further information obtained, but the resulting changes were not significant and are, for present purposes, irrelevant. Amended assessments were made and, as I have said, a revised proof of debt was submitted to the defendant and thereafter partially rejected.

54. The plaintiff's amended[10] assessments are in evidence. By virtue of s.75 of the SGA Act, the mere production of a notice of assessment, or a document purporting to be a copy thereof, is conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 (Cth) on a review or appeal relating to the assessment, is conclusive evidence that the amounts and all particulars of the assessment are correct. Section 75 of the SGA Act is in substantially the same terms as s.177 of the Income Tax Assessment Act 1936 (Cth). It is clear from the authorities[11] that a section such as s.75 prevents the defendant, in a proceeding such as this, from challenging the validity or amount of the debt. Counsel for the defendant accepted that this was so and that the defendant could not challenge the validity or amount of the Company's superannuation guarantee charge debt in this Court.

57. However, Mr Riordan SC, who appeared as counsel for the defendant, submitted that the plaintiff's proof of debt offended "the principle underlying the rule against `double proof'". Mr Riordan said that he relied on the well-established rule of bankruptcy that two claims cannot be allowed on a limited fund, in bankruptcy or corporate insolvency, in respect of the same, or substantially the same, debt. In that regard, Mr Riordan referred to a number of authorities which I shall now consider.

60. In Re Oriental Commercial Bank; Ex parte European Bank[12] the facts were as follows.[13] Bills of exchange were drawn by C with a face value of £8800. E Bank accepted the bills at the request of O Bank on an undertaking by O Bank to provide funds to meet them at maturity. O Bank received the bills from E Bank, on behalf of C, and indorsed them to A Bank which discounted them. O Bank and E Bank became insolvent. A Bank, as holder, proved against E Bank for the sum of £8800 and received two dividends, totalling 10s in the pound, resulting in a payment of one half of the debt (i.e. £4400). A Bank, as holder, also proved against O Bank and received the balance of its debt (i.e. £4400). The payment by O Bank to A Bank represented a dividend of 13s in the pound on the approximate sum of £7336 (the reason for the lesser amount need not be detailed). E Bank proved against O Bank and received an amount which, when taken together with the amount paid by O Bank to A Bank, represented 15s in the pound on the whole of the debt of £8800. The dividend rate of 15s in the pound paid by O Bank in respect of the debt was the same dividend rate at which all other unsecured creditors of O Bank had been paid. Then, E Bank additionally claimed from O Bank the sum of £4400 (being the amount that E Bank had paid to A Bank) relying upon the breach of the undertaking which O Bank had made to E Bank.

63. Mellish LJ (with whom James LJ agreed) said[14] as follows:

"It is quite obvious that if this proof is allowed [O Bank] will pay a double dividend on the same debt. It appears to me clearly that it is substantially the same debt; because if all parties had been solvent, whatever sums [O Bank] might have paid to [A Bank], although they would have paid it, no doubt, for the purpose of performing the contract they had entered into by their indorsement, yet, substantially, whatever sums they might have paid to [A Bank] would have gone in reduction of the sum which [O Bank] had promised to pay to [E Bank]. In that case [O Bank] could never have been called upon to pay these bills twice over. It would have made no difference that they had entered into two contracts with two separate parties that they would pay the bills - namely, with [E Bank] as acceptors, and with [A Bank] as holders. It is clear that they would have performed both contracts by paying the bills once, because they had guaranteed the acceptors ... Then the question is, whether, the parties being insolvent, [O Bank] can be liable to pay two dividends on the same debt? It has been the law for a great number of years with reference to proofs in bankruptcy, that if an acceptor accepts bills for the accommodation of the drawer, and the drawer enters into a contract ... that he will provide for the bills when they become due, and then the drawer becomes bankrupt, there cannot be a double proof against his estate, namely, one proof by the holder of the bill, and the other proof by the acceptor of the bill on the contract of indemnity. Then the real question before us is this: Does it make any distinction that [O Bank] were not drawers, but entered into the contract with the acceptors and afterwards became liability for the bills as indorsers? It appears to me that ought not to make any distinction ... But, the principle itself - that an insolvent estate, whether wound up in Chancery or in Bankruptcy, ought not to pay two dividends in respect of the same debt - appears to me to be a perfectly sound principle. If it were not so, a creditor could always manage, by getting his debtor to enter into several distinct contracts with different people for the same debt, to obtain higher dividends than the other creditors, and perhaps get his debt paid in full. I apprehend that is what the law does not allow; the true principle is, there is only to be one dividend in respect of what is in substance the same debt, although there may be two separate contracts."

67. The rule is, more precisely, a rule against "double dividends" rather than against "double proof". In the Oriental Commercial Bank case, both A Bank and E Bank proved in the liquidation of O Bank and received dividends covering the whole debt, but not "double" dividends. Thereafter O Bank was not obliged pay a further dividend (i.e. a dividend at a rate higher than that paid to other unsecured creditors) on the "same" debt. It was the "same " debt because it was the same amount of £8800 under the bills of exchange, notwithstanding that the parties were liable for that amount in different capacities.

70. In The Liverpool (No.2),[15] the facts were that a coaster, Ousel, sunk in the port of Liverpool as a result of a collision with a tanker, Liverpool, whose owners admitted liability for the collision. The Mersey Docks and Harbour Board ("the Board") took possession of the Ousel pursuant to statute and notified the owners of a possible claim against them if the Board's expenses in clearing the River Mersey of the wreck exceeded the proceeds of sale of the wreck and its contents. The Liverpool obtained a decree under the Merchant Shipping Acts limiting her liability in respect of the collision (a form of statutory insolvency) and the resulting limited fund was the subject of a number of claims. Included among those claims was a claim by the Board for the expenses incurred in clearing the river of the wreck and a claim by the owners of the Ousel which included an item in respect of a possible claim against them by the Board (as mentioned above). The Court of Appeal held that the Board did not need to reduce its claim against the limited fund by giving credit for the amount which it was entitled to recover from the Ousel pursuant to statute. The Court of Appeal went on to decide that the Board's claim had priority and that the claim by the owners of the Ousel should be disallowed to that extent. The judgment of the Court was read by Harman LJ who said that the principle in relation to "double proof" explained in the Oriental Commercial Bank case should apply in a limitation action in Admiralty: "[t]he principle must, as it seems to us, as a matter of justice, apply wherever there are rival claims against an insufficient fund, as it does in bankruptcy, winding-up and creditors' administration actions."[16]

73. The judgment went on to state that the two debts were the "same" because although the claim by the Board against the Liverpool was a claim for damages in tort, and the claim against the Ousel was a claim pursuant to statute, the amount involved related to the very same expenses and were thus part of the same debt:[17]

"That is, in fact, a part of the same debt, and in our judgment if both sums can be proved for, the same debt will have been proved for twice ... It was pointed out by Scrutton L.J. in In re Melton ([1918] 1 Ch. 37, 60) that in considering the rule against double proof technicalities are not to be regarded. These are his words: "To these two sets of legal principles I have mentioned it remains to add the fact of the debtor's bankruptcy, and in particular the rule in bankruptcy that there must not be a double proof for the same debt with the further explanation that in determining whether the two proofs are in respect of the same debt, regard must be had, not to technicalities, but to the substance, as was pointed out in In re Oriental Commercial Bank.""

77. Thus, in The Liverpool (No.2), the rule was applied to prevent the payment of two dividends in respect of the same debt, i.e. the same amount. The same principle was expressed in In re Moss[18] as follows: "... there clearly would be a double proof in respect of the same sum in substance, although the nature of the liability in each case assumes a different form".[19] The purpose of the rule is to achieve equality between all those entitled to share rateably in a limited fund.[20]

80. In Barclays Bank Ltd v T.O.S.G. Trust Fund Ltd, [21] the members of the Court of Appeal discussed the rule against double proof (although the House of Lords subsequently dismissed an appeal from the Court of Appeal on other grounds, holding that no question of double proof arose on the facts). Oliver LJ accepted a submission that the rule ought more properly to be styled the rule against double dividends, for its object was to absolve the liquidator from paying out two dividends on what was essentially the same debt. Oliver LJ further stated that because overlapping liabilities resulted from separate and independent contracts with the debtor, the basis of the liability by itself was not determinative of whether the rule applied:[22]

"The test is in my judgment a much broader one which transcends a close jurisprudential analysis of the persons by and to whom the duties are owed. It is simply whether the two competing claims are, in substance, claims for payment of the same debt twice over... for the moment I accept [the] broad general proposition that the rule against double proofs in respect of two liabilities of an insolvent debtor is going to apply wherever the existence of one liability is dependant upon and referable only to the liability to the other and where to allow both liabilities to rank independently for dividend would produce injustice to the other unsecured creditors."

84. Slade LJ spoke along the same lines, stating that the payment of more than one dividend in respect of what was in substance the same debt would give the relevant proving creditors a share of the available assets larger than the share properly attributable to the debt in question. [23]

87. Finally reference was made to Western Australia v Bond Corporation Holdings Ltd.[24] In that case the National Australia Bank had advanced $150M to Rothwells, secured by a deed of indemnity from the Western Australian government. The advance was subsequently repaid and the provisional liquidator of Rothwells reclaimed it as a preferential payment. The bank in turn sought indemnity from the government. A settlement was reached whereby the government paid $33M to the provisional liquidator and the bank paid $10.5M to the government. The government was thus out of pocket to the extent of $22.5M and sought to cross-claim against Rothwells and a number of other parties for misleading conduct. Rothwells contended that the government's claim was inadmissible because it should be regarded as a second proof for the same debt. It was put as the basis for this contention that the settlement involved the repayment of a preference of $100M and the notional payment back of a dividend of 67% to the bank (resulting in a net payment by the government, via its indemnity to the bank, of $33M). French J did not accede to that submission for the purposes of the interlocutory application before him, but in the course of his judgment considered the nature of the "double proof" rule which he described as a well established rule of bankruptcy law "that there cannot be two claims in respect of the same debt" which rule applied equally to the winding up of companies. French J said:[25]

"In my opinion there is nothing in the authorities and no reason in logic why that principle should not apply to prevent multiple claims against limited funds required by law to be distributed rateably where such claims are made in respect of what is in substance the same liability whether its source be contractual, tortious, statutory or otherwise. In the end it is no more than an expression of the limits placed by law on the way in which the fund is to be distributed. The question whether two claims arise out of the one liability is a matter of substance not form."

91. Later in his judgment[26] his Honour added:

"The authorities and the principle which underlie the rule against double proof support the view that the substantial relationship between the liabilities asserted and the amounts thereby claimed in the rival proofs is of greater importance than the legal grounds on which they are sought."

95. It seems to me that there is a short but conclusive answer to the defendant's reliance on the rule against double proof: there is no double proof in this case. The rule is applicable when there are rival claims in respect of a limited fund and prevents payment being made twice from the limited fund in respect of the same, or substantially the same, debt.[27] In the present case there are no rival claims and no possibility of payment being made twice, or of double dividends being paid, out of the limited fund.

98. Mr Riordan accepted that the double proof rule, as such, could not apply because there were not two proofs (or two rival claims). However Mr Riordan submitted that it was the underlying principle of the rule which was applicable, saying:

"where the substance of the claims and the liabilities are so similar that to allow both would be prejudicial to the unsecured creditors and produce an unjust result, then ... the administrator of the limited fund ... is entitled to reject one or other of the claims. It is true that most typically this is resolved at the stage where there are two proofs on the limited fund ... where one was to find that they would otherwise be substantially the same debt, where one has already been paid, it is even stronger that the administrator should be able to reject the proof on the same principles."

102. Mr Riordan accepted that the "late" payment of the superannuation contributions by the Company did not discharge any part of the Company's tax debt constituted by the superannuation guarantee charge but he submitted nevertheless that the interrelationship between the liability of the Company to pay the superannuation contributions and the liability of the Company to pay the superannuation guarantee charge was such that it would be unjust to the unsecured creditors to permit the defendant to pay a dividend in respect of the superannuation guarantee charge. Mr Riordan qualified that submission by conceding that the principle for which he was contending would not be applicable to those components of the superannuation guarantee charge which the Commissioner of Taxation was entitled to retain (e.g. the administration component). So it was contended that the defendant's partial rejection of the proof of debt was correct only to the extent that it related to that part of the superannuation guarantee charge which the Commissioner was obliged by the SGA Act to apply for the benefit of the Company's employees.

105. Mr Riordan said that there was no authority of which he was aware which supported the extension of the principle underlying the rule against double proof to a situation where there was only one claim against a limited fund. Each of the cases to which he referred involved rival claims to a limited fund or, in the case of Western Australia v Bond Corporation Holdings Ltd, an argument based upon a rival proof of debt having been notionally submitted and paid.

108. I find no justification for an "extension" of the principle to the facts of this case. The payment of a debt by a company prior to the commencement of its liquidation or administration is generally irrelevant to unsecured creditors who subsequently wish to claim on a limited fund (unless, for example, the payment has extinguished a relevant debt, or the payment is voidable as against the liquidator or administrator). However, let it be assumed, for the sake of the argument, that the Company, after 28 July of the relevant year, had a continuing contractual obligation to each of its employees to make the superannuation contributions which it subsequently made, notwithstanding its liability after that date to pay the superannuation guarantee charge. Concededly, that contractual obligation is not the "same" debt as the superannuation guarantee charge liability (in whole or in part). The tax liability is not discharged by the Company's "late" payment of contributions. Moreover, the tax liability arises under the SGA Act whether or not the employer has any such contractual obligation to make superannuation contributions (either before or after 28 July). There is thus no necessary relationship between the existence of the contractual obligation and the imposition or existence of the tax liability.

111. There is another difficulty about the defendant's submission. It does not appear from the evidence that the Company had any contractual obligation to its employees to make any contributions on their behalf to a superannuation fund, let alone the "late contributions". It is possible, and not inconsistent with the evidence, that the Company paid the "late contributions" without any obligation to do so, as Mr Riordan conceded. If there was, therefore, no liability upon the Company to make the payments, there were no "rival liabilities" at all, let alone rival claims by creditors under the deed of company arrangement. Indeed, the Company may have an entitlement to claim restitution of "late" payments made to the superannuation funds.

114. Finally, I mention that the combined effect of s.52 of the SGA Act and s.556(1)(e) of the Corporations Act is to give the superannuation guarantee charge the same priority over other debts and claims as wages and superannuation contributions. I have received short written submissions from the parties concerning the question whether those provisions have any relevance to the issues in this proceeding and, having considered those submissions, I am of the view that those provisions do not affect my above conclusions, one way or the other.

117. For the foregoing reasons, the plaintiff was entitled to have the proof of debt accepted or allowed in full by the defendant and the appeal should be allowed and the defendant directed to accept the plaintiff's proof of debt in full.

120. I will hear counsel on the precise orders which should be made and as to costs.

[1] At the time, the relevant period was one year - the legislation has since been amended to provide for quarterly periods.

[2] The charge is imposed by s.5 of the Superannuation Guarantee Charge Act 1992 (Cth).

[3] See s.31 of the SGA Act for the mode of calculation of the nominal interest component.

[4] See s.32 of the SGA Act for the mode of calculation of the administration component.

[5] See s.23(6A) and (6B) of the SGA Act as applicable to the financial years ending 30 June 2001 and 30 June 2002.

[6] I note that Part 8 of the SGA Act dealt with the distribution of the shortfall component of the superannuation guarantee charge when paid. In substance, the Commissioner was required to pay the shortfall component for the benefit of the relevant employees but was entitled to retain the administration component and some part of the penalty charges.

[7] (1997) 37 ATR 1022.

[8] See too: Pye v Federal Commissioner of Taxation [2004] ATC 2029; Kancroft Pty Ltd v Federal Commissioner of Taxation [2004] ATC 2126.

[9] It was common ground that if any of the contributions were not "late" and should have been taken into account, that was not a matter which could be dealt with in this Court - see para [[] below.

10] The Commissioner has power to amend an assessment and an amended assessment is taken to be an assessment for all purposes - see ss.37 and 39 of the SGA Act.

[11] See Commonwealth of Australia v Duncan [1981] VicRp 83; [1981] VR 879; FJ Bloemen Pty Ltd v Federal Commissioner of Taxation [1981] HCA 27; (1981) 147 CLR 360; Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, and cases therein cited; Deputy Commissioner of Taxation v Collie [1998] 2 VR 106; Deputy Commissioner of Taxation v Loftus [2002] VSC 68; (2002) 49 ATR 131; Deputy Commissioner of Taxation v Warrick (No.2) [2004] FCA 918.

[12] (1871) LR 7 Ch App 99.

[13] I have used round numbers for the amounts involved.

[14] (1871) LR 7 Ch App 99, 102-4.

[15] Steamship Enterprises of Panama Inc v Ousel (The Liverpool (No.2)) [1963] P 64.

[16] [1963] P 64, 84.

[17] [1963] P 64, 85-6.

[18] In re Moss; ex parte Hallet [1905] 2 KB 307, 312

[20] See Starr v Silvia (1994) 36 NSWLR 685, 697.

[21] [1984] 1 AC 626.

[22] [1984] 1 AC 626, 636.

[23] [1984] 1 AC 626, 659-660.

[24] (1992) 37 FCR 150.

[25] (1992) 37 FCR 150, 162-3.

[26] (1992) 37 FCR 150, 165.

[27] See the cases discussed above; see too: Day & Dent Constructions Pty Ltd (in liquidation) v North Australian Properties Pty Ltd (provisional liquidator appointed) [1982] HCA 20; (1982) 150 CLR 85, 100-1 per Mason J; Staples v Milner (1988) 83 FCR 203; Lumley General Insurance Ltd v Oceanfast Marine Pty Ltd [2000] NSWSC 1178.