Mond v Lipshut [1999] VSC 103

Cheques Act 1986 (Cth) Sections 18, 49.

2. This is an appeal from a final order of the Magistrates' Court made at Melbourne on 5 June 1998 by which the appellant, Harry Mond, was ordered to pay the respondent, Regina Lipshut, the sum of $5,000 plus interest and costs.

5. On 3 July 1998 a Master made an order under Rule 58.09 of Chapter 1 of the Rules. The order identified no less than nine questions of law shown to be raised by the appeal. Three of them had multiple parts. In all, fourteen questions of law were identified.

8. Mr S. Marantelli, the appellant's counsel, made very able and attractive submissions on the appellant's behalf. At the outset he sensibly abandoned nine of the fourteen questions to which I referred a moment ago. He concentrated upon two issues which, he submitted, were raised by the appeal - in the one instance by questions (d) and (e), and in the other by questions (f)(i) and (ii) and (g). The first issue, he submitted, concerned s.49 of the Cheques Act 1986 (Cth) (The Act); the second, s.18 of the Act.

11. It is convenient to set out the questions relied upon. Thus:

"(d) The learned Magistrate erred in law in concluding and it was not reasonably open for her to conclude that the Respondent was the bearer of the cheque dated 1 March 1997 which was the subject-matter of the Complaint;

(e) The learned Magistrate erred in law in concluding that the Respondent had standing to bring the Complaint;

(f) The learned Magistrate erred in law in upholding the Respondent's claim by finding that:

(i) the Respondent or her husband, Clive Lipshut, was authorised by the Appellant to insert the date on the cheque pursuant to Section 18(1) of the Cheques and Payment Orders Act 1986;

(ii) a reasonable time had not elapsed from the time that the cheque was first given by the Appellant to Wolf Fink when the Respondent's husband inserted the date '1 March 1997' on the cheque.

(g) There was no evidence on which a reasonable magistrate could conclude that the expiry of about 6 years from the time that the Appellant gave the cheque the subject-matter of the Complaint to Wolf Fink amounted to a reasonable time pursuant to Section 18(2) and 18(3) of the Cheque and Payment Orders Act (1986)."

20. In order to understand the issues which were argued, and a problem that arose on the appeal in connection with the first of them, I must describe the nature of the respondent's claim and the disputed background to it.

23. The respondent commenced a proceeding in the Magistrates' Court on 24 September 1997. It was brought under the Instruments Act 1958 in respect of a cheque for $5,000 drawn by the appellant and payable to W. Fink or bearer. It was not in dispute that the cheque was a "bearer cheque" within the meaning of the Act. Nor was it in dispute that it had been presented on or about 25 March 1997 and that it had been dishonoured (the account on which it was drawn having been closed some years earlier).

26. The appellant obtained leave to defend. He filed a defence; and thereafter an amended defence. The latter document (simply "the defence") alleged that the cheque was drawn in about 1991 but was undated. So much was not in dispute. It was common ground, as the defence alleged, that the cheque had been date stamped by the respondent's husband, in her presence, in March 1997.

29. The defence further alleged that the appellant and the late Wolf Fink (the father of the respondent - he died in September 1993) had for many years enjoyed a relationship as friends and (the appellant being a bookmaker and the late Mr Fink a bettor) a relationship of businessman and client. It alleged that when one of them owed the other money it had been a practice to provide the other with an undated cheque or cheques as security; that the debts were always settled without such cheques being dated or banked; and that at the date of Mr Fink's death no moneys were owed to him by the appellant.

"The Plaintiff is not the payee of the cheque and no consideration for the cheque has passed between the Plaintiff and the Defendant or between the Defendant and the nominated payee of the cheque to the value of the cheque or at all."

36. Those allegations, so far as they concerned the situation between the appellant and the late Mr Fink, were in dispute.

39. Paragraph 12 then pleaded, essentially upon the footing that the appellant owed no money to Mr Fink at the time of the latter's death, that "the plaintiff had no authority from the plaintiff (sic) to fill up the cheque".

42. Building upon the matters thus far alleged the defence contended by paragraph 13 that the appellant was "not liable on the cheque pursuant to s.18" of the Act.

45. Thereafter the defence addressed the time elapse between the drawing of the cheque, Mr Fink's death, the time when the respondent had come into possession of the cheque, and the time when it was dated and presented. It alleged that more than a "reasonable time" had elapsed before the cheque was "filled up" (that is, dated - see s.18(2) of the Act) and that the respondent was not authorised to fill up the cheque (see s.18(1)). A limitation defence was also raised.

48. The thrust of the evidence called by and for the respondent in the Magistrates' Court was this: the late Mr Fink had lent $200,000 to the appellant in mid 1989. The loan had been partly re-paid over the years. Sixty thousand dollars remained outstanding. Mr Fink told the respondent that the debt would come to her after his death. It was not to form part of his estate. She was not to pressure the appellant for re-payment, but rather was to give him generous opportunity to re-pay. She had seen the 12 cheques written by the appellant, each for $5,000, in her father's possession before his death. She was aware that the appellant had given the cheques to her father in the early part of 1991. She took possession of the cheques "because the outstanding cheques were owed to my father and he told me that the debt was to be re-paid to me". Subsequent to her father's death the appellant admitted, orally, the existence of the debt, and that it was payable to her and not to the estate. He was told that the respondent held the cheques, and that she knew what they related to. She gave him much time to pay the debt. That accorded with her father's wishes. Eventually, demands for payment were made. The appellant not making payment, the cheques were date stamped by the respondent's husband, in her presence; and were presented for payment by him, the deposit account being one operated jointly by he and the respondent.

51. At the conclusion of the respondent's case in the Magistrates' Court, counsel for the appellant made a no case submission. The matter is dealt with by paragraph 16 of Mr Mond's affidavit affirmed 1 July 1998, by counsel's written submissions (exhibit HM4 to that affidavit), and the magistrate's notes (which are Exhibit RL1 to the respondent's affidavit sworn 28 July 1998).

54. Counsel's written submissions were that the claim "must fail by reason of s.18". First, the cheque had been delivered to Mr Fink. He had authority to fill it up, had that been necessary. But the respondent had no such authority. The appellant could prove the contrary. Second, the cheque was not enforceable because it had not been filled up within a reasonable time and strictly in accordance with the authority given. The respondent was not a holder in due course and was thus not entitled to the presumption expressed by s.18(4) of the Act.

57. The learned magistrate's notes of the submissions made, and her decision, are at pp.56 to 66 of Exhibit RL1. They show that several additional arguments were orally advanced for the appellant. One of them was noted simply as follows: "No evid P bearer of cheque". When the magistrate's notes of counsel's submissions are read overall, it is apparent that this submission was connected with a contention that the bearer of the cheque was the respondent's husband - because it was he who date stamped and lodged it. In those circumstances, it was argued, the respondent had no standing.

60. The learned magistrate's notes show that she rejected the oral argument to which I have just referred: see pp.62 to 63. She relied upon principles of agency. She rejected also the submission that the cheque had been filled up, necessarily, outside a reasonable time; and the submission that the respondent, necessarily, was shown to have had no authority to fill up the cheque. She properly left key factual issues open for decision when all the evidence was in.

63. Clear it is, then, that upon the no case submission aspects of s.18 of the Act were raised for consideration by the learned magistrate. Subject to one matter, clear also it is that counsel for the appellant did not raise what it is convenient to describe as the "s.49 point" which was argued by Mr Marantelli on the appeal. The only reference to s.49 of the Act was to sub-s.(4), which had importance to the s.18 submissions: see s.18(4).

66. The matter to which I referred a moment ago is this: the appellant, by paragraph 16 of his affidavit, deposed that his counsel submitted that there was no case to answer because " ... the plaintiff was not the bearer of the cheque and so had no standing to sue". At first glance, one might think - having regard to Mr Marantelli's submissions - that the submission made in the Magistrates' Court related to the s.49 point. But it seems very clear to me, having read the learned magistrate's notes, that the submission referred to by the appellant was the oral submission mentioned by me in paragraph 17 of these reasons. It had nothing to do with the argument advanced on the appeal.

69. After the magistrate ruled that the appellant had a case to answer, the appellant himself gave evidence. Other witnesses were called on his behalf. They put into issue the respondent's allegation that the appellant was indebted to the late Mr Fink at the time of his death; and they disputed the making by the appellant of an admission of such indebtedness after Mr Fink's death.

72. The magistrate made notes of counsel's final submissions: see pp.113 to 118 of Exhibit RL1. Relevantly, counsel for the appellant repeated his s.18 submission; and he made submissions upon disputed issues of fact. He raised other contentions also. None of them involved the s.49 point. It appears that the closest the submissions got to the point argued on appeal was a contention that any debt was owed to the late Mr Fink's estate, and - it seems to have been put as a corollary - the respondent had no title to the cheques.

75. The magistrate found that the appellant was indebted to the late Mr Fink and that the debt was "conveyed to the plaintiff"; and, implicitly, that the cheques - of which the cheque sued upon was one - had also been "conveyed". She concluded that the cheques were given as security for the debt. It was plainly implicit in her reasons that the appellant had failed to displace the presumption that the respondent, being the person in possession of the cheque, had authority to fill it up. She found, expressly, that in all the circumstances the cheque had been filled up within a reasonable time. Consistently with the matters raised by the defence and the way in which the matter had been conducted, the magistrate referred in her reasons to s.18 of the Act; but not to s.49.

78. I have set out all that is necessary in order to understand the submissions which Mr Marantelli advanced before me. I start with the s.18 arguments.

81. Counsel for both parties accepted, for the purposes of the appeal, that a date is a material particular for the purposes of s.18(1). I proceed on the basis that this is so. According to question (f)(i) the learned magistrate "erred in law" by finding that the respondent or her husband was authorised to fill up the cheque. Counsel did not suggest that the magistrate had misdirected herself in considering the matter. He did not argue, in this connection, that the respondent was not the bearer of the cheque. He conceded that his client was confronted by the s.18(1) presumption. He did not submit that completion failed because it had been effected by the respondent's husband. In reality, he asked me to say that on no reasonable view of the evidence was a finding of fact available that the respondent or her husband was authorised to fill up the cheque. He submitted that the cheque was given "as a pledge, a part of the mutual holding of cheques that occurred from time to time between Messrs Fink and Mond". I am not clear whether it was said to follow from such a characterisation that the cheque was not given as security; or else was a security in name but not in effect - because it could not be used if the debtor defaulted.

84. In my opinion the magistrate was not bound to reach a conclusion adverse to the respondent upon the matter raised by question (f)(i). There was certainly evidence authorising a conclusion that the cheque was given as a pledge, in the sense of being security for a loan. In that event it could reasonably be concluded that the security was not given without authority to fill it up; for to deliver it without giving such authority would render the security useless. It might be thought that the cheque was conditionally delivered and was not to be presented until there was an act of default - most obviously, failure to pay on demand the debt for which the cheque was (part) security. That was, I think, how the magistrate approached the matter. Once assume that Mr Fink had authority to fill up the cheque, it should follow that the bearer of the cheque had like authority. The presumption of authority set up by s.18(1) emphasises the hopelessness of the appellant's position on this matter.

87. According to question (f)(ii) the magistrate "erred in law" by finding that a reasonable time had not elapsed from the time of delivery of the cheque in 1991 and its being date stamped in March 1997. Counsel did not contend that the error consisted of any misdirection. The question really invited me to conclude that there was no evidence upon which a finding favourable to the respondent could reasonably have been made. Its content was no different, in substance, to the content of question (g).

90. What is a "reasonable time" within which to fill up a cheque is said by s.18(3) to be a question of fact. It must depend on the circumstances of the particular case. I was referred to instances where the issue arose in the context of like legislation: Griffiths v. Dalton [1940] 2 KB 264, Sydney and North Sydney Lime Burners Ltd v. Phillips (1931) 31 SR (NSW) 505, and Durack v. West Australian Trustee Executor and Agency Co Ltd [1944] HCA 21; (1944) 72 CLR 189. Those cases show the application of principle in the particular circumstances. They do not resolve the application of principle in the present case.

93. In this matter the magistrate was entitled to take into account the fact that, probably by reason of his longstanding friendship with the appellant, the late Mr Fink took no steps to call in the balance of the debt, and in the event of non-payment fill in and deposit the cheque; the fact that Mr Fink instructed his daughter to act in a similarly humane way to the appellant; the evidence of discussions between the appellant, the respondent and her husband after Mr Fink's death - in which discussions the debt was admitted and the place of the cheque(s) in the arrangement was adverted to; the evidence that the respondent's attempts, later on, to call in the debt met with no response; and the evidence of the eventual dating and presentation of the cheque(s) - in effect, as a last resort. In my opinion the magistrate was not required in all those circumstances to conclude that the cheque was not filled up within a reasonable time. To conclude that the magistrate was constrained in consequence of the humane and honourable conduct of Mr Fink, and later the respondent - of which conduct the appellant knew, and from which he benefited - to hold that the cheque was not completed within a reasonable time would in my opinion be going much too far.

96. I turn to what I have called the s.49 point. It went this way:

(1) The respondent sued not as assignee of the alleged loan, or as the personal representative of her late father's estate, but as the holder of the cheque.

(2) The cheque was a "bearer cheque".

(3) The person in possession of a bearer cheque is "the bearer".

(4) Possession of a cheque includes both actual and constructive possession (as to the latter see, for example, Chalmers & Guest on Bills of Exchange, 15th ed., at p.13).

(5) The "holder" of a bearer cheque is the bearer.

(6) A cheque payable to bearer is transferred by negotiation if it is delivered by the holder to another person: s.40(3); see also s.29.

(7) Delivery, in the case of a cheque, means the transfer of possession of the cheque from one person to another.

(8) Section 49(1) simply authorises the holder of a cheque to sue upon it in his or her own name. It does not invest the holder with the right to sue, which depends upon title. It is only a procedural provision. The right to recover must be found elsewhere in the Act: Riley, Bills of Exchange in Australia, 3rd ed., p.105, referring to s.43(1)(a) of the Bills of Exchange Act 1909, and citing Stock Motor Ploughs Ltd v. Forsyth [1932] HCA 40; (1932) 32 SR (NSW) 259, (1933) 48 CLR 128 at 145 per McTiernan, J; see also Crouch v. The Credit Foncier of England, Ltd (1873) LR 8 QB 374 at 381-382.

(9) Section 49(1) does not address the situation where the holder of a cheque dies. There, title to the cheque, and thus the right to recover, passes to the personal representative; and such person must sue on the cheque except if he or she indorses it away; Riley, op cit at p.105 citing Bishop v. Curtis (1852) 21 LJQB 391. (Counsel later conceded that this proposition was arguably too wide, the requirement of indorsement not applying in the case of bearer cheques. This concession may well be soundly based; see Byles on Bills of Exchange, 25th ed., p.200; and note the reference to bills payable to order in Chalmers & Guest, op cit at p.329; and the nature of the instruments considered in the cases cited at footnote 81 on that page).

(10) Whilst possession of a cheque may be actual or constructive, there was no evidence of transfer of possession of the cheque to the respondent by the late Mr Fink. The respondent did not take actual possession of the cheque. The evidence did not enable a finding that she took constructive possession of it.

(11) The respondent did not become the holder of the cheque by any act of the personal representative. The cheques became property of the estate on Mr Fink's death, the respondent was not a beneficiary under the will, and the administrator was not empowered to dispose of them to her. Moreover, the administrator was not appointed until some months after Mr Fink's death (the executors having renounced). The respondent took the cheques on the day of her father's death. The administrator could not retrospectively make delivery of the cheques to the respondent.

(12) Looking at the cheque not as a chattel, but as a chose in action, it had neither been assigned in law, nor assigned in equity. As to the former, s.134 of the Property Law Act 1958 stood in the way; as to the latter, the late Mr Fink had not delivered the cheque to the respondent.

102. Central to these submissions were the propositions - contested by counsel for the respondent - that the respondent had not come into actual or constructive possession of the cheque. She had taken actual possession of it only after her father's death. That was not a negotiation of the cheque within s.40(3). The cheque had not been hers to take after her father's death. Only the personal representative could have made such a delivery, but he could not have done so in the case of property forming part of the estate, nor retrospectively.

105. As the hearing of the appeal proceeded, it became increasingly clear to me that these submissions had neither been raised by the defence nor articulated at the trial. I raised the matter with Mr Marantelli. He, having consulted with counsel who appeared for the appellant at trial, confirmed the accuracy of my assessment.

108. Two questions arise. First, should the appellant now be permitted to raise and pursue what I have called the s.49 point? Second, has the appellant made the point good?

111. In my opinion the appellant ought not be permitted to take the point. That is so for two reasons. First, it is clear that questions (d) and (e) set out in the Master's order were directed not to the s.49 point, but to a quite different issue - the contention raised at trial that the respondent's husband, not the respondent, was the bearer of the cheque.

114. The rules require the Master by order to state each question of law that the appellant shows to be raised by the appeal. As a general proposition, it would be quite wrong if a question of law shown to be raised by the appeal in connection with a particular issue was permitted to be used to support argument upon another issue altogether - a fortiori where the first issue was not pursued at all on the appeal. To permit such a course would tend to subvert the intent of s.109(2)(a) of the Magistrates' Court Act 1989. In substance it should be considered an attempt to bring an appeal out of time without confronting the "exceptional circumstances" requirement of s.109(5)(a) of that Act. The circumstances in the present case could not be considered analogous to those which arose in DPP v. Hinch (Mandie, J, judgment 5 August, 1994, unreported), where a particular solution was adopted by which a point identified and canvassed in the arguments on appeal was able to be addressed.

117. Second, I am not able to say that I have before me all the facts bearing upon the issue as would have been the case had the issue been raised below - to paraphrase the judgment of Latham, CJ, Williams and Fullagar, JJ in Suttor v. Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438. It is, I consider, important to treat the principle expressed in that case as no empty incantation. Their Honours said (also at 438):

"Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards."

That emphasises the satisfaction which a judge should feel before entertaining a point of law raised for the first time on appeal - that is, a point which the appellant is not precluded from raising by some other principle.

122. In the present case counsel urged me to conclude that the evidence was clear in relevant respects; and that its import could not have altered. I cannot agree. Had the point been to the forefront the examination of the respondent and her husband may well have had a different emphasis. So, questions may have been asked more closely connecting the loan, its assignment and the cheques. The evidence of the administrator may have been more extensive. He might have advanced a reason why he did not treat either the loan or cheques as assets of the estate; or, if it could possibly be relevant, of some conduct on his part making purported delivery of cheques to the respondent.

125. Strictly, I have said all that need be said to dispose of the first question I framed in connection with the s.49 point. But there is another matter which, in my opinion, deserves some comment.

128. My experience leaves me in no doubt that there is an increasing tendency for appellants to seek to raise on appeal points which never saw the light of day at trial (or, in civil cases, on the issues formally joined). The tendency is not only apparent in single judge appeals. But for present purposes it should be so limited. A question arises, in appeals to this court brought pursuant to ss.92 and 109 of the Magistrates' Court Act, as to the extent of the inhibition on the ability of an appellant to adopt such a course. This is not the occasion to answer that question. But the occasion is opportune to outline what seem to me to be some pertinent considerations.

131. Appeal is available under s.109 of the Magistrates' Court Act "on a question of law, from a final order of the (Magistrates') Court". In respect of an analogous provision of the Administrative Appeals Tribunal Act 1984 a majority of the Full Court in Transport Accident Commission v. Hoffman and Ors [1989] VicRp 18; [1989] VR 197 said this, at 199:

"It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision."

135. The import of that passage was highlighted by Tadgell, JA in Frugniet v. Secretary to Department of Justice (No. 2) (1996) 10 VAR 314 at 317. The appeal must be brought on a question of law (contrast a decision of fact) which is involved in the decision of the tribunal which is the subject of appeal.

138. There is a somewhat similar provision in the Accident Compensation Act 1985. Section 52(1) of that Act permits an appeal "on a question of law raised in ... proceedings" in the County Court. The section is full of problems. It was considered by the Court of Appeal in Green v. The Victorian WorkCover Authority [1997] 1 VR 364. Tadgell, JA concluded that it should be treated as "conferring a right of appeal from ... a judgment or decision of the County Court on a question of law raised during the proceedings before the County Court and which is involved in the judgment or decision (see at 369). His Honour proposed (at 370) "that s.52(1) of the Act should receive much the same interpretation" as was accorded by Hoffman to s.52(1) of the Administrative Appeals Tribunal Act.

141. The predecessor of s.109 of the Magistrates' Court Act 1989 was s.91 of the Magistrates' Court Act 1971, which provided for the order to review procedure. The apparent breadth of its application, as disclosed by grounds upon which orders nisi had been made, is revealed by Motor Accidents Board v. Coutts [1984] VicRp 69; [1984] VR 790 at 794-796.

144. Under the order to review procedure, according to Brooking, J in Coutts (at 799):

"The principle that, unless the proceedings below took a course which make it unjust to allow the matter to be relied on now, a point not taken below may be raised on appeal if the defect could not have been cured (Edmondson v. Macan [1878] VicLawRp 167; (1878) 4 V.L.R. (L.) 422; Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 C.L.R. 418, at p.438 has been applied to these orders nisi for as long as the procedure has existed, whether the new point was advanced by way of attacking the order below ... or by way of supporting it ... "

and

"where the point is used to assail the order below, it must of course be covered by the grounds of the order nisi."

148. The ability of a party to raise a point for the first time on appeal, in order to support the order appealed from, has been held to apply in the case of appeals brought under s.92 of the Magistrates' Court Act 1989: DPP v. Makris (Batt, J, judgment 16 March 1994, unreported) referring to DPP v. Webb [1993] VicRp 82; [1993] 2 VR 403 (see particularly per Ormiston, J at 414-417). I consider that there is no difference between s.92 and s.109 in this respect.

151. Giving the language of s.109 of the Magistrates' Court Act the meaning given to s.52(1) of the Administrative Appeals Tribunal Act in Hoffman, an appellant should be at liberty to develop on appeal an argument which was not put in the Magistrates' Court in respect of a question of law which was put in issue, and which was involved in the decision. It must also be accepted that a party may support an order appealed from by resort to a point raised for the first time on appeal. The more difficult question is whether s.109 permits the operation of the principle, outlined in Coutts, which applied in order to review cases.

154. Central to the resolution of that question must be the section itself, a section the like of which has been construed in Hoffman. Its language is not the language of the predecessor provision. That earlier provision, and the case law which built up in connection with it, could not, I think, determine the limits of an appeal available under s.109.

157. There is, no doubt, a proper concern that a decision which does or may affront legal principle should not be permitted to stand. But that concern does not always prevail - as the time limits on appeal and the principle in Suttor v. Gundowda Pty Ltd illustrate.

160. In somewhat similar vein, authority shows that it may well be appropriate to refuse an application to amend grounds of appeal the effect of which would be to raise a new issue: Coulton & Ors v. Holcombe & Ors [1986] HCA 33; (1986) 162 CLR 1. Again, general statements of principle emphasise that rarely should a party be permitted to depart on appeal from its conduct of the case at trial; see, eg, University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481 at 483.

163. It appears to me, consistently with the various inhibitions upon opening up new points on appeal to which I have referred, that s.109 might be thought to deny to an appellant the right to appeal upon a question of law - even a "pure" question of law - which could have been but was not raised at first instance; one which, had it been raised, would have obliged an outcome favourable to the appellant. So to understand s.109 (in substance construed in Hoffman) would mean that in some cases an appellant would be denied the opportunity of putting an unassailable point on appeal. It might be argued that this would be an unhappy outcome, particularly in criminal cases. But in criminal cases a general right of appeal is in any event conferred by the Magistrates' Court Act. Further, I consider that there is force to the proposition that any unfairness in denying an appellant an unassailable appeal point ought be balanced against the great undesirability of making the trial a mere "preliminary skirmish" - a characterisation adopted by Gibbs, CJ, Wilson, Brennan and Dawson, JJ in Coulton at 7 - marked by inadequate attention to issues; and balanced against the undesirability of trawling the proceedings at first instance to see if some unassailable point, not put at trial, can be located. Every time that courts on appeal permit such a point to be raised, there is left in the wake of that permission at least a thorough waste of court resources, and the depletion of the financial resources of the litigants.

166. If s.109 should not be construed to itself deny to an appellant the right to appeal upon a question of law which could have been but was not raised at first instance, the various inhibitions upon opening up a new point on appeal must still be considered.

169. I return to what is necessary for the resolution of this matter. The s.49 point was not raised by the questions framed by the Master's order; and had it been, it could not have succeeded because of the principle in Suttor v. Gundowda Pty Ltd.

172. I noted earlier that there was a second question in respect of the s.49 point - that is, if its various aspects were raised by the appeal, had the appellant made them out? In the course of the hearing I expressed doubt whether I should provide what would be, in effect, an advisory opinion in the event that I concluded that the appellant fell at an earlier hurdle. Having in fact reached that conclusion I am satisfied that I should not offer such an opinion. There are eleven other cheques upon which the respondent may well sue. If she does so, the appellant may raise the s.49 point. If he does so the respondent may plead an Anshun estoppel. I cannot be confident, if the issue goes to trial, just what the state of the evidence will be at its end. It could be quite unhelpful, having regard to the possible course of evidence in a later proceeding, to express any conclusion, however tentative, upon the various aspects of the s.49 point by reference to the evidence called in the instant proceeding.

I certify that this and the 15 preceding pages are a true copy of the reasons for judgment of Ashley, J of the Supreme Court of Victoria delivered on 8 April 1999.