[1994] FCA 1219; (1994) 51 FCR 584

Corporations - validity of appointment of third appellant as receiver of assets - whether execution of the instrument of appointment was authorised by board of directors - whether presumption of regularity applied.

Corporations - Corporations Law s.429 - whether formalities prescribed for appointment of receiver - whether appointment depends on valid affixation of common seal.

Practice - whether leave to appeal necessary in respect of interlocutory order.

Federal Court of Australia Act 1976, s.24(1A)

Poignand v NZI Securities Australia Limited [1994] FCA 872; (1994) 120 ALR 237 con.

Northside Developments Pty Ltd v Registrar-General [1990] HCA 32; (1990) 170 CLR 146

R.A. Cripps and Son v Wickenden (1973) 1 WLR 944 con.

Windsor Refrigerator Co. Ltd. v Branch Nominees Ltd. (1961) Ch. 375 con.

Dawson v Westpac Banking Corporation [1991] HCA 52; (1991) 104 ALR 295 con.

Computer Edge Pty. Ltd. v Apple Computer Inc. [1984] HCA 47; (1984) 54 ALR 767 con.

Caboche v Ramsay [1993] FCA 611; (1993) 119 ALR 215 con.

Tag Pacific Ltd v McSweeney [1992] FCA 168; (1992) 34 FCR 438 con.

Counsel and Solicitors Mr. P. Jacobson QC with Mr. S. Epstein

Counsel and Solicitors Mr. J.P. Hamilton QC with

THE COURT ORDERS: 1. Grant leave to appeal from declaratory orders made by Wilcox J on

7 January 1994 to the effect that the appointment by the second

appellant of the third appellant as the receiver of the assets of

Ripoll Holdings Pty Limited was, in the first instance, invalid.

2. Appeal allowed, with costs. Set aside Declarations (b), (c) and

(d) and Order (1) made by Wilcox J on 7 January 1994; in lieu

thereof order that the respondent pay the appellants' costs of

this issue at first instance.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BEAUMONT, GUMMOW AND CARR JJ This is an appeal, by leave, from part of a judgment of Wilcox J in which his Honour declared, in effect, that the appointment by the second appellant of the third appellant as the receiver of the assets of Ripoll Holdings Pty. Limited ("Ripoll") was, in the first instance, invalid (now reported: [1994] FCA 872; (1994) 120 ALR 237). The background to the appeal is as follows.

2. By a Deed ("the Deed") of fixed and floating charge made between the second appellant and Ripoll dated 3 April 1987, provision was made for the appointment of a receiver as follows:

"11.01 At anytime after an Event of Default has

occurred the Chargee may appoint a Receiver of

the whole of the Charged Property. This power

may be exercised whether or not a Receiver of

part of the Charged Property has previously been

appointed under clause 11.02."

3. (It was common ground that, at some stage, an event of default occurred. The issue, in the present context, was as to when it occurred.)

4. At a meeting attended by all of the directors of the second appellant held on 9 March 1992, it was agreed that a receiver would be appointed to Ripoll. On 16 March 1992, a document was executed under the seal of the second appellant purporting to appoint the third appellant as the receiver of the undertaking and assets of Ripoll charged by the Deed. On 10 April 1992, the directors of the second appellant ratified this use of the company's seal. At the trial, it was contended, on behalf of the respondent, that the purported appointment of the third appellant as receiver was void because the seal of the second appellant was affixed to the instrument of appointment without its authority.

5. (It is appropriate to note that at the hearing the parties seem to have considered that the issue of the validity of the appointment depended on whether the seal had been validly affixed to the document of 16 March 1992. Before us, as will appear, the appellants adopted a broader approach to the matter. It should also be noted that although the Court drew to the attention of the parties the circumstance that Ripoll had not been joined as a party, no application was made for its joinder.)

6. Wilcox J held that the appointment of the third appellant was not effective until 10 April 1992.

7. There was no real contest at the trial about the relevant primary facts, although the inferences to be drawn from those facts were in contention. The evidence, which was mainly in documentary form, was as follows:

(1) The appellants read an affidavit sworn by Mr. B.D. Beer on 11 December 1992 in these terms:

"1. I am a director of NZI Securities Australia Limited,

having been appointed as such on 6 November 1991. I

am also a director of NZI Capital Corporation, having

been appointed as such on 21 February 1991.

2. On or about 9 March 1992 the board of directors of NZI

Capcorp (which consisted of Max Warner, Austin Millott

and me) met. The subject of our discussion was the

outstanding loan from NZI Capcorp to Ripoll Holdings

Pty Limited ("Ripoll"). We agreed at that meeting

that NZI Capcorp would appoint a receiver and manager

to Ripoll."

8. In cross-examination, Mr. Beer gave this evidence:

"You say in one of your affidavits that on or about 9 March

1992 the board of directors of NZ Capital met?---Correct.

Could you tell his Honour what you mean by on or about 9

March 1992?---It was after a meeting that we had in the

board room on that particular day.

You mean on what particular day?---On the ninth.

I see. Why did you say on or about the ninth?---Well, it's

a form of expressing oneself, I said the ninth, on or about

the ninth.

And where did this meeting of the board of directors of NZI

Cap Corp take place?---In Max Warner's office.

Where was that?---Where is his office?

Yes? Where was his office on the day this meeting took

place in it?---Where it has always been, on the 8th Floor,

10 Spring Street.

Thank you. Mr Warner was in Australia that day, was he

not?---Yes.

How do you know this other meeting was on 9 March 1992? You

see you swore this in an affidavit on 11 December 1992, many

months afterwards, how did you know 9 March was the relevant

date?---It was a meeting - it was the same day that we had a

meeting with Mr Poignand and other associates.

I see. But it was immediately after that meeting?---

Correct.

And no minute was made of this meeting of the board of

directors was it?---No, it was a discussion after the

meeting with Mr Poignand.

Well was it really a meeting of the board of directors at

all or just some discussion among you three gentlemen who

happened to be the directors of NZI Cap Corp?---I considered

it to be a meeting.

I see. Well there was not any notice of it?---No, there was

no notice of it.

And no minute of it?---There should have been some

notification or some note by the account manager at the

time.

But there was not, was there, Mr Beer?---Well, you'd have to

ask the account manager at the time.

Have you ever seen any note or minute of it by anyone?---Oh

well it's something I haven't searched for.

I see - - -?---It wasn't common practice for me to do so.

Have you ever seen a note or minute of it, Mr Beer?---No,

I've never looked for it.

The question is: Had you seen any minute or note of that

meeting when you participated in the composition of that

paragraph 2?---No.

I take it, nor at the time you swore the affidavit?---No.

You had not seen any note or minute at the time you swore

the affidavit?---No."

(2) The appellants read an affidavit sworn by Mr. A.R. Millott on 11 December 1992 in these terms:

"4. On or about 9 March 1992, Mr Warner and Mr Beer met

with me. The subject of our discussion was the

outstanding loan from NZI Capcorp to Ripoll. This was

a matter we had discussed many times before.

5. We agreed at that meeting that NZI Capcorp would

appoint a receiver and manager to Ripoll."

9. This evidence of Mr. Millott was not seriously challenged in cross-examination.

(3) There were exhibited to Mr. Millott's affidavit the following documents: (a) an appointment by the second appellant of the third appellant as receiver dated 16 March 1992 under the common seal of the second appellant in which it was stated that the seal "was hereunto affixed by Authority of the Board of Directors in the presence of..." There follows what purports to be the signatures of Mr. Warner as director and the signature of the company secretary; (b) a notice of appointment of receiver dated 16 March 1992 addressed to Ripoll under the seal of the second appellant, witnessed by Mr. Warner and the company secretary and purporting also to be signed by the third appellant in accepting the appointment; (c) a notice of appointment on the letterhead of, and signed by, the third appellant dated 16 March 1992 addressed to Ripoll informing Ripoll, pursuant to s.429(2) of the Corporations Law, of his appointment.

(4) The appellants read an affidavit by the third appellant sworn on 11 December 1992 in which he said:

"5. I was appointed the receiver and manager of Ripoll

Holdings Pty Limited ("Ripoll") on 16 March 1992 and I

have acted in that capacity since that date."

10. The third appellant was not cross-examined on this part of his affidavit.

11. Exhibited to that affidavit was a "company extract" on the letterhead of the Australian Securities Commission in respect of Ripoll. The following entry appeared:

"002 976 776 RIPOLL HOLDINGS PTY LTD Document No.

Receiver Manager

MICHAEL EDWARD WAYLAND 002 307 750

LEVEL 67, MLC CENTRE, MARTIN PL, SYDNEY NSW 2000

Start Date: 16/03/1992"

(5) The respondent tendered minutes of a meeting of the directors of the second appellant held on 10 April 1992 which included the following:

"SEAL REGISTER: It was RESOLVED that the use of the Common

Seal of the Company as detailed in the

following entries in the Seal Register of

the Company be ratified:

Entries numbered:914 - 916, 917A,

917B, 918A, 918B, 919 - 936"

12. It is common ground that these entries included the documents already mentioned, being the appointment of the third appellant and notice of that appointment, both dated 16 March 1992.

13. In considering the validity of the appointment of the third appellant, Wilcox J referred to Article 84(2) of the articles of Association of the second appellant, which is as follows:

"84(2) The seal shall be used only by the authority of the

directors, or of a committee of the directors authorised by

the directors to authorise the use of the seal, and every

document to which the seal is affixed shall be signed by a

director and be countersigned by another director, a

secretary or another person appointed by the directors to

countersign that document or a class of documents in which

that document is included."

14. His Honour said ((1994) [1994] FCA 872; 120 ALR 237 at 247):

"Mr Millott and Mr Beer both swore affidavits in which they

referred to a meeting on 9 March 1992 of the three directors

of NZI Cap Corp, themselves and Maxwell Warner. They said

that the subject of discussion at that meeting was Ripoll's

outstanding loan and that the three directors agreed that

NZI Cap Corp would appoint a receiver and manager to Ripoll.

But this was not a formal directors' meeting. Their

decision was not a board decision and was not minuted. The

directors did not agree upon the identity of the proposed

receiver and manager. Nor, as was conceded, was there any

board decision, in advance of the event, to the effect of

the decision announced in the notice of appointment dated 16

March or to authorise the affixing of the company's common

seal to either of the relevant documents.

On 10 April, the directors attempted to rectify this

omission. They held a formal directors' meeting at which

they resolved:

...that the use of the common seal of the

company as detailed in the following entries in

the seal register of the company be ratified:

Entries numbered: 914-916, 917A, 917B, 918A,

918B, 919-936."

"In the present case, there is no proof that all three NZI

Cap Corp directors gave advance assent to the use of the

seal. Mr Warner clearly did, but that is all that is

proved. Counsel for the respondents say this does not

matter. They refer to a statement of Mason CJ in

Northside Developments Pty Ltd v Registrar-General ... :

'...it is the presence of the seal on the document

that gives rise to the presumption that the seal has

been affixed with the authority of the directors.'"

16. Wilcox J sought to distinguish the reasoning of Mason CJ in Northside Developments as follows (at 257):

"I do not think his Honour was suggesting that there was a

presumption in favour of a company, such as the presumption

of regularity that applies to public and official acts: see

Phipson on Evidence (13th ed) at para 41-17. The possible

existence of such a presumption was not a matter that the

court had to decide. If, none the less, Mason CJ had

wished to make a statement about that topic, he would surely

have done so more clearly and fully. Such a statement would

not only have been of far-reaching importance; so far as I

can ascertain, it would have broken new ground. I have not

been able to find any case in which it has been held that

proof of the affixing of a company common seal to a document

creates a presumption, in the company's favour, that it was

affixed with the authority of the directors. I do not think

this surprising. If, in any particular case, there is an

issue whether a company's common seal was validly affixed to

a document upon which it relies, it seems correct in

principle to require that the company bear the onus of

establishing valid affixation rather than that the opposing

party be required to negative it. That approach not only

accords with the general rule that the person asserting a

fact must prove it, it is particularly appropriate in this

situation; the company may be expected to have greater

access to the relevant facts and witnesses than the opposing

party."

"I agree that it was not necessary to make the appointment

by directors' resolution. A suitably authorised officer

might have acted as the company's agent to make the

appointment. There is no evidence as to whether Mr Warner

had the requisite authority. But it does not matter whether

he did or not; he did not purport to act as the agent of

the company when he signed the notice of appointment. He

purported to act as a director authenticating an act of the

company itself."

18. However, Wilcox J proceeded to find (at 257) that the appointment was ratified by the board resolution of 10 April and was, from that date, effective.

19. By their grounds of appeal, the appellants contended that there was evidence that the second appellant's board of directors authorised the execution of the instrument of appointment of the third appellant dated 16 March 1992; that there was no evidence that the appointment was made without authority; that the presumption of regularity should have been applied here; and that the respondent bore the onus of establishing that the seal was invalidly affixed.

20. The respondent contended that the appointment was invalid not only because the seal was invalidly affixed but also because the decision of the second appellant's directors did not identify the third appellant as the receiver to be appointed.

21. In our opinion, there is substantial force in the appellants' contentions.

22. As has been seen, cl.11.01 of the Deed of charge provided that at any time after an "Event of Default" has occurred, the second appellant may appoint a receiver. No formalities are prescribed for the appointment. Section 429(2) of the Corporations Law requires that where a person becomes a receiver (i.e. a "controller of property" as there defined), notice of the appointment is to be served upon the corporation as soon as practicable. But the Corporations Law makes no provision with respect to the formalities of the appointment. It follows that, in the absence of any requirement in the provisions of the Deed of charge, these formalities are governed by the requirements of the general law.

23. In our opinion, a receiver is appointed when the document of appointment is handed to the receiver by a person having authority to appoint in circumstances in which it may fairly be said that he was appointing the receiver and where the receiver accepts the appointment.

24. In R.A. Cripps and Son v Wickenden (1973) 1 WLR 944, Goff J, after referring to Windsor Refrigerator Co. Ltd. v Branch Nominees Ltd. (1961) Ch. 375, 397, said (at 953-4):

"I am satisfied by the Windsor case that an appointment

under hand takes effect when the document of appointment is

handed to the receiver by a person having authority to do

that and in circumstances from which it may fairly be said

that he is appointing a receiver and the receiver accepts

the proffered appointment: see per Lord Evershed MR where

he said, at pp.394-395:

'The words are quite simple words: 'Appoint by

writing'; and in construing them it is fair to note

that the condition also empowers the debenture holders

by writing to remove. I should have thought that

those words would be satisfied if something was done -

if the person acting for the debenture holders so

conducted himself that one could say that he was

appointing someone to be a receiver, and if he

accompanied that by handing a writing which was the

company's writing to the receiver.'

...

As to the necessity of acceptance, which is perhaps self-evident,

see Kerr on the Law and Practice as to Receivers,

14th ed. (1972), p.272. The delivery of the document gives

the receiver knowledge, or means of knowledge who the debtor

is if he does not know already, and acceptance may, of

course, be tacit."

25. In the Windsor Case, which involved the determination of a preliminary point, the debenture in question contained a condition that the holder of the debenture might, in certain circumstances, by writing appoint a receiver. It was held that, assuming that the instrument of appointment was ineffective as a deed, it could still be effective according to its tenor as an instrument in writing. Lord Evershed MR said (at 393-4):

"The question is not whether these two gentlemen, when they

put their names on this document, were purporting to execute

a document under their hands as agents for the company, or

had any authority so to do. The question, as I conceive it

to be, is: Can this document purporting though it may have

been originally to operate as a deed, but failing so to do -

can it nonetheless be the instrument of the company in

writing? I have come to the conclusion that that question

ought to be answered in the affirmative. So to decide is

not, of course, to decide - far from it - that Greenwood's

appointment was valid. There remain matters of fact plainly

in issue, and all that we can say, as it seems to me, is

that assuming those facts are found eventually in a sense

which would be favourable to the defendants' case, then this

document could operate as an instrument in writing within

the contemplation of condition 12 of the debenture so that

it could be said by the defendants that Branch Nominees Ltd.

had by writing appointed Greenwood."

"The other point, namely, whether the document was operative

in law as an appointment in writing, was not really argued

before Cross J as it has been before us. He came to the

conclusion that these two directors had authority only to

execute, or to witness the execution of, a deed by the

company, and that as that did not authorise them to execute

or sign a document under hand, that was an end of the

matter. But with all respect, the appointment need not be

under hand. There was no need for any signature here. The

two directors were authorised to do that which they did, and

having done it, whether that instrument so brought into

being operates as a writing is for the court, and is not a

matter of their authority at all; and my Lord has expressed

the view, in which I concur, that this document on the face

of it could operate as an appointment in writing. Whether

it did so depends on a number of facts to which we do not

know the answer. All we can say, therefore, is that it

could so operate."

"As to the first question, I can see no answer to the

defendants' contention that, if the document cannot properly

operate as a deed, it certainly can do so as a writing; and

I need say no more upon this point than my brothers have

said already, with which I agree.

As to the second question, the argument is that the receiver

was appointed the moment the document was signed, and so

before the debt became payable. I agree that in a context

where precision is not required, one might speak of the

document loosely as appointing a receiver. But in this

context precision is required. What the debenture holder

wants to do is to levy equitable execution, and for that

purpose to have some person in being clothed with the

necessary authority to take possession of the company's

property, to carry on its business, to act in its name, and

pay the debt; and the company has to submit to the exercise

of these powers by the person having such authority.

This state of affairs is not achieved simply by the

debenture holder signing a document in privacy, and keeping

the contents to himself for as long as he wishes. Clearly

the contents of that document must be communicated at least

to the receiver before his appointment can be said to be

effective."

28. In the present case, since no formalities were required, the central issue for decision was whether the second appellant actually made the appointment. This was essentially a question of fact, to be determined on the whole of the evidence. As has been said, in this respect, there was no serious dispute about the primary facts, although the proper inferences to be drawn from those facts were contentious.

29. In our opinion, the proper inference to be drawn from the oral and documentary evidence, considered as a whole, is that the second appellant made the appointment of the third appellant on 16 March 1992. Apart from the Board resolution on 10 April, to which we will return, all the documentary evidence is consistent with this. Moreover, there is nothing in the affidavit or oral evidence to the contrary. If anything, that evidence confirms what the documentary material already indicates, namely that on 16 March 1992 the second appellant intended to, and did, appoint the third appellant as its receiver.

30. Two matters should be specifically mentioned here. First, the affidavit evidence spoke of the meeting in terms of the three directors there agreeing to the appointment. It is true that the identity of the receiver was not referred to in that evidence. However, the other contemporary documentation previously mentioned (which was in evidence, without objection, for all purposes - cf. Heydon, "The Status of Hearsay and Other Evidence Admitted Without Objection" (1985) 1 Aust Bar Rev, 155) indicates that the second appellant then intended to appoint the third appellant and decided to take that course.

31. Next, although the minutes of the meeting of 10 April speak of a ratification of the prior use of the company's seal, too much should not be made of the timing of this for present purposes. The context suggests that what was then in the minds of the directors was a mere formality. The present point, however, is one of substance.

32. Looked at as a matter of substance, the evidence all points one way; and, as has been seen, no attempt to suggest a contrary position was put to any witness in cross-examination on behalf of the respondent. It should be borne in mind, in this regard, that the primary relief sought by the respondent was a declaration that the third appellant had not been validly appointed. On this issue, the respondent bore the onus.

33. Moreover, in our opinion, in the situation at hand, a strong presumption of regularity and validity would, if not rebutted (and we think it was not rebutted), reinforce the inference that on 16 March 1992 the second appellant did, in fact, appoint the third appellant. In a similar situation, in Dawson v Westpac Banking Corporation [1991] HCA 52; (1991) 104 ALR 295, Mason CJ said (at 304-305):

"The primary judge's finding that the special resolution was

invalid was made in a context where his Honour failed to

take into account the existence of the presumption in favour

of regularity and validity. Registration of the change of

name was effective as from 27 July 1983. That registration

was based on an acceptance of the efficacy or presumed

efficacy of the special resolution recorded in the notice.

There was in this situation a strong presumption of

regularity and validity which would, if it were not

rebutted, justify a finding that the meeting was held and

the resolution was passed. The general rule is that, where

an act is done which can only be done legally after the

performance of some prior act, proof of the later act is

presumptive evidence that the prior act was done. In McLean

Bros and Rigg Ltd v Grice ... this court held that, where

there existed a record in writing of an extraordinary

resolution passed for the voluntary winding up of a company,

signed by the chairman of the meeting at which it was

passed, a copy of which was sent to the Registrar-General

and recorded by him and was also published in the Government

Gazette, there was a rebuttable presumption that all that

took place at the meeting was done lawfully. Such a

rebuttable presumption arose here from the change of name

based on the notice signed by Mr Smith recording the passing

of the special resolution at the meeting said to have been

held on 4 March. That presumption did not depend upon an

acceptance of Mr Smith's oral testimony."

34. This approach is, we believe, equally apposite here.

35. In finding that the seal was affixed without the authority of the second appellant until ratified on 10 April, the learned primary Judge did not address, and perhaps was not invited to address, the anterior question whether the formality of a seal was required. Once it is concluded, as it should be, that this formal step was not necessary, the real question for determination is, as we have said, whether on 16 March the second appellant, through its three directors, decided to appoint the third appellant as its receiver. As a matter of fact, the primary and secondary material in evidence points strongly to that conclusion. Indeed, the contrary view is not, we think, really open. In these circumstances, it should be concluded that the appointment was made on 16 March 1992. It follows that we would allow the appeal, with costs.

37. First, we have not had to deal with the question of ratification which is apparently not without its own difficulties (see the discussion of Bird v Brown [1850] EngR 173; (1850) 4 Exch. 786 in Presentaciones Musicales SA v Secunda (1994) 2 All ER 737).

38. Secondly, we granted leave to appeal in this matter. The reason for the need for leave was that the orders by Wilcox J were, in truth, interlocutory. Relevantly, the orders were as follows:

"THE COURT DECLARES THAT:

(a) ...

(b) After 3 April 1991 NZI Capital Corporation Limited was

entitled to appoint a receiver and manager of the

undertaking and assets secured by the Deed of Charge

made between Ripoll Holdings Pty Limited and NZI

Capital Corporation Limited.

(c) The appointment of Michael Edward Wayland as receiver

and manager of the said undertaking and assets that

was purportedly made by NZI Capital Corporation

Limited on 16 March 1992 was initially invalid; but

(d) The said appointment became valid and operative as

from 10 April 1992.

AND THE COURT ORDERS THAT:

(1) The applicant have liberty to apply for a

determination of the amount of any loss or damage

sustained by himself or any group member by virtue of

any action taken by any of the respondents between 16

March 1992 and 10 April 1992 in reliance upon the

purported appointment of 16 March 1992;"

39. In our opinion, in accordance with the reasoning of the High Court in Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767, the orders made at first instance were, for the purposes of s.24(1A) of the Federal Court of Australia Act 1976, interlocutory. In a similar situation, in Caboche v Ramsay [1993] FCA 611; (1993) 119 ALR 215, Gummow J, with the agreement of Ryan and Lee JJ, said (at 225-26):

"It was pointed out in the course of argument that, given

the terms of orders (2) and (3) set out above and

consistently with the reasoning in Computer Edge Pty Ltd v

Apple Computer Inc ... leave to appeal was necessary. None

had been sought. Upon the issue thus being ventilated,

counsel indicated that leave was not seriously opposed. The

case raises some complex substantive issues. Accordingly,

leave should be granted in each matter. I should add that

the applicability in this court of Apple Computer has been

affirmed by the Full Court on numerous occasions, most

recently in Australian Builders' Labourers' Federated Union

of Workers Western Australian Branch v J-Corp Pty Ltd ...

These decisions, of course, bind single judges of this

court; cf Tag Pacific Ltd v McSweeney ..."

41. However, before us, reliance was placed upon the decision and reasoning in Tag Pacific Ltd v McSweeney [1992] FCA 168; (1992) 34 FCR 438. It was submitted, for the appellants, that leave was not required as the orders were not interlocutory. But, in our view, the observations in Tag Pacific are inconsistent with Apple Computer, and thus should not, with respect, be followed.