The action was heard by Mann J. who summarized the contenti
of the plaintiff as follows : - " The grounds upon which the p
plaintiff claims relief against the Bank turn upon the sufficiency
the notice to pay given by the Bank to the Company under the
debenture deed. It is submitted by Mr. Walker, first, that
was not sufficient notice to pay because the demand in writi
which was in fact made did not state what the sum was that wa
then due, and payment of which was then demanded. The notig
in fact demanded ' payment of all principal interest and other money
owing by P. O'Day Proprietary Limited to the Commercial Bank
Australia Limited aforesaid the payment of which is secured by
debenture'; and, secondly, it was contended that, assuming
the demand was sufficient in point of form, yet the appointment
the receiver and the entry of the receiver upon the business an
assets of the Company was wrongful, because so little time elaj
between the demand and the appointment of the receiver, that i
could not be said, upon the reasonable construction of the deed, th
the principal moneys had become payable within the meaning of
the deed. In other words, that the debenture deed required th
a reasonable time should elapse between the demand and the goit
into possession, and that the time which in fact elapsed, which seen
to have been one day, was not a reasonable time in the cireumstanet
and that the seizure of the assets thereupon became an unlawitl
act which might have been treated as a trespass. The conclusi
which counsel for the plaintiff seeks to draw from this is that having
in fact sold the assets of the Company, the Bank by its receiver ht
unlawfully destroyed the security given by the debenture
that by so doing it has deprived itself of the right to call upon th
Company, the principal debtor, to pay the debt secured, and that
the secured debt being in effect gone, the guarantor's liability as
natural consequence has gone too. The second branch of thi
argument is this, that even if the principal debtor has not
released in the way just stated, at all events the wrongful procedun
by the Bank has destroyed the security constituted by the deed 0
debenture, and that, upon general equitable principles applicable t