Emu Brewery Mezzanine Ltd (In Liq) v Australian Securities and Investments Commission [2006] WASCA 105 (15 June 2006)

Last Updated: 19 June 2006

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION : EMU BREWERY MEZZANINE LTD (IN LIQ) -v- AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2006] WASCA 105

CORAM : MCLURE JA

PULLIN JA

BUSS JA

HEARD : 20 FEBRUARY 2006

DELIVERED : 15 JUNE 2006

FILE NO/S : FUL 182 of 2004

BETWEEN : EMU BREWERY MEZZANINE LTD (IN LIQ) (ACN 104 639 410)

Appellant

AND

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : SIMMONDS J

Citation : AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION -v- EMU BREWERY MEZZANINE LTD [2004] WASC 241

File No : COR 120 of 2004, CIV 1623 of 2004







Catchwords:



Corporations - Fundraising - Promissory notes - Notes issued by the appellant pursuant to an information memorandum - Whether the contract between the appellant and each investor included an implied undertaking to repay which was independent of the promise to pay contained in the notes - Notes issued by the appellant on terms which conferred on the appellant a right of early repayment - Right of early repayment conferred by the contract between the appellant and each investor - Right of early repayment not contained or referred to in the notes - Whether the notes issued by the appellant were "promissory notes" as defined in s 89(1) of the Bills of Exchange Act 1909 (Cth) and for the purposes of par (d) of the definition of "debenture" in s 9 of the Corporations Act 2001(Cth)

Legislation:



Bills of Exchange Act 1909 (Cth), s 13(1), s 14(1), s 16, s 34, s 37(a), s 41, s 64(1), s 89, s 92, s 93, s 94, s 95



Corporate Law Economic Reform Program Act 1999 (Cth)



Corporations Act 2001 (Cth), s 9, s 283AB(1), s 283AC, s 471B, s 601EB, s 601ED, s 700, s 718, s 721, s 761A, Ch 5C, Ch 6D, Pt 6D.2

Result:



Cross-appeal dismissed

Category: A

Representation:

Counsel:

Appellant : No appearance

Respondent : Mr C G Colvin SC & Mr A R Beech SC

Solicitors:

Appellant : Freehills

Respondent : Darren Jackson

Case(s) referred to in judgment(s):

Akbar Khan v Attar Singh (1936) 2 All ER 545

Alexander v Thomas (1851) 16 QB 333

Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101

Australian National Nominees Pty Ltd v GPC No 11 Pty Ltd [2004] NSWSC 773

Australian Securities and Investments Commission v Karl Suleman Enterprises Pty Ltd (in liq) [2003] NSWSC 400; (2003) 177 FLR 147

Balck v Pilcher (1909) 25 TLR 497

Chicago Railway Equipment Co v Merchants' National Bank of Chicago [1890] USSC 169; (1890) 136 US 268, 10 SCt 999

Claydon v Bradley [1987] 1 WLR 521

Cohen v Quigley (1899) 15 WN (NSW) 307

Coles Myer Finance Ltd v Federal Commissioner of Taxation [1993] HCA 29; (1993) 176 CLR 640

Creative Press Ltd v Harman [1973] IR 313

Crouch v The Credit Foncier of England, Ltd (1873) LR 8 QB 374

Dagger v Shepherd [1946] KB 215

Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1

Glasscock v Balls (1889) 24 QBD 13

Good v Walker (1892) 61 LJQB 736

Goodwin v Robarts (1876) 1 App Cas 476

Gore v Octahim Wise Ltd [1995] 2 Qd R 242

Handevel Pty Ltd v Comptroller of Stamps (Vic) [1985] HCA 73; (1985) 157 CLR 177

Hornal v Neuberger Products Limited [1957] 1 QB 247

Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41

Hyundai Elevator Co Ltd v Liftronic Pty Ltd, unreported; CA SCt of NSW; Mahoney, Priestley and Handley JJA; 9 December 1994

In re Tewesbury Gas Co [1911] 2 Ch 279

J J Savage & Sons Pty Ltd v Blakney [1970] HCA 6; (1970) 119 CLR 435

Jacobs v Batavia and General Plantations Trust Ltd [1924] 2 Ch 329

John Burrows Ltd v Subsurface Surveys Ltd [1968] SCR 607

KHR Financings Ltd v Jackson (1977) SLT (Sh Ct) 6

Loxton v Moir [1914] HCA 89; (1914) 18 CLR 360

MacLeod Savings & Credit Union Ltd v Perrett [1981] 1 SCR 78

Mattison v Marks (1875) 31 Mich 421

Mohamedally v Miso (1957) 58 NLR (Ceylon) 457, PC

Morley v Culverwell [1840] EngR 157; (1840) 7 M & W 174

Mortgage Insurance Corporation v Commissioner of Inland Revenue (1888) 21 QBD 352

Norman v Federal Commissioner of Taxation [1963] HCA 21; (1962) 109 CLR 9

Re National Savings Bank Association (Hebb's Case) (1867) LR 4 Eq 9

Ross v Allis-Chalmers Australia Pty Ltd (1981) 55 ALJR 8

Rumball v Metropolitan Bank (1877) 2 QBD 194

Salot v Naidoo 1981 (3) SA 959

Standard Credit Corporation Ltd v Kleyn 1988 (4) SA 441

Stenning v Radio and Domestic Finance Limited [1961] NZLR 7

Stock Motor Ploughs Ltd v Forsyth [1932] HCA 40; (1932) 48 CLR 128

Torkington v Magee [1902] 2 KB 427

Vidler v Sallaway (1862) 1 SCR (NSW) 246

Wenzel v Australian Stock Exchange Ltd [2002] FCAFC 400; (2002) 125 FCR 570

Weszak Beleggings (EDMS) BPK v Venter [1972] 1 SALR 730

Williamson v Rider [1963] 1 QB 89

Wragge v Sims Cooper & Co (Australia) Pty Ltd [1933] HCA 59; (1933) 50 CLR 483

Case(s) also cited:

City Link Melbourne Limited v Commissioner of Taxation [2004] FCAFC 272; (2004) 141 FCR 69

de Pedro v Young (1940) 42 WALR 79

Elias v George Sahely & Co (Barbados) Ltd [1983] 1 AC 646

Harvey v Edwards Dunlop [1927] HCA 13; (1927) 39 CLR 302

Konstas v Southern Cross Pumps & Irrigation Pty Ltd, unreported; Fed C of A; 3 July 1996

1 MCLURE JA: I have had the advantage of reading the judgment to be published by Buss JA. I agree that ground 2 of the cross-appeal should be dismissed for the reasons he gives. However, I differ from him on the first ground of appeal. The facts and other relevant background material are detailed in his judgment and not repeated here unless necessary for an understanding of these reasons.

2 In 2003, Emu Brewery Mezzanine Pty Ltd published an Information Memorandum inviting investors to participate in a fundraising proposal under which the appellant would issue promissory notes with an aggregate face value of $35,000,000 ("the Information Memorandum"). The proceedings below and the appeal were conducted on the basis that the appellant (Emu Brewery Mezzanine Ltd) and Emu Brewery Mezzanine Pty Ltd are the same company. The Australian Securities and Investments Commission (the respondent) commenced proceedings in this Court for a declaration that, inter alia, in the circumstances set out in the Information Memorandum, the appellant had offered to issue securities to investors without preparing, lodging or providing to investors a disclosure document as required by Pt 6D.2 of the Corporations Act 2001 (Cth) ("the Act"). In the alternative, the respondent sought a declaration that, in the circumstances set out in the Information Memorandum, the appellant operated a managed investment scheme without complying with the requirements of Ch 5C of the Act.

3 The learned primary Judge, Simmonds J, found there was no offer of securities and accordingly the appellant was not required to comply with Ch 6D of the Act, but that the appellant operated a managed investment scheme to which Ch 5C applied.

4 The appellant appealed from the primary Judge's decision that it operated a managed investment scheme. The respondent cross-appealed from the primary Judge's decision that there was no offer of securities to which Pt 6D.2 applied.

5 The appeal was subsequently discontinued with the consent of the parties. The only matter before this Court was the cross-appeal. However, the appeal and cross-appeal are interrelated because if the appellant's conduct involved an offer of securities, the managed investment scheme provisions of the Act do not apply: see par (j) of the definition of managed investment scheme in s 9 of the Act and Australian Securities and Investments Commission v Karl Suleman Enterprises Pty Ltd (in liq) [2003] NSWSC 400; (2003) 177 FLR 147 at 150 - 151. The appellant was not represented at the hearing of the cross-appeal.

6 The central issue in the first ground of appeal is whether the appellant, in publishing the Information Memorandum inviting investors to participate in the fundraising proposal, made an "offer of securities" for the purposes of Ch 6D of the Act. An offer of securities is defined to include inviting applications for the issue or purchase of securities: s 700(2) of the Act. "Securities" in Ch 6D has the same meaning as it has in Ch 7 (s 700(1)). Security is defined in s 761A of the Act. It was common ground that the relevant part of the definition of security is "a debenture of a body".

7 The term "debenture" is defined in s 9 of the Act as follows:

"[D]ebenture of a body means a chose in action that includes an undertaking by the body to repay as a debt money deposited with or lent to the body. The chose in action may (but need not) include a charge over property of the body to secure repayment of the money. However, a debenture does not include:







...

(d) an undertaking to pay money under a promissory note that has a face value of at least $50,000 ... "

8 This definition of debenture, which focuses on the legal right to repayment of a debt, was inserted by the Corporate Law Economic Reform Program Act 1999 (Cth). It replaced a definition of debenture that reflected the common law. The common law focussed on the document issued by a company acknowledging or creating a debt. Although at common law the term debenture defies accurate definition, it excludes negotiable instruments: Handevel Pty Ltd v Comptroller of Stamps (Vic) [1985] HCA 73; (1985) 157 CLR 177 at 195 - 196. The document evidencing the debt was intended to be transferable and there is authority that it should contain all the terms that bind the parties and transferees: In re Tewesbury Gas Co [1911] 2 Ch 279 at 284. However, even at common law, a promise contained in a prospectus that was omitted from a debenture could give rise to a collateral contract, the consideration for which was the plaintiff's agreement to take the debentures: Jacobs v Batavia and General Plantations Trust Ltd [1924] 2 Ch 329.

9 The first ground of appeal assumes the promissory notes issued pursuant to the Information Memorandum are promissory notes for the purpose of the exclusion in the definition of debenture.

10 The respondent contended that on the proper construction of the Information Memorandum: (1) there was a loan agreement between the appellant and each person who invested money with the appellant ("investor"); (2) the loan agreement created a debtor-creditor relationship between the appellant and the investor and included a promise by the appellant to repay its indebtedness to the investor; and (3) the appellant's promise to repay the debt under the loan agreement was in addition to the appellant's obligation to pay under the promissory note.

11 A promissory note is defined in s 89(1) of the Bills of Exchange Act 1909 (Cth) as an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person, or to bearer.

12 A promissory note is an instrument, the contents of which consist substantially of a promise to pay a definite sum of money and of nothing else: Mortgage Insurance Corporation v Commissioner of Inland Revenue (1888) 21 QBD 352 at 358. However, a promissory note will not be invalid by reason only that it contains a pledge of collateral security (s 89(3)). A promissory note must come into existence for the purpose only of recording an agreement to pay money and nothing more; serious embarrassment would be caused in commerce if the negotiable net were cast too wide: Akbar Khan v Attar Singh (1936) 2 All ER 545 at 550 per Lord Atkin. It is not unusual for a promissory note to co-exist with another underlying agreement.

13 As there are very limited defences to a claim based on a promissory note (and other bills of exchange), such claims are usually enforceable summarily. Because of the availability of summary enforcement mechanisms, promissory notes are used as a form of security: Stock Motor Ploughs Ltd v Forsyth [1932] HCA 40; (1932) 48 CLR 128 at 134, 135, 142; Wragge v Sims Cooper & Co (Australia) Pty Ltd [1933] HCA 59; (1933) 50 CLR 483; Stenning v Radio and Domestic Finance Limited [1961] NZLR 7. In Stock Motor Ploughs, the respondent gave two promissory notes as collateral security for two instalments under a hire purchase agreement between the appellant and the respondent. As stated by Dixon J (at 135), the legal consequence was that the respondent had two independent obligations to pay the same money. The obligations were separate, concurrent, secured the same sum and were enforceable in any order.

14 The respondent's contention was that the loan agreement and promissory note gave rise to two independent obligations to pay the same debt, only one of which obligations was excluded from the definition of debenture. The respondent must first demonstrate that there is an agreement between the appellant and each investor, the terms of which go beyond the terms of the promissory note. The promissory notes materially provided:

"PROMISSORY NOTE Promissory Note No:

Expiry Date: 36 months from the Issue Date

Issue Date: ________2003

1. Emu Brewery Mezzanine Pty Ltd ('Emu Brewery Mezzanine') promises to

pay [insert name and address of investor] ('the Investor'):

(a) the sum of $________________ (the 'Principal Sum'); and

(b) interest ('Interest')

in accordance with the terms set out below.

2. This Note is non-negotiable and non-transferable.

3. The Principal Sum plus 2% will be paid on the Expiry Date.





4. Interest will be paid at the rate of 12% per annum on a monthly basis in



arrears."





15 The respondent contended that the Information Memorandum invited the investors to lend money to the appellant to finance a particular property development on the basis of promises by the appellant to arrange particular securities that would mitigate the risk of lending.

16 The front page of the Information Memorandum represents that it is published by the appellant and "the Westpoint Group" being defined in the Information Memorandum as Westpoint Corporation Pty Ltd and its associated entities. The Information Memorandum states that the Westpoint Group had arranged the acquisition of the Emu Brewery East Site ("the Site"), the specific location and title details of which are provided. The nature and timing of the proposed development on the Site are also detailed; it is to be a combination of apartments (the majority of which were to be contained in three proposed high-rise towers), office and retail complexes. The construction of the first tower (the Mounts Bay tower) was scheduled to commence in mid-2004 and would take approximately 24 months to complete. The Information Memorandum continues:

"The Mezzanine Funding being raised pursuant to this Information Memorandum will be utilised to settle the land acquisition and carry out all the preliminary design work and pre-sale marketing. The Mezzanine Funding will initially have a first ranking charge over the project, reverting to second ranking when senior debt is introduced. It is planned that the Mezzanine Funds will either be repaid through the refinancing of the project shortly before the commencement of construction, or from the proceeds of the sale of the first Mounts Bay Tower.







This Information Memorandum has been prepared to assist investors considering participating in the $35 million Promissory Notes Issue by [the appellant] a special purpose company specifically established for this purpose.







[The appellant] is seeking to raise $35 million to lend Emu Brewery Developments Pty Ltd as trustee for the Emu Brewery Trust ... , the principal project company, to assist in the funding of the project. The funds raised will be allocated partly towards the purchase of the property as well as pre-construction development expenses that include consultants, marketing, advertising, selling and other project establishment costs." (emphasis added)

17 After referring to the promissory note funds to be raised, the interest rate, the investment period, and the minimum investment, there is a reference to security as follows:

"The issue is of unsecured Promissory Notes in a special purpose company, [the appellant]. [The appellant] will have a 2nd ranking mortgage over the property and 2nd charge over the Trust. In addition the Westpoint Group will provide a guarantee to the investors for all interest and capital payments due."

18 The Information Memorandum continues:

"Promissory Notes by nature are unsecured, however, the lending risk will be mitigated by issuing the Notes from a special purpose company which will have security over the project as noted in the financing structure below.















[ IMAGE ]















As you will see from the structure diagram, the Senior Debt Provider will hold a first ranking mortgage over the property and a first ranking charge over the Trust ... [The appellant] will hold a second ranking fixed and floating charge over the Trust and a second ranking mortgage over the property. In addition, [the Westpoint Group] will provide a guarantee to [the appellant] up until the redemption of all Promissory Notes and satisfaction of all interest payments due under those Promissory Notes." (emphasis added)

19 Subsequently it is stated that "[t]o ensure absolute compliance with the loan arrangements between [the appellant] and the Trust and that investors interests are always considered, [the appellant] has an independent board of directors and is audited by KPMG".

20 Whether a statement (be it of fact, intention or opinion) is promissory, is determined objectively by reference to the whole of the relevant circumstances: Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41. Gibbs CJ said in that case (at 61 - 62):

"If the parties did not intend that there should be contractual liability in respect of the accuracy of the representation, it will not create contractual obligations. In the present case [the respondent], who made his statements fraudulently, had, of course, no intention that they should amount to contractual undertakings, but he could not rely on his secret thoughts to escape liability, if his representations were reasonably considered by the persons to whom they were made as intended to be contractual promises, and if those persons intended to accept them as such. The intention of the parties is to be ascertained objectively; it 'can only be deduced from the totality of the evidence': Heilbut, Symons & Co. v. Buckleton [1912] UKHL 2; [1913] A.C. 30, at p. 51."

21 If an intelligent bystander would reasonably infer that a contractual promise was intended, that would suffice even though neither party in fact had it in mind: Hornal v Neuberger Products Limited [1957] 1 QB 247 at 256 per Denning LJ.

22 A statement may be on a matter of importance upon which the representee was intended to and did rely without being promissory: J J Savage & Sons Pty Ltd v Blakney [1970] HCA 6; (1970) 119 CLR 435. In that case, the vendor of a boat and engine, in the course of pre-contractual negotiations, provided his estimate of the speed the boat would reach if powered by a particular engine. The High Court described the statement as an expression of opinion as the result "of approximate calculation based on probability" which tended against the inference of a promise that the boat would in fact achieve the nominated speed. Statements of opinion on future matters are less likely to be found to be promissory even if they induce entry into a contract.

23 In Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1, the statement in issue was of an intention in relation to a future matter. The statement was to the effect "that the total disability benefit under the provisions [the insurer's agent] was recommending for inclusion in his existing and new policy would be payable to [the appellant] if he suffered an injury or illness which left him physically incapable of carrying on his occupation as a self-employed builder". Gibbs CJ said (at 5):

"The question whether the statements constituted a collateral contract depends on the intention of the parties ... In the present case the statements were not promissory in form –– they purported to be descriptive or explanatory of one of the terms of the formal written contracts into which the parties proposed to enter. I find it impossible to say that either of the parties actually intended that the statements should constitute a term of the contracts between them or ... that an objective inference can be drawn that they did so intend. The statements were representations and nothing more."

24 Because the outcome in each case depends upon inferences drawn from the circumstances as a whole, the authorities provide only very general guidance in the determination of the question whether a statement is promissory. Relevant considerations include the language used by the parties, whether the statements are of fact, intention or opinion and whether the statement describes or identifies the characteristics of the subject matter of the contract. Where the statements concern future matters, it is relevant to consider whether the representor has control (or the capacity to control) those matters.

25 There can be no doubt in this case as to the appellant's subjective intention. It was to attempt to avoid the application of the Act by bringing itself within the promissory note exclusion in the definition of debenture. However, the appellant's subjective intention is irrelevant. Further, the objectively determined intention must depend upon matters of substance rather than form. The fact that the document is labelled an "Information Memorandum" is a matter to be considered in objectively determining the parties' intention but is not determinative.

26 The appellant makes unequivocal and unqualified statements in the Information Memorandum as to:

(1) the specific and exclusive purposes for which the funds lent by investors to the appellant are to be used. In particular, the funds are to be on-lent by the appellant to the Trust to be applied by the Trust in the acquisition of the Site and for pre-construction development expenses including preliminary design work and presale marketing for the proposed development on the Site; and

(2) the security to be obtained by the appellant from the Trust and the Westpoint Group in consideration for the loan to the Trust, being a first ranking charge over the Trust until the introduction of "senior debt" and thereafter:

(a) a second ranking mortgage of the Site;

(b) a second ranking charge over the Trust; and

(c) a guarantee from the Westpoint Group.

27 The purpose of the loan and the security are interdependent. There could be no obligation in relation to security without an obligation as to purpose. The language in and content of the "Information Memorandum" are consistent with an assurance of performance in relation to both the purpose for which the funds are to be used and the security to be provided to the appellant. That is conveyed in a number of ways. First, the use of the word "will", in context, means that the appellant had resolved to act in accordance with its statements. Secondly, the appellant is stated to be a single purpose company. Thirdly, and perhaps most significantly, the appellant identifies the means by which compliance with the loan arrangements between the appellant and the Trust is to be ensured. It is implicit in this statement, and not contradicted elsewhere, that the appellant intended to be bound by its statements as to purpose and security. Further, there is no relevant uncertainty in the formulation of the obligations (as to which, see the robust approach in Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101) and no legal or practical impediment to the appellant performing in accordance with the assurances. Settlements of this nature involving three or more parties are a common feature in the financing of property and development transactions. The language in and content of the Information Memorandum in this case are materially different to that considered in Australian National Nominees Pty Ltd v GPC No 11 Pty Ltd [2004] NSWSC 773.

28 I am satisfied that an intelligent bystander would reasonably infer that a contractual promise was intended in relation to the purpose of, and security for, the funds invested by the investors.

29 I am also satisfied that there was an underlying transaction between the appellant and the investors which is appropriately described as a loan agreement. In ascertaining the terms of the loan agreement, regard can be had to the terms of the promissory note. However, as the promissory note must be primarily an unconditional promise to pay money, any underlying transaction can form no part of the terms of the promissory note. Indeed, there is nothing on the face of the promissory note to indicate that the investors had lent money to the appellant. The nature of the underlying transaction is simply not disclosed. Yet the fact that the parties contemplated a loan transaction is confirmed in the statement in the explanatory memorandum that the investors' lending risk would be mitigated by the fact that the appellant would have security over the Site

and the ultimate borrower, the Trust. The loan agreement is the underlying transaction to which the promissory note is complementary.

30 As the underlying loan agreement imposes contractual obligations on the appellant that are outside the scope of the promissory note, it must have been intended to give rise to a debtor-creditor relationship that carried with it an independent implied obligation to repay the debt. Were it otherwise, the investors' entitlement to repayment would be governed solely by the terms of the promissory note notwithstanding any repudiatory breach of the loan agreement. That cannot have been intended. It is also a term of the loan agreement that the appellant is entitled to repay the loan before the date specified in the promissory note.

31 The final issue is whether a loan agreement containing terms relating to purpose and security as well as an obligation to repay indebtedness can be a debenture. Debenture is defined as "a chose in action that includes an undertaking by the body to repay as a debt" money lent to the body. A chose in action is a personal right of property which can only be claimed or enforced by action as distinct from taking physical possession: Loxton v Moir [1914] HCA 89; (1914) 18 CLR 360 at 379 per Rich J; Torkington v Magee [1902] 2 KB 427 at 430; Starke, Assignments of Choses in Action in Australia (1972) at 1 - 9. The loan agreement is a chose in action or perhaps more accurately, gives rise to a number of choses in action including the debt and other rights of action arising under the contract: Loxton v Moir at 379; Norman v Federal Commissioner of Taxation [1963] HCA 21; (1962) 109 CLR 9 at 26. There is nothing in the statutory definition of debenture which expressly or impliedly excludes rights of action arising out of contractual terms relating to the purpose of, or security for, the money lent to the body, or makes the presence of such rights inconsistent with the existence of a debenture.

32 For these reasons, I conclude that the loan agreement is a debenture in which event, in the circumstances set out in the Information Memorandum, the appellant made an offer of securities for the purposes of Ch 6D of the Act. However, as I am in the minority, it is unnecessary for me to formulate the orders I would make.

33 PULLIN JA: I have had the opportunity of reading the drafts of the reasons for decision of McLure and Buss JJA. I agree with Buss JA. However, in view of the difference between them concerning ground 1, I add the following observations concerning that ground.

34 The Information Memorandum by its title indicates that it is dedicated to the provision of information concerning what is described on the cover as a "$35 Million Promissory Notes Issue". It provides, within the body of the document, an executive summary explaining the reasons for raising the funds. It explains that the "Mezzanine Funding" raised pursuant to the Information Memorandum "will" be utilised to settle land acquisition and carry out preliminary design work and pre-sale marketing. It explains that the Mezzanine Funding "will initially have a first ranking charge over the project, reverting to second ranking when senior debt is introduced."

35 This is given more meaning in the section headed "The Promissory Note Offer", which explains that the appellant would be seeking to raise $35 Million to let another company (Emu Brewery Developments Pty Ltd as trustee for the Emu Brewery Trust, the principal project company) assist in the funding of the project. It sets out the "investment period" which is said to be "from the date of issue of Promissory Notes until Expiry Date ..." It represents that the appellant "will" have a second ranking mortgage over the property and a second ranking charge over the trust, and further represents that the "Westpoint Group" would provide a guarantee to the investors for all interest and capital payments due.

36 It further informed potential investors that the promissory notes were "by nature ... unsecured" and then represented that the lending risk "will" be mitigated by issuing the notes from a "special purpose company" which would have security over the project in the form of the charge and mortgage and guarantee referred to earlier.

37 Under a section dealing with risk factors, investors were again informed that promissory notes are by their nature unsecured, and once again made the representation that this lending risk "will" be mitigated by the appellant taking security. To further reassure investors, there was a representation that the appellant had an independent board of directors and that the company was audited by KPMG. The document concluded with a Promissory Note Application Form and a proforma of the promissory note.

38 In my opinion, it is not possible to draw out of this the creation of a chose in action (independent of the promissory note) that included an undertaking by the appellant to repay, as a debt, the money which was to be advanced in exchange for the promissory note. Counsel for the respondent placed great store on the repeated appearance of the word "will" and submitted that this was the "language of promise". In my

opinion, the word in its context is no more than an expression of resolve or, in some instances, of future likelihood. The impression created by a reading of the whole document is that representations are made to induce readers to advance funds in exchange for a promissory note.

39 BUSS JA: In 2003 Emu Brewery Mezzanine Pty Ltd published a document entitled "Information Memorandum: Mezzanine Finance $35 million Promissory Notes Issue" ("the Information Memorandum"). The proceedings before this Court were conducted on the basis that Emu Brewery Mezzanine Pty Ltd was the former name of the appellant, and that the appellant had changed its status from a proprietary to a public company.

40 In the Information Memorandum the appellant invited investors to participate in a fundraising proposal under which the appellant would issue promissory notes with an aggregate face value of $35,000,000.

41 More than 20 investors accepted the invitation, and paid money to the appellant pursuant to the Information Memorandum.

42 The appellant issued instruments to each of the investors who participated in the fundraising. These instruments were described as "promissory notes". It is convenient, in these reasons, to refer to the instruments as "notes". The face value of each note exceeded $50,000, and the aggregate face value of all notes issued by the appellant to the investors exceeded $5,000,000.

43 The funds raised by the appellant were lent by it to Emu Brewery Developments Pty Ltd ("the Developer") as trustee of the Emu Brewery Trust ("the Trust"). The purpose of the loan was to assist the Developer in financing preliminary expenses and costs relating to the proposed development and construction of apartment, office and retail complexes on land known as the Emu Brewery East site at the western end of the Perth central business district.

44 The loan was secured by:

(a) A second-ranking mortgage over the Emu Brewery East site;

(b) A second-ranking charge over the present and future assets and undertaking of the Developer; and

(c) A guarantee from Westpoint Corporation Pty Ltd and related entities.

The proceedings

45 The respondent commenced proceedings against the appellant in the Supreme Court. Relevantly, for the purposes of this cross-appeal, the respondent claimed relief against the appellant, as follows:

(a) A declaration that the conduct of the appellant in offering to issue and issuing securities to investors in the circumstances set out in the Information Memorandum without:

(i) entering into a trust deed in compliance with s 283AB(1) of the Corporations Act 2001 (Cth) ("the Act");

(ii) appointing a trustee in compliance with s 283AC of the Act;

(iii) preparing a disclosure statement in accordance with Pt 6D.2 of the Act;

(iv) lodging the disclosure document with the respondent in accordance with s 718 of the Act; and

(v) providing a copy of the disclosure document to investors in accordance with s 721 of the Act,

contravened the Act;

(b) Alternatively to par (a), a declaration that the conduct of the appellant in inviting investors to subscribe for the notes to be issued by the appellant on the basis of the Information Memorandum, without registering a managed investment scheme under s 601EB, in accordance with s 601ED of the Act, contravened the Act.

46 On 1 June 2004 Owen J (as his Honour then was) directed that certain questions of law be stated for the opinion of a Judge of the Supreme Court. Relevantly, for the purposes of this cross-appeal, these questions included:

(a) Whether the notes issued by the appellant to the investors were "promissory notes" for the purposes of s 89 of the Bills of Exchange Act 1909 (Cth);

(b) Whether the notes were "promissory notes" for the purposes of par (d) of the definition of the term "debenture" in s 9 of the Act;

(c) Whether the conduct of the appellant in issuing the notes was subject to the requirements of Ch 6D of the Act;

(d) If not, whether the notes were an "interest in a managed investment scheme", as defined in s 9 of the Act;

(e) If so, whether the issue of the notes was subject to the requirements of Ch 5C of the Act.

47 These (and other) questions were heard and determined by Simmonds J. His Honour concluded, relevantly for the purposes of this cross-appeal, that:

(a) The notes were promissory notes for the purposes of s 89 of the Bills of Exchange Act;

(b) The notes were promissory notes for the purposes of par (d) of the definition of the term "debenture" in s 9 of the Act;

(c) The conduct of the appellant in issuing the notes was not subject to the requirements of Ch 6D of the Act;

(d) The notes were an "interest in a managed investment scheme", as defined in s 9 of the Act;

(e) The issue of the notes was subject to the requirements of Ch 5C of the Act, but "subject to the other terms of the application of those requirements not addressed in the Case Stated".

The appeal and the cross-appeal

48 The appellant appealed from the judgment of the learned Judge on various grounds. Subsequently, however, by consent, this Court ordered that the appeal be discontinued.

49 The respondent cross-appealed. The cross-appeal was argued by counsel on behalf of the respondent, but the appellant did not appear by counsel or otherwise. Shortly prior to the hearing of the cross-appeal, the appellant went into liquidation. The liquidators gave their consent to this Court granting leave under s 471B of the Act to the respondent proceeding with the cross-appeal. An order was made to that effect.

The grounds of the cross-appeal

50 The respondent contended that the answers to the questions in the case stated, as set out in par 47 above, should be set aside, and instead the questions be answered, as follows:

(a) The notes were not promissory notes for the purposes of s 89 of the Bills of Exchange Act;

(b) The notes were not promissory notes for the purposes of par (d) of the definition of the term "debenture" in s 9 of the Act;

(c) The conduct of the appellant in issuing the notes was subject to the requirements of Ch 6D of the Act;

(d) The notes were not an "interest in a managed investment scheme", as defined in s 9 of the Act; and

(e) Not applicable.

51 The amended grounds of the cross-appeal, on which the respondent relied at the hearing of the cross-appeal, were these:

"1. The trial judge erred in fact and law in finding that there was no implied undertaking to repay the monies invested that was separate from the undertaking to pay in the documents issued by the appellant ('the Notes') [28] and [36]. The trial judge should have found that the subscription of monies by an investor to the appellant in response to the Information Memorandum and the acceptance of those monies by the appellant created an agreement between the investor and the appellant a term of which was that the appellant would repay the investor's money.







2. The trial judge erred in law in finding that the Notes were promissory notes [72]. The trial judge should have found that they were not promissory notes because the time for repayment expressed in the Notes was uncertain in that the appellant could in its discretion make part payment at any time prior to the expiry date."

52 After the hearing, the respondent sought leave to re-amend ground 2, as follows:

"The trial judge erred in law in finding that the Notes were promissory notes [72]. The trial judge should have found that they were not promissory notes because:

(a) the time for repayment expressed in the Notes was uncertain in that the appellant could in its discretion make part payment at any time prior to the expiry date; alternatively







(b) (i) an instrument or instruments said to constitute a promissory note within the definition in s89(1) must be in writing, signed by the maker and must contain the terms comprising the elements of the definition in s89(1);







(ii) the time for payment of the sum the subject of what is said to be a promissory note is an essential element of the definition in s89(1) of promissory note and so must be part of the 'writing' 'signed by the maker' of the promissory note within that definition;







(iii) the objective intention of the parties (namely the appellant and an investor) was that the Notes be issued on terms which included the terms on the application form and enumerated as 1 and 2 (AB 88D), which included, by term 2, a term respecting time for payment, namely a discretionary power in favour of the appellant permitting early repayment in part or in whole;







(iv) the application form was not referred to in the Notes and nor was it signed by the appellant."

53 The appellant's solicitors informed this Court that the liquidators of the appellant did not oppose the proposed re-amendment. In the circumstances, leave to re-amend should be granted.

The terms of the Information Memorandum

54 The Information Memorandum was divided into sections, with headings. The relevant sections, for the purposes of this cross-appeal, are these:

(a) Executive Summary;

(b) The Promissory Note Offer;

(c) Westpoint;

(d) Risk Factors;

(e) Custodianship;

(f) Property Description;

(g) Development Proposal;

(h) Sales and Marketing Strategy; and

(i) Project Costs.

55 The Information Memorandum also included a document described as a "Promissory Note Application Form".

56 The section headed "Executive Summary" provides, relevantly:

"The Mezzanine Funding being raised pursuant to this Information Memorandum will be utilised to settle the land acquisition and carry out all the preliminary design work and pre-sale marketing. The Mezzanine Funding will initially have a first ranking charge over the project, reverting to second ranking when senior debt is introduced. It is planned that the Mezzanine funds will either be repaid through the refinancing of the project shortly before the commencement of construction, or from the proceeds of the sale of the first Mounts Bay Tower."

57 The section headed "The Promissory Note Offer" provides, relevantly:

(a) "This Information Memorandum has been prepared to assist investors considering participating in the $35 million Promissory Notes Issue by [the appellant], a special purpose company specifically established for this purpose."







(b) "[The appellant] is seeking to raise $35 million to lend [to the Developer as trustee of the Trust], the principal project company, to assist in the funding of the project. The funds raised will be allocated partly towards the purchase of the property as well as pre-construction development expenses that include consultants, marketing, advertising, selling and other project establishment costs."







(c) "The issue is of unsecured Promissory Notes in a special purpose company [the appellant]. [The appellant] will have a 2nd ranking mortgage over the property and 2nd ranking charge over the Trust. In addition, the Westpoint Group will provide a guarantee to the investors for all interest and capital payments due."







(d) "Investors will receive interest of 12% per annum payable monthly in arrears plus a flat 2% payable with the repayment of capital on the Expiry Date of the Promissory Note: 36 months from the issue date."







(e) "Each Promissory Note must have a minimum face value of $50,000 and is issued in accordance with the Bills of Exchange Act 1909 (Cth). Promissory Notes are not securities as defined by the Corporations Act (Section 9 'Debentures') and therefore are not covered by the Corporations Act."







(f) "Promissory Notes by nature are unsecured, however, the lending risk will be mitigated by issuing the Notes from a special purpose company which will have security over the project as noted in the financing structure below."







(g) "As you will see from the structure diagram, the Senior Debt Provider will hold a first ranking mortgage over the property and a first ranking charge over the Trust (the First Ranking Security). [The appellant] will hold a second ranking fixed and floating charge over the Trust and a second ranking mortgage over the property. In addition, Westpoint Corporation Pty Ltd and associated entities ('the Westpoint Group') will provide a guarantee to [the appellant] up until the redemption of all Promissory Notes and satisfaction of all interest payments due under those Promissory Notes."

58 The section headed "Westpoint" contains information relating to:

(a) the role of the Westpoint Group as "development manager" of the project;

(b) the experience of the Westpoint Group in relation to the completion of other development projects and the management of retail and commercial properties throughout Australia;

(c) the Westpoint Group's approach to financial management including the minimisation of financial risk;

(d) the Westpoint Group's internal management structure; and

(e) the manner in which the Westpoint Group distributes "financial products" to its clients.

59 The section headed "Risk Factors" provides, relevantly:

(a) "Investors should be aware that there are certain risks involved in participation in this Promissory Note Issue. Whilst the Promissory Notes are by their very nature unsecured, the lending risk will be mitigated by [the appellant] (the special purpose company issuing the notes) having the second ranking mortgage over the property, a second ranking charge over the trust and the guarantee by the Westpoint Group."







(b) "Neither the Westpoint Group nor any of the parties associated with the Emu Brewery Development can guarantee the performance of the development. There are a number of factors, which may have an impact on the profitability of the development. Some of these factors are set out below, but this list is not exhaustive and investors should read this Information Memorandum carefully and consult their professional advisers before deciding whether to apply for Promissory Notes.

..."

(c) "...







Should any of the above factors have an adverse impact on the development, the ability of the Trust to repay the senior debt and the second ranking debt to the special purpose company [the appellant] may be affected. The ability of [the appellant] to then pay the interest and repay the capital when the Promissory Notes fall due for payment will then be dependent on the calling of the Westpoint guarantee. A brief description of the strength of the Westpoint Group is found under Section 3 of this document."

60 The section headed "Custodianship" contains information relating to each of the directors of the appellant, and states:

"As previously mentioned, [the appellant] is a single purpose company specifically established for this offering. To ensure absolute compliance with the loan arrangements between [the appellant] and the Trust and that investors' interests are always considered, [the appellant] has an independent board of directors and is audited by KPMG."

61 The section headed "Property Description" contains information relating to the Emu Brewery East site.

62 The section headed "Development Proposal" contains information relating to a development approval issued by the City of Perth in respect of the Emu Brewery East site, and a proposed amendment to be sought to that approval.

63 The section headed "Sales and Marketing Strategy" contains information relating to the proposed marketing of the development upon completion, and the proposed sales prices for properties within the development.

64 The section headed "Project Costs" provides, relevantly, that the construction phase of the project is scheduled to commence in mid-2004 and the total cost of the project is A$143,600,000.

The terms of the "Promissory Note Application Form"

65 The "Promissory Note Application Form" contained in the Information Memorandum is headed, as follows:

"EMU BREWERY MEZZANINE PTY LTD







ACN 104 639 410







PROMISSORY NOTE APPLICATION FORM







Expiry Date: 36 months from the Issue Date."

66 The form then provides:

"I/We apply for a Promissory Note of $________







The Promissory Note issued will be under the terms and conditions and in the same form as that noted on the reverse."

67 The form makes provision for an applicant to complete his, her or its name and address and provide contact details. Provision is also made for details to be inserted of payments enclosed with the form and of the tax file number or exemption of the applicant.

68 The form then provides:

"Applicant's Undertaking







The Applicant agrees to the issue of each Promissory Note by [the appellant] on the following terms:

1. The Applicant will not demand payment on each Promissory Note until the Expiry Date as referred to in the Promissory Note,







2. Part payment of the face value of each Promissory Note may be made at the sole discretion of [the appellant] at any time before the expiry date."

69 At the foot of the form there is provision for signature or execution by the applicant. The form is stated to be "[e]xecuted as a deed".

70 On the reverse of the "Promissory Note Application Form" is an instrument in, relevantly, these terms:

"PROMISSORY NOTE Promissory Note No:

Expiry Date: 36 months from the Issue Date

Issue Date: ________2003

1. Emu Brewery Mezzanine Pty Ltd ('Emu Brewery Mezzanine') promises to

pay [insert name and address of investor]

('the Investor'):

(a) the sum of $________________ (the 'Principal Sum'); and

(b) interest ('Interest')

in accordance with the terms set out below.

2. This Note is non-negotiable and non-transferable.

3. The Principal Sum plus 2% will be paid on the Expiry Date.





4. Interest will be paid at the rate of 12% per annum on a monthly basis in



arrears.





Payable at: Signed by:



Emu Brewery Mezzanine Pty Ltd







Emu Brewery Mezzanine Pty Ltd



c/- Westpoint Management Limited



Level 9, Paragon CBD



160 St Georges Tce, Perth WA 6000



____________ __________



Secretary/Director Director"

The form of notes actually issued

71 The appellant issued a note pursuant to the Information Memorandum in, relevantly, this form:

"PROMISSORY NOTE

Promissory Note No: 8518

Expiry Date: 21 August 2006

Issue Date: 21 August 2003

1. Emu Brewery Mezzanine Pty Ltd ('Emu Brewery Mezzanine Pty Ltd')

promises to pay R & L Andrew Pty Ltd ATF R & L Andrew Superannuation

Fund ('the Investor') of 13 Gertrude Street Sunshine VIC 3020 Australia:

(a) The sum of $71,000 ('the Principal Sum'); and

(b) Interest ('Interest')

in accordance with the terms set out below.

2. This Note is non negotiable and non transferable.

3. The Principal Sum plus 2% will be paid on the Expiry Date.

4. The Interest will be paid at the rate of 12% per annum on a monthly basis in

arrears.

Payable at: Signed



Emu Brewery Mezzanine Pty Ltd Emu Brewery Mezzanine Pty Ltd



c/o Emu Brewery Mezzanine Pty Ltd by:



Level 9, 160 St Georges Terrace



PERTH WA 6000



_______________ ____________



Secretary/Director Director







Graeme Rundle Richard Beck



_______________ ____________



Name Name"

The note was signed on behalf of the appellant by Mr Beck, one of its directors, and Mr Rundle, its company secretary.

72 In the proceedings, the parties agreed that all notes issued by the appellant pursuant to the Information Memorandum were, in all material respects, in this form.

Ground 1

73 Chapter 6D of the Act regulates fundraising by the offer and sale of "securities". In Ch 6D, "securities" has the same meaning as it has in Ch 7. By s 761A, which is part of Ch 7, "security" is defined to include, relevantly, "a debenture of a body".

74 In s 9 of the Act, unless the contrary intention appears, "debenture" of a body means:

"a chose in action that includes an undertaking by the body to repay as a debt money deposited with or lent to the body. The chose in action may (but need not) include a charge over property of the body to secure repayment of the money. However, a debenture does not include:







...

(d) an undertaking to pay money under a promissory note that has a face value of at least $50,000; or







..."

75 The learned Judge construed the Information Memorandum and the form of the notes issued by the appellant pursuant to the Information Memorandum, and concluded, at [36]:

" ... the only 'undertaking to repay' for the purposes of s 9 of the Corporations Act 2001 'debenture' is that involved in the Notes."

76 The respondent submitted to this Court that his Honour misconstrued the documents. It asserted that:

" ... upon a proper construction of the [Information Memorandum] if the offer or invitation in the [Information Memorandum] is accepted by an investor completing the application form and subscribing monies and those monies are accepted by the appellant, a loan agreement is brought into existence between the appellant and the investor that obliges the appellant to perform the promises in the [Information Memorandum] and implement the mezzanine financing structure. This loan agreement is a chose in action that is independent of the Note and includes a promise to repay the monies invested that is separate from the promise to pay under the Notes. The Notes are simply a part of the security offered to the investor."

77 The respondent referred to Stock Motor Ploughs Ltd v Forsyth [1932] HCA 40; (1932) 48 CLR 128, where promissory notes were issued as collateral security for instalments payable under a hire-purchase agreement. Dixon J said, at 135:

"The bailee or hirer of the chattels, besides contracting under the hire-purchase agreement to pay to the bailor or owner the instalments of hire or rent, made in his favour as payee a promissory note for the amount of each instalment and delivered the note to him as a collateral security for the payment of the instalment. The legal consequence was to bring into existence two independent obligations to pay the same sum of money. Each obligation requires the same person to do the same act so that by performing one he performs the other. He must make, in respect of each instalment, a single not a double payment, but he incurs a double obligation to make it. The obligations are collateral in the sense that they are separate, concurrent, secure the same sum, rank equally and are enforceable in any order."

78 The respondent argued, in its written submissions, that there were statements in the Information Memorandum which supported its submissions relating to ground 1, as follows:

"(a) the use of the words 'Mezzanine Finance' on the cover of the [Information Memorandum];







(b) the detailed description of the property development to be undertaken using the investors' funds;







(c) the description in the Executive Summary of the 'Mezzanine Funding being raised' pursuant to the [Information Memorandum] and how it will be 'repaid' ...;







(d) the statement that promissory notes by nature are unsecured, however, 'the lending risk' will be mitigated by issuing the Notes from a special purpose company which will have security over the project as noted in the financing structure set out in the [Information] Memorandum ...;







(e) the description of the securities to be provided in the 'financing structure' up until redemption of the Notes and satisfaction of all interest payments due under the Notes ...;







(f) the description of the products offered as 'property investment products' ...;







(g) the statement that the lending risk of investors will be mitigated by the appellant (described as the special purpose company issuing the Notes) having the securities described ...; and







(h) the statements describing how the funds invested will be advanced to a development company and the steps taken by the appellant to ensure 'absolute compliance' with the loan arrangements between the appellant and the developer and that investor interests are always considered."

79 If there was a loan agreement between the appellant and each investor which included an implied undertaking to repay the moneys paid by the investor to the appellant, and the implied undertaking and the promise to pay contained in the note issued to each investor were independent obligations to repay those moneys, then, according to the respondent:

(a) par (d) of the definition of "debenture" did not apply; and

(b) the appellant engaged in fundraising by the sale and offer of "securities" in contravention of Ch 6D of the Act.

80 It is convenient, before examining and construing the Information Memorandum and the notes issued by the appellant to the investors, to review the authorities which have articulated the proper approach for determining whether pre-contractual statements are promissory or representational.

The authorities relating to whether pre-contractual statements are promissory or representational

81 In J J Savage & Sons Pty Ltd v Blakney [1970] HCA 6; (1970) 119 CLR 435, the High Court considered whether a statement made in the course of negotiations for the construction of a motor boat was promissory or representational. During the negotiations the plaintiff requested the defendant's manager to place in writing his views upon various engines that might be used in the boat. The defendant set out in a letter details in relation to three types of engines and made recommendations in favour of one engine, of which the "estimated speed" was stated to be 15 miles per hour. The plaintiff ordered a boat with the engine recommended by the defendant. A written contract was executed in which no reference was made to the capacity of the boat to attain any particular speed. The boat supplied to the plaintiff was not capable of a speed in excess of 12 miles per hour. The plaintiff sued the defendant for breach of warranty, alleging that the representation in relation to "estimated speed" was a condition or warranty of the contract, alternatively that it was a collateral warranty to the contract. The Full Court of the Supreme Court of Victoria held that the representation was a collateral warranty by the defendant that the boat would attain a speed of approximately 15 miles per hour. An appeal to the High Court was allowed. Barwick CJ, Kitto, Menzies, Owen and Walsh JJ said, at 442 - 443:

"The Full Court seems to have thought it sufficient in order to establish a collateral warranty that without the statement as to the estimated speed the contract of purchase would never have been made. But that circumstance is, in our opinion, in itself insufficient to support the conclusion that a warranty was given. So much can be said of an innocent representation inducing a contract. The question is whether there was a promise by the appellant that the boat would in fact attain the stated speed if powered by the stipulated engine, the entry into the contract to purchase the boat providing the consideration to make the promise effective. The expression in De Lassalle v. Guildford [1901] 2 KB 215, at p 222 that without the statement the contract in that case would not have been made does not, in our opinion, provide an alternative and independent ground on which a collateral warranty can be established. Such a fact is but a step in some circumstances towards the only conclusion which will support a collateral warranty, namely, that the statement so relied on was promissory and not merely representational.







When the letter which we have quoted was written, the negotiations for the construction and delivery of the boat were incomplete. On receipt of the letter there were three courses open to the respondent. He could have required the attainment of the speed to be inserted in the specification as a condition of the contract; or he could have sought from the appellant a promise - however expressed, whether as an assurance, guarantee, promise or otherwise - that the boat would attain the speed as a prerequisite to his ordering the boat; or he could be content to form his own judgment as to the suitable power unit for the boat relying upon the opinion of the appellant of whose reputation and experience in the relevant field he had, as the trial judge found, a high regard. Only the second course would give rise to a collateral warranty."

82 Whether a statement is promissory or representational depends upon the intention of the parties, and their intention is to be ascertained objectively from the totality of the evidence. See Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, at 61 - 62. The distinction between a representation on the one hand and a promise on the other is, however, fine, and the distinction is difficult to apply. See Ross v Allis-Chalmers Australia Pty Ltd (1981) 55 ALJR 8, at 11 - 12.

83 In Hyundai Elevator Co Ltd v Liftronic Pty Ltd, unreported; CA SCt of NSW; Mahoney, Priestley and Handley JJA; 9 December 1994, Priestley JA said, at 19:

"... the question whether the words used were promissory over and above being representational is to be decided objectively. The subjective intentions of the parties, if they could be known, would not be conclusive. If both had in fact had it in mind that the statements were promissory, then it is very likely that this understanding would have been manifested so that a reasonably intelligent bystander would have recognised that a binding promise was being offered; but, if there were no outward manifestation of the internal understanding it would be for the court to decide from whatever communications had passed between the parties whether or not the statements were promissory: cf Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 428 - 429."

84 In Australian National Nominees Pty Ltd v GPC No 11 Pty Ltd [2004] NSWSC 773 the plaintiffs lent money to the first or second defendant in response to invitations to the public, contained in information memoranda, to lend money to those defendants. The loans were to be secured by promissory notes. The plaintiffs contended that the terms embodied in the information memoranda were terms of the contracts of loan evidenced by the promissory notes. Einstein J held that the terms of the information memoranda were merely representational. His Honour was unable to discern from the information memoranda an objective intention that the words upon which the plaintiffs relied were promissory in character.

The contracts between the appellant and the investors in relation to the notes

85 By the "Promissory Note Application Form", each investor applied to the appellant for a note in a specified amount, and agreed to the issue of the note on the following terms:

(a) the investor would not demand payment of the note until the expiry date referred to in the note; and

(b) the appellant would be entitled, at its discretion, to make part payment of the face value of the note before the expiry date.

86 The "Promissory Note Application Form" stated that the note applied for by each investor would be issued "under the terms and conditions and in the same form as that noted on the reverse". The form of note on the reverse of the application form included a promise by the appellant to pay an amount to be inserted (being the amount specified by the investor in the application form), and interest on that amount.

87 In my opinion, upon:

(a) an investor completing and signing a "Promissory Note Application Form";

(b) the investor sending to the appellant the application form and a cheque for the amount of the note "applied for"; and

(c) the appellant communicating to the investor acceptance of the investor's offer to provide credit accommodation in accordance with the completed and signed application form (unless the investor had waived the necessity for communication of acceptance),

a contract was formed between the investor and the appellant for the provision of credit accommodation on terms set out in the completed and signed application form (including the terms set out in the form of note on the reverse of the application form). Compare Wenzel v Australian Stock Exchange Ltd [2002] FCAFC 400; (2002) 125 FCR 570 at 582 - 583 [57] - [58]; Re National Savings Bank Association (Hebb's Case) (1867) LR 4 Eq 9 at 11 - 12.

The nature of the appellant's liability under the notes

88 By signing and issuing each note (in the form which the parties agreed was issued to each of the investors), the appellant engaged that it would pay the note according to its tenor. See s 94(a) of the Bills of Exchange Act and see also Coles Myer Finance Ltd v Federal Commissioner of Taxation [1993] HCA 29; (1993) 176 CLR 640 at 659 - 660, where Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ explained, in an income tax context, the nature of the liability of the maker of a promissory note, as follows:

"By making the promissory note, the maker engages that he will pay it according to its tenor. The obligation to pay at a future time created by such a note is clearly a present liability, there being no necessity [where a note is not in the body of it made payable at a particular place: s 93(3) of the Bills of Exchange Act] for presentment of the note for the maker to be liable to pay out the note at maturity. When the maker gives a note for the purpose of obtaining finance, the maker promises to pay a fixed amount to the payee at a future date in consideration of the immediate payment by the payee of the lesser sum. Once the maker receives that payment, the maker immediately owes the face value of the note, even though that amount is not payable until the date of maturity."

Was there an implied undertaking to repay which was independent of the promise to pay contained in the notes?

89 I turn now to consider the statements in the Information Memorandum relied on by the respondent (and set out in par 78 above):

(a) In my opinion, the words "Mezzanine Finance" on the cover of the Information Memorandum are descriptive or explanatory of the finance sought to be raised, namely, finance which would be "middle ranking".

(b) The Information Memorandum gives a detailed account of the development which will be constructed with, amongst other amounts, the credit accommodation to be provided by the investors. In my opinion, this passage is descriptive or explanatory of the project which was intended to be carried out on the Emu Brewery East site.

(c) The statement relied on by the respondent in the section headed "Executive Summary" is as follows:

"The Mezzanine Funding being raised pursuant to this Information Memorandum will be utilised to settle the land acquisition and carry out all the preliminary design work and pre-sale marketing. The Mezzanine Funding will initially have a first ranking charge over the project, reverting to second ranking when senior debt is introduced. It is planned that the Mezzanine Funds will either be repaid through the refinancing of the project shortly before the commencement of construction, or from the proceeds of the sale of the first Mounts Bay Tower."

In the section headed "Risk Factors" it is revealed that:

"Development funding from a senior lender or lenders on acceptable terms has yet to be negotiated and is a prerequisite to the successful completion of the project."

It is apparent from these passages that:

(i) The duration of the first ranking charge depended on the timing of the introduction of the senior debt;

(ii) The project could not be completed unless senior debt, on acceptable terms, was available;

(iii) No agreement existed for the provision of senior debt; and

(iv) The proposed source of the money required to repay the Mezzanine Funding was dependent on either the project being refinanced prior to construction or the first Mounts Bay Tower being constructed and sold.

In the section headed "Executive Summary" it is stated:

"Construction of the first Mounts Bay Tower is scheduled to commence in mid 2004 and will take approximately 24 months to complete."

(d) A statement relied on by the respondent in the section headed "The Promissory Note Offer" is as follows:

"Promissory Notes by nature are unsecured, however, the lending risk will be mitigated by issuing the Notes from a special purpose company which will have security over the project as noted in the financing structure below."

The "financing structure" gives a general description of the type and ranking of security which the Developer as trustee of the Trust will grant to the "Senior Debt Provider" and the appellant. The identity of the Senior Debt Provider is not stated. As I have mentioned, in the section headed "Risk Factors" it is stated that the terms of the senior debt financing have not yet been negotiated. The detailed terms of the security arrangements as between the Developer as trustee of the Trust and the appellant are not recorded. The priority arrangements in relation to the securities to be held by the "Senior Debt Provider" and the appellant are not referred to beyond the general statement that the "Senior Debt Provider" will hold first ranking securities and the appellant will hold second ranking securities.

(e) A further statement relied on by the respondent in the section headed "The Promissory Note Offer" is as follows:

"[The appellant] will hold a second ranking fixed and floating charge over the Trust and a second ranking mortgage over the property. In addition, Westpoint Corporation Pty Ltd and associated entities ('the Westpoint Group') will provide a guarantee to [the appellant] up until the redemption of all Promissory Notes and satisfaction of all interest payments due under those Promissory Notes."

My observations in subpar (d) above in relation to the security arrangements apply to this statement.

(f) In the section headed "Westpoint" it is stated that the Westpoint Group "controls the supply and is therefore able to offer property investment products with a higher return and lower risk profile than many other property investment groups". In my opinion, the statement that the products offered are "property investment" products is descriptive of their general nature.

(g) The statement relied on by the respondent in the section headed "Risk Factors" is as follows:

" ... the lending risk will be mitigated by [the appellant] (the special purpose company issuing the Notes) having the second ranking mortgage over the property, a second ranking charge over the trust and the guarantee by the Westpoint Group."

My observations in subpar (d) above in relation to the security arrangements apply to this statement.

(h) The statement relied on by the respondent in the section headed "Custodianship" is as follows:

" ... [the appellant] is a single purpose company specifically established for this offering. To ensure absolute compliance with the loan arrangements between [the appellant] and the Trust and that investors' interests are always considered [the appellant] has an independent board of directors and is audited by KPMG."

This is a general statement in relation to corporate governance.

90 In my opinion, the statements in the Information Memorandum relied on by the respondent were not intended, objectively, to have contractual force. Some of the statements are imprecise and lack detail, and others are merely explanatory or descriptive. The absence of precision and detail is more consistent with the statements as a whole being intended, objectively, to be representations. No doubt, the sole or dominant purpose of the statements was to induce potential investors to invest in the promissory note issue. However, even if the investors were induced to invest in reliance on the statements, that circumstance would not, in itself, be sufficient to support a conclusion that the statements were intended, objectively, to be promissory. In my opinion, the statements were not, either individually or collectively, the subject matter of an assurance. They conveyed representations, but did not constitute enforceable promises.

91 As I have mentioned, a contract was formed between each investor and the appellant for the provision of credit accommodation on the terms set out in the completed and signed "Promissory Note Application Form" (including the terms set out in the form of note on the reverse of the application form). The terms of the contract did not, however, include the statements in the Information Memorandum relied on by the respondent.

92 In my opinion, the contract between the appellant and each investor did not include an implied undertaking to repay which was independent of the promise to pay contained in the notes. Although the appellant made a promise in each note to pay the amount of the note on the expiry date, the appellant did not undertake a separate or distinct contractual obligation to pay the same amount.

93 Ground 1 of the cross-appeal fails.

Ground 2

94 The parties agreed at trial that the term "promissory note" in par (d) of the definition of "debenture" in s 9 of the Act means a promissory note within the meaning of the Bills of Exchange Act 1909 (Cth).

95 The learned Judge said, at [43]:

"There is an issue on the authorities for Australia whether a document, otherwise a promissory note, can have that status if it is expressed in terms that 'part payment of the face value of each Promissory Note may be made at the sole discretion of [the obligor] at any time before the expiry date': Emu Brewery Mezzanine Information Memorandum at page 19; ... This is the language counsel agreed bound the investors who received the Notes."

His Honour added, at [44]:

"The issue in the authorities resolves to this. Were the documents in the form of the Notes here a 'promissory note' because there was a 'fixed future time' in the Notes, being their respective 'expiry date' entries, despite their being qualified by the partial prepayment option, and despite whatever effect such a qualification would have on a negotiable form of such a note? ... "

96 The appellant's right to make part payment of the face value of each note at any time before the expiry date was referred to in the "Promissory Note Application Form" and conferred by the contract which was formed between each investor and the appellant. The right was not conferred by, or, indeed, even referred to in, the notes actually issued by the appellant.

97 The learned Judge reviewed the authorities, and concluded, at [72] - [73]:

98 The respondent argued, in its written submissions, that:

"... the Notes are not promissory notes within the exception [in par (d) of the definition of 'debenture'] because they do not provide a certain date for repayment as required by the Bills of Exchange Act 1909 (Cth)."

99 Two issues arise for consideration:

(a) If a note specifies a date on which the maker is obliged to repay the principal, but also confers on the maker a right, in its discretion, to make payments from time to time on account of principal prior to that date, does the existence of the right mean that the note is not a "promissory note" for the purposes of s 89 of the Bills of Exchange Act?

(b) If a note has the characteristics specified in subpar (a) above, and the right to make early payments on account of principal is not conferred by the note but is embodied in a separate agreement to which the maker and the original payee are parties, does the existence of the right mean that the note is not a "promissory note" for the purposes of s 89 of the Bills of Exchange Act?

If a note specifies a date on which the maker is obliged to repay the principal, but confers on the maker a right of early repayment, does the existence of the right mean that the note is not a "promissory note" for the purposes of s 89 of the

Bills of Exchange Act

?

100 I will assume, in analysing this issue, that the note does not contain words prohibiting transfer or indicating an intention that it should not be transferable (as contemplated by s 13(1) of the Bills of Exchange Act).

101 The "codification" of the law relating to bills of exchange is described in "Riley's Annotated Bills of Exchange Act and Cheques and Payment Orders Act", 4th ed, The Law Book Company Ltd, 1994, at pages 11 - 13. The learned author states, relevantly, at page 11:

"By 1878 there had developed a body of English law relating to bills of exchange, cheques, and promissory notes which was contained in some 2,500 cases and seventeen statutes. It was peculiarly adapted to codification, because it was so largely precise and formal. In that year Mr (later Sir) Mackenzie Chalmers published a Digest of this law. He subsequently received instructions from organizations of bankers and merchants to prepare a draft Bill, which was introduced into Parliament in a form which did little more than codify the existing law. It was referred to Select Committees of both Houses, a few amendments were made which altered the law or settled doubtful points, and the Bill duly became the Bills of Exchange Act, 1882 ...







... By 1890 all the Australian Colonies had passed Acts closely following it, and it has now been adopted in substance by most of the English-speaking world. The Parliament of the Commonwealth of Australia ... enacted in 1909 the Bills of Exchange Act 1909, which on coming into force superseded, with respect to bills of exchange, cheques, and promissory notes drawn or made thereafter, the relevant existing State legislation. ..."

102 Section 89(1) of the Bills of Exchange Act defines a promissory note, as follows:

"A promissory note is an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person, or to bearer."

Section 89 appears in Pt IV of the Act. The Part is headed "Promissory notes".

103 Section 95 of the Act, which also appears in Pt IV, provides, relevantly:

"(1) Subject to the provisions in this Part and except as by this section provided, the provisions of this Act relating to bills of exchange apply, with the necessary modifications, to promissory notes.







(2) In applying those provisions, the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's order.







..."

104 The provisions of the Act relating to bills of exchange are contained in Pt II. The Part comprises ss 8 - 77A.

105 Section 14(1) of the Act provides:

"The sum payable by a bill is a sum certain within the meaning of this Act, although it is required to be paid with, by or according to, as the case requires, any one or more of the following, namely:

(a) interest or bank charges; or







(b) stated instalments; or







(c) stated instalments, with a provision that upon default in payment of any instalment the whole shall become due; or







(d) an indicated rate of exchange, or a rate of exchange to be ascertained as directed by the bill."

106 By s 16:

"A bill is payable at a determinable future time within the meaning of this Act which is expressed to be payable:

(a) at a fixed period after date or sight; or







(b) on or at a fixed period after the occurrence of a specified event which is certain to happen, though the time of happening may be uncertain.

An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect."

107 There is controversy in the authorities as to whether a note which specifies a date on which the maker is obliged to repay the principal, but confers on the maker a right, in its discretion, to make payments from time to time on account of principal prior to that date, is a "promissory note" for the purposes of s 89 or a corresponding provision in the legislation of other jurisdictions.

108 The learned Judge referred to and considered these authorities: Vidler v Sallaway (1862) 1 SCR (NSW) 246; Crouch v The Credit Foncier of England, Ltd (1873) LR 8 QB 374; Balck v Pilcher (1909) 25 TLR 497; Williamson v Rider [1963] 1 QB 89; John Burrows Ltd v Subsurface Surveys Ltd [1968] SCR 607; Weszak Beleggings (EDMS) BPK v Venter [1972] 1 SALR 730; Claydon v Bradley [1987] 1 WLR 521; Gore v Octahim Wise Ltd [1995] 2 Qd R 242.

109 In Vidler the plaintiff sued on an instrument under which the defendant promised to pay the plaintiff or bearer a specified sum "on or before September, 1861". Stephen CJ held that the instrument was not a promissory note. His Honour said, at 247:

"... in my opinion, this instrument is not a promissory note at all, but an agreement by the defendant to pay this money in all September, that is on any day in September, at the defendant's option, and would be satisfied by a tender of payment by the defendant, on any day before the end of that month. But the uncertainty as to the day of payment prevents this instrument from operating as a promissory note."

Wise J agreed in substance with the Chief Justice. Milford J dissented. His Honour said, at 247:

"Although I do not consider the case free from doubt, the tendency of my opinion is that the words 'on or before September,' ought to be construed most unfavourably to the party using them, and, therefore, that the instrument is a promissory note payable on the first day of September."

110 In Crouch a company, Credit Foncier, issued debentures. In each debenture it promised:

"... subject to the conditions indorsed on this debenture ... to pay to the bearer [a specified amount] on the 1st of May, 1872, or upon any earlier day upon which this bond shall be entitled to be paid off or redeemed, according to the ... printed conditions indorsed hereon ..."

The conditions provided, relevantly, for some of the debentures to be redeemed at an earlier date. Those of the debentures which were to be redeemed earlier were to be determined by lot. One of the debentures issued by Credit Foncier was stolen. Later, it was purchased by the plaintiff. The defendants refused to pay the debenture to the plaintiff. A question of law was reserved for the Court, namely, whether the plaintiff could maintain an action for payment of the debenture, notwithstanding that the debenture had been stolen and that the plaintiff derived title from the thief. Blackburn J delivered the judgment of the Court. His Lordship said, at 384:

"... the contract of the Credit Foncier is not merely to pay the money, but also to cause a portion of the bonds to be drawn in the stipulated manner; and anyone entitled to sue on the contract contained in this instrument would be entitled to sue for damages, if the company did not fairly give him his chance of having his bond drawn according to the stipulated conditions. And it is obvious that such a contract as that cannot be a promissory note."

111 In Balck the plaintiff sued on an instrument which contained a promise to pay a specified amount "on or before the 7th October 1907". The question at issue was whether the instrument was chargeable with stamp duty as a promissory note. Ridley J held that the instrument was not a promissory note. The judgment does not contain any reasoning in support of this conclusion. It appears, however, from Ridley J's reported observations in the course of argument that his Lordship considered the instrument was not a promissory note because the day of payment was uncertain.

112 In Williamson the plaintiffs claimed an amount under an instrument which provided that the amount was to be repaid "on or before December 31st 1956". The Court of Appeal held, by a majority, that the instrument was not a promissory note.

113 Danckwerts LJ referred, at 97, to Dagger v Shepherd [1946] KB 215, which concerned notices to quit. In that case, Evershed J, delivering the judgment of the Court of Appeal, held, at 223, that the use of the phrase "on or before" some fixed date meant that the covenantor or debtor was under an obligation to pay on, and not before, the fixed date, but had the option of paying at any earlier time he chose. Danckwerts LJ accepted, at 97, that Dagger was useful in that it expressed exactly the proper construction of the words "on or before December 31st 1956" which were under consideration in Williamson, but otherwise his Lordship thought that:

"... the actual decision [in Dagger] that [a notice to quit] in those terms was a valid notice in that case is [not] of much relevance for the purposes of the present case, because a promissory note is a very different matter from a notice to quit by a landlord to his tenant ..."

Danckwerts LJ said, at 97, that the effect of the words "on or before December 31st 1956" was that:

"... no action by the plaintiff to enforce payment by the maker, the defendant, could be brought before December 31, 1956. The maker had an option to discharge the debt at an earlier time selected by him. But his obligation was to pay on December 31, 1956, and could arise at no earlier date."

His Lordship then noted, at 97, that:

"There is, in my view, considerable force in the contention that if a promise to pay is not enforceable against the maker by proceedings until December 31, 1956, has arrived, that is the fixed date or time for payment; and a provision conferring on the maker an option of payment at an earlier date should not prevent the document being a promissory note."

Danckwerts LJ added, however, at 97, that he found it difficult to maintain that view "consistently with the view expressed in Crouch v Credit Foncier of England Ltd". His Lordship noted, at 98, that:

(a) the decision in Crouch, being by three Judges of the Court of Queen's Bench, was not binding on the Court of Appeal;

(b) the decision in Crouch had been criticised in Goodwin v Robarts (1876) 1 App Cas 476 and in Rumball v Metropolitan Bank (1877) 2 QBD 194, but the criticisms appeared to have been confined to that aspect of the decision which related to the issue of negotiability by custom; and

(c) the option to redeem in Crouch was subject to the chance and uncertainty of the drawing of the debentures to be redeemed by lot, but it showed that the element of uncertainty introduced by a term of the contract may be fatal.

After saying that the matter was "one of difficulty", his Lordship concluded, at 98, that:

"... the option reserved by the instrument in the present case to pay at an earlier date than the fixed date creates an uncertainty and a contingency in the time for payment",

and, in consequence, the instrument was not a promissory note.

114 Willmer LJ agreed with the conclusions of Danckwerts LJ. His Lordship summarised, at 100, the submissions of the parties:

"In the present case, the defendant says that the introduction of the words 'on or before' [introduces] a contingency, because the actual date of payment depends upon the option exercised by the promisor. On the other side, the plaintiffs say there is no contingency, because there is a certainty that this bill must be paid by December 31. The option given to the promisor to pay earlier if he likes does nothing, it is said, to impair the certainty of payment by December 31."

His Lordship then expressed his view, at 100:

"... the matter is largely one of first impression; and, for myself, I find it difficult to resist the conclusion that the introduction of the words 'on or before' does introduce a contingency. ... Broadly speaking, as it seems to me, what the document means is 'I promise to pay not later than the 31st December.' Consistently with the document the promisor might pay at any time between the date of execution and December 31. The introduction of the date December 31 limits the time within which payment must be made, but does not fix the date of payment, as I see it, so as to bring the document within [the English equivalent of s 89 of our Act]."

Willmer LJ agreed with the observations of Danckwerts LJ in relation to the decision in Crouch. His Lordship said, at 101, that although Crouch was not "directly in point", "the principle applied in [Crouch] is in accordance with the view which I have been expressing".

115 Ormerod LJ dissented. His Lordship had no doubt that Crouch was distinguishable, and expressed the distinction, at 103, as follows:

"It may be that in the present case the money which is payable on December 31, 1956, may be paid at an earlier date if the promisor chooses to pay it; but he is under no obligation to pay it. He cannot be sued in respect of it; and, if he chooses to do nothing, nothing can happen until the date fixed for payment, which is December 31. That appears to me to be entirely different from the circumstances in the Crouch case, where there was a legal obligation on the part of the company to pay the money at an earlier date if the particular condition referred to was fulfilled. That, to my mind, constitutes an essential difference in principle between the two cases, the case of Crouch and the case which we are considering, and I fail to see in Crouch any authority for the question which is now before this court."

Ormerod LJ also distinguished Alexander v Thomas (1851) 16 QB 333. His Lordship said, at 104 - 105:

(a) In Alexander, the instrument was a bill of exchange, and not a promissory note, and was expressed to be payable on a certain date "or when realised". The effect of those words was that "if the drawer of the bill was in funds, then even if the date for payment had not arrived there was the liability to pay the money under the bill, and that made the date for payment uncertain". By contrast, in Williamson there was no obligation on the promisor to pay the money until 31 December 1956, although, if he wished, he was entitled to pay it earlier.

(b) In Alexander, Lord Campbell was influenced by the fact that if the instrument were held to be a bill of exchange, it would be necessary for the holder to ascertain the day of payment and make due presentment for payment on that day, otherwise the holder would lose his rights as a holder in due course. In Williamson, that was not the position.

Ormerod LJ concluded, at 105:

"... I have come to the view that in spite of the words 'on or before', there is no uncertainty about the date of payment under this promissory note which would render this document other than that which it purports to be. I have come to the conclusion, therefore, that this is a promissory note within the meaning of [the English equivalent of s 89 of our Act] ..."

116 In John Burrows the appellant sued the respondent on a promise in an instrument to pay a specified sum:

"... in nine (9) years and ten (10) months from April 1st, 1963, ... provided that the maker may pay on account of principal from time to time the whole or any portion thereof upon giving thirty (30) days' notice of intention prior to such payment.







..."

117 The respondent contended that the instrument was not a promissory note within s 176(1) of the Bills of Exchange Act, RSC 1952, in consequence of the right of early repayment contained in the proviso. Section 176(1) is identical to s 89(1) of our own Act.

118 Ritchie J delivered the judgment of the Supreme Court of Canada. He considered the judgments delivered in Williamson and preferred the reasoning of Ormerod LJ to that of the majority. Ritchie J said, at 613 - 614:

"We are not bound by the decision of the majority in the Williamson case and I prefer the reasoning in the dissenting judgment delivered by Ormerod LJ, in which he pointed out that the Crouch case was distinguishable on the ground that the payment there was dependent upon a very real contingency, namely a lottery, whereas in the Williamson case, as in the present case, there was no such contingency. ...







The instrument here in question is an unconditional promise in writing made by the respondent to pay the appellant or order the sum of $42,000 at a fixed and determinable future time, namely, nine years and ten months from April 1, 1963. This was a promise of the kind defined in s 176(1) and the fact that the maker was accorded the privilege of making payments on account of principal from time to time did not alter the nature of his unconditional promise to pay at the time fixed by the instrument, but merely gave him an option to make earlier payment.







I am accordingly of opinion that the instrument in question was a promissory note ..."

119 In Weszak the instrument under consideration provided for payment of a specified sum "within a period of three years". The applicable legislation was identical in substance to s 89(1) of our own Act. The Full Bench of the Transvaal Provincial Division followed the majority in Williamson, and held, at 732, that the "option reserved by the document creates an uncertainty and a contingency in the time of payment and cannot be a promissory note ...". See also Salot v Naidoo 1981 (3) SA 959 at 961 and Standard Credit Corporation Ltd v Kleyn 1988 (4) SA 441, where other South African courts followed and applied the majority in Williamson.

120 In Claydon the plaintiffs sued the first defendant on an instrument in which the first defendant acknowledged receipt of a specified sum "as a loan to be paid back in full by 1 July 1983". The Court of Appeal referred to Williamson, John Burrows and a decision of the High Court of Ireland in Creative Press Ltd v Harman [1973] IR 313. In Creative Press the Court rejected the reasoning of the majority in Williamson and preferred the dissenting judgment of Ormerod LJ.

121 In Claydon the Court of Appeal did not reconsider the correctness of the majority's decision in Williamson. Dillon LJ (with whom Stephen Brown LJ agreed) said, at 525:

"... we are bound by the decision of the majority in Williamson ... As indicated already, I cannot distinguish Williamson ... I must therefore hold that the document which the first defendant signed was not a promissory note."

Neill LJ said, to similar effect, at 527:

"As has been pointed out by Dillon LJ, there is a decision of the Supreme Court of Canada and a decision of the High Court of Ireland in which the dissenting judgment of Ormerod LJ in Williamson ... was preferred. This Court, however, is bound by the decision of the majority in Williamson ..., and I can see no valid basis for drawing a distinction between the words of the document in that case and the words 'by 1 July 1983' used in the document [in Claydon].







In both cases the signatory was given an option of paying at an earlier date than the terminal date. It follows therefore that the document sued on was not a promissory note within the statutory definition in s 83 of the Act."

122 In Gore, Williams J (as his Honour then was) followed the majority's decision in Williamson, and held that instruments containing a promise to pay a specified sum "on the 31st day of December" were not promissory notes because the instruments conferred on the promisor a right of early repayment (in par 4), in these terms:

"The Promisor may repay the Principal Sum in whole or part at any time without premium or penalty, together with interest (if any) on the amount prepaid accrued to the date of prepayment."

His Honour's reasoning, at 249 - 250, was as follows:

"In my view the conclusion of the majority in Williamson is correct, but I myself would enlarge upon the reasons given for that. Danckwerts LJ adverted to the difference between a promissory note and a notice to quit but did not elaborate thereon. There is no doubt that the reasoning in Dagger v Shepherd is correct, and that a notice to quit (as in any contract) is not rendered void for uncertainty because something must be done 'on or before' a fixed date. There is in that situation certainty as to the date by which the obligation must be performed. But a promissory note (and any bill of exchange) creates rights and obligations which go well beyond mere contractual rights and obligations between parties. It cannot be overlooked that the critical feature of any bill of exchange is its negotiability, and rights may be acquired by a person, not a party to the original contract, namely a holder in due course, against the payer. The law also imposes obligations on the intending transferee of such a negotiable instrument, particularly with respect to what enquiries, if any, should be made before accepting the endorsement. ...







... Where there is either a fixed day for payment, or the note is payable on demand, there will be presentment of the note in accordance with its terms for payment. If it is then dishonoured that would be noted, normally, on the face of the note and thereafter any indorsee would have knowledge thereof. Paragraph 4 of this note gives the payer the right to make payment other than upon presentation of the note in accordance with its tenor. That introduces, in my view, a degree of uncertainty with respect to payment which has, or may have, marked consequences so far as the negotiability of the note is concerned.







Here the law is not concerned with whether the terms of a contract are so uncertain as to render the agreement a nullity, but with whether or not there is such uncertainty because of the contingency as to the time for payment as to make illusory the negotiability of the instrument. In my view cl 4 has the effect of rendering illusory the negotiability of this document as a promissory note. It may be there is good reason from the commercial point of view for the payer always to be in a position to redeem the bill. However, he may always purchase the instrument prior to maturity; that is a matter to which Danckwerts LJ referred in Williamson at 97 relying on a passage from Chalmers' Bills of Exchange. The payer of a promissory note always has the right to purchase it thus putting an end to his obligations thereunder; but that is a vastly different thing from creating a negotiable note containing a provision that it may be paid out at the option of the payer prior to maturity date.







The documents here are not, therefore, promissory notes and Octahim Wise can only succeed in recovering the total amount of A$6 million if it can prove a contract (or contracts) supported by consideration providing for the payment by part of that sum. ..."

The decision in

MacLeod Savings & Credit Union Ltd v Perrett

[1981] 1 SCR 78

123 The reasons of the learned Judge (Simmonds J), the Court of Appeal in Claydon and Williams J (as his Honour then was) in Gore refer to the decision of the Supreme Court of Canada in John Burrows, but not to the decision of that Court in MacLeod Savings & Credit Union Ltd v Perrett [1981] 1 SCR 78.

124 In MacLeod the appellant alleged that an instrument containing a promise to pay the principal amount of a loan with interest from an unspecified date of advance was a promissory note. The Supreme Court of Canada held that the instrument was not a promissory note because it did not specify the date from which interest was to be calculated, and extrinsic evidence was not admissible to remedy the omission. Beetz J delivered the judgment of the Court. The judgment is relevant, for the purposes of this cross-appeal, in that it contains an analysis of the decision in John Burrows. Beetz J said, at 87 - 89:

"Counsel for the Credit Union pointed to the case of John Burrows Ltd et al v Subsurface Surveys Ltd [1968] SCR 607, followed in Ireland by Creative Press Limited v Harman [1973] IR 313. It was a case of a promise permitting the maker, at his own discretion, to make payment on account of principal from time to time in advance of maturity. Counsel contended that in such a case interest could not be calculated without extraneous information concerning possible prepayments. Nonetheless, the instrument was held to be a promissory note.







That case is not of any assistance to the Credit Union. It was decided on the basis that the instrument under consideration was a promissory note because it created no contingency and complied with the definition given in s 176(1) of the Act. ...







...







The case at bar has to do with the certainty of the amount, not the contingency of the promise.







The certainty of the amount payable was not discussed in the judgment of this court in the John Burrows case, either as to principal or interest, simply because it was not considered to be in issue.







If the maker of such a note, as was considered in that case, pays part of the principal prior to maturity, he pro tanto discharges it and would be wise to have the partial discharge acknowledged in writing on the instrument. He would otherwise run the risk of paying twice should the note be delivered to a holder in due course, who would have no reason to presume that the maker has availed himself of the prepayment privilege.







With respect to the time of payment, such a note is even more certain than a note payable on demand since it states a definite date beyond which it cannot run. There is no uncertainty as to the amount of principal payable: insofar as a holder in due course is concerned, the full amount is payable, less the amount of such prepayments as may have 