Practitioners dealing with multi-jurisdictional debt instruments with transferable registration should note that the place of registration at the relevant date determines the money of account, and that a transfer between registers in different monetary systems changes the currency in which the obligation is measured.
Later decisions that cite National Bank of Australasia Ltd v Scottish Union & National Insurance Co
Decisions cited by National Bank of Australasia Ltd v Scottish Union & National Insurance Co
AND
SCOTTISH UNION AND NATIONAL INSURANCE COMPANY AND OTHERS
Latham C.J., Dixon, Williams, Webb and Fullagar JJ.
This was an appeal from a decision on an originating summons in the Supreme Court of Queensland. The summons was taken out by Fred Pace, liquidator of the Queensland National Bank Ltd. (hereinafter described as the Bank), which was in voluntary liquidation, for an order under s. 258 of The Companies Acts 1931 to 1942 (Q.) determining certain questions arising in the winding up. The decision was that of Macrossan C.J., from whose judgment the following statement of the facts is substantially taken:--
The Bank was incorporated in Queensland under The Companies Act of 1863 of the then Colony of Queensland in 1872. It was registered in England as a foreign company under the provisions of s. 35 of the Companies Act 1907 (Imp.) (7 Edw. 7, c. 50) in 1908; it commenced to carry on the ordinary business of a trading bank in Brisbane and elsewhere in Queensland in 1872, and it opened a branch at Sydney in New South Wales in 1881. By an Act of the Parliament of Queensland assented to in 1876 the Bank was authorized to open and keep registers of shareholders in places beyond Queensland. In 1878 it opened a register of shareholders in London which was kept until it went into voluntary liquidation. In 1878 the Bank opened a branch in London. The functions performed by this branch consisted mainly of providing the Bank's customers in Australia with facilities for financing their over-seas purchases, and sales. The London branch of the Bank also received money on deposit from persons in the British Isles. The Bank appointed a local board of directors in London and it delegated certain powers to the local board. The articles of association of the Bank provided that local directors in the exercise of delegated powers should conform to any regulations imposed upon them by the directors of the Bank. The moneys received by the Bank in London on fixed deposit carried interest at the rate of four to five pounds per centum per annum, the terms of the deposit being from one to five years.
In March 1891 the Bank held over �4,000,000 on fixed deposit in London and in March 1893 it so held there over �2,970,000. In May 1893 the Bank found itself in financial difficulty and suspended payment on 15th May 1893. Seven other banks carrying on business in Australia also suspended payment in the months of April and May 1893. On 15th May 1893 a petition was presented to this court for the winding up of the Bank by the court and on 17th May 1893 this court appointed a provisional liquidator of the Bank. The date of hearing the petition for winding up was adjourned from time to time by orders of this court. On 30th June 1893 the Bank submitted to this court for its sanction a scheme of arrangement with its creditors and on that day the court directed that meetings of the creditors of the Bank should be called in Brisbane and in London for the purpose of considering the scheme of arrangement submitted. On 24th July 1893 a meeting of the Bank's British creditors was held in London and was attended either personally or by proxy by 1,238 creditors whose debts amounted to over �857,000. A resolution was unanimously passed at this meeting agreeing to the said scheme of arrangement with certain amendments. A meeting of the English shareholders of the Bank held in London on the same day also unanimously agreed to the said scheme as so amended; this meeting was attended either personally or by proxy by 474 shareholders of the Bank holding 34,751 shares. On 27th July 1893 a meeting of the Bank's creditors was held in Brisbane and was attended either personally or by proxy by 4,949 creditors whose debts amounted to �954,978. This meeting unanimously approved the said scheme of arrangement as so amended. On the same day a meeting of the shareholders of the Bank held in Brisbane also unanimously approved the said scheme of arrangement as amended. On 31st July 1893 this court sanctioned the said amended scheme of arrangement with certain minor amendments, discharged the provisional liquidator, and stayed all proceedings on the petition for winding up. The scheme of arrangement so sanctioned by this court is hereinafter called the old scheme of arrangement. Proceedings were also taken in the Supreme Court of New South Wales and in Her Majesty's High Court of Justice (Companies Winding up) in England to obtain the sanction of the said courts to the old scheme of arrangement. An order was made by the Supreme Court of New South Wales on 11th August 1893 sanctioning the old scheme of arrangement and an order was made by the said High Court of Justice on 13th September 1893 sanctioning the old scheme of arrangement and staying all proceedings then before that court in relation to the winding up of the Bank.
Under the relevant English legislation then in force, namely, The Joint Stock Companies Arrangement Act, 1870 (Imp.) (33 & 34 Vict., c. 104), the assistance of the court to sanction such a scheme of arrangement could not be invoked except in a winding up compulsory, voluntary or under supervision. It seems to be clear that the winding-up proceedings taken in England were taken only for the purpose of enabling the compromise of the Bank with its creditors to be sanctioned by the court and that if an effective winding-up order had been made in England it would have been ancillary to a winding up in Queensland. See now Palmer, Part II., 15th ed., p. 127, where reference is made to the order of Vaughan WilliamsJ. of 8th July 1893 in the winding-up proceedings in England in relation to the Bank whereby he ordered that no steps or proceedings were to be taken under the order for winding up without the sanction of the court.
The following provisions of the old scheme of arrangement have, I think, a bearing on the determination of the questions which now fall to be decided.
"5. Debts owing by the Bank to Her Majesty's Government at the date of the suspension of the Bank shall be paid by the Bank in terms of an agreement whereby it has been agreed that the said Government (without prejudice to any preferential rights which the said Government may possess in respect of such debts in the event of the Bank being wound up at any time hereafter) as to �2,000,000 part of such debts will accept twelve deposit receipts of the Bank, each for one-twelfth of the said sum of �2,000,000 payable at intervals of six calendar months, commencing six years from the time when this scheme is sanctioned by the Supreme Court, and bearing interest from the same date at the rate of 4�% per annum, payable half-yearly. And as to �360,000 balance of such debts as aforesaid will not during any one period of six consecutive calendar months withdraw any sum or sums exceeding in the whole the amount of �100,000 and will not make any such withdrawals without giving the Bank six calendar months' notice of their intention to make the same respectively. Provided, that from and after the time when this scheme is sanctioned by the Supreme Court interest at a rate not exceeding 4�% per annum shall be payable by the Bank half-yearly in respect of so much of the said sum of �360,000 for the time being remains due and owing.
6. Save as herein otherwise provided, and excepting Her Majesty's Government (for whom provision is made by the last preceding clause), and the holders of the bank-notes of the Bank, and preference creditors not hereinbefore mentioned (who shall be paid in full as early as is practicable), every creditor of the Bank shall, for such of his claims and demands against the Bank as are not represented by negotiable deposit receipts or inscribed deposit stock as hereinafter provided, accept twelve deposit receipts of the Bank, each for one-twelfth of the balance of principal moneys now due to him by the Bank; the first of which deposit receipts shall become payable at the expiration of six years from the time when this scheme is sanctioned by the Supreme Court, and the remaining eleven at intervals of six calendar months; and each of such deposit receipts as represents debts now bearing interest shall bear interest up to the time when the existing deposits are now payable, at the rate of interest now payable in respect thereof; and thereafter at the rate of 4�% per annum, payable half-yearly, on the same days as the interest is now payable under the existing debts; and each of such deposit receipts as represents debts not now bearing interest shall bear interest from the time when this scheme is sanctioned by the Supreme Court at the rate of 4�% per annum, payable half-yearly. The interest now due, and accruing due, on deposits of the Bank now bearing interest, shall be paid as regards interest which has accrued, or shall accrue due on or before the time when this scheme is sanctioned by the Supreme Court, on the day after the Bank recommences business; and, as regards interest which shall accrue after that date, on such day as the same would have become due under the existing deposits; and all payments of principal and interest shall be made at the places where the same are now payable.
7. If any of the creditors of the Bank shall so desire, the Bank shall be at liberty to issue to such creditors, either in lieu of or in exchange for the deposit receipts to be issued pursuant to the last preceding clause: (A) negotiable deposit receipts payable to bearer, with interest coupons attached payable to bearer, and representing a similar amount and payable in the same manner, and at the same times as such deposit receipts; or (B) inscribed deposit stock repayable only at the option of the Bank, on six calendar months' notice after all the instalments of the substituted deposit receipts shall have been paid, and bearing interest at the rate of 4�% per annum payable half yearly. All such negotiable deposit receipts and inscribed deposit stock shall be issued subject to such conditions as may be imposed by the directors of the Bank.
9. Save as herein otherwise provided, the creditors of the Bank, except as aforesaid, shall accept the provisions made for them in this scheme in satisfaction and discharge of all claims and demands against the Bank and shall at the time of their application for new deposit receipts, negotiable deposit receipts, or inscribed deposit stock as aforesaid, deliver up to the Bank all deposit receipts and drafts or other similar documents issued to them by the Bank to be cancelled."
At the date when the old scheme of arrangement was sanctioned by this court the Bank owed the Government of Queensland approximately �2,186,000 and owed creditors in respect of deposits in Queensland, New South Wales and London, respectively, approximately �1,860,000, �110,000, and �2,897,000.
On 29th June 1893 the Parliament of Queensland enacted The Queensland National Bank, Limited, Agreement Act of 1893, which authorized the Treasurer of the Colony to enter into an agreement with the Bank for the repayment of the money due and owing from the Bank to the Government of Queensland at the date of the Bank's suspension of payment in the terms set out in clause 5 of the old scheme of arrangement quoted above, and on 20th September 1893 an agreement was entered into between the Treasurer of Queensland and the Bank in pursuance of the provisions of the last-mentioned Act for the repayment by the Bank to the Government of Queensland of the moneys owing by the Bank to the Government on the terms set out in the old scheme of arrangement. In pursuance of the old scheme of arrangement the Bank duly issued to its creditors deposit receipts, negotiable deposit receipts payable to bearer or inscribed deposit stock in accordance with the provisions of clauses 6 and 7 of the old scheme of arrangement. In the main deposit receipts were issued. So far as can be ascertained no inscribed deposit stock was issued in Australia. Such stock to the amount of approximately �50,000 was issued in London as against deposit receipts for approximately �4,050,000 and negotiable deposit receipts for approximately �198,000 issued to creditors of the Bank in England and in Australia other than the Government of Queensland.
As at 31st December 1894 the Bank owed on fixed deposit to the Government of Queensland �1,340,000 in Queensland, and �660,000 in London, and to private creditors approximately �1,516,000 in Queensland and New South Wales and approximately �2,534,000 in London.
The forms of deposit receipt issued by the London branch of the Bank are in the following terms:--
"Receive from __________ the sum of __________ as a Fixed Deposit to be accounted for to the depositor hereinbefore named repayable in London on __________ bearing interest from __________ at the rate of 4� per centum per annum payable half yearly on the thirtieth June and the thirty-first December."
And the form of deposit receipt to bearer issued by the London branch of the Bank in pursuance of the old scheme of arrangement was in this form:--
"The Queensland National Bank Limited hereby acknowledges to have received from the sum of as a deposit to be repayable in London at the Office of the Bank to the bearer thereof on and to bear interest from the 30th June, 1893, at the rate of 4� per centum per annum payable half yearly on the First January and First July."
Each of the interest coupons attached to the form of deposit receipt payable to bearer specifies that the interest is payable at the office of the Bank in London.
The liquidator of the Bank has been unable to find any copy of a form of inscribed deposit stock certificate issued under the old scheme of arrangement. The Bank found itself unable to carry out the provisions of the old scheme of arrangement.
On 6th March 1896 the acting general manager of the Bank reported to the chairman of directors that in his opinion without material assistance from the depositors of the Bank under the old scheme of arrangement it would be impossible for the Bank to carry on beyond the date when the first deferred payments were due as the Bank would not be able to meet them without calling in liquid advances to an extent that would so contract its earnings as to be absolutely ruinous and from the effects of which the Bank could never recover and that attempting such a course could only result in ultimate liquidation.
The Government of Queensland appointed a committee to ascertain the position of the affairs of the Bank and the report of this committee, which is dated 12th November 1896, was presented to both Houses of Parliament of Queensland. From this report it appears that in the opinion of the committee the liabilities of the Bank exceeded its assets by approximately �2,435,423; that, after treating the whole of the paid-up capital as lost, there was still a deficiency of �1,252,810, and that if the Bank had to go into liquidation this deficit would of necessity be largely increased because their estimates of values had been made on the basis that the assets should be realized judiciously and not by forced sales.
On 9th February 1897 the Bank submitted another scheme of arrangement for the sanction of this court, and the court directed that a meeting of creditors in respect of deposit receipts, negotiable deposit receipts and inscribed deposit stock issued in pursuance of the old scheme of arrangement be held in Brisbane on 22nd March 1897 for the purpose of considering the said scheme of arrangement. This meeting of creditors was duly held and the said scheme of arrangement, with certain amendments, was duly approved by the creditors at the meeting. The said scheme of arrangement as so amended (which is hereinafter referred to as the new scheme of arrangement) was on 12th May 1897 finally sanctioned by this court and declared to be binding upon all creditors of the Bank in respect of deposit receipts, negotiable deposit receipts and inscribed deposit stock and upon the Bank and its contributories.
In passing, it should be mentioned that it was not necessary in Queensland that winding-up proceedings should be taken against the Bank to clothe the court with jurisdiction to sanction and make binding the scheme of arrangement. See The Companies Act Amendment Act of 1889, s. 35; The Companies Act of 1893, s. 2; and The Companies Act of 1896, s. 2.
On 31st March 1897 the Supreme Court of New South Wales in its Equity Jurisdiction directed a meeting of the Bank's creditors to be held in Sydney for the purpose of considering and if thought fit of agreeing to the new scheme of arrangement. This meeting was duly held, the new scheme of arrangement was duly agreed to thereat, and on 15th April 1897 it was, by order of the Supreme Court of New South Wales in Equity, sanctioned and approved.
On 17th May 1897 the Bank presented a petition to Her Majesty's High Court of Justice in England praying that the Bank might be wound up by the court under the provisions of the Companies Acts 1862 to 1890 (Imp.) (25 & 26 Vict. c. 89--53 & 54 Vict. c. 63). There was attached to this petition a copy of the new scheme of arrangement. The petition disclosed that the new scheme of arrangement had been sanctioned by the Supreme Court of Queensland, that the adoption of the new scheme of arrangement was the only means of averting bankruptcy, and that in order to have it sanctioned by the court in England it was necessary that the Bank should first be wound up.
On 27th May 1897 the said High Court of Justice ordered that the Bank should be wound up, continued the appointment of a provisional liquidator, and ordered that no steps or proceedings should be taken under the order without the sanction of the court.
On the same day it ordered the provisional liquidator to convene a meeting of the creditors of the Bank in respect to deposit receipts, negotiable deposit receipts and inscribed deposit stock of the Bank for the purpose of considering and, if thought fit, approving the new scheme of arrangement. This meeting of creditors was duly held, and the new scheme of arrangement was approved by a majority considerably in excess of three-fourths in value of the creditors attending the meeting.
On 4th June 1897 the said High Court of Justice sanctioned the new scheme of arrangement and declared it to be binding on all creditors of the Bank in respect of deposit receipts, negotiable deposit receipts and inscribed deposit stock issued by the Bank in pursuance of the old scheme of arrangement and on the contributories of the Bank. It further ordered that all further proceedings relating to the winding up of the Bank be stayed except for the purpose of carrying out the order and the new scheme of arrangement into effect.
It is on the construction of the new scheme of arrangement that the questions submitted to the court fall for determination. It is therefore necessary to refer in some detail to several provisions of the scheme.
Clause 1 provided that certain terms should have certain meanings in the scheme and in the schedule thereto unless there was something in the subject or context inconsistent therewith, namely, "The Government"--Her Majesty's Government of Queensland. "Court"--The Supreme Court of Queensland. "Stock"--Interminable inscribed deposit stock of the Bank created in pursuance of clause 3 of the scheme. "The said securities"--deposit receipts, negotiable deposit receipts, with the coupons appertaining thereto, and inscribed deposit stock issued or given to creditors of the Bank under or in pursuance of the old scheme of arrangement or held by the Bank on behalf of such creditors as security for any advances made to them by the Bank, and all other similar documents held by creditors of the Bank at the date of the last-mentioned scheme which have not been surrendered in exchange for any of the said securities under or in pursuance of the terms of such scheme.
Clause 2 provides:--"Subject to the provisions of this scheme, the Government (without prejudice to any preferential rights which it may possess) shall accept in full satisfaction and discharge of all principal moneys and interest owing or to become owing by the Bank to the Government under the terms of the old agreement--(a) A sum equal to fifteen shillings in the pound upon the amount of such principal moneys, which said sum of fifteen shillings in the pound (unless sooner paid at the option of the Bank as hereinafter provided) shall be payable in five equal annual instalments commencing on the 1st day of July 1917, and shall carry interest from and after the 31st day of March 1897, at the rate of 3�% per annum, provided that the amount for the time being payable for interest shall never be less than the minimum amount prescribed by The Queensland National Bank, Limited (Agreement) Act of 1896 with reference to an agreement made under the authority of that Act; and (b) A further sum equal to five shillings in the pound upon the amount of such principal moneys as aforesaid, which said sum of five shillings in the pound shall be payable out of such part of the half-yearly profits of the Bank as hereinafter provided, and shall not carry any interest: Provided that, if the said sum of five shillings in the pound should not be sooner paid out of such profits as aforesaid or otherwise at the option of the Bank as hereinafter provided the same or so much thereof as for the time being remains unpaid shall become and be payable on the 1st day of July 1921. The interest on the said sum of fifteen shillings in the pound or on so much thereof as for the time being remains unpaid, shall be payable on the 30th day of June and the 31st day of December in each year, and the Bank shall pay any interest payable under the terms of the old agreement up to the end of the 31st day of March, 1897."
Clause 3 provides:--"As soon as may be, and within six months after this scheme is finally sanctioned by the court, the Bank shall create and allot to and amongst the registered holders of the said securities respectively stock to an amount equal to 75% of the principal moneys secured or represented by their said securities after deducting from such principal moneys any fractional part of �1 owing to such registered holders respectively. The said stock shall carry interest from and after the 31st day of March, 1897, at the rate of 3�% per annum."
Clause 4 provides:--"Subject to the provisions of this scheme, each of the registered holders of the said securities shall accept, in satisfaction and discharge of his said securities and of all principal moneys and interest secured or represented thereby, an amount of the said stock equal to fifteen shillings in the pound upon the principal moneys secured or represented by his said securities after deducting from such principal moneys any fractional part of �1. Any such fractional part of �1 shall be paid by the Bank in cash. Upon receiving notice of the allotment of such stock, the allottee shall forthwith surrender to the Bank his securities aforesaid, together with any coupons appertaining thereto, and shall be entitled in exchange therefor to a certificate of the stock so allotted to him as aforesaid. The interest on the said stock shall be payable half-yearly on the 30th day of September, and the 31st day of March in each year at the respective offices of the Bank in Queensland, Sydney, and London, at which such stock is registered; and the Bank shall pay any interest due in respect of the surrendered securities up to the end of the 31st day of March, 1897, upon such surrender. In addition to such interest as aforesaid, registered holders of stock shall be entitled by way of bonus to such part of the half-yearly profits of the Bank as hereinafter provided."
Clause 5 provides:--"The principal moneys payable to the Government under the terms of this scheme, and the principal moneys secured or represented by the said stock shall immediately become payable--(a) If the Bank makes default for a period of six months in the payment of any interest payable thereon at the times and in the manner hereinbefore provided, and if after such default the Government or registered holders of stock to an amount equal to two-thirds of the stock for the time being unredeemed, calculated at its par value, by notice in writing to the Bank, call in such principal moneys; or (b) If an order is made, or an effective resolution is passed, for the winding up of the Bank."
Clause 6 provides:--"The said stock shall be issued and held subject to the provisions of this scheme and to the conditions set forth in the schedule hereto, and such provisions and conditions shall be binding on the Bank and the registered holders of stock and all persons claiming through or under them respectively."
Clause 7 provided for the application of the profits of the Bank and in particular provided that the balance of profits arising from the business of the Bank in each half year after setting aside an amount for contingencies should be dealt with by paying 25% of the balance to the Government until the sum of five shillings in the pound in clause 2 referred to had been duly paid; 50% of the balance, or, after payment to the Government of the said sum of five shillings in the pound, 75% of the balance was to be carried to a special fund to be paid and distributed in the discretion of the directors amongst the registered holders of stock ratably until an aggregate amount or bonus equal to five shillings in the pound upon "the principal moneys secured or represented by the said securities" has been made good out of such balance of profits, and thereafter is to be applied in payment to the Government of any moneys payable to the Government under this scheme. After these payments had been made such 75% of the balance of profits was to be dealt with in any manner authorized by the regulations of the Bank for the time being in force; the remaining 25% of the balance of profits was for a period of at least ten years from 31st March 1897 to be carried to the ordinary reserve fund of the Bank; thereafter it might be dealt with in any manner authorized by the regulations of the Bank.
Clause 8 gave the Bank an option at any time after the expiration of five years from the date when the scheme was finally sanctioned by the court to pay off the Government subject to certain conditions.
Clause 10 gave the Bank an option after payment of the amount due to the Government to give the registered holders of the said stock, or any of them, six calendar months' notice of its intention to redeem the stock held by them, or any portion thereof, "at its market value, but at not less than its par value", together with five shillings in the pound upon the amount of the principal moneys secured or represented by the said securities in exchange for which such stock was allotted, or so much of such five shillings in the pound as had not been previously paid. At the expiration of the notice every registered holder of stock to whom the notice was given was bound to surrender to the Bank to be cancelled the amount of his stock which was to be so redeemed and to deliver up his certificate of stock for cancellation; and the Bank thereupon pay to the registered holder of such stock the redemption money therefor calculated at the price aforesaid together with all interest for the time being due in respect of such stock. Such surrender delivery and payment shall be made at the office of the Bank at which such stock is registered.
Clause 12 provided:--"As soon as proper provisions in that behalf can be made in the articles of association, and so long as stock to the amount of �500,000 is unredeemed, one member of the London board of directors shall be appointed by the registered holders of stock and need not be a member or shareholder of the Bank, and the board of directors of the Bank at Brisbane shall consist of five persons, three of whom shall be elected by the registered holders of the said stock, and need not be members or shareholders of the Bank; and for the purpose of electing such last-mentioned directors the registered holders of stock shall be entitled to have notice of and to attend meetings of the Bank at which such directors are to be elected, and to vote in person or by proxy according to the following scale, that is to say:--
Registered holders of stock for an amount of not less than �500 One vote. Registered holders of stock for an amount of not less than �2,000 Two votes. Registered holders of stock for an amount of not less than �5,000 Three votes. Registered holders of stock for an amount exceeding �5,000 Four votes.
Provided that all proxies given by registered holders of stock shall be deposited at the office of the Bank at which such stock is registered not less than three days before the date of the meeting at which such proxies are intended to be used. Particulars of all proxies so deposited at any office other than the head office of the Bank at Brisbane, sufficient to enable such proxies to be used at such meetings may be sent by telegram to the general manager of the Bank in Brisbane."
Clause 13 provided:--"As soon as conveniently may be after this scheme is finally sanctioned by the court, the nominal capital of the Bank shall be reduced from �1,600,000 divided into 200,000 shares of �8 each to �1,000,000 divided into 200,000 shares of �5 each. The reduction shall be effected by cancelling paid-up capital to the extent of �3 per share upon each of the 160,000 shares which have been issued, and by reducing the nominal amount of all shares in the Bank's capital from �8 to �5 per shares; but shall not involve the diminution of any liability in respect of unpaid capital or the payment to any member of the Bank of any paid-up capital."
Clause 14 provided:--"The Bank shall, as soon as practicable, after this scheme has been finally sanctioned by the court, amend or alter its articles of association so far as may be necessary for the purpose of giving effect to the provisions of this scheme."
Clause 15 provided:--"All such other provisions as by The Queensland National Bank, Limited (Agreement) Act of 1896 are prescribed in the case of an agreement made under the authority of that Act shall be deemed to be incorporated in this scheme."
The schedule to the new scheme of arrangement contained, inter alia, the following provisions:--
"1. Registers of stock will be kept by the Bank at its head office in Brisbane, or at its branch offices in Queensland, Sydney or London (as the case may be), at which the securities in exchange for which such stock was allotted were at the time of such allotment payable, or at the office of the Bank to which such stock may be transferred in manner hereinafter provided.
2. In every register of stock so kept by the Bank aforesaid there will be entered--
(a) The names, addresses and description of the registered holders for the time being of such stock;
(b) The particulars and amount of the stock held by every such registered holder; and
(c) The date at which every such registered holder was entered in the register in respect of the stock standing in his name, or any part thereof.
Any change of name or address on the part of any registered holder of stock shall forthwith be notified to the manager of the office at which such stock is registered, who, upon being satisfied thereof, shall alter the register accordingly.
3. The registered holder of any stock may, upon application in writing addressed to the manager at the office where such stock is registered, require that the registration of such stock shall, at his cost and expense, be transferred to the register kept at any other office; and upon such transfer being effected the said stock shall be deemed to be registered at the last-mentioned office.
4. No notice of any trust, expressed, implied, or constructive, shall be entered on the register in respect of any stock.
5. Every registered holder of stock will be entitled to a certificate of his title to such stock, which certificate shall be in the form or to the effect following, that is to say:--
THE QUEENSLAND NATIONAL BANK LIMITED.
Interminable Inscribed Deposit Stock.
No. � Bearing interest at the rate of 3� per cent. per annum, payable on the 31st day of March and the 30th day of September in
each year.
This is to certify that of is the registered holder of of the above stock, which stock is constituted pursuant to the provisions of the scheme of arrangement sanctioned by the Supreme Court of Queensland on the 12th day of May, 1897, and is issued subject to the provisions and conditions therein, and in the schedule thereto respectively contained.
NOTE:--The Bank will not register a transfer of any stock without the production of the certificate relating to such stock, which certificate must be surrendered before any transfer, whether of the whole or any portion thereof, can be registered, or before a new certificate can be issued in exchange.
A fee not exceeding 2s. 6d. will be charged on the registration of any transfer.'
10. Every registered holder of stock shall be entitled to transfer the same or any part thereof by an instrument in writing in the form following, or as near thereto as the circumstances will admit:--
THE QUEENSLAND NATIONAL BANK LIMITED.
I, of in consideration of the sum of � paid to me by, of, do hereby transfer to the said (hereinafter called the transferee) of the stock of the above-named Bank, to hold the same unto the transferee subject to the several conditions on which I held the same immediately before the execution hereof; and I, the transferee, do hereby agree to take the said stock subject to the same conditions.
As witness our hands this day of
WITNESS
12. Every instrument or transfer must be left at the office of the Bank at which the stock to be transferred is registered for registration, accompanied by the certificate of the stock for cancellation and such other evidence as the Bank may require to prove the title of the transferor or his right to transfer the stock.
13. All instruments of transfer which shall be registered shall be retained by the Bank.
14. A fee not exceeding 2s. 6d. will be charged for the registration of each transfer, and must, if required by the Bank, be paid before the registration of the transfer.
19. The interest on stock and all other moneys payable in respect thereof may be paid by cheque or warrant sent through the post to the registered address of the holder, or, in the case of joint holders, to the registered address of that one of the joint holders who is first named on the register in respect of such stock. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent, and payment of the cheque or warrant, if duly indorsed, shall be a satisfaction of the interest and such other moneys as aforesaid, and a good discharge to the Bank therefor."
In pursuance of clause 3 of the new scheme of arrangement the Bank allotted to and amongst the registered holders of deposit receipts, negotiable deposit receipts and the registered holders of inscribed deposit stock issued to creditors of the Bank in pursuance of the old scheme of arrangement interminable inscribed deposit stock of the Bank of a face value of �3,116,621 5s. 0d., being an amount equal to 75% of the principal moneys secured or represented by the said deposit receipts, negotiable deposit receipts and inscribed deposit stock. Of this �1,083,097 0s. 0d. was issued in Australia and �2,033,524 0s. 0d. in London. The 25% of the principal moneys written off was repaid in cash between 1900 and 1918, the repayment amounting to �1,038,874.
The following table shows the amounts of the stock originally issued the registration of which was transferred from an Australian register to the London register, and from the London register to an Australian register, and also the amounts purchased by the Bank from time to time, and the amount outstanding on 30th October 1947, the date of the commencement of the voluntary winding up of the Bank. All the interminable inscribed deposit stock originally registered on the London register of such stock pursuant to the new scheme of arrangement was issued by the Bank in satisfaction and discharge of securities issued by the Bank in 1893 and payable at the London branch of the Bank.
INTERMINABLE INSCRIBED DEPOSIT STOCK. Australia. London. Original amount 1,083,097 2,033,524 Transfers--London to Australia 754,662 754,662 �1,837,759 �1,278,862 Transfers--Australia to London 731,720 731,720 �1,106,039 �2,010,582 LessPurchases by the Q.N. Bank 376,770 180,765 �729,269 �1,829,817 Present Total (Face Value) �2,559,086
Six photostatic copies of interminable inscribed deposit stock certificates issued by the Bank in pursuance of the new scheme of arrangement in Brisbane, London, Sydney and St. George are exhibited to the affidavit of the liquidator. In two of these, one issued in London and one issued at St. George in Queensland, the letters "stg" appear after the wording of the amount specified in the certificate. In my opinion nothing turns upon the use of the word "sterling" or the letters "stg" in some of the certificates issued by the Bank up to the year 1931, and I did not understand that any of the parties placed any reliance upon the use of these words in some of the certificates.
The affidavit of the liquidator states, and it was not disputed, that it was common practice in Australia prior to the year 1931 for persons to insert frequently the letters "stg" or the word "sterling" in cheques issued by them after the wording of the amounts for which the cheques were drawn.
Up to about the year 1931 the rate of exchange between England and Australia varied from time to time, sometimes in favour of England, and sometimes in favour of Australia. In 1931 the rate of exchange between Australia and England was fixed by the Commonwealth Bank of Australia at �130 Australian to �100 English and later in that year at �125 Australian to �100 English, which latter rate is still in force. In consequence, the Bank, in common with other trading banks, issued instructions to its officers to refrain from using the letters "stg" or the word "sterling" on all documents with the exception of drafts on London or on foreign agents where recoupment was to be effected through the Bank's London office. Further, a search by the liquidator of seventy-four cancelled interminable inscribed deposit stock certificates issued by the London branch of the Bank since 1931 and which are now in the liquidator's possession disclosed that in no case did the letters "stg" or the word "sterling" appear therein.
Prior to the year 1919 the Bank repaid to the Government of Queensland the whole of the moneys owing by the Bank to the Government referred to in clause 2 of the new scheme of arrangement. In pursuance of clause 1 of the schedule to the new scheme of arrangement, the Bank has kept at its head office in Brisbane and at its branches in Queensland, Sydney, London and Melbourne, registers of stock issued in pursuance of the new scheme of arrangement, and in pursuance of clause 3 of the said schedule registered holders of stock have from time to time transferred the registration of their stock from one register to another.
An examination of the registers of the holders of deposit receipts issued by the Bank which were opened in Brisbane immediately after the old scheme of arrangement was sanctioned and of the registers of interminable inscribed deposit stock issued in pursuance of the new scheme of arrangement shows that in many instances the address of the holder of such stock was not in the State or country in which the stock was registered.
The sum of five shillings in the pound upon "the principal moneys secured or represented by the said securities" referred to in clause 7 (2) of the new scheme of arrangement was paid to the holders of interminable inscribed deposit stock by instalments from time to time in the currency of the country in which such stock was for the time being registered, a final payment being made in 1918.
At all times after the date of the adoption of the new scheme of arrangement until the date of liquidation of the Bank as hereinafter referred to when application was made to transfer the registration of interminable inscribed deposit stock from the register at one branch of the Bank to another register the applicant was required to surrender for cancellation his existing certificate for interminable inscribed deposit stock and after the transfer of the registration of interminable inscribed deposit stock from the register of one branch of the Bank to the register at another branch of the Bank had been completed the cancelled certificate for the interminable inscribed deposit stock the registration of which had been so transferred was retained by the Bank and a new certificate was issued to the holder of the interminable inscribed deposit stock showing the branch to which the registration of such interminable inscribed deposit stock had been transferred.
Where the registration of stock was transferred from one branch to another the stock the registration of which was so transferred ceased to be shown as a liability in the books of the transferor branch and the face value of such holding of the stock was thereafter shown as a liability in the books of account of the transferee branch.
The register of stock kept at each branch of the Bank was complete in itself and no duplicate of the register kept at any branch was held at the head office of the Bank.
No distinction was made in the payment of interest and bonus between stock originally registered on any such register and stock the registration whereof was subsequently transferred thereto.
The practice of the Brisbane branch of the Bank was to charge residents in England the prevailing rate of exchange Australia
on London when remitting interest payable on stock registered on the register of stock kept by the Bank in Brisbane.
The affidavit of the liquidator states that in some instances it may be impossible to ascertain the place of original issue of certain holdings of the stock and that in cases where the registration of the stock has been transferred from London to Australia or vice versa, some of the stock will undoubtedly be found to have been intermingled so as to make it impossible to determine the place of original issue of all or portion of an individual stock holder's present holding.
In 1947 an agreement was made between the Bank, its shareholders, and the National Bank of Australasia Limited (hereinafter referred to as the National Bank) whereby, inter alia, the shares of the shareholders of the Bank were exchanged for shares in the National Bank and the National Bank became the holder either in its own name or in the names of its nominees of all the shares in the Bank.
On 30th October 1947 an effective resolution was passed at a meeting of members of the Bank that the Bank be wound up voluntarily and that Mr. Fred Pace be appointed liquidator for the purposes of the winding up. The liquidator has sufficient assets out of which to pay all the interminable inscribed deposit stock of the Bank irrespective of the currency in which the same is to be paid and the costs of any proceedings taken to determine the questions arising herein. The winding up of the Bank is a members' voluntary winding up.
Defendants to the summons (some of them in a representative capacity pursuant to orders of the court, the nature of the representation being indicated so far as here relevant in conjunction with the statement in the report of argument hereunder of the respective appearances of counsel) were the Scottish Union and National Insurance Co. Ltd., the National Mutual Life Association of Australia Ltd., Robert Edward Crouch and the National Bank of Australia Ltd.
The questions submitted by the summons and the answers of Macrossan C.J. as subjoined to the respective questions were as appears hereunder.
Question 1. Whether the registered holders of interminable inscribed deposit stock issued by The Queensland National Bank Limited pursuant to a scheme of arrangement made between the said Bank and certain of its creditors and sanctioned by the Supreme Court of Queensland on the twelfth day of May 1897, whose stock was at the date of the commencement of the voluntary winding up
of the said Bank and was at all times prior thereto registered on the London register of the said Bank, are entitled to be paid or to prove in the winding up of the said Bank for the principal and/or interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and/or interest moneys in English or Australian currency.
Answer. The registered holders of the stock referred to in this question are entitled to be paid in the winding up of the Bank the principal and interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and interest moneys in English currency.
Question 2. Whether the registered holders of such stock whose stock was at the date of the commencement of the voluntary winding up of the said Bank registered on the London register of stock kept by the said Bank and whose stock was at the date of issue thereof on a register of stock kept by the said Bank in Australia and the registration of which was subsequently transferred to the London register are entitled to be paid or to prove in the winding up of the said Bank for the principal and/or interest moneys secured or represented by or payable in respect of such stock the registration of which was so transferred on the basis that they receive the equivalent of the face value of the said principal and/or interest moneys in English or Australian currency.
Answer: The registered holders of the stock referred to in this question are entitled to be paid in the winding up of the Bank the principal and interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and interest moneys in Australian currency.
Question 3. Whether the registered holders of such stock whose stock was at the date of the commencement of the voluntary winding up of the said Bank and was at all times prior thereto registered on a register of stock kept by the said Bank in Australia are entitled to be paid or to prove in the winding up of the said Bank for the principal and/or interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and/or interest moneys in English or Australian currency.
Answer. The registered holders of the stock referred to in this question are entitled to be paid in the winding up of the Bank the principal and interest moneys secured or represented by or payable
in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and interest moneys in Australian currency.
Question 4. Whether the registered holders of such stock whose stock was at the date of the commencement of the voluntary winding up of the said Bank registered on a register of stock kept by the said Bank in Australia and whose stock was at the date of issue thereof on the said London register and the registration of which was subsequently transferred to a register of stock kept by the said Bank in Australia are entitled to be paid or to prove in the winding up of the said Bank for the principal and/or interest moneys secured or represented by or payable in respect of such stock the registration of which was so transferred on the basis that they receive the equivalent of the face value of the principal and/or interest moneys in English or Australian currency.
Answer. The registered holders of the stock referred to in this question are entitled to be paid in the winding up of the Bank the principal and interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and interest moneys in English currency.
Question 5. Whether the registered holders of such stock whose stock was at the date of commencement of the voluntary winding up of the said Bank registered on a register of stock kept by the said Bank in Australia and whose stock was at the date of issue thereof on a register of stock kept by the said Bank in Australia but had been at an intermediate period registered on the said London register are entitled to be paid or to prove in the winding up of the said Bank for the principal and/or interest moneys secured or represented by or payable in respect of such stock the registration of which was so transferred on the basis that they receive the equivalent of the face value of the said principal and/or interest moneys in English or Australian currency.
Answer. The registered holders of the stock referred to in this question are entitled to be paid in the winding up of the Bank the principal and interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and interest moneys in Australian currency.
Question 6. Whether the registered holders of such stock whose stock was at the date of the commencement of the voluntary winding up of the said Bank registered on the said London register and was at the date of issue thereof on the said London register
but had been at an intermediate period registered on a register of stock kept by the said Bank in Australia are entitled to be paid or to prove in the winding up of the said Bank for the principal and/or interest moneys secured or represented by or payable in respect of such stock the registration of which was so transferred on the basis that they receive the equivalent of the face value of the said principal and/or interest moneys in English or Australian currency.
Answer. The registered holders of the stock referred to in this question are entitled to be paid in the winding up of the Bank the principal and interest moneys secured or represented by or payable in respect of such stock on the basis that they receive the equivalent of the face value of the said principal and interest moneys in English currency.
Question 7. Whether, if any registered holder of such stock is entitled to be paid the principal and/or interest moneys secured or represented by or payable in respect of such stock on the basis that such holder receive the equivalent of the face value of the said principal and/or interest moneys in English currency, such equivalent is to be ascertained as of the date of the commencement of the winding up or as of the date of payment or as of any other and if so what date?
Answer. The equivalent of the face value of any principal or interest moneys payable in English currency is to be ascertained as of the date of the commencement of the winding up of the Bank.
From this decision the defendant National Bank of Australia Ltd. appealed to the High Court, and the National Mutual Life Assurance Association of Australia Ltd. cross-appealed.
G. E. BarwickK.C. (with him R. M. EgglestonK.C. and C. K. Lucas), for the appellant. The second or "new" scheme of arrangement is the matter of primary importance. The "proper law" of that document or scheme is the law of Queensland. The principal order approving the scheme was that of the Supreme Court of Queensland. The orders of the High Court of Justice in England and the Supreme Court of New South Wales were ancillary, their functions being to bar any right on the part of creditors in their respective jurisdictions over and above those which would result from the Queensland order. In this regard it is significant that clauses of the scheme approved by the courts of the various jurisdictions confer certain functions on "the Court". The scheme is divided into two Parts. The First Part may be
described as the scheme itself, while the Second Part is the schedule thereto. The clauses it is proposed to refer to in the first instance are those of the First Part. Clauses which require or refer to the sanction of "the Court" are clauses 3, 8, 13, 14. In all these, by reason of the definition in clause 1, the Supreme Court of Queensland is meant. These clauses go a long way towards giving the scheme what may be called the "local colour" of Queensland. Macrossan C.J. seems to have assumed that clause 3 contemplated the creation of two amounts of stock, one amounting to 75% of the �E and the other 75% of the �A. It is not a practicable result because, it is submitted, clause 3 contemplates a fixed sum of stock and clause 4 must have the same meaning if the clauses are to be workable. His Honour seems in this connection to have confused the meaning of the words "principal moneys" in clauses 3 and 4 on the one hand with their meaning in clause 5. In clauses 3 and 4 they necessarily mean the principal sum under the old scheme, whereas under clause 5 they must mean the principal sum under the new scheme. In any event there is nowhere in the document a reference to two different lots of stock. There is no such reference in clause 3, and thereafter the reference is to "the said stock". Another point as to clause 5 is that to find "two-thirds of the stock for the time being unredeemed, calculated at its par value" necessarily means that the stock is expressed in one currency, not two. Clause 6 contains a single set of conditions undifferentiated according to type of debt or place of registration. In clause 7 (1) the symbol necessarily refers to the �A. Likewise in clause 7 (2) in the first mention of "5s. in the �"; but which, on the judgment under appeal, the expression means where it secondly appears it would be difficult to say. This clause would need amendment to fit in with the judgment. It is obvious that this clause presents other serious difficulties unless it is read as referring, and referring only, to the �A. In clause 8 the expression "5s. in the �" necessarily refers to the �A. Some difficulty seems to have been found in the words "market value" in clause 10; apparently as to whether there could be an Australian and an English market value. This, however, can have no bearing on the question of the currency in which the face value of the stock is expressed. The computations which might have to be made under the ensuing words of the clause could only be made in one currency--Australian, it is submitted. In clause 12 there are two expressions which show that the scheme would not be workable if, when Australian and English money differed in value, the scheme had to be treated as
referring indiscriminately to both. The first is the reference to "stock to the amount of �500,000 being unredeemed"; the second relates to the rate of voting and presents the like difficulty. Likewise as to clause 13; the capital of the Bank is necessarily expressed in Queensland--or Australian--money. The Second Part of the scheme is the schedule. The most important provision here is clause 5, which provides the form of stock certificate. It will be seen that it is headed with the � symbol, which is followed by a space meant obviously for a statement of the amount in figures. Then the body of the certificate certifies that " of is the registered holder of of the above stock, which stock is constituted pursuant to the provisions of the scheme of arrangement sanctioned by the Supreme Court of Queensland ... and is issued subject to the provisions and conditions therein" &c. One point here is that the scheme sanctioned by the English court is that sanctioned by the Queensland court. Another point is that, as one would expect at the date of the scheme, there is no express reference either to English or Australian currency. Further, the certificate makes no provision for the statement of a place of registration, though no doubt this could be ascertained so long as clause 6 was observed. It is submitted, therefore, that where, as here, there is an order of a Queensland court readjusting all the rights in a Queensland company of the Government of Queensland, the shareholders and creditors, its proper law is that of Queensland; it is none the less so because of the ancillary orders in other jurisdictions. The case is in all material features the same as that upon which this Court founded its decision in Bonython v. The Commonwealth [1] . The two cases differ in that the latter had a consensual element which is, or may be, absent from the present case; but contracts are not the only documents or transactions the proper law of which must be ascertained. Accordingly the � symbol must be given the same meaning throughout--that of the �A.
A. D. G. AdamK.C. (with him N. S. Stable), for the Scottish Union and National Insurance Co. Ltd., representing the holders of stock originally issued and at all subsequent times registered in London. It is submitted that so far as the stockholders we represent are concerned, the decision of Macrossan C.J. was right. We are not affected by the difficulties, if any, which may affect other stockholders. We rely on the reasons given by Macrossan
C.J. for his conclusions so far as they affect us. Our rights are those of the original stockholders, who deposited money with, or extended credit to, the Bank in England. When the Bank was a going concern--before the first scheme of arrangement--no-one would have supposed that a depositor or other creditor would not have been entitled to payment in English money, and nothing that has occurred since alters that position. That is certainly so as regards the first scheme of arrangement. As to the second scheme, the difficulties which the appellant professes to find if regard is had to English or Australian currency according to circumstances are apparent rather than real. The Bank for some considerable time after the divergence of the currencies paid interest to English stockholders on the basis that they were entitled to be paid the equivalent in Australian money of the appropriate number of English pounds, and it kept its books and prepared its balancesheets on that basis. It apparently did not see any of the difficulties which the appellant finds.
D. I. MenziesK.C. (with him J. F. Lynam), for the National Mutual Life Association Ltd., representing holders of stock originally issued in Australia but subsequently transferred to the London register and still on that register at the date of the winding up and also for holders of stock originally issued and registered in London, transferred to Australia and subsequently transferred to London. This case is not covered by Bonython's Case [2] . There the court was not concerned with English stockholders. The only question in that case--which, otherwise, was an "all-Australian" case--was created by the option of payment (to Australians) in London. It does not follow that the decision would have been the same if the court had had to consider the rights of English stockholders. Goldsbrough Mort & Co. Ltd. v. Hall [3] turned on the fact that the moneys in question were repayable to English trustees and there was, therefore, only one loan. In the present case there is not merely one loan. There are as many loans as there are creditors, and there is no reason why, as a matter of law, all creditors should be paid at the same rate--in Australian currency--despite the fact that what was lent was a different thing altogether. There could not possibly be any rule of law or construction to the effect that because the symbol in a document is found in one place to mean the �A it must have that meaning throughout the document. Of course the parties could have resolved the difficulty by saying which was meant; but, obviously,
the parties did not contemplate a divergence of currency, and thus the difficulty is left as one of construction. The appellant has relied largely on the fact that in some provisions of the new scheme pounds must mean Australian pounds (e.g., in clause 13, the capital of the Bank must be expressed in Australian currency) and has sought to use this fact in aid of the argument that in all other provisions of the scheme any reference to a pound must necessarily be to an Australian pound. As to this particular matter, the capital of the Bank, the position is precisely the same as it was in Goldsbrough Mort & Co.'s Case [4] , and Latham C.J. in his dissenting judgment founded himself upon the fact that the capital of the company there and some other items must necessarily be Australian. Nevertheless, Fullagar J. and the majority of this Court on appeal from him had no difficulty in concluding that the debt in question was payable in English money. [He referred to Broken Hill Pty. Co. Ltd. v. Latham [5] , particularly at p. 388; Adelaide Electric Supply Co. Ltd. v. Prudential Assurance Co. Ltd. [6] ; City of Auckland v. Alliance Assurance Co. Ltd. [7] .] In clause 14 of the Second Part of the scheme--the schedule--there is reference to a fee of 2s. 6d. for the registration of a transfer. Surely this must mean in the case of an English transfer 2s. 6d. in English money. The appellant has not suggested otherwise. This is perhaps a trivial matter in itself, but it precludes any allegation by the appellant that all references to money in the new scheme are references to Australian money. It is trite that the new scheme must be read in the light of the circumstances in which it came into existence; and when this is done the difficulties suggested by the appellant tend to resolve themselves. It has not been disputed that the original indebtedness to English creditors would in ordinary circumstances have had to be paid in English money; in other words, the rights of the creditors in England were what may be called English rights. These were not altered in character by the old scheme, and it is for the appellant to show some point of time at which they changed in character. This the appellant has failed to do. There is no substantial difficulty in reading the references in the new scheme to money as meaning English money where English creditors are concerned and Australian money where Australian creditors are concerned. It is not so much a matter of "reading words into" the scheme--as the appellant suggests--as of reading the words of the scheme aptly in relation
to the facts. The next question, if some stockholders are to be paid in English money, is how they are to be ascertained. On this matter Macrossan C.J. was in error. In the events which happened the earliest time at which the stockholders became entitled to payment of principal was the winding up, and it is logical that payment should be made in accordance with the registers at that time; that is to say, those then on the English register in English money and those on the Australian register in Australian money.
G. L. Hart, for E. R. Crouch, representing holders of stock originally issued in London, subsequently transferred to Australia and still on an Australian register. We accept the argument of Mr. Menzies to the extent to which he contends that the new scheme refers in some places to Australian money and in others to English money; that in substance adopts the judgment of MacrossanC.J. In so far, however, as Mr. Menzies rejects the view of his Honour as to the date at which the various classes of creditors are to be ascertained, we submit that his Honour reached the logical conclusion. Mr. Menzies' own argument was that the rights of those we represent were what he called English rights and had not lost their character in the new scheme. If so, it is submitted, they retained those rights even on transfer to an Australian register at a subsequent date.
A. D. McGillK.C. and B. F. Fahey, for the liquidator.
Cur. adv. vult.
1951, March 19.
The following written judgments were delivered:--
LATHAM C.J. This is an appeal from an order of the Supreme Court of Queensland (MacrossanC.J.) made under s. 258 of The Companies Acts 1931 to 1942 (Q.) in order to determine questions arising in the winding up of the Queensland National Bank Ltd. The bank suspended payment in 1893 and a scheme of arrangement was authorized by the Supreme Court but the scheme failed. In 1897 another scheme of arrangement was authorized by the Supreme Court of Queensland and was adopted also by the Supreme Court of New South Wales and the High Court of Justice in England. Under this scheme there were special provisions for paying the debt due to the Government of Queensland. There were other creditors who were depositors in the bank in Australia and in Great Britain. Under the earlier scheme they had been given,
and had been compelled to accept in discharge of their debts, either deposit receipts, or negotiable deposit receipts payable to bearer, or inscribed deposit stock. The scheme of arrangement which was approved by the courts in 1897 provided for the creation of interminable inscribed deposit stock. The creditors of the bank who held the securities issued under the old scheme were required to accept such stock bearing interest at 3�% per annum in satisfaction of their debts. The new scheme provided for stock registries in Queensland, Sydney and London. The original holders have in many cases transferred their stock to other persons, and stock has also been transferred from an original registry to another registry and sometimes transferred again to its original registry. The bank is now in liquidation and the question has arisen whether a holder of, e.g., �100 stock, is entitled to be paid �A100 or �E100. Macrossan C.J. has held that the answer to the question depends upon the place of original issue and registry of the stock, with the result that stock which was originally registered in England must be paid off at its face value in English currency, whereas the liability of stock which was originally issued and registered in Australia will be discharged by payment in Australian currency. There are now practical difficulties in ascertaining the original place of registry of much of the stock, but this fact cannot affect the legally ascertained liability of the bank. The questions submitted to the Supreme Court of Queensland inquired as to the currency in which the deposit receipts were to be paid off in six separate cases. I propose to tabulate the various classes of stockholders, to state how they are represented upon this appeal and to state the decision of the Supreme Court in each case as to the liability to pay the face value of the stock [8] .
The liquidator also asked the advice of the court as to the date at which the equivalent in English currency of Australian money (whether principal or interest) should be ascertained. It was held that the relevant date was the date of the commencement of the winding up of the bank, and there is no appeal as to this matter.
The other parties to the proceedings are the appellant the National Bank of Australasia Ltd., which now owns or controls through its nominees all the shares in the Queensland National Bank Ltd., and the liquidator of the latter bank.
The appellant the National Bank contends that all payments in redemption of the interminable inscribed deposit stock should be made in Australian currency. The respondents other than the liquidator, who has not argued exclusively for any particular
Classes of Stockholders Represented by Decision of Supreme Court Remarks 1. Stock originally issued and at all subsequent times registered in London. Scottish Union & National Insurance Co. Ltd. Payable in English currency. This party supports judgment of Supreme Court. 2. Stock originally issued and registered in Australia but subsequently transferred to London registry and now on that registry. National Mutual Life Association of Australasia Limited. Payable in Australian currency. This party has cross-appealed against this decision, contending that such holders are entitled to payment in English currency because they are now on the London registry. 3. Stock which at all times has been on the Australian registry. -- Payable in Australian currency. There is no appeal against this decision. 4. Stock originally issued and registered in London, subsequently transferred to Australia and still on the Australian registry. E. R. Crouch Payable in English currency. This party supports this decision. 5. Stock originally issued and registered in Australia, then transferred to London and then to Australia. E. R. Crouch Payable in Australian currency. No appeal. 6. Stock originally issued and registered in London, transferred to Australia, then to London. National Mutual Life Association of Australasia Limited. Payable in English currency. This party supports this decision.
view, support the order as made by the learned Chief Justice, except that the National Mutual Life Association contends that in the case of stock now on the London registry, whatever may have been its previous history, payment should be made in English currency.
The Queensland National Bank Ltd. was incorporated in 1872 under The Companies Act of 1863 (Q.). It was registered in England as a foreign company under the Companies Act 1907 (Imp.) (7 Edw. 7 c. 50), s. 35, on 25th September 1908. The bank had shareholders in Queensland, elsewhere in Australia and in Great Britain. It accepted deposits in all those places. Registers of shareholders were kept in Australia and in England.
On 15th May 1893 the bank was unable to meet its liabilities and suspended payment. A petition for winding up was presented to the Supreme Court in Queensland and a provisional liquidator was appointed. Ultimately, after meetings of creditors and shareholders had been held in Brisbane, Sydney and London, a scheme of arrangement was sanctioned by the Supreme Court in Queensland, by the Supreme Court in New South Wales and by the High Court of Justice in England. The amount due to depositors in July 1893 in respect of deposits in Queensland was �1,860,628, in New South Wales �110,322, and in respect of deposits in London �2,897,619. A special agreement (authorized by a Queensland statute--The Queensland National Bank, Limited, (Agreement) Act of 1893) was made with the Government of Queensland, which was a creditor for �2,000,000. The capital of the company was reduced and capital was called up in accordance with the scheme approved by the court, but the bank was unable to carry on under the terms of that scheme. Accordingly another scheme of arrangement was devised and was approved by the three courts mentioned after meetings of creditors had considered and approved it.
By the order of the Supreme Court of Queensland made on 12th May 1897 the new scheme of arrangement was declared to be binding upon all creditors of the bank in respect of deposit receipts, negotiable deposit receipts and inscribed deposit stock (the securities issued under the old scheme) and upon the bank and its contributories. Under the new scheme it was provided that interminable inscribed deposit stock should be issued to the creditors who held those securities.
On 15th April 1897 the new scheme of arrangement was sanctioned and approved in identical terms by the Supreme Court of New South Wales.
On 27th May the High Court of Justice in Great Britain ordered that the bank should be wound up by that court. On 4th June 1897 the High Court of Justice sanctioned and approved the new scheme of arrangement in identical terms and it was ordered that all further proceedings in the winding up should be stayed except for the purpose of carrying the order and the new scheme of arrangement into effect.
The amount of interminable inscribed deposit stock issued under the new scheme amounted originally to �3,116,621. The amount now outstanding is �2,559,086.
The following is the form of certificate of title to interminable inscribed deposit stock prescribed by the scheme of arrangement. (I have filled in a number for the certificate, an amount in pounds and a name of a holder):--
"THE QUEENSLAND NATIONAL BANK LIMITED
Interminable Inscribed Deposit Stock.
No. 150 �100
Bearing interest at the rate of 3� per cent. per annum, payable on the 31st day of March and the 30th day of September in each year.
This is to certify that John Smith of __________ is the registered holder of �100 of the above Stock, which Stock is constituted pursuant to the provisions of the Scheme of Arrangement sanctioned by the Supreme Court of Queensland on the 12th day of May, 1897, and is issued subject to the provisions and conditions therein, and in the Schedule thereto respectively contained.
NOTE.--The Bank will not register a transfer of any Stock without the production of the certificate relating to such Stock, which certificate must be surrendered before any transfer, whether of the whole or any portion thereof, can be registered, or before a new certificate can be issued in exchange.
A fee not exceeding 2s. 6d. will be charged on the registration of any transfer."
In the certificates as actually issued there appeared before the "Note" in some cases the following--"Given under the Common Seal of the Company this day of by order of the Board" &c. In other cases the place of issue was stated--"Given under the Common Seal of the Queensland National Bank Limited at London" or Sydney or at a place in
Queensland. There is no evidence that any certificate specified any place for payment.
I proceed to examine the details of the scheme of arrangement for the purpose of ascertaining the meaning of the symbol for the word "pounds"--"�"--in such a certificate.
This is a question of interpreting the terms of the certificate in order to ascertain the rights and obligations of the bank and of the holder of a certificate. I do not apply the principles relating to the interpretation of contracts in order to answer this question. The obligation created by the issue of the certificate and its subsequent transfer to other persons is not in my opinion contractual in character. It is true that the scheme was adopted by the Supreme Court of Queensland and by the courts in New South Wales and Great Britain only after meetings of creditors had been held at which consent, in some cases unanimous, but in others by a majority, was given to the proposed scheme, but the operation of the scheme was not and is not dependent in any way upon the consent of any particular creditor and therefore it is not contractual in character. If the obligation were held to be an obligation of a contractual nature it is in my opinion plain that the governing law of the contract would be the law of Queensland. The obligation represented by the certificate was, however, created by the order of the Supreme Court of Queensland to which the certificate refers, and an order of a Queensland court must be interpreted in accordance with the law of Queensland. That order was adopted in identical terms by the Supreme Court of New South Wales and the High Court of Justice in Great Britain. The order did not change its meaning when it was so adopted. Accordingly, whether the obligation is regarded as contractual in character or as arising independently of any consent of the parties from an order or orders made by a court or courts of competent jurisdiction, the law of Queensland is the law which determines the interpretation of the scheme of arrangement and the interpretation of certificates issued in pursuance of that scheme. In the present case the result will be the same whether it is held that the construction of the contract is to be determined according to the law of Queensland, of New South Wales or of Great Britain, for the principles of interpretation of documents in all three countries are the same.
The ascertainment of the law in accordance with which the scheme of arrangement is to be construed does not in itself determine the currency to which reference is to be made to measure the extent of an obligation to pay money. The ascertainment of that law only introduces the inquirer to the principles of interpretation
to be applied in order to determine the content of the obligations created by the document. That document is to be construed in accordance with the principles of interpretation prescribed by that law. Those principles of interpretation may, in the case of an obligation to pay money, bring about the result that the obligation is to be measured in terms of the currency of the country the law of which is applicable for the purpose stated and this will generally be the case. But, on the other hand, the application of that law may show that the relevant currency is the currency of some other country; for example, when some years ago the State of Queensland borrowed money in the United States and promised to pay dollars in redemption of the loan, there is no doubt that the obligation was to pay an amount measured in dollars, even though the governing law of the contract might have been the law of Queensland. Thus the ascertainment of the law governing an obligation for the purpose of determining the substance of an obligation does no more than refer the parties to the rules of interpretation prescribed by that law. The question, therefore, is a question of the meaning of the word "pounds" and the symbol for pounds in the certificates and in the scheme of arrangement according to the principles of interpretation to be found in the law of Queensland--which are the same in New South Wales and Great Britain.
One of those principles of interpretation is that each provision in a document must be interpreted in its context. Therefore I examine the whole scheme of arrangement in order to ascertain the meaning of "pounds" in that scheme.
In doing so it is not necessary to be concerned with any distinction between money of account and money of payment. No difficulty whatever arises in the present case as to money of payment. At the date of the order for liquidation of the company (which, it is conceded, is the relevant date) the rate of exchange between Australia and Great Britain was �A125 to �E100. If the substance of the obligation in a �100 certificate is to pay �E100, then in an action on a certificate in an English court judgment would be given for �100, which would be English pounds, and if the action were brought in an Australian court the judgment would be for �125 Australian pounds. If, on the other hand, the substance of the obligation is to pay �A100 the judgment in an English court would be for �E80, and in an Australian court for �A100. The question to be determined is simply that of the substance of the obligation, that is, whether the obligation is to pay �E100 or �A100.
The new scheme of arrangement, which was made effective in the three jurisdictions mentioned, consisted of two Parts. Paragraph 1 of the First Part defined the word "court" where used in the scheme as meaning the Supreme Court of Queensland. "The said securities" were defined as the deposit receipts, negotiable deposit receipts with coupons and inscribed deposit stock issued under the old scheme and sanctioned by the Supreme Court of Queensland in 1893.
Paragraph 2 made provision for the discharge of the debt to the Government of Queensland. This paragraph referred to the agreement made as part of the old scheme of arrangement between the Government of Queensland and the bank and varied the terms upon which the debt was to be satisfied subject to the provisions of a Queensland statute entitled The Queensland National Bank, Limited (Agreement) Act of 1896. Paragraph 2 provided for the payment of a sum equal to fifteen shillings in the pound upon the amount of the principal moneys owed by the bank to the Government under the old agreement and for payment of interest thereon and of a further sum equal to five shillings in the pound upon the amount of the principal moneys to be payable out of a specified part of the half-yearly profits of the bank.
With respect to the other creditors, being the registered holders of "the said securities", the scheme provided in par. 3 that the bank should create and allot to and among such creditors an amount equal to 75% of the principal moneys secured or represented by their "said securities", omitting fractional parts of pounds.
Paragraph 4 provided that the registered holders of the said securities should accept in satisfaction and discharge of their securities and of all principal moneys and interest secured or represented thereby an amount of the said stock equal to fifteen shillings in the pound upon the principal moneys. This paragraph also provided that the former securities should be surrendered and that interest should be payable on specified dates at the offices of the bank in Queensland, Sydney and London, at which the stock was registered. Further--"In addition to such interest as aforesaid, registered holders of stock shall be entitled by way of bonus to such part of the half-yearly profits of the Bank as hereinafter provided".
Paragraph 5 provided for two events upon which the principal moneys should become payable. They were, first, if the bank made default for a period of six months in the payment of interest and, after such default, the Government or "registered holders of
stock to an amount equal to two-thirds of the stock for the time being unredeemed, calculated at its par value, by notice in writing to the Bank, [should] call in such principal moneys"; and, secondly, "if an order is made, or an effective resolution is passed, for the winding-up of the Bank". Paragraph 10 provided for a further event upon which the moneys represented by the stock should become payable. That paragraph provided that at any time after the bank had paid the sum of fifteen shillings in the pound payable under the agreement referred to in par. 2, the bank might give to the registered holders of the stock or any of them six calendar months' notice of intention to redeem the stock or any portion thereof at its market value, but not less than its par value, together with five shillings in the pound upon the amount of the principal moneys secured or represented by the securities in exchange for which the stock was allotted or so much of such five shillings in the pound as had not been previously paid out of the profits as aforesaid. It was provided that if this provision was put into operation the bank should pay the registered holder the redemption money and that the holder of the stock should surrender to the bank for cancellation the amount of redeemed stock and should deliver up his certificate of cancellation--"Such surrender delivery and payment shall be made at the office of the Bank at which such stock is registered".
Paragraph 6 provided that the stock should be issued and held subject to the provisions of the scheme and to the conditions set forth in the schedule (that is, the Second Part) and that such provisions and conditions should be binding on the bank and the registered holders of stock and persons claiming through or under them respectively.
Paragraph 7 was a provision relating to the application of the profits of the bank to which paragraphs already mentioned make reference. The profits were to be applied half-yearly in the manner set out in the paragraph. It is not necessary to state these provisions in detail. They were to the effect that 25% of what was called the balance of profits should be paid to the Government of Queensland until the sum of five shillings in the pound referred to in par. 2 had been duly paid. 50% of the balance, or, after the Government had been paid the five shillings in the pound, 75%, was to be carried to a special fund which was to be distributed as a bonus amongst the registered holders of stock ratably until an aggregate or bonus equal to five shillings in the pound on the principal moneys had been made good out of such balance or profits.
The paragraph contained other provisions referring to the profits of the bank as ascertained from half-year to half-year.
Paragraph 8 provided that the bank might, on giving notice to the Treasurer of Queensland, pay off the sum of fifteen shillings in the pound before the time fixed for the payment, minimum payment to be �25,000.
The substance of par. 10 has already been stated.
Paragraph 11 provided that no dividend should be payable until the sum of five shillings in the pound had been made good to the Government and the registered holders of stock respectively and that no larger dividend than 3�% should be payable until all moneys payable to the Government under the scheme had been duly paid.
Paragraph 12 provided that, subject to necessary amendments of the articles of association and so long as stock to the amount of �500,000 was unredeemed, one member of the London board of directors should be appointed by the registered holders of stock. Those holders, it was provided, should be entitled to vote upon the following basis:--
Registered holders of stock for an amount of not less than �500 One vote. Do. of not less than �2,000 Two votes. Do. of not less than �5,000 Three votes. Do. exceeding �5,000 Four votes.
Paragraph 13 provided for a reduction of the nominal capital of the bank from �1,600,000 divided into 200,000 shares of �8 each to �1,000,000 divided into 200,000 shares of �5 each. The reduction was to be effected by cancelling paid up capital to the extent of �3 per share upon the shares issued and reducing the nominal amount of all shares from �8 to �5.
Paragraph 15 provided that "All such provisions as by The Queensland National Bank, Limited (Agreement) Act of 1896 are prescribed in the case of an agreement made under the authority of that Act shall be deemed to be incorporated in this scheme." The Act to which reference was made provided that the Auditor-General should prepare and certify lists of creditors of the bank and that the due payment of the debts of the bank, but not exceeding in the whole the sum of �800,000, should be guaranteed to the creditors out of the consolidated revenue of the colony if the bank failed to pay them.
The Second Part of the scheme contained the schedule to the new scheme of arrangement. Paragraph 1 provided that registers of stock should be kept by the bank at its head office in Brisbane
or at its branch offices in Queensland, Sydney or London, at which the securities in exchange for which such stock was allotted were at the time of such allotment payable, or at the office of the bank to which such stock might be transferred in manner provided. Stock was issued at the various places mentioned and registers of stock were kept in Queensland at various places, in New South Wales and in London.
Paragraph 2 provided for entry of particulars in the register and par. 3 provided that the registered holder of stock could, upon application in writing addressed to the manager at the office where such stock was registered, require that the registration of such stock should at his cost and expense be transferred to the register kept at any other office and that upon such transfer being effected the stock should be deemed to be registered at the last-mentioned office. Paragraph 5 provided for the form of certificate which has already been set out.
Paragraph 6 provided that every certificate of stock registered at the head office of the bank in Brisbane should be given under the seal of the bank, that every certificate of stock registered at the London office should be given under the duplicate seal of the bank, and that certificates registered at any other office should be signed by the manager and countersigned by the accountant of the branch of the bank at the office at which the stock is registered. The Second Part contained other details as to registration, transfers, recognition of transmissions of title &c., to which it is not necessary to refer. Paragraph 19 provided that the interest on stock and all other moneys payable in respect thereof might be paid by cheque or warrant sent through the post to the registered address of the holder.
In Bonython v. The Commonwealth [9] the Privy Council held that a contract made by debentures issued in 1895 between the Government of Queensland and a lender of money to pay �100 sterling in 1945 would be properly performed by payment of �A100. In 1895 the only law applicable in Queensland with respect to currency and legal tender was Imperial legislation, which derived its authority entirely from enactment of the Parliament of the United Kingdom. But it was held that as Queensland was a self-governing colony with power to make laws for its own peace, order and good government, the monetary systems of Queensland and Great Britain were "in a real sense two monetary systems" even in 1895 and that they are now two monetary systems. In view of this decision it is not necessary to state again the reasons which
in more than one case have led this court to a conclusion which was the same as the latter conclusion reached by the Privy Council. The question to be answered in Bonython's Case [10] was stated, in terms taken from the case of City of Auckland v. Alliance Assurance Co. Ltd. [11] as being "What currency on the true construction of the contract was connoted by the use of the word `pound'?", or, to express the same question in another form, "Within the framework of what monetary or financial system should the instrument be construed?" This is the criterion which has been applied by this court in determining cases of this type, though there have sometimes been differences of opinion in its application to particular facts: Bonython's Case [12] in this Court; Goldsbrough Mort & Co. Ltd. v. Hall [13] . In Bonython's Case [14] , at the time when the contract was made (just as in the present case at the time when the scheme of arrangement was imposed upon creditors and shareholders by the courts) nobody contemplated a divergence in the value of the Queensland pound and the English pound. It was held that it was clear that, if no such divergence was thought of, it could not have been intended that the debenture-holder should obtain a different measure of value or the Queensland Government be placed under a different liability according to the place of payment--in other words it was clear that the same substantial obligation was imposed on the Queensland Government whatever the place chosen for payment, the choice being given to the debenture-holder clearly as a matter of convenience. It was stated that the position was entirely different from that which would arise where the creditor was expressly given an option, not only as to the place of payment, but also as to the currency in which it should be made. There is no such option in the present case. Paragraph 19 of the Second Part of the scheme authorizes the bank to pay by cheque, but that is an option given to the bank and not to the creditor, and the scheme certainly does not contain any experts term which gives the creditor an option to require payment at any particular place or in either English or Australian currency as he may elect.
In Bonython's Case [15] emphasis was placed upon the fact that the Government of Queensland was one of the contracting parties, and that it was at least unlikely that the legislature of a self-governing colony should undertake to pay money in terms of a currency other than its own. As already stated, in fact the State of Queensland has in the past made such contracts, but there is
no such feature in the present case. The word "pounds" has been at all times completely and properly applicable to the currency circulating in Queensland, formerly under laws passed by the Parliament of the United Kingdom and now under laws passed by the Commonwealth Parliament. Further, in the present case there are special provisions relating to the discharge of the debt owed by the bank to the Government. Those provisions depend upon the payment of moneys described as five shillings and fifteen shillings in the pound and payments made out of the half-yearly profits of the company. The dividends which are allowable are stated as percentages of profits. It is plain that the debt to the Government (and the payments in respect thereof) would at all times be calculated in the currency of Queensland and not in the currency of any other country and that the application of the provisions just mentioned as to profits and dividends would depend upon the use of "pounds" in the accounts of the company in the sense of Queensland currency.
I now turn to the other provisions of the scheme in which the word "pounds" is used. As already stated, the question is not one of interpreting a contract, but of determining the meaning of the order of the Supreme Court of Queensland which was adopted in identical terms by courts in New South Wales and in Great Britain. Paragraphs 3, 4, 5 and 10 of the First Part and par. 5 of the Second Part (prescribing the form of certificate) are the paragraphs particularly requiring attention. They are the paragraphs which specify the right of the stockholders.
In my opinion an examination of the scheme in detail shows that the word "pounds" must necessarily be construed as relating to Australian currency in some cases and that the scheme as a whole would be incoherent and not fully intelligible if the word "pounds" were not construed in the same sense wherever it appears in the scheme. Reference has already been made to par. 2 of the First Part, dealing with the rights of the Government. Here the word "pounds" must be construed as meaning Australian currency. In par. 7, dealing with the ascertainment and distribution of the half-yearly balance of profits in the case of a bank carrying on business in Queensland, it is plain that the profits must be ascertained in the currency of Queensland, that the percentages of profits mentioned in the paragraph must be similarly ascertained, and that the distributions amongst the registered holders of stock ratably must be ascertained by reference to the amount of stock which they hold. If some holders of stock had their holdings reckoned in English currency and others in Australian
currency, but the profits and the percentages of the profits were ascertained in Australian currency, it would not be practicable to apply the provisions of par. 7 according to its terms.
Paragraph 8 provided that if the bank paid off the Government before the time fixed for payment the amount repaid to the Government at any one time should not be less than �25,000. This reference to �25,000 must necessarily be a reference to money payable in Australian currency. Paragraph 11 provided for the limitation of dividends until the sum of five shillings in the pound had been paid to the Government and to the holders of stock. The pound to which reference is here made must be the same pound as the pounds in which the debt due to the Government has been expressed and therefore the reference must be to Australian currency.
The substance of par. 12 has been quoted. It referred to the voting rights of registered holders of stock. This paragraph contemplated that votes should be given in accordance with the face value of the stock and in my opinion requires the ascertainment of the face value of the stock in the same way in the case of all holders. It has not been argued in the present case that, for example, holders of stock which has always been on the Australian register are entitled to payment otherwise than in Australian currency and that they should have the value of their stock diminished for voting purposes under par. 12 but not for other purposes. If this is so the holders of all the other stock should, at least for the voting purposes mentioned in par. 12, be treated in the same manner, i.e., should have votes according to the stated face value of their stock and not according to that value increased by 25%.
Paragraph 13 provided for the reduction of the nominal capital of the bank and the cancellation of paid-up capital. The figures stated in par. 13 must necessarily, in the case of a company incorporated in Queensland and carrying on business in Queensland and having a capital as prescribed by the Queensland Companies Act, be figures referring to the currency of the country where the company is incorporated, i.e., to the currency of Queensland. The word "pounds" in par. 13 must be interpreted as meaning �A. The scheme is a coherent and intelligible scheme only if "pounds" is given the same interpretation in all the other provisions.
Paragraph 15 referred to The Queensland National Bank, Limited (Agreement) Act of 1896. As already stated, that Act contained provisions relating to pounds to be paid and the word "pounds"
there, on the reasoning in Bonython's Case [16] , must be held to refer to Australian currency.
The word "pounds" should prima facie be given the same meaning in all the provisions of the scheme. If a different meaning is given to the word "pounds" in the certificates from that which it must bear in the body of the scheme, the scheme loses all symmetry and coherence. In many of the provisions the word necessarily means Australian pounds. The word should be given the same meaning in other provisions unless a contrary intention clearly appears. No such intention appears.
Accordingly I am of opinion that all holders are entitled to be paid the face value of their stock only in Australian currency, that the appeal should be allowed, the cross-appeal dismissed and that the answers to all of the questions submitted to the court should be to the effect stated, i.e., that all payments should be made according to the face value of the stock in Australian currency.
DIXON J. In a new form this appeal presents a question of a kind which twice recently has come before the court. The question arises out of the difference, as measures of value, between the Australian pound and the English pound in terms of one another. That difference did not of course prevail until the last two decades and the question concerns obligations which were incurred before the divergence took place and which have now become due and payable. They are obligations having a connection with both countries and they are expressed in pounds, then a single or common expression or measure of value but now capable of applying to either of the two differing measures of value. The question is which of the two monetary systems provides the standard of value according to which the obligations are to be measured. The two previous cases in which questions of this description have been decided by the court are Bonython v. The Commonwealth [17] and Goldsbrough Mort & Co. Ltd. v. Hall [18] , affirming the judgment of FullagarJ. in the Supreme Court [19] . The decision in Bonython's Case [20] has been affirmed in the Privy Council since the argument in this case took place. We have delayed our decision in order that we might have the advantage of their Lordships' reasons, a print of which we have now seen.
It is now finally settled that in spite of a common nomenclature Australian money is not now the same as English money as a
measure of value or money of account. There is a separate monetary system in Australia.
As the substance of the obligation is measured in money and must for that purpose depend on one money of account or the other and as the expression pound may relate to either and in that sense has become quite equivocal, the problem is to determine to which of the two it must be taken to refer. The question is to be solved as one of interpretation. The presumed intention is to be collected from the instruments in which the transaction is embodied, from its general character and purpose, from the circumstances surrounding and leading up to it and the closeness of connection it possesses with one or other country. Weight must be given to the fact that the distinction between the two monetary systems comes from the existence of two law-making powers rather than to the identity or similarity of the money or moneys of account; from the beginning the power of each of the Australian colonies and afterwards of the Commonwealth was capable of exercise so as to destroy that identity or similarity.
The appeal relates to the interminable inscribed deposit stock created by a banking company, the principal moneys having become payable owing to the winding up of the company. Registers of stock were kept in australia and in London and stockholders were entitled to transfer stock from one register to another. The stock represented liabilities some of which had been contracted in Australia but the greater part of which had been contracted in the United Kingdom. The case presents the question in a new form because the problem it raises is whether stock associated with the United Kingdom, either in virtue of registration or of the liabilities it represents or otherwise, is to be taken to refer to the pound sterling as the money of account while correspondingly the remaining stock is taken to refer to the pound Australian or, on the contrary, all the stock is to be taken to refer to the pound Australian.
If the former alternative is adopted it will be seen that before the winding up the right to transfer the stock from an Australian register to the register in the United Kingdom or vice versa amounted in effect to an option to go not merely from one place of payment to another but from one measure of the quantum or substance of the obligation to another. In other words, it amounts really to an option de changeor option of payment and not merely to an option de place. See The Legal Aspect of Money, Dr. F. A. Mann(1938), pp. 147-150. Speaking of a creditor's claim to a power "by its own election to determine directly or indirectly the money of account by reference to which the debt is to be
discharged", FullagarJ. in the case cited said: "It is extremely unlikely any such option as to the measure of the obligation would be intended to be given to either party". And Dr. Mann(pp. 79 and 167 (1)) speaks of the avoidance of substituting an option to payment for an option of place where an option of payment has not been stipulated. But Professor Nussbaumin his book Money in the Law(1950), pp. 393, 394, in speaking of a situation where there is an option clause couched in ambiguous currency terms such as "francs", as, for instance, if a bond calling simply for a payment of "francs" is payable in Paris, Brussels or Zurich, says:--"In such a situation the presence of an option de place is indicated where a definite amount is stated in one currency only, while the sums to be paid in the other currencies are to be computed at the rate of exchange of the former currency. Otherwise an option de change should be held to exist. This view casts a burden upon the issuer if he is domiciled in the country where the money is depreciated. However, if he has appealed to the investors of a foreign capital market, by instituting and advertising agencies for the service of the loan there and has employed the name of the money current in that country, it is fair to assume that the prospective investors interpreted that name to refer to their national currency and that the issuer expected them so to understand the reference. To put it another way, the promise here, too, must be construed under the circumstances in which it was understood at the place of payment."
It will be seen from the foregoing very general account of the question raised by the present appeal that everything depends upon the facts. The interminable inscribed deposit stock was created in pursuance of a scheme of arrangement sanctioned by the court. The banking company is the Queensland National Bank Ltd., now in liquidation. The scheme of arrangement was adopted on 30th April 1897 and it was sanctioned by the Supreme Court of Queensland on 12th May 1897 and by the High Court of Justice in England on 4th June 1897. It was also sanctioned by the Supreme Court of New South Wales. It was the second scheme of arrangement which the Bank had found it necessary to effect. The first had been a scheme of arrangement made between the Bank and its creditors four years earlier. It was sanctioned by the Supreme Court of Queensland on 31st July 1893. The Bank had been incorporated in Queensland in 1872 as a limited company and it proceeded to carry on the business of banking in the colony. Early in 1878 the Bank opened a branch in London. From September in the following year it transacted
the general Government banking business of the colony of Queensland under agreements between the Treasurer and the Bank. A London board of directors was appointed and a systematic effort was made to obtain deposits in Great Britain and Ireland. Agents were appointed in various places and apparently they canvassed for deposits. The moneys were accepted on fixed deposit at 4% to 5% per annum for terms varying between one and five years. The amount of the deposits in London increased until in the early part of 1891 it reached more than �4,000,000 but, doubtless under the influence of the growing depression in the Australian colonies, the amount declined until as at 31st March 1893 it stood at �2,971,817. On 15th May 1893 the Bank was compelled to suspend payment. A petition for winding up was presented to the Supreme Court of Queensland and provisional liquidator was appointed. At the same time petitions were presented in England and in New South Wales and provisional liquidators were appointed. The Bank's liability to the Government of Queensland was about �2,360,000. Among its other liabilities were �2,897,619 in respect of deposits in London, �1,860,628 in respect of deposits in Queensland and �110,322 in respect of deposits in New South Wales. A scheme of arrangement was duly adopted and it was sanctioned in all three jurisdictions. It contained provisions for calling up unpaid capital and cancelling in part paid-up capital and regulating the rights of shareholders in respect of dividends. But all that is material for present purposes is the manner in which it dealt with the liabilities I have mentioned. Of the debt to the Government �2,000,000 was to be covered by twelve deposit receipts of equal amount payable at intervals of six months commencing six years later, viz., 1st July 1899 and bearing interest at 4�% per annum. The balance of �360,000 was to bear interest at the same rate and to be repayable only on six-months' notice and then in amounts not greater than �100,000 for any one period of six months. To these terms the Government of Queensland agreed under statutory authority. The creditors in respect of deposits were to accept twelve deposit receipts each for a twelfth of the debt. The first was to be payable at the end of six years and the remaining eleven at successive intervals of six months. They were to bear interest at 4�% per annum (except for any unexpired period in respect of which the Bank had contracted to pay some other rate of interest). As alternatives to accepting these deposit receipts the creditors might take either negotiable deposit receipts of the same currency payable to bearer with interest coupons attached or inscribed
stock repayable at the option of the bank on six-months' notice to be given only after the substituted deposit receipts had been paid off.
Neither form of the alternative seems to have proved attractive to the depositors. No inscribed stock was issued in Australia and in London the issue amounted to �50,448 only. Negotiable deposit receipts were issued to the amount of �198,119. But creditors took up the non-negotiable fixed deposit receipts in pursuance of the scheme to the extent of �2,534,484 in London and �1,516,136 in Australia. Some creditors made no application under the scheme.
The scheme of arrangement having been put into effect the Bank resumed business. But before four years were out it became apparent that a second scheme of arrangement would be necessary. At the end of 1896 an Act was passed by the parliament of Queensland authorizing the Treasurer to enter into an agreement with the Bank extending the terms of payment and reducing interest.
A committee had reported that according to their estimate of the bank's position the liabilities exceeded the assets by such an amount that the whole of the paid-up capital had been lost, together with the amounts at the credit of the profit and loss and other accounts, and that still a deficit existed of �1,252,810. It is needless to state the steps resulting in a new scheme of arrangement, but at length one was adopted and sanctioned in all three jurisdictions. The scheme took effect in substance as from 31st March 1897. The amount remaining due to the Queensland Government was �1,833,326. The Government agreed that repayment of seventy-five per cent of this debt should be deferred and made in five equal annual instalments on 1st July of the years 1917 to 1921 bearing interest at 3�% per annum and that the remaining twenty-five per cent should be repayable without interest out of the Banker's half yearly profits (after providing for contingencies) not less than twenty-five per cent of such profits being applied to the purpose and any unpaid residue of that part of the debt becoming repayable in any case on 1st July 1921. The terms of which this is a summary were later expressed in an agreement outside the scheme of arrangement, by which the Government was not necessarily bound and to which it was not a formal party. Indeed the order made by the High Court of Justice in England sanctioning the scheme declared it to be binding not on creditors generally but on all creditors of the Bank in respect of deposit receipts, negotiable deposit receipts and inscribed deposit stock issued by the Bank in pursuance of the earlier scheme. The debts of these creditors amounted to �4,155,495, of which
�2,711,366 was owing in respect of deposits in England and �1,444,129 in respect of deposits in Queensland and New South Wales.
The basal principle of the scheme of compromise was that the debts so representing deposits should be dealt with by converting fifteen shillings in the � into interminable inscribed stock and leaving the remaining five shillings in the pound to be provided out of a proportion of the profits (if at all). The stock carried interest at 3�% per annum from 31st March 1897. The Bank, in pursuance of the scheme, created what the scheme called interminable inscribed deposit stock �3,116,621 (75% of �4,155,495) and allocated �2,033,524 among holders in London of deposit receipts, negotiable deposit receipts and inscribed deposit stock issued under the earlier scheme and �1,083,097 among holders in Australia of such deposit receipts and negotiable deposit receipts.
The scheme of arrangement provided for the establishment of registers of stock in Brisbane, Sydney and London, as well as at branch offices in Queensland. The stock issued in respect of the London deposit receipts &c. was placed upon the London register and that in respect of the Australian deposit receipts on the Brisbane or other Australian register. The stock certificates issued from the respective registries differed, apart from format, only in the address ascribed to the Bank, in the name of the place at which they were expressed to be given, and in the way they described the authority for affixing the Company's common seal. They all called the security interminable inscribed deposit stock bearing interest at the rate of 3�% per annum payable on specified half-yearly dates and certified that the named person was registered holder of so many pounds of the stock and proceeded:--"which Stock is constituted pursuant to the provisions of the Scheme of Arrangement sanctioned by the Supreme Court of Queensland on the Twelfth day of May 1897 and is issued subject to the provisions therein and in the Schedule thereto respectively contained". The schedule referred to is a schedule to the scheme of arrangement and contains the provisions regulating the keeping of the registers, dealings with stock and their registration transfers from one registry to another and kindred matters.
The scheme of arrangement provides for the application of a portion of profits in payment of the five shillings in the pound of deposit receipts &c. under the earlier scheme, the five shillings in the pound not represented by the interminable inscribed deposit stock; but in so providing the scheme must necessarily take account of the prior claim upon profits conceded to the debt to
the Queensland Government. It provides that the balance of profits (after setting aside an amount thought proper for contingencies) should be dealt with first by paying twenty-five per cent to the Queensland Government until the five shillings in the pound of the debt to the Government is repaid, next in carrying until that event, fifty per cent of such profits, and after that event seventy-five per cent of such profits, to a special fund and distributing it as the directors might think fit among the holders of stock until an amount or bonus equal to five shillings in the pound upon the principal moneys had been made good, and thirdly for ten years after 31st March 1897 by carrying the remaining twenty-five per cent to a reserve fund.
When in the events that should happen there should be profits not absorbed by these requirements, they might be dealt with in any manner allowed by the articles of association.
The scheme of arrangement provided that the principal moneys payable to the Government and the principal moneys secured by the stock should become payable in either of two events. The first is a compound event consisting of the Bank's making default for a period of six months in the payment of any interest payable upon such principal moneys and the Government or the holders of stock of an amount equal to two-thirds of the stock then unredeemed giving a notice in writing calling up the principal moneys. The second event is an order or resolution for winding up. But the Bank was given a right after the expiration of five years to pay off the Government debt, or portions of it not less than �25,000 at one time, before the time of payment; and it was given an analogous right to redeem the stock. The right to redeem the stock could not arise until the Government debt had been repaid, twenty shillings in the pound and interest. When that had been done, the Bank might give to the stockholders or any of them six months' notice of its intention to redeem the stock held by them or any portion thereof. The redemption had to be at market value, but at not less than its par value, together with five shillings in the pound upon the amount of the principal moneys secured or represented by the securities in exchange for which the stock redeemed was allotted, or so much of such five shillings as had not been previously paid out of profits. The stockholder was required to surrender the amount of the stock to be cancelled, and to deliver up his stock certificates and, thereupon, the Bank, having given notice, was obliged to pay him the redemption money. The surrender of the stock, the delivery of the certificate, and the payment were all to take place at the office of the Bank where the
stock was registered. The scheme of arrangement contained elaborate provisions entitling holders of the stock to representation upon the Bank's directorate. These provisions applied so long as stock remained unredeemed to the amount of �500,000 at least. On the board of directors in London the stockholders were to have one director and on the board in Brisbane three directors out of five. The stockholders were to receive notice of meetings at which directors were to be elected and they were to be entitled to attend in person or by proxy. Proxies were to be deposited at the Bank's office at the place of registry and particulars of the proxies were to be telegraphed to Brisbane for the meeting. The number of votes to which holders of stock were to be entitled varied with the amount of stock held--one vote for an amount of stock not less than �500, two votes for an amount not less than �2,000, three votes for an amount not less than �5,000, four votes for an amount exceeding �5,000 (sic).
It may not be immaterial to add that the scheme expressly incorporated the provisions of the Queensland statute authorizing the Government to agree on a deferment of its debt.
Of the provisions contained in the schedule to the scheme of arrangement that most important for the purposes of the question to be decided is no doubt the clause authorizing the registered holder of stock to transfer his stock from one register to another. Upon an application in writing addressed to the manager at the office of the Bank where the stock was registered the holder might require that the registration of such stock should at his cost and expense be transferred to the register kept at any other office and upon the transfer being effected it must be deemed to be registered at such last mentioned office.
The schedule prescribes the form of certificate, the contents of which have been already stated. The mode of transfer is also prescribed, and of course it must be registered at the place where the stock is registered. The addresses of stockholders were to be entered on the register as well as the particulars of the stock and the date of registry. Interest might be paid by cheque or warrant sent through the post to the registered address. The cheque or warrant was to be made payable to the order of the stockholder and payment of the cheque or warrant, if duly indorsed by the stockholder, was to be a good discharge to the Bank.
After the second scheme of arrangement took effect the Bank continued to carry on the business of banking until 31st October 1947, when a voluntary liquidation commenced in consequence of an agreement under which the Bank was taken over by the National
Bank of Australasia, the appellant. The whole of the moneys owing under the scheme of arrangement to the Government of Queensland were repaid before the year 1919, a course to which the Government consented under a further agreement. Between the years 1900 and 1918 the Bank repaid to stockholders an amount of five shillings upon the face value of the stock issued being the amount payable out of 50% of the profits and representing the five shillings in the pound of the amount of the deposit receipts &c. under the earlier scheme not covered by the interminable inscribed deposit stock issued up to fifteen shillings in the pound of that amount. The Bank also purchased and cancelled amounts of stock of a par value of �376,770 on Australian registries and �180,765 on the London registry. The result was that �2,559,086 of stock remained outstanding at the commencement of the winding up. During the period since the issue of the stock, transfers from London to Australia of �754,662 of stock had taken place, and from Australia to London of �731,720. This made the amount of stock on the London register �1,829,817 and that upon the Australian registers �729,269, making the aggregate outstanding which has already been given.
Upon the foregoing facts a variety of answers has been put forward to the question which pound, the �A or the � stg. alias the �E, provides the money of account, or money of contract, which measures the substance of the obligations evidenced or established by the stock.
I have formed the conclusion that the basis of the scheme of arrangement was a tacit assumption that stock upon the English register would be governed by English law and the English financial and monetary system, while stock on the Australian registers would be governed by the laws of the two Australian colonies concerned, predominantly that of Queensland, and their financial and monetary systems.
There was, of course, in 1897 no material difference in the content of the law and no difference in the money of account. But there were distinct countries with governments whose powers might have been exercised independently in such a way as to create a difference that might be important. I think that the proper inference is that the obligations of stock upon the English register was identified with England and that upon the Australian registers with Australia or, as it would be regarded at that date, with the two colonies. This is, I think, the conclusion to be drawn from the history of the liabilities dealt with by the scheme of arrangement and from the nature and terms of that transaction.
The liabilities incurred by the Bank when before 1893 it sought fixed deposits in Great Britain and Ireland were liabilities to depositors who clearly must have lent their money on the footing that it was an English banking transaction governed by English law and expressed in English, money because it was the money of the country. Deposits obtained in Australia would correspondingly be regarded as governed by Queensland law, or New South Wales law, as the case may be, and as expressed in pounds because they were the money of the country. The scheme of arrangement of 1893 did not destroy or impair the identity or continuity of any of these liabilities. It did no more than defer them and provide a fresh form of security or securities to evidence them. It is no doubt true that the orders made in the three jurisdictions by which the scheme was sanctioned bound respectively the creditors whose debts were governed by the law of England, of Queensland or of New South Wales, as the case might be, as the proper law of the obligation.
No doubt it is also true that the primary order was that made in Queensland and that the deferment of the debts was interdependent with provisions relating to the rights of shareholders and to the Government debt and other matters intimately connected with Queensland. But these are not considerations which detract from the correctness of the view that the liabilities incurred by the branch in England were English debts belonging to the English monetary and legal system. Indeed it was for this very reason that the English order of confirmation was an indispensable necessity.
The scheme of arrangement of 1897 took the liabilities secured by the deposit receipts, negotiable deposit receipts and inscribed stock under the earlier scheme and replaced them with interminable inscribed deposit stock of an amount equal to 75% of the amount of the liabilities and added a right to recoupment of 25% of that amount out of profits. In replacing them the scheme provided for the keeping of registers at the offices of the Bank in London, Brisbane and Sydney, as the case might be, where the former securities were payable in respect of which the stock was allotted; and it is implicit in the scheme that the new interminable inscribed deposit stock should at its inception be allotted from and registered in London where it replaced English deposit receipts, negotiable deposit receipts and inscribed stock and in Australia, where it replaced Australian deposit receipts and negotiable deposit receipts. There was thus continued a concursus of debts in England and a concursus of debts in Australia. As perhaps might be expected
with interminable stock the question of the place where principal is to be repaid is not dealt with very explicitly. But there is a definite provision that interest shall be payable half-yearly at the respective offices of the Bank in Queensland, Sydney and London. It is followed by a reference to the bonus out of half-yearly profits (scil.up to 25% in the pound) which appears to me to import that the same rule should apply to that payment. Another provision deals with two of the events upon which the interminable stock might become repayable, viz., default in interest and winding up. In the former case the stockholders may "call in" the principal moneys. The third event, notice by the Bank of redemption, is dealt with by a clause which requires the stockholder to surrender his stock and deliver up the certificate at the office of the Bank where the stock is registered: "Thereupon" the Bank must pay him the redemption money. All this points to the same conclusion, namely, that principal is payable in the same place as interest. It is proper to add that the schedule contains a provision for paying interest by sending a cheque or warrant through the post to the stockholder's registered address. But such a provision imposes no duty to pay elsewhere than the office of the Bank otherwise specified; it gives an alternative mode of performance, and in any case it contemplates pretty plainly the sending out of the cheques and warrants from the same office or branch. In a case like this, where there is what has become an ambiguous nomination of currency as the money of account or of contract and there is an optional means of changing the place of payment, great care must be exercised in using the place of payment as a consideration supporting an inference that the substance of the obligation is to be measured in the money of the same place. The matter is discussed to some extent in Goldsbrough Mort & Co. Ltd. v. Hall [21] , at pp. 155, 156, by FullagarJ., and Dr. Mann goes as far as to say that it can be of no avail where there exist two or more places of payment whose units of account bear the same name: Dr. F. A. Mann, The Legal Aspect of Money(1938), p. 167. But I think that it still remains a consideration to be taken into account as favouring the conclusion, to be weighed with other considerations, and against it weighing the general a priori improbability of its being intended that the quantum of the obligation should be measured in alternative moneys of account according to the place of performance. Where there is no alternative place of payment wisdom can be seen in the view that a reference to money which was or has become ambiguous, as may well be the case where pounds, dollars or francs
are named, should be understood prima facie as meaning the money of the place of payment. "As a matter of fact, if not of law, it is reasonable to interpret an ambiguous currency stipulation in terms of the currency of the place of payment, because if one promises to pay dollars in New York, one naturally thinks of United States currency, even though the contract was perhaps made in and had other important contacts with Canada.": Prof. Nussbaum, Money in the Law, p. 377. This view does not, I think, involve the now familiar confusion between the money in which payment is actually made and the money in which the obligation is measured. It does no more than give effect to the probability that the parties to a transaction would regard the money of the place of payment as fulfilling both purposes. When there are means by which the country of payment may be changed by the payee the inference may be weakened but whether it is weakened to the point of being altogether invalid must depend upon circumstances.
In the present case I think the place of payment combines with the history of the liabilities and the character of the transaction as a scheme of arrangement to strengthen the inference that it was not intended that the rights of the London depositors should cease to be measured by the English pound as part of the monetary system of Great Britain. But the existence of the right of the holders of the interminable inscribed deposit stock to transfer their stock from one register to another is a very definite reason for caution, if not hesitation, in drawing the inference. Nevertheless it is a reason which to my mind is insufficient to overcome first the strong improbability of depositors with a bank in London, even though a branch bank, relying upon any other monetary system than that of Great Britain as the system determining the content of the obligation, whether in making the original deposits or in a consideration of any scheme of arrangement concerning repayment of the deposits, and secondly, the unfairness of treating the scheme of arrangement as meaning to produce a contrary result, obtaining, as it does, its binding force from the sanction of the Court and not from contract. It must be remembered that upon holders of English deposit receipts, negotiable deposit receipts and inscribed stock the scheme obtained its binding force from the order of an English court under English law. Further, it may be asked, was not interest to be calculated in sterling on their stock? Why should they suppose that principal was not to be paid in sterling? Two views have been put forward as to the manner in which some or all of the foregoing considerations should
apply. One, and it is that adopted by Macrossan C.J., distinguishes between the interminable inscribed deposit stock sounding in English money and that sounding in Australian money according to the place of origin of the obligation now represented by the stock. That involves tracing the history of the dealings in the stock or anterior deposit receipts &c. back beyond the first scheme. The other course is to make the distinction according to the place of registry at the date when the winding up commenced. I prefer the latter view. It appears to me that the whole series of transactions recognized the existence of the three jurisdictions involved, that is, England, Queensland and New South Wales, and the existence within, at all events, the two main jurisdictions of different bodies of creditors. It recognized that the need for the separate registers grew out of this fact. By the registers the stockholders of each jurisdiction were identified and recorded. But it was seen that it might be convenient for individual stockholders to change from one jurisdiction to another and it was thought not to matter, because no one foresaw that during the currency of the stock Great Britain and Australia would leave the gold standard and the monetary systems would widely diverge. It must be borne in mind that not only did the two monetary systems or potential monetary systems look like one indissoluble system but the stock was interminable. Apart from default or winding up, the question could not arise unless the Bank itself choose to raise it by giving a notice of redemption. I think that the better view is that the register was designed to determine the jurisdiction to which the stock belonged and that the right to transfer from one to another register was added as a matter of convenience otherwise of consequence, not that the right of transfer was an essential feature inconsistent with the intention which in its absence would be imputed. I am of opinion that this is the unusual case of two classes of obligations, otherwise uniform in present character, belonging to two different monetary systems, and therefore possessing two different moneys of account, with a means available to a payee of transferring the liability to him from one to the other class. It may be remarked that in the event the net result of the use actually made of the right of transfer has not been to the disadvantage of the Bank as the figures already given show.
Of the views contrary to that I have adopted that which chiefly requires consideration is that the whole scheme of arrangement is based upon the sanction of the Queensland Court and upon Queensland as the actual or potential source of the monetary system with which the transaction was associated and upon which it depended.
In support of this view emphasis is placed on the primary or original character of the Queensland Court's sanction, on the description of the scheme in the English order as one so sanctioned, on the similar description of the stock in the stock certificates, on the fact that the Banking Company was incorporated and domiciled in Queensland, on the place occupied by the debt to the Queensland Government in the transaction and the resort in connection therewith to Queensland statute, and on the operation of the scheme on share capital, necessarily a thing governed by Queensland law. My answer to these considerations, considerations which were fully developed by counsel in the argument of the appeal, is briefly that while they show a close connection between the scheme of arrangement and Queensland they are consistent with a recognition by the scheme of arrangement itself of the fact that a most important part of the liabilities with which it dealt consisted of English obligations to be discharged in England and to be dealt with by English law and by reference to the English monetary system and with a further recognition of the propriety, if not necessity, of carrying them over on that footing and that that is what the scheme did. But in further support of the view that Queensland was the source of the transaction and provided the monetary system which should now make the Australian pound the money of account, it was said that the nature of the transaction was such that there could only be one money of account for all the stock. Reliance for this contention was placed upon the provision relating to percentages of profit as a source of payment of the 25% both in the case of the Government debt and in the case of that satisfied by the allocation of stock representing 75% of the deposit receipts &c. and upon the provisions for the election of directors by stockholders possessing a voting strength varying with the amount of stock held. It was urged that these provisions were unworkable unless there was one uniform money of account. This contention appears to me to be fallacious. I am unable to see why any conversion would be necessary to arrive at the voting strength. It appears to me that it is not. To arrive at profits from all sources for an Australian profit and loss account conversion of � stg. would be necessary whatever view is taken of the question under decision. But that having been done I am unable to see why, in order to find how 50% or 75% of the profits are to be applied, any difficulty should be caused because some of the creditors are to be paid with a premium on exchange. It only means that they cannot
be paid off in full until the prescribed proportion of profit provides more money.
For the reasons I have given I am of opinion that the stock on the English register at the date of winding up is to be paid according to its face value in sterling. Otherwise the stock is to be paid in �A according to its face value.
The questions submitted to the Supreme Court by the liquidator should be answered as follows:--Questions 1, 2 and 6, In English currency; Questions 3, 4 and 5, In Australian currency. Question 7 asks as to the date when the rate of exchange should be taken for the purpose of ascertaining the equivalent in Australian money for the liability to stockholders payable in sterling. I agree in the answer given in the Supreme Court, which was not attacked, viz., the date of the commencement of the winding up.
I think that the appeal should be allowed as to question 4 and otherwise dismissed and the cross-appeal should be allowed. The order of the Supreme Court should be varied in respect of the answers to the second and fourth questions by the substitution in the answer to the second question of the word "English" for the word "Australian" and the substitution in the answer to the fourth question of the word "Australian" for the word "English". As the appellant is the only shareholder it seems immaterial whether the order providing for the costs of the appeal is that the appellant pays the costs of the appeal or that the costs of all parties be paid by the liquidator out of the assets. Apart from the position of the appellant as the only shareholder, the latter is the order which I would make.
WILLIAMS J. The material facts and portions of documents and the nature of the appeal and cross-appeal appear in previous judgments, so that I shall only refer to those details which are essential to these reasons. On 15th May 1893, the date upon which the Queensland National Bank Ltd. suspended payment, the amount due to the Government of Queensland was �2,360,000 and to depositors in respect of fixed deposits at interest in Queensland �1,860,628, in New South Wales �110,322, and in London �2,897,619. The New South Wales deposits consisted of moneys lent to the bank at its branch in Sydney and the London deposits of moneys lent to the bank at its branch in London. The moneys were primarily repayable only at these branches respectively, and were locally situate in New South Wales and England: R. v. Lovitt [22] ; Clare & Co. v. Dresdner Bank [23] , at p. 578; N. Joachimson v.
Swiss Bank Corporation [24] , at p. 127; Richardson v. Richardson [25] ; Isaacs v. Barclays Bank Ltd. [26] ; Melville Island Ltd. v. Richards [27] . It is clear, therefore, that the original obligation to repay the moneys deposited in New South Wales and England was an obligation to repay them with any interest payable thereon in the currencies of New South Wales and England respectively.
Under the old scheme of arrangement sanctioned by the courts of Queensland, New South Wales and England in 1893, the depositors, except a few who preferred to accept negotiable deposit receipts payable to bearer or inscribed deposit stock, received twelve deposit receipts each for one-twelfth of the balance of principal moneys then due to them by the bank, the first of such deposit receipts to become payable at the expiration of six years from the time when the scheme was sanctioned by the Supreme Court of Queensland and the remaining eleven at intervals of six calendar months. The old scheme provided for the payment of interest on the postponed debts and also provided that "all payments of principal and interest shall be made at the places where the same are now payable". Under the old scheme, therefore, it is also clear that the obligation to repay the amounts of the deposit receipts payable at the Sydney and London branches of the bank and to pay interest thereon was an obligation to make these payments in the currencies of New South Wales and England respectively.
In 1897 the old scheme of arrangement was replaced by the new scheme of arrangement, also sanctioned by the courts of Queensland, New South Wales and England. Under this scheme five shillings in the pound of the indebtedness to depositors was to be paid out of the profits arising from the business of the bank as therein provided, and the balance, fifteen shillings, was to be satisfied and discharged by the allotment of a new form of stock to be created by the bank called "Interminable Inscribed Deposit Stock". The new scheme provided for the keeping by the bank of registers of stock at its head office in Brisbane and at its branch offices in Queensland, Sydney or London (as the case might be) at which the securities (that is, the securities under the old scheme) in exchange for which such stock was allotted were at the time of such allotment payable or at the office of the bank to which such stock might be transferred in manner thereinafter provided. It provided that the registered holder of any stock might require
the registration of his stock at his own cost and expense to be transferred to the register kept at any other office of the bank and that, upon such transfer being effected, the stock should be deemed to be registered at the last-mentioned office. It also provided that every certificate of stock registered at head office should be given under the seal of the bank, and every certificate of stock registered at the London office should be given under the duplicate seal of the bank, and every certificate of stock registered at any other office should be signed by the manager and countersigned by the accountant of the branch of the bank at the office at which such stock was so registered. It also provided that interest on the stock should be payable half-yearly on 30th September and 31st March in each year at the respective offices of the bank in Queensland, Sydney and London at which such stock was registered.
The new stock was, as the title indicates, interminable in the sense that the capital moneys did not become repayable on any fixed date, and only became repayable in three events (1) if an order was made or an effective resolution passed for the winding up of the bank; (2) if the bank made default for a period of six months in the payment of any interest on the principal moneys payable to the Government of Queensland or to the stockholders, and if, after such default, the Government or registered holders of stock to an amount equal to two-thirds of the stock for the time being unredeemed, calculated at its par value, by notice in writing to the bank, called in such principal moneys; (3) the bank in accordance with the provisions of the scheme exercised its right on six-months' notice to redeem the stock held by any registered holders or any part thereof.
The new scheme did not expressly provide any place for repayment of principal except upon a redemption. It did, however, provide that interest on the stock and all other moneys payable in respect thereof (which I interpret to mean in respect of the stock) might be paid by cheque or warrant sent through the post to the registered address of the holder, that every cheque or warrant should be made payable to the order of the person to whom it was sent, and that the payment of the cheque or warrant, if duly indorsed, should be a satisfaction of the interest and other moneys as aforesaid and a good discharge to the bank therefor. Since interest was payable at the respective offices of the bank in Queensland, Sydney and London at which the stock was registered, it seems to me necessarily to follow that a cheque or warrant in payment of interest would also be payable at the head office or
branch of the bank at which the stock was registered, and also necessarily to follow that a cheque or warrant in respect of any other moneys payable in respect of the stock, whether on account of principal or in respect of the 5/- payable out of profits would be similarly payable. Further, the right to redeem the stock or any part of it on six-months' notice was a right to redeem the stock at its market value, but not less than its par value, and in this event the new scheme provided that at the expiration of the notice the stockholder to whom notice had been given should be bound to surrender the amount of his stock to the bank to be cancelled and deliver up his certificate of stock for cancellation and the bank should thereupon pay the redemption moneys to the registered holder of this stock, together with all interest for the time being due in respect of such stock, and that "such surrender delivery and payment shall be made at the office of the bank at which such stock is registered".
The sum at which the stock might be redeemed was the market or par value whichever was the higher, and the market value intended must surely have been the market value at the place where the stock was registered, measured in the currency of that place, and the comparison between the market value and the par value intended must also surely have been a comparison between the two values in the same currency. It would be capricious in the extreme to attribute to the new scheme an intention that the amount of interest which the bank was obliged to pay during the life of the stock and the amount of capital which it was obliged to pay to redeem the stock should be measured by the currency of the place where the interest was payable and redemption took place, whereas some different measure of obligation should be applied to the repayment of capital upon a winding up or upon default in payment of interest. The new scheme was of course sanctioned by the courts when, in the words of Lord Simondsin Bonython's Case [28] , at p. 497, "a divergence in the value of the Queensland pound and the English pound was in the contemplation of nobody". Now there is an effective resolution for the voluntary winding up of the bank, passed on 30th October 1947. That resolution caused the principal moneys to become immediately repayable, and there was on that date a considerable divergence in the value of the Australian pound and the English pound, and it becomes important to determine which money of account is the proper money in which to measure the obligation
of the bank to repay the principal to the stockholders registered in London and Australia.
The obligations of the bank to its creditors do not depend upon contract. They arise out of orders of the Courts in Queensland, New South Wales and England made in the exercise of statutory powers which authorized them in the exercise of their discretion to impose upon the creditors and contributories of the bank, with the sanction of the prescribed majority of creditors, new rights and obligations in lieu of those previously existing: Re Garner Motors, Ltd. [29] ; Re Oceanic Steam Navigation Co. Ltd. [30] . But these new rights and obligations once imposed were not in any material respect different in their operation and effect from contractual rights, and in my opinion the questions at issue fall to be determined in accordance with the principles referred to in the many cases culminating in Bonython's Case [31] , at p. 500 dealing with similar problems. These cases decide that the substance of the obligation must be determined in somewhat the same way as the proper law of the contract is ascertained, namely, by finding what is the monetary system or monetary area with which the obligation is most closely connected, what is that which the parties must be taken to have relied upon and contemplated as affording the means of measuring the obligation, or, as Lord Simondssaid, "to relate the general question to the particular problem, within the framework of what monetary or financial system should the instrument be construed? Upon the assumption that express reference is made to none (as in the present case), the question becomes a matter of implication to be derived from all the circumstances of the transaction". "In the consideration of ... what is the proper law of the contract, and therefore of what is the substance of the obligation created by it, it is a factor and sometimes a decisive one that a particular place is chosen for performance."
The present case is, in my opinion, one in which the factor that particular places are chosen for performance is the decisive factor. It is clear that at the crucial date (that is, when the new scheme came into operation in 1897) the obligations of the bank were measured by different monetary systems according to whether the debts to the depositors were repayable in London, New South Wales or Queensland. Those monetary systems then were, as Lord Simonds said, similar in the sense that the same nomenclature, pounds, shillings and pence was used to describe their units of value. But they depended upon different law-making powers, so
that, although those values were then substantially the same, they were capable of variation, and, as pointed out in Bonython's Case [32] , those values did change, so that at the date of liquidation �E100 had the same value as �A125.
Apart from the provisions by which stockholders were entitled to transfer stock from one register to another, I would feel little doubt that it was intended in the new scheme that the obligation to pay the interest and principal of stock on the Queensland and Sydney registers should be measured in Queensland and New South Wales currencies respectively, and the obligation to pay the interest and principal of stock on the London register should be measured in English currency. This was the substance of the obligation created by the original deposit of the moneys and continued by the provisions of the old scheme. It is important to remember that the debtor is a bank and that the indebtedness of the bank at its head office and its separate branches is primarily the indebtedness of separate entities although the debt can finally be recovered from the bank at whatever office it is incurred. At the time the new scheme came into operation therefore the bank had commitments with its depositors within the framework of three monetary systems, the contracts with the depositors fell into three classes, and there were three systems of law depending upon localities with reference to which the contracts were made and with all of which a portion of the transactions had their closest and most real connection. It was in these circumstances that the new scheme of arrangement was confirmed by the courts, each court having jurisdiction under the laws of one of these localities. Accordingly the contracts for the repayment of the original debts to the depositors, the substituted mode of repayment under the old scheme of arrangement, and the fresh arrangement under the new scheme were all entered into with respect to these separate monetary systems and contemplated payments to be made the value of which was to be measured by the value of the money of payment in the place where the obligation was to be performed. The provisions of the new scheme construed in the light of these circumstances appear to me to point and point decisively to the conclusion that the implication to be derived from all the circumstances of the transaction is that the place of payment was intended to govern the substance of the obligation, and that stockholders were to be entitled to have the obligations of the bank to pay interest and principal measured in the currency of the place of payment.
MacrossanC.J. was of opinion that "the money of account applicable to the discharge of the obligation of the bank to pay the principal moneys secured or represented by the stock issued under the new scheme of arrangement should be in the case of stock originally issued and registered in London, English money, and in the case of stock originally issued and registered on an Australian register, Australian money, and that any subsequent changes of the place of registration of the stock should have no effect on the determination of the money of account applicable to the payment of the principal moneys secured or represented by the stock".
With this opinion I am in substantial agreement, for I agree that all creditors whose deposits were repayable in London under the old scheme and who received stock on the London register under the new scheme and remained on the London register are entitled to have the obligations of the bank measured in English money. But I think that the scheme went further and intended that stockholders should have the option of changing from one monetary system to another. The stock was originally allotted to customers of the bank, and it was apparently contemplated that these customers might wish to transfer their stock from one office of the bank to another in furtherance of their financial arrangements with the bank or as a means of selling it in the best market. At the date of the new scheme the value of the currencies of each monetary system was substantially the same, so that this transfer of indebtedness was of no pecuniary moment to the bank. The new scheme provided that the change of registration should be effected at the cost and expense of the registered holder of the stock and the practice of the bank, rightly in my opinion, was to issue a new certificate each time the registration was changed. There may be inconsistencies in the provisions relating to the offices at which stock might be registered. In the first part of the scheme it is provided that interest on the stock shall be payable at the respective offices of the bank in Queensland, Sydney and London at which such stock is registered and this provision connotes that registers shall only be kept in these three localities. The provisions of the second part of the scheme are open to the construction that registers might be kept at branches of the bank subsequently opened in other countries (one was in fact kept in a branch opened in Melbourne). But the provisions of the first part are clear and precise whereas those of the second part are somewhat ambiguous, and it appears to me that, reading them together, it was intended to confine the registers to the
offices of the bank in Queensland, Sydney and London. The express provisions that upon a change of registration interest and principal upon redemption shall become payable from a different office appear to me to indicate that this change was intended to change the obligation to pay the interest and principal from the currency of the existing to that of the new place of registration.
It was contended for the appellant that the substance of the obligation was to pay interest and principal in the currency of Queensland or its equivalent value from time to time in the currency of any place of payment outside Queensland. But I cannot accept this contention. Under the old scheme each creditor acquired rights against the bank quite separate and distinct from the rights of any other creditor. Under the new scheme the rights of the creditors were made in several respects dependent upon the actions of the other creditors. The principal moneys secured or represented by the stock did not become payable if the bank made default for a period of six months in payment of interest but only if after default the Government of Queensland or registered holders of stock to an amount equal to two-thirds of the stock for the time being unredeemed calculated at its par value by notice in writing to the bank called in such principal moneys. So long as stock to the value of �500,000 was unredeemed, holders of stock were entitled to appoint three out of five directors of the board of the bank in Brisbane and one member of the London board for which purpose they were entitled to one vote provided they held an amount of not less than �500 and up to four votes if they held greater amounts. There was also the provision for the distribution of portion of the profits of the business of the bank ratably amongst the registered holders of stock until five shillings in the pound had been paid. There was also the circumstance that the arrangements for the payment of the debt to the Government of Queensland made pursuant to The Queensland National Bank, Limited (Agreement) Act of 1896 were included in the scheme. It was submitted for the appellant that all these circumstances showed that there should only be one money of account, namely Queensland money, otherwise the new scheme would be unworkable. They are all circumstances to which due weight must be given. But they are not, in my opinion, comparable in weight to the matters to which I have adverted, and it is not difficult to imply in the circumstances existing in 1897 that it was intended that for all purposes of voting, ratable distribution of profits, change of registration from one office to another and such
like, the stock should be taken at its nominal value. The interest and principal and other moneys payable in respect of the debt to the Government of Queensland were plainly intended to be repayable in Queensland currency, and the fact that the Government was included in the new scheme does not appear to me to throw any real light on the substance of the obligation to the stockholders.
For these reasons I am of opinion that the appeal should be allowed as to question 4 and otherwise dismissed, the cross-appeal allowed, and the questions for the Court answered as suggested by DixonJ.
WEBBJ. I think Bonython's Case [33] is distinguishable. There the Queensland Government borrowed money under the authority of a Queensland statute, and because the borrower was the Queensland Government acting under the authority of a Queensland statute, it was held that the loan contracts which resulted were within the framework of the Queensland monetary system. There had never been any monetary system in operation under those loan contracts other than the Queensland system. There were loan registers in Queensland, and elsewhere in Australia, and in London, and transfers could be made from one register to another; but as there was only one monetary system, i.e., the Queensland system, the money of account was always Queensland money; although the money of payment in London was English.
This case is different. The obligations which finally resulted in 1897 in interminable inscribed deposit stock originated in ordinary bank deposits in Queensland, New South Wales and England. These deposits were not moneys lent to a government under the authority of a statute; they were ordinary loan contracts, Queensland, New South Wales and English, within the framework of the Queensland, New South Wales and English monetary systems, respectively. This position was not altered by the 1893 deed of arrangement. Under that arrangement the new deposit and negotiable deposit receipts and inscribed deposit stock were still within the framework of the three monetary systems, according to place of registry. And, in my opinion, no change of monetary systems was brought about by the 1897 deed of arrangement. As far as I can see the only provisions of the 1897 deed which might be taken to suggest the contrary are clauses 7 and 12 of Part 1; but I do not think that those clauses had the effect of eliminating the English and New South Wales monetary systems. In clause 7
provision was made that a percentage of a profits fund should be paid and distributed "ratably" among the stockholders; and by clause 12 voting for directors was based on the amount of stock held.
As to clause 7: when the 1897 deed of arrangement was sanctioned by the Queensland, New South Wales and English courts, and for many years before and after 1897, the currencies of Queensland, New South Wales and England were substantially the same; but still there were three monetary systems, as Bonython's Case [34] , decided. I see nothing to warrant the conclusion that any of the courts in sanctioning the 1897 deed intended by clauses 7 and 12 that the deed of arrangement should come within the framework of a single monetary system. The deed of arrangement did not provide for that, or for one or more money systems operating from time to time according to exchange fluctuations. It was to be expected that the courts, in giving their sanction to the deed of arrangement, would insist on a ratable distribution of the profits under clause 7: they could never approve of the directors being put in a position to discriminate in making the distribution. A ratable distribution ensured equal treatment of the stockholders. But equality of treatment might be defeated if all stockholders were brought under a single monetary system. In that event some stockholders might have received more or less than equality of treatment if the exchange position altered, perhaps at the whim of a government bank fixing exchange rates as a matter of policy. I do not think that any of the three courts subjected stockholders to that risk. Clause 7 is not inconsistent with a ratable distribution according to the nominal value of the stock after allowing for exchange.
As to clause 12: I think that it was intended that voting should be according to the nominal value of the stock, without regard to the exchange position at the time of voting. Voting power fluctuating with exchange rates would be unusual, if not impracticable. Moreover, the voting for directors for substantial periods should not, I think, be assumed to have been regulated according to the exchange position at the time of the voting.
The fact that the Queensland Government was a party to the schemes did not, I think, have the effect of substituting the Queensland monetary system for the English and New South Wales systems. The special provision for the payment of that Government's debt did not call for any change in that regard;
and I think that none can properly be implied in the absence of any need for it.
Then, as the registries of this interminable inscribed deposit stock in Queensland, New South Wales and England, were in countries with different monetary systems, a transfer of stock from one registry to another brought the stock within the monetary system of the country to which the transfer was made. The position would have been different if, as in Bonython's Case [35] , there had been only the one monetary system throughout.
I think then that all holders of stock on the English register at the date of commencement of the liquidation are entitled to be paid in English currency the nominal value of their stock; and that all holders of stock on the Australian registers at such date are entitled to be paid in Australian currency the nominal value of their stock.
The questions submitted by the liquidator should be answered accordingly.
I agree with the order proposed by DixonJ.
FULLAGAR J. The facts of this case are stated in full detail in other judgments, and it is not necessary for me to repeat them.
The Privy Council in Bonython v. The Commonwealth [36] has now approved of the principles adopted and applied by this Court in Bonython's Case [37] itself and in Goldsbrough Mort & Co. Ltd. v. Hall [38] . It may be taken, therefore, as settled that in cases of this class the question which arises is correctly propounded by asking whether the obligation of the debtor company is to be measured by reference to English pounds or Australian pounds, considered as two different moneys of account. The question is one of the substance of the obligation, and is to be answered as a matter of construction of the contract. The relevant law is, therefore, to be found in the proper law of the contract. In a case in which the possibly relevant monetary systems were different at the date of the making of the contract, the question would generally be a question of construction in the sense that it would depend on the interpretation of the actual language of the contract. Where, as here, the parties at the time of the making of the contract assumed that there was only one relevant monetary system, and the question arises only because that system appears, so to speak, to have divided itself into two before the date of performance arrived, the question is likely to be a question of construction in
the somewhat different (but very familiar) sense that what we are seeking is a presumptive intention to be gathered from the nature of the terms of the contract and the circumstances under which the parties contracted. In each class of case, however, the ultimate question will be as to the meaning of a word--the word "pounds" or "dollars" or "francs" or whatever it may be. "The actual intention of the parties, if expressed, is prima facie decisive of the question. In all cases it is a question of the intention, actual or presumed, of the parties" (Bonython v. The Commonwealth [39] , per LathamC.J.).
There is a presumption that the money of account intended is the money of the place of payment. But the presumption may be of greater or less weight according to the circumstances of the particular case, and in some cases it may have no weight at all. In particular, the presumption is likely to have little or no weight where alternative places of payment are stated or provided for in the contract. This is because it is prima facie likely that the parties had in mind only one money of account, by reference to which they contracted. An option of place of payment may be given either to creditor or to debtor, and it is unlikely that either party would intend the other to have power to determine ex mero motu the extent or substance of the obligation. The presumption that the money of account intended is the money of the place of payment is, so to speak, counterbalanced by another presumption. This is not, of course, to say that there can never be two moneys of account, either of which may, at the option of one party, exercised by direct or indirect nomination of the place of payment or by some other means, provide the measure of the obligation. But, when nothing more appears than that one party has an option as to place of payment, I would certainly think that there was no justification for saying that alternative moneys of account were intended. In other words, it is, in my opinion, true to say that an option de placeis prima facie an option de placeonly and not an option de change. I respectfully agree with what DixonJ. said in Bonython v. The Commonwealth [40] . His Honour said: "Options of place are given for the convenience of the payee who may thus obtain the money where he desires and in the form appropriate to the place. They are not directed to a different quantification of the substance of the obligation. Something much more definite is needed to warrant an interpretation ascribing an intention to the parties that there shall be alternative moneys of account for the measurement of the obligation." Parallel considerations will, of
course, apply where the option is given to the debtor. In this connection it is, of course, very important to observe what is said by their Lordships in Bonython v. The Commonwealth [41] with reference to City of Auckland v. Alliance Assurance Co. Ltd. [42] .
In the present case no option of place of payment as such is given by the contract either to debtor or to creditor. But stockholders are given a right of transfer from one register to another, and I do not think there can be any doubt that under the contract the place of payment to each stockholder is the place at which he is registered. I have felt some difficulty in the course of my consideration of the case, but in the end I have felt satisfied that this is a case in which the place of registration determines not only the money of payment but the money of account by reference to which the obligation of the debtor to each of its creditors is to be measured. I think that "something much more definite" appears here than the mere fact that the creditor has been able by his own act to determine the place of payment.
In considering this case the first thing to observe is, I think, that there is not here one obligation between a single debtor and a single creditor, but a large number of obligations between one debtor and each of many creditors. Although each contract embodies a common set of conditions, there is a separate contract in each case. The ultimate question in the present case is not, therefore, answered by saying that the word "pounds" must have one and the same meaning for all the purposes of one instrument. Here there are many instruments, each evidencing a separate contract.
The next correct step is, I think, taken when one observes that the institution of the second "scheme" did not create something out of nothing but substituted a new obligation for an old obligation which had subsisted between the same parties. It is necessary, therefore, to proceed step by step. In this connection it will be helpful to bear in mind that in Bonython's Case [43] , at p. 496 their Lordships said:--"Too much emphasis should not be laid upon the fact that the money of account of Queensland and England was the same in 1895" (the relevant year here is approximately the same). At the relevant date the moneys of account were the same, as the statement of their Lordships recognizes, but it is useful to bear in mind that there were two legislatures, each of which had control over the currency of a territory for which it could make laws, and at any moment that control might be exercised by either in such
a way as to produce two moneys of account, which were not the less separate and distinct for that they denominated their fundamental unit of money of account by the same name, the name which had formerly denoted their common unit. If we bear this in mind, we can consider, without danger of confusion, the question of what was the money of account by reference to which the parties were contracting at each of the three stages of their contractual relations. We can suppose the question arising by reason of a "divergence" between the currencies immediately after the formation of the relevant contracts at each stage.
The vital features of this case are, to my mind, the facts that the original obligations of the company to its English depositors were English obligations governed by English law, and that the nature of those obligations was not changed either by the institution of the first "scheme" or by the institution of the second "scheme".
When the English deposits were originally made, the money of account relevant to the relation of debtor and creditor thereby created was obviously, I should think, English money of account. The money was English money lent in England by people in England, repayable in England, and the proper law of the contract between debtor and creditor was English. If, before the institution of the first scheme, a "divergence" had taken place between the money of England and the money of Queensland, there could have been no question but that the obligations of the company to its English depositors were to be measured in terms of an English money of account. This position could not in the least degree be affected by the fact that the company had many other separate and distinct monetary obligations which would have to be measured by the money of account of Queensland--or, for that matter, of Canada or New Zealand.
No change in this position was effected by the institution of the first scheme, which proved abortive.
Nor can I see any reason for supposing that any change in this position was effected initially by the institution of the second scheme. If, the instant after the institution of the second scheme by the initial registration of the stock, a divergence between the currencies had occurred, the position must have been held to be the same as it had been before. The content of the obligations was, of course, radically changed, but the company had had, and still had, three relevant sets of obligations, one to its Queensland depositors, one to its New South Wales depositors, and one to its English depositors. The proper law of the first set was the law
of Queensland, of the second set the law of New South Wales, and of the third set the law of England. The money of account, as well as the money of payment, was in the first case the money of Queensland, in the second case the money of New South Wales, and in the third case the money of England. It was because, and only because, some of the obligations of the company were governed by the laws of New South Wales and of England that it was necessary that the scheme should have the support of orders of competent courts in New South Wales and England as well as in Queensland. The order of each court gave sanction to the change in content of those obligations the proper law of which was the law administered by it. But each of the three sets of obligations remained subject to its original proper law, and the money of account in each case remained unchanged.
The position is thus seen to be radically different from that which subsisted after the adoption of the final "scheme" in Goldsbrough Mort & Co. Ltd. v. Hall [44] . There the scheme substituted a single obligation for a series of obligations. Whereas before the scheme there was a separate obligation between the company and each of a large number of creditors, the position after the scheme was that there was a single obligation binding the company to certain trustees in England. This was not perhaps necessarily decisive, because the trustees were trustees for stockholders who would expect to receive payment in various parts of the world, and, though the rights of those stockholders were rights against the trustees only, the fact that they existed might conceivably have thrown light on the question of the money or moneys of account by reference to which the company and the trustees were contracting. But, when it was found not only that a single obligation dischargeable in England was substituted for a number of obligations dischargeable in different places, but that the new single obligation was governed by an instrument which seemed to have been deliberately designed to rely for its binding force on the law of England and to depend for all purposes on the law of England, the conclusion seemed inevitable that for the future there was to be only one money of account and that that money of account was to be the money of England.
Up to this point I would regard the present case as reasonably clear. The considerations which I have mentioned seem to me to exclude the possibility that, as at the moment of the institution of the second scheme, a revolutionary change took place, by virtue of which there was a money of account common to all the relevant
obligations of the company, that money of account being the money of Queensland. The stock of the English creditors was originally entered in the London register, and the stock of the Australian creditors in the Australian registers. If there had been no transfer to or from the London register from or to an Australian register, the simple result would have been that the money of account as between the company and stockholders on the London register was English, while the money of account as between the company and stockholders on the Australian registers was Australian. In fact, however, although the aggregate amount of stock on the London register at the date of liquidation was not greatly different from what it was originally, there had been many transfers to and fro. It is at this point that the question which has caused me difficulty arises. There are, in my opinion, two, and only two, possible answers. One answer is to say that the obligations of the company in respect of stock originally placed on the London register are to be measured in English money, and its obligations in respect of all other stock in Australian money. The other answer is to say that the place of registration at the date of liquidation determines the money of account by reference to which the obligation of the company to each stockholder is to be measured. The first answer was given by Macrossan C.J., and it is, of course, a possible and logical answer. I am of opinion, however, that the second answer represents the presumptive intention which we are seeking, and that it is the correct answer.
For all present purposes it may be taken that there were originally two sets of obligations, for events have created a position in which we do not need to distinguish between Queensland creditors and New South Wales creditors. When the stock was originally registered that which was issued to English creditors was placed on the London register and that which was issued to Australian creditors was placed on the Australian registers. At this stage there was merely a preservation of the pre-existing position. The obligations to stockholders on the London register were English obligations, the place of payment to them was England, and the money of account was English. The obligations to stockholders on the Australian registers were Australian obligations, the places of payment were in Australia, and the money of account was Australian. If transfers of stock between the London and Australian registers had not been permissible, that position would have continued up to the date of liquidation. But in fact it was a condition of the issue of the stock that it should be freely transferrable between the London register and the Australian registers.
Each transfer involved a change in the place of payment, and I would think it ought also to be regarded as involving a change in the currency by reference to which the obligation was to be measured, a change in the relevant money of account.
It is perhaps a sufficient justification for this view to say that, in all the circumstances, there is nothing really substantial to rebut the presumption that, in the case of each stockholder, the money of account is the money of the place of payment. If there must (as, in my opinion, there must) be on any view two sets of obligations measured by two different moneys of account, the reasons which will in many cases serve to rebut or cancel out the presumption are at least greatly weakened. There is no great difficulty in this case in imagining the parties as intending that for the future the distinction between the two sets of obligations was to depend on place of payment, and, as I have said, I am clearly of opinion that, for the purposes of this case, place of payment is place of registration. But I think that the strictly correct view of this case is that an intention is to be inferred that place of registration as such is to determine the money of account. In other words, place of registration is significant not because it is the place of payment but simply because it is the place of registration. The fact that the place of registration is also the place of payment may serve to reinforce the conclusion as to what is the money of account, but the actually decisive factor is place of registration itself. Before the institution of the scheme there were those two sets of obligations. The distinction between them rested on the making of the original contract between company and depositor, the money of account being in the one case English and in the other Australian. It was, one would suppose, possible for a creditor in one set to change over, so to speak, into the other set. If, for example, an English creditor had emigrated to Queensland, he could (though not, I suppose, as a matter of right) have had his credit transferred into the Queensland books of the company. The transfer would be effected at the rate of exchange current at the time, and thenceforth there would be an Australian debt instead of an English debt. Nor need he, for that matter, have emigrated. When the scheme was inaugurated, the distinction between the two sets of obligations was preserved, but it depended now on the place of registration and not on the place of the making of a contract. When there was superadded a free right to transfer from one register to another, the only proper inference seems to me to be that what was really intended, or what must be presumed to have been intended, was that a stockholder
in either "set" should be at liberty to leave his own "set" and enter the other "set", and that, if he did so, the money of account thenceforth relevant to his contract should be the money of account relevant to the "set" which he was entering.
I agree with the form of order proposed by DixonJ., including the provision for costs.
Appeal allowed in respect of answer to Question 4 in originating summons. Answer to Question 4 amended by substituting "Australian" for "English" therein. Appeal otherwise dismissed.
Cross-appeal allowed. Answer to Question 2 amended by substituting "English" for "Australian" therein.
Costs of all parties of appeal and cross-appeal to be paid by respondent liquidator out of the assets of the Queensland National Bank Ltd.
Solicitors for the appellant, Thynne & Macartney, Brisbane, by Malleson, Stewart & Co.
Solicitors for the respondents, Henderson & Lahey, Brisbane, by Arthur Robinson & Co.; Crouch & Paterson, Brisbane; Flower & Hart, Brisbane, by Moule, Hamilton & Derham.
E.F.H.
[1] [1948] HCA 2; (1948) 75 C.L.R. 589
[2] [1948] HCA 2; (1948) 75 C.L.R. 589
[3] (1949) 78 C.L.R. 1
[4] (1949) 78 C.L.R. 1
[5] (1933) Ch. 373
[6] (1934) A.C. 122
[7] (1937) A.C. 587
[8] See p. 205 (post)
[9] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[10] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[11] (1937) A.C. 587
[12] [1948] HCA 2; (1948) 75 C.L.R. 589
[13] (1949) 78 C.L.R. 1
[14] [1948] HCA 2; (1948) 75 C.L.R. 589
[15] [1948] HCA 2; (1948) 75 C.L.R. 589
[16] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[17] [1948] HCA 2; (1948) 75 C.L.R. 589
[18] (1949) 78 C.L.R. 1
[19] [1948] VicLawRp 28; (1948) V.L.R. 145
[20] [1948] HCA 2; (1948) 75 C.L.R. 589
[21] [1948] VicLawRp 28; (1948) V.L.R. 145
[22] (1912) A.C. 212
[23] (1915) 2 K.B. 576
[24] (1921) 3 K.B. 110
[25] (1927) P. 228
[26] (1943) 169 L.T. 370
[27] (1933) 50 W.N. (N.S.W.) 41
[28] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[29] (1937) 1 All E.R. 671
[30] (1939) Ch. 41
[31] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[32] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[33] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[34] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[35] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[36] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[37] [1948] HCA 2; (1948) 75 C.L.R. 589
[38] (1949) 78 C.L.R. 1
[39] (1948) 75 C.L.R., at p. 602
[40] (1948) 75 C.L.R., at p. 623
[41] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[42] (1937) A.C. 587
[43] [1950] UKPCHCA 3; (1950) 81 C.L.R. 486
[44] (1949) 78 C.L.R. 1