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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> International Finance Corporation v DSNL Offshore Ltd & Ors [2005] EWHC 1844 (Comm) (08 August 2005) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2005/1844.html Cite as: [2005] EWHC 1844 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice St Dunstan's House 133-137 Fetter Lane London EC4A 1HD |
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B e f o r e :
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International Finance Corporation | Claimant | |
- and - | ||
DSNL Offshore Limited & Ors | Defendants |
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Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR KENNETH MCLEAN QC AND MR BAYFIELD (instructed by Herbert Smith) appeared on behalf of the Defendant.
MR A WINTER (instructed by Moon Beaver) appeared on behalf of KYE Limited.
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Crown Copyright ©
(2.05 pm)
MR JUSTICE COLMAN: Before I give the reasons for this decision, which I gave last week, I would like just to ask the parties whether they have received a copy of a faxed letter from Mr Mitchell of Grays Solicitors in York who are acting for the High Court Enforcement Officer?
MR BLACKWOOD: My Lord, we have, very recently indeed.
MR BAYFIELD: I am here for Chevron. We have not seen the fax.
MR WINTER: I am here for KYE, and we have not seen the fax.
MR JUSTICE COLMAN: I will get it copied and it will be given to you in the next few minutes.
The thing I would just like to say is this: I am grateful for the quick response to this suggestion which I made that the reasons for this decision should be given this afternoon. It seemed to me right that the parties should know at the earliest possible opportunity the route by which I arrived at the conclusions which were communicated on Friday, and the purpose of that, of course, is to enable them to take a considered view as to what, if anything, should further be decided. The reason was to enable them to take a considered view as to two things: firstly, whether there was already enough by way of decision to enable it to be decided whether this rig -- not rig, but these modules -- can be shipped out to Nigeria this week or next; and, secondly, if not, to be very precisely clear as to what further decision should be taken for that ultimate decision to be arrived at; that is to say, what further decision should be taken by me.
So these are the reasons for the decision, which was, I am afraid, only communicated to Clifford Chance, because I had not got any means at that time of communicating with Herbert Smith, or indeed anybody else, I then being at home on Friday morning.
Introduction
Title under the Main Contract and Contract Amendment No. 1:
"6. TITLE
"6.1 Where CONTRACTOR takes delivery of COMPANY provided items, title will remain vested in COMPANY, however, CONTRACTOR shall be solely responsible for the care, custody and control of such items and shall remain responsible for the risk of loss or damage of such items in accordance with Article 19.
"6.2 CONTRACTOR warrants good title to all Materials and tools provided by it, its subcontractors and their suppliers which become part of the Facilities or are purchased by COMPANY for the maintenance and/or construction thereof, and that such Materials and tools are free of all lien and retention of title claims from third parties. Other than as outlined in Article 6.1 above, title to all or a portion of the said Materials and tools shall pass to Group in proportion to their respective participating interest shares upon COMPANY's issuing of a Notice of Acceptance in accordance with Article 16, or upon termination or default in accordance with Article 15 whichever occurs first. However, CONTRACTOR shall retain care, custody and control of said Materials and tools and exercise due care thereof to protect them from loss and damage until COMPANY's issuance of such Notice of Acceptance or until termination of this Contract, whichever occurs first. Said transfer of title shall in now way affect COMPANY's right (including those which may be exercised by COMPANY on behalf of Group pursuant to the relevant provisions hereof) as set forth in other provisions of this Contract.
"6.3 All drawings, documents, engineering and other data prepared or furnished by CONTRACTOR in performing the Work shall become the property of COMPANY from the time of preparation and may be used by COMPANY for any purpose whatsoever without obligation or liability whatsoever to CONTRACTOR.
"6.4 Any portion of the Facility for which title has passed to COMPANY but which remains in the care and custody of CONTRACTOR or subcontractor, including any COMPANY provided items shall be clearly identified as being the property of COMPANY and shall be segregated from CONTRACTOR's property.
"6.5 For the purpose of protecting COMPANY's interest in all Materials and tools with respect to which title has passed to COMPANY but which remain in the possession of another party, CONTRACTOR shall take or cause to be taken all steps necessary under the laws of the appropriate jurisdiction(s) to protect COMPANY title thereto and interests therein and shall protect, defend and hold harmless Indemnities against claims by other parties with respect thereto.
"6.6 CONTRACTOR shall cause all conditions of this Article 6 to be inserted in all of its subcontracts and purchase orders so that COMPANY and CONTRACTOR shall have the rights set forth herein with respect to each subcontractor and supplier of any tier."
"Title in respect of all goods and materials listed in the Exhibit which are paid for by COMPANY shall pass to the COMPANY in accordance with the provision of Incoterms 2000 edition and CONTRACTOR shall in writing instruct SUPPLIERS to provide directly to COMPANY lien waiver certificates in the form stipulated by the COMPANY."
"The Parties shall ensure Solar receives stage payments properly due to it by CONTRACTOR agreeing that COMPANY shall make stage payments direct to Solar rather than the CONTRACTOR invoicing COMPANY and then CONTRACTOR making payments to Solar on receipt of funds from the COMPANY which would be the process in accordance with the current provisions of the Contract."
"OPERATIVE PROVISIONS
"In order to expedite processing of stage payments due to Company nominated Supplier, Solar, for the supply of turbine generators and pump sets, including design, procurement, assembly of components and delivery to UK work site under CONTRACTOR Purchase Order DSNL/4574/OI/SO/0501 dated 17th December 2003, both CONTRACTOR and COMPANY mutually agree that COMPANY shall make all applicable future stage payments directly to Solar under the following additional terms and conditions:
"1. Payments of invoices related to all future stage payments for the procurement of turbine generators and pump sets under the Purchase Order shall by made by COMPANY directly to Solar with effect from the date of this Amendment.
"2. Solar shall submit copy invoices to CONTRACTOR for Contractor Representative to confirm to COMPANY in writing that work performed and invoiced has been satisfactorily completed in accordance with the terms of the CONTRACTOR's Purchase Order.
"3. Payments of invoices to be made to Solar by the COMPANY shall not exceed a cumulative total sum of $11,243,915.00 (Eleven Million Two Hundred and Forty Three Thousand Nine Hundred and Fifteen Dollars) only. These payments shall be payable 100% in United States Dollars.
"4. Payments to Solar shall not be subject to the retention conditions of the Contract .
...
"7. Except as provided for in this Amendment No. 1, all other terms and conditions of the Contract and any addenda signed prior to the date of this Amendment shall remain in full force and effect save as varied by this Amendment No. 1. Nothing contained in this Amendment No. 1 shall represent any waived by the COMPANY of any of its rights against the CONTRACTOR under the contract."
Milestones 1 and 2 at 10 per cent each on 17th December 2005, the events being the issue by DSNL of the Purchase Order and the mailing by it of product mechanical installation drawings;
Milestone 3 at 30 per cent upon completion of engine assembly by Solar on 5th March 2004; and
Milestone 4 at 50 per cent upon Solar's notice of readiness for transportation/shipment of the entire Solar equipment on 30th June 2004, the latter for an amount of US$5,621,958.80.
"With reference to the above, as you are aware a national labour strike has occurred in Nigeria and this has compromised the ability of DSNL to make the requisite invoice payments to Solar Turbines in accordance with the terms of the DSNL Purchase Order with Solar Turbines and the CNL Worldwide Supplier Alliance Agreement.
"DSNL have already submitted to CNL invoices 9386 and 9384 for payment of Solar invoices 7552 and 7575 respectively.
"DSNL request CNL to make arrangements with Solar to pay Solar invoices 7552 and 7575 directly from CNL to Solar ... due to these in country difficulties that DSNL are encountering and to confirm to DSNL that this is acceptable to DSNL in order for us to raise the appropriate credit notes."
"Dear Sirs.
"We are in receipt of your letter, ref. DSNL/CNL/4574/L003 dated 26th January 2004, stating that you are unable to fulfil your contractual obligations, with regards to the two payments now due to Solar Turbines International, and requesting that Chevron Nigeria Ltd assist in this matter by making payment direct to Solar Turbines Ltd.
"Chevron Nigeria Ltd is willing to assist DSNL with this matter, but with the following provisos:
"1) The contract is amended to reflect that Chevron Nigeria Ltd will make all payments directly to Solar Turbines Ltd, relating to the supply of gas turbine generator and pump sets, as detailed in Purchase Order DSNL/4574/PO/SO/0501.
"2) The amendment is to be signed by a duly appointed Officer of DSNL and returned to CNL immediately.
"3) All original invoices (2 No) are forwarded to Mr Walid Masry immediately.
"4) DSNL to write to Solar Turbines International and inform them that Chevron Nigeria Ltd will be paying them.
"5) Credit Notes to be issued to CNL to cover KYE invoices 9386 and 9394.
"6) All future invoices received from Solar Turbines International are to be immediately forwarded to Mr Walid Masry.
"7) All other terms and conditions with effect to the contract between DSNL and Chevron Nigeria Ltd remain unchanged.
"Please find enclosed Amendment No. 1 for signing and return to the CNL head office in Leki as soon as possible to ensure that the payments to Solar Turbines are not unduly delayed."
"3.2 Items to be provided by COMPANY. Unless otherwise provided in this Contract, COMPANY shall not provide any items necessary for the completion of the Work. If company elects to provide labor, service, utilities, consumables, supplies, tools or equipment at CONTRACTOR's request COMPANY may invoice and CONTRACTOR shall pay for such at costs plus fifteen percent (15%)."
"5. Title in respect of all goods or materials listed in the Exhibit which are paid for by COMPANY shall pass to the COMPANY in accordance with the provision of Incoterms 2000 edition and CONTRACTOR shall in writing instruct SUPPLIERS to provide directly to COMPANY lien waiver certificates in the form stipulated by the COMPANY."
"The purpose and intent of this Contract Amendment 4 is identical to that of Contract Amendment 1, which was put in place solely to cover CNL making payments on behalf of KYE directly to Solar.
"As a general note, a number of the points raised by CNL request detailed information which is in excess of that reasonably required to administer this Contract Amendment.
"In each case, taking a step back from the minor details, the information provided demonstrates beyond any doubt that each of the Purchase Orders and Subcontracts are both bona fide associated with SOWIP and have been placed and accepted/acknowledged by the respective Vendors.
"CNL have consistently made the statement that 'CNL is unable to accept this Purchase Order and incorporate it into Contract Amendment No. 4 until the above has been provided.' We would remind CNL that the purpose of the Contract Amendment is simply to effect a direct payment mechanism. The copy POs are not provided for CNL's 'acceptance'. They are provided as evidence of placement and value."
Equitable Lien
(1) Under the terms of the Main Contract, DSNL undertook to provide all services, labour, supervision, consumables, personnel and materials needed to perform the Work, specifically, the detailed design of the facility, procurement of materials, construction, load-out, transportation, installation, hook-up and commissioning of the facility in accordance with Chevron's technical requirements and such additional drawings and explanations as Chevron might provide (Article 2.1). As such, the Main Contract was a contract for work and materials.
(2) It was the obligation of DSNL to construct the rig modules and to acquire from suppliers the equipment designed and constructed for that purpose, in some cases from Chevron's nominated subcontractor such as Solar. That equipment was specifically designed for the requirements of the SOWIP.
(3) Title to that equipment was passed by those suppliers to DSNL under the various purchase contracts such as Purchase Order No. 0501.
(4) As between DSNL and Chevron, DSNL obtained title to that equipment and materials for the purpose of building it into the rig modules, with the mutual intent that when the work had been completed and Chevron's final acceptance had been given, title would ultimately pass to Chevron.
(5) Chevron would pay for the equipment, materials and work required and/or provided by DSNL against monthly invoices under Article 8 or by means of ad hoc payments in respect of DSNL's purchase orders to its suppliers having a value of US$1 million or more. In relation to the materials and equipment covered by Purchase Order No. 0501, the payment system had been amended by Contract Amendment No. 1 as already described in this judgment and in relation to most of the subsequent materials and equipment by later contract amendments to the effect that Chevron would pay the suppliers direct. In most cases, however, except Contract No. 1, title was to pass to Chevron upon delivery by the supplier.
(6) The obtaining by DSNL of title to some of the equipment direct from its suppliers (specifically under Purchase Order 0501) and the retention of that title after Chevron had paid for the equipment gave rise to an equitable lien because under the terms of the Main Contract, notably Article 15, if the contract were terminated, Chevron would be entitled to require DSNL to sell to it such partially completed work and materials as Chevron elected to purchase. I interpose that, if Chevron had already paid for that equipment, it would be entitled to be credited with the price. It would in any event be unconscionable for DSNL to dispose of the equipment to a third party without reimbursing Chevron in respect of the amount already paid by Chevron. To that extent, the lien provided Chevron with an equitable interest in that equipment which could be enforced by an injunction restraining DSNL from disposing of the equipment unless it first reimbursed Chevron's relative payment.
(7) In support of this argument, Mr Kenneth MacLean QC relied heavily on the decision of the majority in Hewett v Court [1981-2] 149 CLR 639 in the High Court of Australia and on the decision of the Court of Appeal in Chattey v Farndale Holdings Inc. (1996) 75 P&CR 298.
"When the owner of an estate contracts with a purchaser for the immediate sale of it, the ownership of the estate, is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the state is transferred, subject to the payment of the purchase-money, every portion of the purchase-money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase-money so paid, does, in equity, finally transfer to the purchaser of the ownership of a corresponding portion of the estate.
"My Lords, that being so, we have only to inquire under the terms of the present contract whether the sums of money paid by the Respondent were, or were not, paid in pursuance of that contract. About that, my Lords, there is no controversy whatsoever. They were bona fide payments made by the Respondent, in conformity with the contract which required such payments to be made in part of the purchase-money; and they were accepted by the vendor as portions of that purchase-money. In conformity, there, with every principle, the purchase paying the money acquired an interest in the estate by force of the contract and of that part performance of the contract, namely, the payment of that portion of the purchase-money."
"There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate. When, instead of paying the whole of the purchase-money, he pays part of it, it would seem to follow, as a necessary corollary, that, to the extent to which he has paid his purchase-money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if upon the payment of part of the purchase-money the vendor had executed a mortgage to him of the estate to that extent.
"It seems to me that this is founded upon such solid and substantial justice, that if it is true that there is no decision affirming that principle, I rejoice that now, in your Lordships' House, we are able to lay down a rule that may conclusively guide such questions for the future."
"In my opinion, Davies v Thomas is an authority for the doctrine is not limited to the case of a sale of real estate but extends, at any rate in some cases, to a sale of personal estate, and in my opinion to all cases in which the property sold is of such a nature as that the court will decree specific performance of a contract for purchase of it."
"If a court of equity had been administering the fund it would have inquired into the facts and, finding that the purchaser had not paid the purchase money, it would have held that it was its first duty to see that the mortgagee and through him the mortgagor had been satisfied before handing over the purchase share to the purchaser. The court would have had no difficulty in doing that and in my opinion the trustees are bound to do that which the court would have done had it been administering the fund. So here the fund was under the legal control of the father in his capacity as trustee and executor. If the court had been administering the fund and had found that the trustee of this fund had on purchasing the reversionary interest in it failed to pay his purchase money, the court would have had no difficulty in enforcing the right of the unpaid vendor."
"I see no reason in principle why the doctrine should not apply to every case of personal property in which the court of equity assumes jurisdiction over the subject matter of the sale."
"The right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this and option for repurchase is not different in its nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase, and to pay the option money; but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another, the covenant giving the option must give that other an interest in the land."
"I propose to deal with the conditionality argument first. It seems to me that the argument for Farndale would give rise to anomalies. First, the lien would not be directly related to the purchaser's payments sought to be secured and would be denied in those circumstances where such protection was most required. Thus on the facts of this case no lien would have arisen when the deposits were paid on the exchange of contracts on March 25, 1988, notwithstanding that in accordance with the statement of Sir George Jessell, MR the plaintiffs then had an equitable interest in the property by virtue of their respective conditional rights to call for the legal estate in their respective flats. Secondly, if, as Farndale contends, the lien arises at the time of and in consequence of the accrual of the right to specific performance of the contract it is hard to understand why the lien does not cease if the right to specific performance is subsequently lost. That the lien is not lost is conceded by Farndale and in any event established by the decision of Stirling J in Levy v Stogden. In that case the claim for specific performance of the contract by assignees of the purchaser was dismissed on the grounds of delay but the claim for the lien was upheld. It is true that a similar anomaly would arise on the plaintiffs' rival submission, but that does not detract from the anomalous nature of the case for Farndale. Thirdly, it is hard to see why the substantive right of the purchaser to a lien should depend on the availability to him of a remedy, particularly one which if successfully invoked would negate the need to rely on the right at all.
"In my view both principle and authority support the argument for the plaintiffs. The statement of Sir George Jessell shows that the purchaser has an equitable interest or estate in the land if he has a right to call for the legal estate, albeit future and conditional, which the vendor has no right to refuse. In this case the vendor was contractually bound to use his best endeavours to obtain a satisfactory planning consent on the grant of which the contract became unconditional. The equitable interest or estate of the purchaser was one which entitled him to seek specific relief in the form of injunctions so as to protect that right notwithstanding that a claim for specific performance might have been premature."
"The lien which a purchaser has for his deposit is not the result of any express contract: it is a right which may be said to have been invented for the purpose of doing justice. It is fiction of a kind which is sometimes resorted to at law as well as in equity. For instance, when an action is brought for money had and received to the use of the plaintiff, it is not true that the money has been so received, but that is the way in which the law states the case in order to do justice. When Lord Westbury in Rose v Watson speaks of a 'transfer to the purchaser of the ownership of a part of the estate corresponding to the purchase-money paid', and Lord Cranworth speaks of the purchaser being exactly in the same position of a mortgagee of the estate to the extent of the purchase-money which he has paid, those expressions are merely verbal vehicles to carry the right which justice demands that the purchaser should have. Having read the report of Rose v Watson, I must say that, speaking for myself, I agree with Mr Brinton to this extent, that the decision does not expressly carry the purchaser's lien beyond a case in which the contract has gone off through the default of the vendor."
"In my judgment the circumstances in which a purchaser's lien would arise are not limited to those in which the contract is or has been specifically enforceable but include those in which there is or has been a right to call for the legal estate, whether presently, in the future or conditionally so as to give rise to the equitable interest or estate to which Sir George Jessell referred. I accept the submissions for the plaintiff in this respect. This conclusion is in line with Blackburne J in dealing with the issue of conditionality. I have not previously referred to the judge's conclusion for he did not deal with the point expressly in connection with the submission for Farndale that the existence of the lien depended on the specific enforceability of the contract. At p. 76, having referred earlier to London and South Western Railway Co. Ltd v Gomm and Whitbread & Co. Ltd v Watt, he said:
"'In my view, the plaintiffs became owners in equity of the premises (of which they were contracting to take subunderleases) as soon as their contracts were entered into and, subject to the effect of clause 21, became entitled to liens on those properties on payment of their initial deposits, and it matters not that, until August 1988, their contracts remained purely conditional.'
"Provided that ownership in equity is understood to refer to the equitable interest or estate to which Sir George Jessell referred in London and South Western Railway Co. Ltd v Gomm, I agree with the judge. My conclusion is supported by the decision of the majority in Hewett v Court. I have not referred to it earlier because the decision was reached by a bare majority and the relevant issue appears to have been conceded in the opposite sense to the majority decision.
"I can deal with what was described as the conceptual objection more shortly. The objection, which arises from Rose v Watson, is to the effect that because the leasehold interest contracted to be sold had no previous separate existence, for it was to be granted on completion of the contract, the purchaser never could have been the beneficial owner of such a term, even when the contract became unconditional and therefore specifically enforceable. Once it has established that the existence of the lien is not restricted to cases where the purchaser has been entitled to specific performance, the concept on which the objection is based disappears too. What is important is that the purchaser shall have had the right, whether present, future or conditional, to call for the legal estate. It would be absurd if the lien should be denied merely because that legal estate did not exist but another out of which the vendor would grant it did."
"Equitable lien does not depend either upon contract or upon possession. It arises by operation of law, under a doctrine of equity 'as part of a scheme of equitable adjustment of mutual rights and obligations'; those words of Isaacs J were used in Davies v Littlejohn, in relation to the doctrine of the vendor's lien, but they have a general application. It would be difficult, if not impossible, to state a general principle which would cover the diversity of cases in which an equitable lien has held to be created, a new vendor's lien for unpaid purchase money has been said to be founded on the principle that 'a person having got the estate of another, shall not, as between them, keep it, and not pay the consideration': Mackreth v Symmons. The lien of a purchaser for the purchase money that he has paid to the vendor on a sale that has gone off through no fault of the purchaser may perhaps rest on the converse principle that he who has agreed to convey the property in return for a purchase price will not be allowed to keep the price if he fails to make the conveyance. At all events, the rule has said to be founded on 'solid and substantial justice': Rose v Watson. In each of these cases the vendor or the purchaser, as the case may be, is treated as a secured creditor (cf Combe v Lord Swaythling) -- the lien is the security for the money which is justly due. In other circumstances an equitable lien may arise because of the relationship that exists between the parties (eg that of partnership or trustee and beneficiary or solicitor and client) or by reason of subrogation or estoppel."
"The contract recognises that the home which will be constructed and placed on the site will be a particular building which will be ascertained and identified at latest by the time when the first instalment of the purchase price, other than the deposit, is paid. That instalment is to be paid on the pitching of the roof, and that of course means that it is necessary to identify the particular house on which the roof is pitched. Moreover, the construction of the house, once commenced, is to be concluded within 60 working days, unless time can be extended under the contract. The contract did not simply require that a house which conformed to the appellants' plans and specifications should be completed within 60 working days. What it required was that the company should construct, and conclude the construction of, 'the home'; in other words, the company was obliged to conclude the construction of the particular home which it commenced to build to the appellants' plans and specifications and it could only suspend the construction of that home in the circumstances of cl.6(b). It was that home which, when completed, it was obliged to transport to the site and place on stumps there, having first insured it while in transit. I cannot, with all respect, agree that the company could, consistently with the contract, have sold to somebody else the home which was being constructed for the appellants, once it had been identified, and then satisfy its contractual obligations by building another house.
"Moreover, although the contract stated (in cl.8) that the property in the home was to remain in the company until the whole of the price had been paid, that does not mean that the intention of the parties was that the appellants could acquire no interest in the house until payment had been made in full. That this is so is shown by cl.10 which, (albeit with a disregard for grammar) entitled the company to recover from the appellants a proportion of the purchase price if the appellants should terminate the contract. It cannot be supposed that it was intended that the company, having obtained the requisite proportion of the price from the appellants, would be entitled to keep the home as well, thus keeping both the product of the work and the payment for it. The necessary implication is that in such a case the appellants would be entitled to the benefit of the work for which they paid."
"It is adequate for present purposes that I identify what I consider to be the circumstances which are sufficient for the implication, independently of agreement, of an equitable lien between parties in a contractual relationship. Those circumstances have, to some extent, been indicated in what has been said above. They are: (i) that there be an actual or potential indebtedness on the part of the party who is the owner of the property to the other party arising from a payment or promise of payment either of consideration in relation to the acquisition of the property or of an expense incurred in relation to it (see Middleton v Magnay; Whitbread & Co. Ltd v Watt; Combe v Lord Swaythling); (ii) that that property (or arguably property including that property: see Pollock, loc. cit.) be specifically identified and appropriated to the performance of the contract (see Lord Hanworth MR In re Wait; and (iii) that the relationship between the actual or potential indebtedness and the identified and appropriate property be such that the owner would be acting unconscientiously or unfairly if he were to dispose of the property (or, if it be appropriate, more than a particular portion thereof) to a stranger without the consent of the other party or without the actual or potential liability having been discharged. It may be that the above circumstances or tests, particularly (i), would be unduly restrictive if propounded as a statement of exclusion. As has been said however, they are formulated as a statement of what is sufficient rather than of what is essential. Whether or not they exist or are satisfied in a particular case should, like most questions involved in the application of equitable doctrines, be determined by reference to the substance of the transaction rather than its form."
(3.30 pm)