National Commercial Banking Corporation of Australia Ltd v Batty
(1986) 160 CLR 251(Judgment by: Deane J)
Between: National Commercial Banking Corporation of Australia Ltd
And: Batty
Judges:
Gibbs CJ
Wilson J
Brennan J
Deane JDawson J
Subject References:
Partnership
Banker and Customer
Judgment date: 13 May 1986
Judgment by:
Deane J
The combined effect of the conditions pursuant to which special leave to appeal was granted and of the course of argument is that there remain but two substantive issues in this case. The first is whether the late Mr. Davis was acting in the ordinary course of business of the then subsisting partnership between the respondent, Mr. Batty, and himself ("the partnership") when he deposited two cheques to be collected and credited to the partnership's trust account ("the trust account") with the Katoomba Branch of the appellant Bank ("the Bank"). If he was, the case comes within the provisions of s.10 of the Partnership Act 1892 (N.S.W.) ("the Partnership Act") and Mr. Batty is liable as a member of the partnership for the loss caused to the Bank by Mr. Davis' fraudulent representation that the partnership had the authority of the owner of each cheque to deposit it to the credit of the partnership trust account. The second is whether, if the first issue be resolved adversely to the Bank, Mr. Batty is liable to the Bank for the proceeds of the two cheques on the ground that the partnership had and received those proceeds to the use of the Bank.
2. The two cheques had been misappropriated by Mr. Davis. They were the property of a company, Robert Bushby Pty. Ltd. ("the Company"), of which he was a director. They were drawn by different drawers on the Australia and New Zealand Banking Group Ltd. One was in the amount of $19,690.61 and was drawn in favour of "Robert Bushby Pty. Limited or order". It had been crossed (by parallel transverse lines) with the added words "NOT NEGOTIABLE ACCOUNT PAYEE" as part of the crossing. On the back of that cheque, there had been written, in Mr. Davis' handwriting, the words "Robert Bushby Pty Ltd A A Davis (Director)". The other cheque, crossed (again by parallel transverse lines) with the added words "NOT NEGOTIABLE", was for $10,000.00 and was drawn in favour of "Robert Bushby Pty. Ltd. or bearer". Mr. Davis himself paid in the two cheques to the Bank as part of a single deposit. It is common ground that the proceeds of the cheques were subsequently withdrawn by Mr. Davis and applied by him for his own, as distinct from partnership, purposes. Subsequent to the dissolution of the partnership between Mr. Batty and Mr. Davis, Mr. Davis died.
3. Section 10 of the Partnership Act provides:
"Where by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partners, loss or injury is caused to any person not being a partner of the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act."
4. The "act" upon which the Bank relies in the present case is the making of the representation involved in Mr. Davis' depositing of the cheques to the credit of the trust account, namely, that the partnership had the authority of the owner of each cheque to deposit it to the credit of that account (cf. Reg. v. Lambie [1982] AC 449 , at pp 457-459). That representation was fraudulent in that it was false to the knowledge of Mr. Davis and was made by him to induce the Bank to collect and apply the proceeds of the cheques without the authority of the true owner. As between the two partners, its fraudulent character would, of itself, suffice to take it outside Mr. Davis' actual authority. Section 10 of the Partnership Act is not, however, concerned with the limits of actual authority as between the partners themselves. It is concerned with the relationship between a non-partner ("any person not being a partner of the firm") and one or more of the partners. It operates to protect the non-partner who sustains loss or injury caused by the wrongful act or omission of a partner in circumstances which satisfy the requirement that the act in question was done by the partner acting in the ordinary course of the business of the partnership. The mere fact that a particular act or omission was wrongful or in fact unauthorized does not preclude it from being within the ordinary course of that business. If it did, the protection of s.10 would be illusory. What is decisive in determining whether the requirement is satisfied, is the capacity in which the errant partner was acting, viewed in the context of his relationship with the person who sustained loss or injury and from the viewpoint of that person, at the time he performed the wrongful act: "the part taken by (the partner) in the transactions must be regarded as upon the surface it appeared to" the injured party (per Rich, Dixon, Evatt and McTiernan JJ. in Polkinghorne v. Holland (1934) 51 CLR 143 , at p 157). Where, as in the present case, the wrongful act takes the form of a fraudulent representation, the content of the representation and the circumstances in which it was made, rather than its fraudulent character, will determine whether, viewed in the context of that relationship and from the viewpoint of that other person, the representation was made by the partner acting in the ordinary course of the firm's business. In such a case, the essential question will commonly be whether the making of that representation in those circumstances came within the scope of a "class" of act which would normally be transacted in the course of a business of the relevant kind (cf. Uxbridge Permanent Benefit Building Society v. Pickard [1939] 2 KB 248 , at p 254; Lloyd v. Grace, Smith & Co. [1912] AC 716 , at pp 733, 738; Barwick v. English Joint Stock Bank (1867) LR 2 Ex 259, at p 266).
5. The relationship between the Bank and the partnership in the present case was the ordinary one of banker and customer. It will subsequently be necessary to give closer consideration to what came within the ordinary course of that business for the purposes of s.10 of the Partnership Act. For the moment, it suffices to say that, on any approach, the ordinary course of that business encompassed the day to day conduct of the firm's banking activities which, of necessity, included the deposit of cash and cheques to be credited to one or other of the partnership's accounts with the Bank and the making of the implied representation that the partnership had the authority of the owner (be it the partnership itself or some client or other person) of any such cash or cheque to deal with it in that way. The Bank obviously treated the deposit of the two cheques to be credited to the trust account, and the implied representation which it involved, as being within the ordinary course of the partnership's business with it. The question arises whether there was anything about the cheques themselves or in the circumstances surrounding their deposit which had the effect that those particular acts were not within the classes of act encompassed by the ordinary course of the business of the partnership. The general character of the relevant act, namely the deposit by one partner of a cheque to be collected and credited to the partnership's own bank account, would plainly be within the ordinary course of the business of almost any partnership. As the learned trial judge (Yeldham J.) pointed out, however, some of the circumstances relating to the deposit of the two cheques call for special consideration. First, the cheques were in amounts larger than had commonly been credited to the trust account of the partnership.
Secondly, they were deposited by Mr. Davis personally whereas the partnership's banking was ordinarily done by a secretary. Thirdly, Mr. Davis used a deposit slip and not the ordinary deposit book of the partnership trust account. Fourthly, the recent history of the partnership trust account was unusual in that the account had, for significant periods, been in overdraft; it was, however, in credit at the time the cheques involved in the present case were deposited. Fifthly, the larger cheque was drawn in favour of a company and not to the partnership and was crossed "account payee only". And, sixthly, the larger cheque and another cheque, which was drawn in favour of the same company, were paid into a trust account of a partnership of which the person who had indorsed the larger cheque as a "Director" of the payee company was a partner.
6. The first three of the above catalogue of special circumstances could not, either singly or in combination, suffice to take the depositing of the two cheques and the making of the associated representation outside the ordinary course of business of the partnership. From the viewpoint of the Bank, it would be unlikely that anyone would compare the amounts of the cheques with the amounts of previous deposits. Even if such a comparison had been made and it had been observed that the amounts were larger than those ordinarily credited to the trust account of the particular firm, the amounts in question were not of themselves so large as either to call for inquiry or, from the viewpoint of the Bank, to take the transactions out of the classes of act encompassed by the ordinary course of the firm's business. The fact that the cheques were deposited by Mr. Davis instead of by the employed secretary who ordinarily did the banking could not properly be seen as a basis for taking the transaction outside the ordinary course of the business of the firm of which Mr. Davis was the senior partner. To the contrary, it would tend to avoid, rather than give rise to, any need for inquiry. Indeed, if an observant and inquisitive teller had noticed that the amount of the cheques was unusually large and that Mr. Davis himself was doing the banking, the one circumstance would readily enough have been seen as explaining, rather than compounding, the other. The fact that Mr. Davis used a deposit slip and not the ordinary deposit book could not take either the transaction or the associated representation out of the ordinary course of the business of the partnership. It could well have been caused by any number of contingencies arising in the ordinary course of that business.
7. The fourth of the above unusual features, i.e. that the trust account had on occasion been in overdraft in the past, plainly called for some general inquiry by the Bank at the time of such overdraft. The evidence is silent about the precise content of any inquiry that was made and what, if any, response was forthcoming. The fact that the account had been in overdraft in the past would not however be relevant to whether the subsequent deposit of the two cheques was in the ordinary course of the business of the partnership unless it provided a foundation for the conclusion that the trust account was not, in truth, a trust account at all. No submission was, however, made to that effect. If it had been, it would have been contrary to the clear effect of the evidence viewed as a whole including the express evidence of Mr. Batty about the ordinary transactions relating to that account.
8. One is left then with particular features of the two cheques and of the indorsement on the back of the larger of them. Those features are: they were "third party cheques" in that they were drawn in favour of the Company "or order" in the case of the larger cheque and of the Company "or bearer" in the case of the other; both cheques were crossed "not negotiable"; the larger cheque also contained the words "account payee" between the lines of the crossing; the indorsement of the name of the Company on the back of the larger cheque was signed by Mr. Davis as a director. The question whether these matters took the deposit and representation outside the classes of act included within the ordinary course of the business of the partnership calls for a closer consideration of what was encompassed within "the ordinary course of the business" of the partnership for the purposes of s.10 of the Partnership Act.
9. The notion of the ordinary course of a business presupposes a flow of transactions and activities within a common course. It will usually comprehend all those transactions and activities which would normally be involved in carrying on a business of the kind carried on by the particular firm: "all things that it is part of the business of (an accountant) to do" (cf. Rich, Dixon, Evatt and McTiernan JJ. in Polkinghorne, at p.156). Thus, in the case of a firm of accountants, it covers not merely dealings with and acting for clients but all the other transactions and activities involved in carrying on an accountancy practice. In referring to a business " of the kind" carried on by the particular firm, I have in mind considerations of scale as well as character. It would, for example, be little to the point to assess what was in the ordinary course of the business of a firm of accountants such as the partnership in the present case by reference to the activities of a leading international firm of accountants which might be customarily involved in activities of a kind which would be well beyond the ordinary course of business of an ordinary country firm.
10. It is highly likely that the conduct of any modern accountancy practice will, from time to time, involve the receipt and holding of moneys on account of clients. High likelihood approaches inevitability in the case of a practice which, like the partnership in the present case, provides an investment service in the course of which it receives and applies moneys on behalf of its clients. For that reason, the ordinary firm of accountants will, as a matter of course, maintain a separate bank account, a "trust account", into which cash or cheques received to be held and applied on behalf of clients are paid pending their application for the purpose for which they are held. Indeed, as the "Ethical Pronouncements" of the Australian Society of Accountants make plain, it is difficult to envisage how an ordinary accountancy practice could be carried on, in compliance with the ethics of the profession, without maintaining a "separate Trust Bank Account" into which it is an "absolute necessity" that cheques or cash "received on behalf of another person or entity ... shall be deposited" (see Australian Society of Accountants Members' Handbook, vol.II, at pp.13038, 15041). While some of the moneys held to the credit of such an account may be the partners' own moneys representing, for example, unappropriated fees (ibid., at p.13038), it is unusual for cheques or cash owned by the partners themselves to be paid into such a trust account. The cheques or cash paid to the credit of such an account will, as a matter of the ordinary course of business of a firm of accountants, usually be beneficially owned by others. Among such cheques, it is likely that there will on occasion be "third party" cheques made payable to, and received on behalf of, clients as distinct from cheques drawn by clients in favour of the firm of accountants. So much is, I would have thought, common practice and common knowledge. It was, in any event, confirmed by the express evidence in the present case which was not, and really could not be, disputed.
11. Mr. Durkin, who had had many years of experience in banking and as a branch manager, gave the following evidence:
"Q. In the course of your experience with the bank, have you been engaged in working at branches which held trust accounts?
A. Yes, I have.
Q. Trust accounts for solicitors?
A. Yes.
Q. And for accountants?
A. Yes.
Q. And have the majority of branches you have been at had trust accounts?
A. Yes, I would say so.
Q. Have you had experience of persons seeking to deposit third party cheques to trust accounts?
A. Yes, I have.
Q. And by third party cheques I mean cheques in favour of someone other than the customer -
A. Depositing a cheque, yes.
...
Q. What frequency have you found in your experience that third party cheques are lodged for credit to trust accounts?
A. I would say it is quite common for third party cheques to be lodged for the credit of trust accounts.
...
Q. Have you seen third party cheques being lodged for deposit, both in your capacity as teller, and while in supervisory roles?
A. Yes, I have.
Q. And have you, over your experience in banking, become aware of any practice as to the lodging of third party cheques to trust accounts?
A. Well I would consider it - it is common practice in my experience. It is common practice for such people as solicitors accountants, and probably real estate agents to lodge third party cheques to trust accounts.
Q. Do you know of any practice as to how occasions such as that are dealt with by banks?
A. It is normal practice for banks to accept those cheques.
Q. Are there any limits on that practice that you know of Mr. Durkin?
A. Well we would - only by virtue of an instructions (sic) to our tellers - we would limit it in some cases, but normally we advise our tellers that our customers who do have good reputations and operate trust accounts, we wouldn't normally limit that to amounts.
Q. Is there any peculiarity of a trust account which causes it to differ from other accounts with the bank?
A. Well in practice, third party cheques are accepted to trust accounts rather than normal bank accounts.
Q. Is there anything different in the nature of the deposits to trust accounts from deposits to other accounts that you know of?
A. Well, the funds are normally funds that are held by the solicitor, or by our customer, as the case may be, in trust for their own clients."
12. Mr. Yorke, who had also had experience in banking over a long period and was (at the time of his testimony) the manager of the Royal Exchange branch of the appellant Bank in Sydney, gave evidence to like effect:
"Q. Have you, in your career with the bank, dealt at branches with trust accounts?
A. Yes, at numerous branches, yes.
Q. And trust accounts from solicitors?
A. Yes.
Q. And of accountants as well?
A. Yes.
Q. And would nearly all of the branches at which you have been employed have had trust accounts of one sort or another?
A. Yes.
Q. And you have got them at the Royal Exchange Branch?
A. Yes.
Q. And a substantial number there?
A. I would consider a substantial number. I would not know the exact number off the top of my head, yes.
Q. Both accountants and solicitors?
A. Yes.
Q. Have you struck occasions in which the customer has sought to deposit third party cheques to trust accounts?
A. Yes.
Q. And would you take it that by 'third party cheques' I mean cheques in favour of somebody other than the customer?
A. Yes.
Q. How frequently have you struck the deposit of third party cheques to trust accounts?
A. Well, it is hard to measure in number but it would be quite frequently. Quite an everyday occurrence really."
13. As has been indicated, the question whether an act falls within the ordinary course of the business of a firm will usually be determined by reference to whether it comes within the scope of a "class" of act which would normally be encompassed within the flow of the business activities of a firm carrying on a business of the relevant kind and size. The reason is that the question whether a particular act was within the ordinary course of business of a particular firm for the purposes of s.10 of the Partnership Act must be determined by reference to what appeared upon the surface to the injured third party. Thus, unless the third party is aware of it, the fact that an act is fraudulent or part of a wider course of unlawful conduct which is engaged in for some collateral non-partnership purpose or benefit will not of itself take the act outside the ordinary course of the business of the firm if it is of a class of act which comes within the ordinary course of that business (see Polkinghorne v. Holland, at pp 156-157, 169; Lloyd v. Grace, Smith & Co., at pp 724-725, 730-739). Again, if the third party lacks actual knowledge of the precise limits of the activities of the particular firm, the appearance of things will be likely to reflect what normally comes within the ordinary course of a business of that kind and size (cf. Uxbridge Permanent Benefit Building Society, at p.258). The evidence in the present case does not disclose the extent of the Bank's actual knowledge of the precise limits of the classes of act which comprised the partnership business. Ultimately, however, that is unimportant because Mr. Batty's evidence established that the classes of transaction and activity involved in the course of the partnership business closely corresponded, in relevant respects, with what one would expect of such an accountancy practice. The partnership of Mr. Davis and Mr. Batty did provide an investment service in the course of which it received and applied moneys on behalf of clients. It did maintain a separate trust account. The moneys paid into that separate trust account, in the ordinary course of business, included (as Mr. Batty noted in his testimony) "dividends and interest payments collected through the firm" which were beneficially owned by clients. Third party cheques were, albeit very much as the exception rather than the rule, paid into that trust account in the ordinary course of the partnership business. While, not surprisingly, Mr. Batty could not remember precise instances, his evidence in relation to such cheques was quite unambiguous:
"Q. I take it, again, so far as use of the trust account to hold dividends and interest payments collected through the firm goes, you cannot recall any instance where a cheque paid in was a cheque not payable to the firm or to Mr. Davis personally?
A. I recall that there would have been some cheques that were payable to third parties, clients and the like."
14. In these circumstances, it is impossible to accept that the deposit by a partner of third party cheques to the credit of the partnership's own trust account and the implied representation which it involved were, as such, outside the ordinary course of the business of the partnership. It becomes necessary to consider the effect of the more particular features of the two cheques.
15. While not strictly necessary to make the cheques negotiable (see Bills of Exchange Act 1909 (Cth), s.13), the words "or order" and "or bearer" underlined that prima facie negotiability. The insertion of the name of the company as the primary payee did not affect that negotiability as a matter of principle. Nor did it impair negotiability as a matter of practice since there is nothing unusual in this country for cheques drawn in favour of a named person to be paid into the bank account of another person. Thus, the 1964 Report of the Committee appointed by the Commonwealth Government to review the Bills of Exchange Act 1909-1958 (chaired by the late Sir Kenneth Manning and hereafter referred to as "the Manning Committee's Report") estimated that, at that time, approximately 69,000,000 cheques were each year "either cashed or ... paid to the credit of an account other than that of the payee" (par.55). The Report continued (par.56):
"The holder of a cheque has always had the right to negotiate or transfer it (as the case may be) in lieu of paying it to the credit of his own account and it is obvious, from the figures given in the preceding paragraph, that each year millions of cheques are negotiated or transferred and are not paid to the credit of the payees' accounts."
What then was the effect of the crossings "not negotiable" (in the case of both cheques) and "account payee" (in the case of the larger cheque)?
16. The crossing "not negotiable" does not prevent a cheque from being negotiated or transferred (see Universal Guarantee Pty. Ltd. v. National Bank of Australasia Ltd. (1965) 1 WLR 691 , at p 697; [1965] 2 All ER 98 , at p 102). Its effect is that the holder of the cheque cannot have, and cannot give, a better title to the cheque than that of the person from whom he obtained it (Bills of Exchange Act 1909 (Cth) s.87). When the cheque is, as in the case of the smaller cheque in the present case, made payable to "(a named payee) or bearer", the holder can, notwithstanding the crossing, transfer his title to the cheque by delivery of it (s.36(2)). When the cheque is, as in the case of the larger cheque, made payable to "(a named payee) or order", the holder can transfer his title to another by indorsement completed by delivery (s.36(3)). Plainly, the crossing "not negotiable" did not have the effect that the banking of a third party cheque to the credit of the partnership's trust account was outside the ordinary course of the business of the firm.
17. The words "account payee" as part of a crossing enjoy no statutory recognition and have no statutory significance. The addition of those words between the lines of a crossing on a cheque do not destroy its negotiability or transfer- ability (see Universal Guarantee Pty. Ltd., at p.697, W.L.R.; p.102, All E.R.). The words operate as a warning to a collecting bank that, if it pays the proceeds of the cheque to an account other than that of the named payee, it is put on inquiry and it may be in difficulty in relying on any defence under s.88D of the Bills of Exchange Act 1909 (Cth) against a true owner of the cheque (see A.L. Underwood Ltd. v. Bank of Liverpool (1924) 1 KB 775, at pp 793-794; Universal Guarantee Pty. Ltd., at p 697, WLR; p 102, All ER). There is, however, no impropriety involved in the owner of such a cheque indorsing it to enable it to be deposited to the credit of a solicitor's or accountant's trust account and, as the Manning Committee's Report noted (par.75), it is "certain that many cheques marked 'account payee only' are, in fact, paid to the credit of an account other than that of the payee". Nor was there anything in the "account payee" crossing which would take the banking of the larger of the third party cheques in the present case to the credit of the partnership's trust account outside the ordinary course of the business of the firm. To the contrary, the fact that the Bank was, without inquiry, prepared to collect that cheque on behalf of the partnership merely serves to indicate that, from the Bank's point of view, the partnership was an "undoubted" (i.e. solvent and reputable) customer (see Weaver and Craigie, The Law Relating to Banker and Customer in Australia, (1975), at pp.518ff.).
18. There remains the circumstance that the larger cheque was indorsed by Mr. Davis as a director of the Company. Again, this circumstance could not have the effect of taking the banking of the cheque to the credit of the partnership's trust account outside the ordinary course of the business of the firm from the viewpoint of the Bank. It is commonplace for accountants and solicitors to act as directors of proprietary companies. It is also commonplace for the firms of which such accountants or solicitors are members to have such proprietary companies as clients. The fact that the payee of a third party cheque being paid into the trust account of a firm of accountants was a proprietary company of which the senior partner of the firm of accountants was the director who had indorsed the cheque would tend to assuage, rather than arouse, doubts about the regularity of the transaction. Again, it is essential to remember that the cheque was not being credited to the personal account of Mr. Davis or the ordinary account of the partnership. It was being credited to a trust account in which moneys would be expected to be, and were, customarily held in trust for clients.
19. It follows from the above that the circumstances surrounding the deposit by a partner of the two cheques to the credit of the partnership's own trust account were not such as to take the implied representation involved in the deposit outside the classes of act encompassed by the ordinary course of the business of the firm. To the contrary, detailed examination of those circumstances confirms that, as things appeared on the surface to the Bank, the deposit and the associated representation came within the flow of the ordinary banking business of the partnership. It is true that, viewed from the point of view of the partnership, the transaction was undoubtedly as outside the ordinary course of business of the firm as it was outside the scope of the authority of Mr. Davis as a partner of the firm. That is not, however, to the point. As has been said, the question whether a wrongful act falls within the ordinary course of the business of a partnership for the purposes of s.10 of the Partnership Act falls to be determined not from the viewpoint of the other partner or partners but from the viewpoint of the "person not being a partner of the firm" who sustains loss or injury as a result of the wrongful act. Nor is it permissible to use the fact that the wrongful act was criminal or dishonest or fraudulent to smudge with grey the simple fact that, as things appeared to the injured third party, the deposit of the two cheques by the firm's own senior partner to be credited to the firm's own trust account was patently of a class which fell within the ordinary course of business of the firm. It may well commonly be a hardship for a partner "to be (held) liable for the fraud of (his) partner". It certainly would be so in the unfortunate circumstances of the present case. "But", as Lord Macnaghten commented in Lloyd v. Grace, Smith & Co., at p 738, "that is the law under the Partnership Act."
20. There are three further matters to which brief reference should be made. The first is that the learned trial judge did not make a specific finding that the Bank had been induced to collect the cheques by the fraudulent representation of Mr. Davis which was implicit in the deposit of the cheques to the credit of the partnership account. Such a finding appears to me, however, to be implied by some of his Honour's comments. Be that as it may, it is an inference which should, in the circumstances, be drawn from the facts notwithstanding the absence of direct evidence in that regard (see, generally, Smith v. Chadwick (1884) 9 App.Cas. 187, at p 196; Spencer Bower & Turner, The Law of Actionable Misrepresentation, 3rd ed. (1974), at pp.154-156 and cases there cited). Indeed, as I followed the argument, no submission to the contrary was made on behalf of Mr. Batty. The second matter is that the terms of the authority given to the Bank by Mr. Davis and Mr. Batty in respect of the partnership trust account expressly authorized the Bank to accept for the credit of that account "any cheques drafts bills of exchange promissory notes or other instruments made payable to any one or more of us". There are strong grounds for reading the words "made payable to any one or more of us" as applying only to "other instruments" with the consequence that the present case would fall within the limits of the express authority. Even if those words are read as governing "cheques" however, the terms of the express authority plainly would not preclude the Bank from accepting third party cheques or, for that matter, cash (which is not relevantly mentioned in the authority) to be credited to the account when such cheques or cash were deposited by one or other of the partners acting in what bore the appearance of being the ordinary course of business of the firm.
21. The third matter is that it was submitted on behalf of Mr. Batty that there were concurrent findings of fact by the learned primary judge and the Court of Appeal to the effect that the relevant acts were outside the ordinary course of the business of the firm. If the findings to that effect were, as they can in some cases be, pure findings of fact, there would be considerable force in that submission. The primary and contextual facts are not however in dispute and the question whether the making of the representation involved in the deposit of the two cheques was within the ordinary course of the business of the partnership is, in the present case, at least in part a question of law in that the answer to the question turns, to no small extent, upon the approach to be adopted in ascertaining whether an act falls within "the ordinary course of the business" of a firm for the purposes of s.10 of the Partnership Act (cf. Uxbridge Permanent Benefit Building Society, at p.252).
22. In the result, I would allow the appeal. Since a majority of the Court is of the view that the appeal should be dismissed, it is unnecessary that I consider the precise form of order which should be made. Nor is it necessary for me to examine the alternative ground, that of money had and received, upon which the Bank sought to base its claim for relief against Mr. Batty.