Solicitors, for petitioner, Roberts «& Allport. Solicitors, for respondent, Dobson, Mitchell & Allport.

H. 0. or A. Bill of Sale - Bills of Sale Act (Queensland) 1891, sec. 4 - Insolvency Act 1874, - 1904, secs, 107-8-9. -

By the law of Queensland a bill of sale has no effect as an assignment of © chattels until registration.

By the Insolvency Act of 1874, sec. 105, an assignment made by a debtor in Grittn, 0.3, insolvent circumstances in favour of a creditor, not being for a reasonable and are sufficient consideration given at the time, is voidable as against creditors if insolv-

A bill of sale was executed on 30th May for a then present advance of money, but was not registered until 18th August, at which date the maker was alleged to have been in insolvent circumstances. He was adjudicated insolvent within six months. ;

Held, that as against the trustee in the insolvency, the bill of sale was liable to be avoided as not having been made for a reasonable or sufficient consideration given at the time of execution.

Decisions of Real, J., and the Full Court, (1904) Qa. St. R. 128, reversed.

chattels to J. W. Todd, the respondent, for an advance of £50 bearing interest. The sum of £50 was on that date paid by Todd to Lovell. Todd did not register the bill of sale till 18th August in the same year. On 2nd November Lovell was adjudicated insolvent, and Dixon, the appellant, was duly appointed the trustee of his estate. For the purpose of the proceedings below, appeal, it was assumed that Lovell was on 18th August in insolvent, ireumstances.

Application was made by Dixon to Real, J., for a declaration that the bill of sale was fraudulent and void against him as trustee, and that the property included in it was the property of he trustee, with consequential relief. On 10th December, Real, J,, dismissed the application with costs.

_ The applicant then appealed to the Full Court, who by majority (Cooper, C.J., and Power, J.), dismissed the appeal with costs, holding that the time of giving the consideration, which was in fact contemporaneous with the actual execution, must be carried orward to the date of first registration, which is by law to be deemed the date of execution, and so deemed to have been con- temporaneous with the date of the effective, and not the actual, execution (Chubb, J., dissenting).

The applicant now appealed to the High Court by special leave.

O'Sullivan, for the appellant. The effect of the decision ppealed from is that a bill of sale given for a present advance may be held over indefinitely from registration, provided that it registered prior to a subsequent adjudication, if only by a single day.

_ The matter turns on sec. 4 of the Bills of Sule Act 1891, and wes. 107-8-9 of the Insolvency Act 1874. Sec. 4 of the Bills of ¢ Act provides that - Every Bill of Sale executed after the mencement of this Act shall be registered in the proper registry n the manner preseribed by this Act, and shall truly set forth

ween the parties to it, or as against any other person unless consideration is truly set forth therein, or until it has been so

On 30th May, 1903, Wm. Lovell gave a bill of sale over certain H- ©. or A.

H.C. or A. registered, And for the purposes of any law avoiding ussign-

ments as against creditors, the date of the first registration shall be deemed to be the date of the eaecution of the bill of sale." The trustee's contention is that the parties are in the same - position as if the bill of sale had been executed on 18th August. Had it been actually so executed, it would not be disputed that - it was null and void as having been given for a past consideration, From 30th May to 18th August, 1903, the mortgagee was in the position of an unsecured creditor; he then became a secured - creditor, but in consideration of a past advance. He thus comes within the provisions of sec. 109 of the Insolvency Act, which provides that: " Every conveyance, assign- e ment, gift, delivery, or transfer of property, or charge thereon, - made, executed, or given by any debtor unable to pay his debts, | as they become due, from his own moneys, in favour of any ereditor or any person in trust for any creditor, not being for a reasonable and sufficient consideration given at the time of making or giving the same, shall, if a petition for adjudication of insolvency be presented against such debtor within six months after the date of making, executing, or giving the same, and adjudication of insolvency be made thereon, be deemed a fraudu- lent preference, and shall be void as against the trustee of # insolvent under this Act," &e. [On the interpretation of the words "reasonable and sufficie consideration given at time of making," he referred to In 1 Donaldson, 1 Q.LJ., 105, at p. 112; and In ve Backert, (1901) QStR., p. 288.] Bond fides in this case is admitted, but is im terial. The whole course of the statutory law as to bills of sale has been in the direction of inereased stringency for the protection of creditors. Former Acts, the Bills of Sale Act (19 Vict., 102), and the Mercantile Act of 1867, were less stringent. The former Acts provided that to ensure validity a bill of sale must be registered within thirty days; the Act of 1891 makes it absolut . void until registered. Former Acts did not require the consi ation to be truly stated, later Acts do.

Shand, for respondent. The appellant's case is based on a mis

" For the purposes of any law avoiding assignments as against creditors," which he construes "for the purpose of altering any law applying to assignments against creditors." These words 'mean "for the purpose of extending any law," &.; that is, it must first be shown that the assignment falls within the class of documents already struck at by some existing Act. In dealing with a bill of sale not touched by see. 105 of the Insolvency Act this part of see. 4 of the Bills of Sale Act can have no application. See. 4 cannot apply to a bond fide transac- tion, and, therefore, the dates of the giving of the consideration and of the execution are immaterial.

• See. 108 of the Znsolvency Act is stringent enough as it stands, without making it more stringent by applying sec. 4 of the Bills of Sale Act to the case of a bond fide transaction. The construction put on the section (sec. 4), bears hardly on an innocent mortgagee, ind, if it does apply to such an one, it is strange that the legisla- , with British and colonial precedents before it, should have gone out of its way to omit prescribing a period within which istration is compulsory.

Grivritx, C.J. - The object was to do away with secret bills of ale by making them absolutely void.]

It is not denied that sees. 107-8-9 of the Insolvency Act are laws eferred to by the Bills of Sale Act, sec.4. Sec. 4 may have a erent meaning for the purposes of different Acts; In re Backert, (1901) Q.St.R., 288, at p. 293. Sec. 4 should be read side by side with sec. 8 of 41 & 42 Vict. ¢ 41, the English Act, which is, nother respeets, closely followed by the Queensland Bills of Sule

{O'Coynor, J. - The policy of the law is to afford the creditor 'ormation for his protection by a register of bills of sale.]

f sec. 108 applies to shift the date of the execution, it must be ken also to alter the date of the whole transaction, for it would absurd that the Act should apply a fictional date to the execution, and, by that fiction, convert a present into a past onsideration. For these reasons the appeal should not be

interpretation of the latter part of sec. 4 of Bills of Sale Act 1891: H.C. or A.

Grirritu, C.J. This was a motion by the appellant, as trustee of the insolvent estate of William Lovell, for a declaration that a bill of sale dated 30th May, 1903, and registered on 18th August, 1903, may be declared to be fraudulent and void as against the - trustee in the insolvency, and for consequential relief. The appellant's case is founded on sec. 108 of the Insolvency Act of 1874, which provides: [His Honor read the section.] In this - ease the adjudication was on 2nd November, 1903, so that the - transaction was within the period of six months. Now, it will be observed that under that section certain artificial rules are laid down for determining whether a transaction is fraudulent or not. Bond fides and honest intention do not decide the matter. Th only question is whether the conditions prescribed by the Statute exist.

The first condition is that the maker of the assignment ii a debtor unable to pay his debts as they beeame due from his own moneys. The second is that the assignment is in favour of acreditor. The third condition is that it is not for a reasonable and sufficient consideration, or - which may be regarded as an alternative condition - that the consideration, although reasonable and sufficient, is not given at the time of making or giving the instrument. The effect is that a person in insolvent circumstances cannot make away with his property except for a contempor- aneous equivalent. If he receives such an equivalent, his creditors of course, lose nothing by the assignment. It will be obser that time is important under that section from two points of view: first, with regard to the condition that the giving of the com sideration must be contemporaneous with the assignmeént ; secondly, from the subsidiary point of view that if the deb'

haying a petition presented against him, the transaction be impeached.

The case opened by the appellant before the learned Judge o first instance was that the bill of sale in question was dated 30t May, but was not registered until 18th August; that by the b

-poraneously with the execution, and was, therefore, not contem- poraneous with the registration; that, in the meantime, the assignee "was an unsecured creditor of the debtor ; and that, consequently, as under the Bills of Sale Act the date of the first registration is to be deemed to be the date of execution, this instrument, which under the Statute is to be deemed to have been executed on 18th August, was void as being given for a past consideration. On the case being opened, and before any evidence was given to 'show that the debtor was in insolvent circumstances, the learned judge intimated that he thought that the appellant could not ceed. The point of law was then argued, and he came to the onclusion that the appellant was not entitled to succeed in any iew of the facts, and dismissed the motion with costs. On appeal, the Full Court, by a majority, Chubb, J., dissenting, agreed with he learned Judge of first instance, and dismissed the appeal. The question for our determination depends upon sec. 4 of the Bills of Sale Act of 1891, which provides: "Every bill of sale ecuted after the commencement of this Act shall be registered in the proper registry in the manner prescribed by this Act, and hall truly set forth the consideration for which it was given, and no such bill of sale shall have any effect as to any chattels omprised in it, whether as between the parties to it, or as 'against any other person, unless the consideration is truly set forth therein, nor until it has been so registered." That is to say, abill of sale takes effect not by execution but by registration. Until it is registered it 1s nothing. It may contain the record of an agreement between the parties, but it has no operation what- ever as an assignment until it is registered. The section goes on

• "and for the purposes of any law avoiding assignments as inst creditors, the date of the first registration of any such bill of sale shall be deemed to be the date of the execution of the bill

_ For the appellant it was contended before the Supreme Court,and lore us, that, interpreting these words according to their plain we, the date of this bill of sale, if it comes in question in a eding seeking to avoid it as against creditors, is the date on which it was first registered ; that that date was 18th August ;

of sale itself it appeared that the consideration was paid contem- H: ©. oF A.

is, was the consideration contemporaneous ? And, as the consider- _ ation was paid on 30th May, the only answer to that question is, of course, " No, it was not contemporaneous." Three of the learned - Judges of the Supreme Court have refused to accept this view. We find some difficulty in formulating the argument on behalf o} the respondent, having regard to the explicit language of see, 4, which provides that the date of registration is to be deemed the date of execution, and further provides that until registratio there is no assignment. If the date of the assignment is 18#) August, how can it be said that the consideration, which wat given on 30th May, was given at the time ? It is not in controversy that, in this interval, the respondent was an unsecured creditor, | Counsel for the respondent asked us to hold that the only effect of the section is that the time from which the period of six months

is to be reckoned is the date of registration. Of course, it is quii e clear that the six months must be reckoned from that date ; but: the words of the section are "for the purposes of any law avoiding assignments." As has been already pointed out, the main impot ance of the date under sec. 108 is for the purpose of the inqui whether the consideration is contemporaneous with the assign: ment. If the consideration is paid in May, and the assignment takes place in August, it is impossible to say that the one is contemporaneous with the other. If the words were "for purpose of computing the period within which a bill of sale may be impeached under any law avoiding assignments as agait creditors," the construction contended for would, no doubt, the correct one, but the words are general, and cover every ease in which, under the Insolvency Law, the question of date of a bill of sale is material. There is nothing in section to suggest that a fictitious date is to be attributed to the giving of the consideration, but much to indicate a contra intention.

The rules for the construction of Acts of Parliament have been many times laid down. A statement of the law very applicab to the present ease is to be found in the opinion of the Judges in the Sussex Peerage Case (11 Clark & Finnelly, at p. 14 delivered by Lord Chief Justice Tindal: "My Lords, the only

unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves lone do, in such case, best declare the intention of the law giver. it if any doubt arises from the terms employed by the legisla- e, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the Statute,

Act, and the mischief which they intended to redress."

Now, to apply the first branch of the rule, and expound the rds in their natural and ordinary sense: What is the natural and ordinary sense, first, of the words " no such bill of sale shall have any effect as toany of the chattelscomprisedinit . . . until it been so registered," and then of the words "for the purposes of

e of execution. The date of first registration in this case is sth August. That is, therefore, to be deemed to be the date of ecution. Then comes the inquiry: "Was the consideration given at the time?" The answer is; the consideration was given May, not in August. That is expounding the words in natural and ordinary sense. Assuming, however, that the words are capable of a different construction, or, that, although words are " for the purposes of any law avoiding assignments against creditors," the expounding of these words in their ral and ordinary sense would lead to some manifest bsurdity, which has not been suggested, then regard should had to the second rule: - "If any doubt arises from the

the construction of Acts of Parliament is that they should be H. ©. or 4.

terms employed by the legislature, it has always been held a safe ' means of collecting the intention to call in aid the ground and

cause of making the Statute." Now, if we consider the cause of - the making of the Bills of Sale Act, it will certainly not lead us to a contrary conclusion. The original Bills of Sale Act was an Act to mitigate the evils arising from seeret bills of sale. Provisions y were made for registration, but they were not found to be effectual. -

By the Act of 1867 those provisions were repealed and others substituted, and the later provisions were again repealed in 1891, when the legislature laid down the new rule that there should be - no effective bill of sale until registration. That is to say, it did not - validate, but abolished, secret bills of sale. A secret bill of sale is impossible under the law of 1891, because it is not a bill of sale at

all. That being the apparent intention of the legislature, and those being the means adopted to carry out their intention, is there - anything inconsistent or absurd in holding that the date of the assignment is what it is said to be by the Statute, and that the date of giving the consideration is the date on which it was given in fact? The construction which found favour with the Supreme Court would make the Act an Act to facilitate and validate seeret bills of sale. A man might carry on business for years after giving a secret bill of sale; all his property might be supposed - by the world to belong to him and to be available in satisfaction

of his debts, whereas in reality some other person would haye in - his pocket a document which, when registered, would take away the whole of that property from his creditors and give it to that other person; and this result, under the construction which has been put upon the Statute by the learned Judges who were a majority of the Supreme Court, would be in accordance with the | law, although the plain and manifest object of the Act is to abolish secret bills of sale. For these reasons it appears to us quite clear that, since the effective date of the execution of the bill of sale is the date of registration, if the consideration is not contemporaneous with the registration, the transaction is obnoxious: to see. 109 of the Insolvency Act. It is said that the consequence will be that a man who lends money to a person in insolvent circumstances will be obliged to register the bill of sale as soon it is given. Supposing that that is a necessary consequence,

an only say, looking at the Statute, that it appears to us to be H. ©. or A. he manifest intention of the legislature. pee We think, therefore, that the decisions of the learned Judge of - pyxox first instance, and of the Full Court, were erroneous, and should be wae eversed. The facts have not been investigated, the case having

been treated as one to be decided upon a preliminary point of

law. The only order, therefore, which we can make is that which

isnow made, namely, that the decisions appealed from be reversed,

and the matter be remitted to the Supreme Court to be dealt with

according to the law as now declared. The respondent must pay

the costs of the appeal to the Full Court and of this appeal.

Appeal allowed. Decisions appealed from reversed. Respondent to pay costs of appeal to Full Court. Case remitted to the Supreme Court to do what is right in pursuance of this judgment. Respondent to pay costs of this appeal.

Solicitors for the appellant, O'Sullivan & Scott. Solicitors for the respondent, Macpherson, Macdonald-Puterson

STATE OF TASMANIA . 'i 5 f j PLAINTIFF ; % AND COMMONWEALTH OF AUSTRALIA ah STATE OF VICTORIA .

ben xc MELEouRNE, Génsticution, secs. 89, 92, 93 - Duties of Customs and Hucixe - Importation of goods June 1, 2, into State before imposition of uniform duties - Passing of goods afterwards into 3, 8. another State for consumption - A pportionment of duties between States - Inter- an pretation of the Constitution - History of legislation - Reference to draft bills Griffith, C.J.,

. Barton and prepared by Conventions. O'Connor, JJ.