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[1945] HCA 37
High Court of Australia
1945-07-01
McTiernan J
Original judgment source is linked above.
(d) That the company was prepared to assist and did assist through- | out in carrying on that business by supplying essential commodit on terms similar to those existing at the death of the testator. these respects the case presents a fairly close parallel with factors found in Dowse v. Gorton (1) and considered sufficient Lord Herschell.
made since the first dividend was paid in May 1932, nevertheless the company continued its course of action for the whole of the sul quent period of carrying on."
There is evidence upon which his Honour could reasonably re these findings. These facts establish more than acquiescence by the appellant in the carrying on of the business by the executor. They establish a course of conduct which I think is consistent only with the abandonment by the appellant of its priority as a cred of the estate and its active assent to the carrying on of the b 'by the executor for its benefit.
Appeal allowed. Order of the Court of Bankruptcy charged. Order that the trustee's rejection of the appellar company's proof of debt be varied by admitting the company to rank in respect of the sum of £431 8s. 3d. a creditor in the second group of creditors referred to in the order of the said Court made on 27th March 1940. - Costs of both parties of motion in Court of Bankrupte and of appeal to this Court to be paid out of the estate.
Solicitors for the appellant, Lempriere, Abbott & Cornish.
Pry. Lrv.
Winrsnme.