R v Commercial Bank of Australia Limited [1921] HCA 3

R v Commercial Bank of Australia Limited [1921] HCA 3 - HCA 1921 case summary — Zoe

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the order nisi in setting out the estimated value of the securities eld by the Bank stated it as £5,000 whereas the petition stated it 45 $5,600; (5) that, as in the affidavits in support of the petition it was stated that the judgment was " unsatisfied in whole" whereas the petition stated that it was "unsatisfied in whole or in part," the petition was not properly verified ; (6) that the Bank had omitted tosstate in the petition and in the affidavit in support thereof that one Archibald McGregor Black had guaranteed the account of Courtney King, Smith & Co. in the sum of £4,000 in all, that subse- quently the Bank had called up anil received from Black this sum 'and that, although directed by Black to do so, the Bank had failed to appropriate that sum in reduction of the amount alleged to be owing by Courtney King, Smith & Co. or to value the security of the guarantee, the effect of which would have been to reduce the debt owing to the Bank to Jess than £50 ; (7) that there had been neither afresh demand for payment nor a fresh return to the writ of execu- tion by the sheriff ; (8) that the return to the writ of execution was false; (9) that King was not given a reasonable time within which to comply with the demand of the sherifi's officer, and therefore that he could not be said to have failed to do so; (10) that the matter was res judicata by reason of the decision of Cussen J. in the previous proceedings ; (11) that it would be unjust and inequitable to sequestrate King's estate as the Bank would not be prejudiced by the discharge of the order nisi; (12) that the petition was not made bond fide and with a view to getting the Bank's debt paid or to the distribution of King's assets among his creditors ; and (13) that the petition was unfounded, vexatious, malicious or oppressive 'and was made with ulterior motives. The order nisi was made returnable on Thursday 3rd June 1920, but ina document signed by the associate of Hood J., which pur- Ported to be an office copy of the order nisi and which was served on King, the return day was stated as "Thursday 3rd May 1920." On Thursday 3rd June counsel for the Bank appeared before Schutt 4, and moved the order absolute. There was no appeatance for King, but it was brought to the attention of Schutt J. that in the document above referred to the return day was wrongly stated.

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Schutt J. thereupon enlarged the order nisi until 10th June (In ye King; Ex parte Commercial Bank of Australia Ltd. (1)). 4 doo. ; 'ment purporting to be an office copy of the order of Schutt J enlarging the order nisi signed by his associate was served upon King. ; On the order nisi coming on for hearing on 10th June, two pre liminary objections were taken by counsel for King, the first that the original order of Schutt J. of 4th June enlarging the onder nisi was signed by the associate of Schutt J. instead of by Schult J, himself, and the second that the document purporting to be an office copy of the order of Schutt J. enlarging the order nisi which was served on King was not a proper office copy inasmuch as it was signed by the associate of Schutt J. instead of by the associate of Hood J. Schutt J. overruled both of these objections, holding that the first was met by the provision in rule 7 of Part I. of the Rules of the Supreme Court in Insolvency 1916 (Viet.), and that the second was a technical objection, which, under sec. 59 of the Insoleeney Act 1915, King had waived by filing his notice of objections. r Evidence was then given from which the following facts appeared: - 'The judgment referred to in the petition was obtained on 23nd January 1920 in an action in which the writ of summons was issued under the provisions of the Instruments Act 1915. King applied for leave to appear and defend the action, but on 22nd January this application was refused by Mann J., who, however, granted leave to appeal from such refusal, Judgment having been signed, a writ of fieri facias was issued on the same day, and Thomas Wood, an officer of the sheriff, was entrusted with the execution thereof, He was unable to see King on that day though he endeavoured to do so, but on the next day, 24th January, he interviewed King, who, in answer to his demand, stated he was not going to satisfy the judgment as his lawyer was appealing, and added, later on, "I eould pay it but I won't." Notice of appeal to the High Court against the decision of Mann J, was in fact given on 27th January, and, security having been lodged, the appeal was on the same day "daly instituted " within the meaning of the Rules of the High Court, which - operated as a stay against all proceedings under the onder appealed from. On 28th January a return was made by the sheriff to the writ (1) (1920) V.LR, 210; 41 AL, 147,

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of fri focias in these words : "The within-named Roff Courtney 8. ©. or A. King has no real or personal estate whereof I can cause to be made 182! the money within requized oF any part thereof as T am within Kin commanded." A petition for the sequestration of King's estate, Cousens dated 10th February, based upon this demand and return, was then BAN oF presented by the Bank, and an order nisi dated 11th February was tp. made by Hood J. Notice of objections was filed by King, and the onder nisi came on for hearing before Cussen J., who discharged the 'onder but with the proviso that such discharge should be without prejudice to fresh proceedings by the Bank after the appeal to the High Court had been disposed of. The only matters decided by Cussen J. were that the debt of the Bank was a secured debt and ought to have been described by it as such in the petition and order nisi before him, and that he ought not to allow an amendment of the proceedings so as to cure this defect. 'The refusal of the application foramendment was based upon the fact that the appeal to the High Court was then pending. 'That appeal was dismissed on 12th May (King v. Commercial Bank of Australia Ltd. (1) ), and these proceed- ings were then Inunched by the presentation of a new petition dated Mth May, as already stated, no fresh demand having been made by: the Bank and the judgment debt remaining unpaid, the Bank still relying on the same facts as constituting an act of insolveney on the partof King. As to the alleged guarantee of Black, the only evi- dence was that on 22nd December 1919 Black had paid the sum of 41,134 5s, to the Bank, that on 5th June 1920 he had asked the Bank to pay the amount to the credit of Courtney King, Smith & o,, and that the Bank had refused to do so but had paid the amount tothe credit of a suspense account in Black's name under " the special agreement." Schutt J. overruled all the objections, and on 17th June 1920 made the order nisi absolute. From the order of Schutt J. of 4th June 1920 enlarging the order nisi made by Hood J. on 18th May 1920, and from the order of Schutt J.of 17th June 1920 making that: order nisi absolute, King appealed 'o the Full Court. On the hearing of the appeal, by consent of the parties, the

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