ORIGINAL- ) IN THE HIGH COURT OF AUSTRALIA. \ of ee! FERRY | 4 { | | | REASONS FOR JUDGMENT. on THURSDAY, 13th _D. 40358 A. HL. Perriren, Aorixe Gove. Priv. a PERRY AND ANOTHER V. MAYNE AND ANOTHER. QO R D E R. Appeal allowed, Order appealed from varied by substituting the stm of £106; 18: 1 for the sum of £220 wherever appearing in the said order and also substituting for the order as to costs an order that the parties bear their ow costs except that the costs of the Common- wealth Bank of Australia as a submitting respondent be paid out of the estate of the bankrupt. No order as to the costs of this appeal except an order that the costs of the Bank as a submitting respondent be paid out of the estate of the bankrupt. \ JUDGMENT. Ve MAYNE & ANOR. JUDGMENT RICH J. DIXON J. This is an appeal by R.G. Perry and his wife against an order made by the Federal Court of Bankruptcy on 25th June 1945 by which it was declared that, of the sum of £260:7:4,being portion of the sum of £339:9:5 standing to the credit of the appellants in a joint account at the Commonwealth Savings Bank of Australia, Haberfield Branch, the sum of £220 is the property of the bankrupt, divisible among his 'creditors within the meaning of sec. 52(c) of the Bankruptcy Act (N.S.W.) 1898. On ist February 1926 the estate of the appellant R.G. Perry was sequestrated under the provisions of this Act. On 13th May 1929 he was refused his certificate of discharge, so that he is still an undischarged bankrupt, the respondent R.D. liayne being the official assignee of his estate. : The appellants opened the joint account on 2nd September 1937. Between that date and 15th November 1941 the deposits into and withdrawals from the account were small. The principal deposit was the sum of £59:2:1 on 30th October 1940. On 14th May 1941 the account was in credit £25:0:6. On 15th November 1941 the credit balance had increased to £48:5:11. The next deposit was the sum of £20 on March 2nd 1942, and from that date until 22nd June 1943 the credit grew by a surplus of deposits over withdrawals to £339:9:5. On 3rd November 1944 the official assignee filed the notice of motion claiming that the sum of £280:7:4 in the joint account was the property of the bankrupt. This sum represented the above credit of £339:925 after deducting the above sum of £5922:1. As all but £2530:6 of the sum of £59:2:1 must have been withdrawn by 14th liay 1941, it is difficult to see why this deduction / deduction should have been made. Assuming that all the payments into the account between 14th May 1941 and 15th November 1941 were the moneys of the wife, the proper amount to deduct would appear to be £48:5:11. The evidence tendered before the learned Judge in Bankruptcy at the hearing of the notice of motion included a statutory declaration of the bankrupt of 22nd June 1944 in which it was stated that, with the exception of certain payments which included pension moneys payable to his wife and children in respect of his service in the first world war, and wages earned by his daughters, the greater part of the deposits represented his wages. The bankrupt and his wife gave oral evidence but were disbelieved py His Honour, The bank book of the joint account and another book showing the bankrupt's earnings were tendered in evidence. The bank book has pencil notations opposite the deposits which, if correct, show that the whole of the deposits, with the exception of 'two small sums the one for 'interest and the other for a refund of tax, paid into the account on and after 2nd March 1942 were part of the bankrupt's wages. The only evidence with respect to the making of these notations is that they were in the bank book when it was handed to the official assignee by a previous solicitor of the bankrupt. The effect of the sequestration order was to vest any moneys of the bankrupt which were paid into the bank account in the official assignee. The notice of motion is in effect a claim by him against the wife to these moneys in right of the bankrupt. 'The onus is on him to establish the extent to which the sum of £339:9:5 represents the property of the bankrupt. His Honour found that the sum of £220 out of the moneys in the joint account belonged to the bankrupt. It is difficult to ascertain exactly how His Honour reached this result. The statutory decLaration was not in our opinion evidence against the wife, although it was made ob exhibit to the affidavit on which the application / 3e application was founded and was not objected to. There is also no evidence that the notations in the bank book were made with her authority. She said in her evidence that it was she who deposited all the moneys in digute in the account. The evidence as a whole, such as it is, shows, we think, as His Honour found, that the moneys in the account represent in part the wages of the bankrupt, in part.the pension moneys, and in part moneys paid to the wife by two of her daughters. The bankrupt said that these daughters each paid their mother 30/- per fortnight, but it is not clear whether these payments were for board and lodging or were savings. We are not surprised that, on the scanty and unsatis- factory evidence, His Honour had difficulty in ascertaining the amount of the bankrupt's moneys in the account. We consider that a greater effort should have been made by the official assignee to elucidate the facts. He has very extensive powers under the Act of examining witnesses for this purpose. The daughters were not examined and were not made parties to the proceedings. 'The appellants sought to prove that a substantial sum in the account represented presents from relatives made on account of the sickness of one of their children, but His Honour disbelieved this evidence. The pension moneys received during the relevant period would have been £54:1:11, and the moneys paid by the daughters to their mother at the above rate would have been £124:10:0. These two sums total £178:11:11. The total amount paid into the account between 2nd March 1942 and 22nd June 1943 was £291:3:6, but of this amount £5:13:6 represented interest. Deducting this interest leaves £285:10:0. Deducting £178:11:11 from £285:10:0 leaves £106:18:1. This sum at least, on the wife's evidence, excluding the evidence of presents from relatives, represents savings out of moneys given her by her husband for household expenses, and such moneys are the property of the official assignee. 4. On the whole we think that, in the very unsatisfactory state in which the materials were left, it was unsafe to reject the hypothesis that the daughters had made the contributions which the mother claimed had been made. We do not doubt that His Honour was fully justified in refusing to believe the evidence given by the bankrupt and his wife. But the burden of proof, as we have det, was on the official assignee, and we do not think that he offered evidence on which the Court could securely act in positively saying that the account did not include such contributions, so that we consider that it ought not to be found affirmatively that uore than this sum, £106:18:1, was the property of the bankrupte The order should therefore be varied by substituting the sum £106:18:1 for the sum of £220, As both the notice of motion and the appeal partly succeededand partly failed, we think that the parties should be left to pay their own costs here and 'below, except that the costs of the Commonwealth Bank of Australia as a submitting respondent here and below should be paid out of the estate of the bankrupt. Mb