GRAY V. HIRE FINANCE PTY. LTD. 22/1943

he 22 £ gig

IN THE HIGH COURT OF AUSTRALIA. A]

REASONS FOR JUDGMENT.

Delivered at__

40358 A. H. Permiren, Actine Govr. Prrvt.

las dngeat |

IN THE HIGH COURT OF AUSTRALIA) NEW SOUTH WALES REGISTRY )

GRAY v. HIRE FINANCE COMPANY 25th, August 1943,

JUDGMENT His Honour the Chief Justice: The only matter which calls for decision now upon this appeal is whether there was evidence to justify the finding of the learned Judge in Bankruptcy that certain cohmatators were left by the debtor in the custody of the petitioning creditor, it being agreed between Knox, who was acting on behalf of the erediter, and the debtor that these articles should be sold on behalf of the debtor and the proceeds applied in satisfaction of a@ loan made by the petitioning creditor to the debtor. Two views were, 1 think, open apon the evidence, one that the cohhatators were left by the debtor with the creditor ' upon an arrangement that if this debtor did not pay the debt the ereditor should have the right to realisw the comhitators and pay himself out of the proceeds. In those circumstances there would be a security upon the commutators and by section 55 of the Bankruptcy Act it is required that a secured creditor shall either surrender or value his security. That was not done in the present case. The other view open on the evidence, it appears to me, is this, that the creditor should be entitled to sell the commutators from time to time, whether or not the loan had become due and whether or not there had been default in repayment of the loan. Upon this view the deposit of the commutators would amount to a payment on account in kind as distinct from the giving of security for the repayment of the debt. In my opinion either view is open on the evidence. 'The learned Judge believed the evidence given on behalf of the crediter and tine onus here is upon the appellant to satisfy the Court that the 4 I am not satisfied t