THE ENGLISH SCOTTISH AND AUSTRALIAN BANK LIMITED V. BURNS 7/1943

" Oi

IN THE HIGH COURT OF AUSTRALIA.

oF 1943, 07

The English Scotti

Bank Limited.

REASONS FOR JUDGMENT.

40358 A. H. Persiven, Aorixe Govr. Prix.

THE ENGLISH SCOTTISH AND AUSTRALIAN B, LIMITED

E ge 3

io S Appeal allowed. Order of Court of Bankruptcy set aside. In lieu thereof order that motion be dismissed and that appellant's

costs of motion and of appeal to this Court be paid by respondent.

THE ENGLISH SCOTTISH AND AUSTRALIAN BANK LIMITED

BURNS.

REASONS FOR JUDGMENT. LATHAM Cede

THE ENGLISH SCOTTISH AND AUSTRALIAN BANK LIMITED

Ve BURNS. REASONS FOR JUDGMENT. LATHAM Code

I agree with the judgment of my brother Williams and will state my reasons briefly. The company owed no debts. Its assets were valued in the balance sheet of 30th June 1942 at £12,000. Upon this basis the 2800 shares would be worth over £4 each. It was not shown that the assets were worth the amounts at which they were valued in the balance sheet. But monies in the bank belonging to the company represented 19/3 per share without taking any other assets into account. The evidence does not, in my opinion, justify the finding that the shares were worth only 10/— each. If the 95 shares owned by Bryan were worth only 13/- each their value would exceed the amount (£59:19;3) of Bryan's debt to the Bank at the relevant date, so that the payment 'then --» made would not have the effect of giving any preference priority or advantage to the guarantors. Upon the evidence it should have been found that the shares were worth at least 13/- each.

The appeal should be allowed with costs. As to the

respondent trustee's liability in Tespect of costs see arte

Angerstein, L.R. 9 Ch. 479: Pitts v. La Fontaine, 6 A.C. 482: In_re Mackenzie, 1899 2 9.B. 566 at p. 578.

THE ENGLISH SCOTTISH AND AUSTRALIAN BANK LIMITED

Ve

BURNS.

STUDGMENT . RICH J.

THE ENGLISH SCOTTISH AND AUSTRALIAN BANK LIMITED.