Tilley v Official Receiver [1960] HCA 86

High Court of Australia Dixon C.J. Kitto and Menzies JJ. Tilley v Official Receiver [1960] HCA 86

ORDER Appeal allowed. Order of the Supreme Court of Queensland exercising jurisdiction in bankruptcy dated 19th July 1960, whereby the appellant was found guilty on certain charges and a sentence was imposed upon him, discharged. In lieu thereof order that the appellant be acquitted and that he be discharged from his recognizances and from the order of 9th August 1960 made by Windeyer J.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 28 Dixon C.J.

By s. 211 (a) of the Bankruptcy Act 1924-1958 an undischarged bankrupt is guilty of an offence punishable by one year's imprisonment if he obtains credit to the extent of £20 or upwards from any person without informing him that he is an undischarged bankrupt. The Supreme Court of Queensland sitting as a court of bankruptcy has convicted the appellant summarily of six offences under this provision and has imposed upon him concurrent sentences for such offences of six months' imprisonment. He appeals from the convictions.

It appears from the findings of fact made by the learned judge who heard the charge (Stable J.) that in each case in respect of which he was convicted the appellant without disclosing his status bought goods for which he paid by cheque upon delivery. In each case the cheque was dishonoured. The question for decision is whether that constitutes "obtaining credit" within the meaning of s. 211 (a).

The appellant was a builder by trade. A sequestration order was made against him on 18th July 1957. He went on in the building trade and the goods with respect to which he gave the cheques were purchased by him for jobs he was doing. They were drawn on bank accounts upon which it is said he was permitted to overdraw, but apparently he exceeded the limit of his overdraft. There is no finding that the appellant gave the cheques knowing that they were valueless, if that be a material fact.