Chief Collector of Taxes (Papua & New Guinea) v Bayliss [1974] HCA 37

High Court of Australia Gibbs, Stephen and Mason JJ. Chief Collector of Taxes (Papua & New Guinea) v Bayliss [1974] HCA 37

ORDER Objection to competency upheld with costs. Leave to appeal refused with costs. Gibbs J.

This is an appeal from a judgment of the Federal Court of Bankruptcy dismissing a petition brought by the appellant against the respondent for a sequestration order.

There is an objection to the competency of the appeal, but the appellant submits that the appeal lies under s. 39 (2) of the Bankruptcy Act Cth.

By the petition the appellant alleged in par. 2 that the respondent is justly and truly indebted to the appellant in the sum of $10,382.42, being the balance due and owing under a final judgment obtained in the Supreme Court of Victoria by registration under the provisions of the Service and Execution of Process Act 1901-1968 Cth on 20th October 1971 by the Chief Collector of Taxes of the Territory of Papua and New Guinea, being for income tax. In par. 4 it was alleged that the respondent within six months before the presentation of the petition had committed an act of bankruptcy. The Federal Court of Bankruptcy found that no act of bankruptcy had been committed and accordingly dismissed the petition. No finding was made as to the existence or otherwise of the debt alleged in par. 2.

It may be accepted that by par. 2 of his petition the appellant asserted against the respondent a claim to a civil right amounting in value to more than $3,000. However, that claim was not involved directly or indirectly in the judgment from which the appeal was brought. The judgment says nothing as to the appellant's claim to be a creditor of the respondent and does not indirectly reflect on that claim in any way. It did deny to the appellant one remedy for the enforcement of his claim, but that does not mean that the judgment involved the claim itself. (See Tooth & Co. Ltd. v Parramatta City Council [4] ). The appellant was not prejudiced to an extent of $3,000 or more by the dismissal of the petition.