H J Wigmore and Co Limited v Rundle [1930] HCA 27

222 HIGH COURT

{HIGH COURT OF AUSTRALIA. H. J. WIGMORE & CO. LIMITED . . . Appx

AND

GEORGE HAROLD RUNDLE AND OTHERS Responp

ON APPEAL FROM THE SUPREME COURT OF WESTERN AUSTRALIA.

H.C. or A, Débt—Hire-purchase agreement—Bill of sale—Caveat—Creditor of grantors—* = 1930, : due or to accrue due"—Promissory notes given as collateral security by | es: purchaser—Bills of Sale Amendment Act 1906 (W.A.) (No. 13 of 1906), :

Perrs, 8, 9 (3). os Jolla To be a creditor within secs, 8 and 9 (3) of the Bills of Sale 4 Gavan Duty, Act 1906 (W.A.), and so entitled to caveat against the registration of a bi ani Dixon 33, of sale, the caveator must be a person to whom the grantor is indebted i

debt which is owing whether payable immediately or at some future

option of determining the hiring by returning the chattel hired and by ] arrears of rental and a proportionate part of the current rental up to the di of determination. :

Held, that it created no debt in respect of future rental, and that a debt an under it in respect only of past hire whether the agreement ran its full o or was determined by the hirer.

The agreement contained a clause requiring the hirer to give promi notes as collateral security for the payment of the rent or hire.

Held, that upon the true interpretation of the agreement the prom notes so given did not create an immediate debt but were delivered to conditions precedent set out in the agreement, none of which had

Helby v. Matthews, (1895) A.C. 471, applied. Decision of the Supreme Court of Western Australia (Full Court) af

440.L.R.] OF AUSTRALIA.

Appeat from the Supreme Court of Western Australia.

George Harold Rundle, Albert Percival Rundle and Albert Cecil Hall, the grantors of a certain bill of sale, applied to Dwyer J., in Chambers, to have a caveat removed which had been lodged by H. J. Wigmore & Co. Ltd. against the registration under the Bills of Sale Amendment Act 1906 (W.A.) of such bill of sale. The bill of sale was dated 21st February 1930 and made between the applicants of the one part and the Bank of New South Wales of the other part, and the caveat was lodged on 19th March. The caveator alleged in its notice that it was a creditor of the grantors of the bill of sale in respect of a debt of £56 17s. due to it for a binder sold and delivered to them. The agreement between the applicants and the Company relating to the binder contained (inter alia) the following provisions : —*To H. J. Wigmore & Co. Ltd., Perth.—You are hereby requested to send to me on hire the following machine or implement one 6 ft. Osborne Binder (hereinafter called the machine) to be delivered at Fremantle Railway Station, and the machine to be at my risk, from the time of delivery or consignment, consigned to me at Beenong or at your option to be delivered or consigned to me from any of your agencies or depots on the Ist day of September 19 or within a reasonable time before or thereafter; and I hereby agree to pay freight from Fremantle, and that the machine is to be hired by me from you from date of delivery or consignment as aforesaid for a term until the last day shown in clause 1 hereof (determinable as hereinafter mentioned) on and subject to the terms and conditions following, that is to say :—(1) I shall pay you at your office in Perth as rental for the hire of the machine during the aforesaid term the total sum shown hereunder as follows, namely :—£ in cash for the period of the hiring terminating thirty days after delivery of the machine; £28 5s. for the period terminating on the Ist day of February 1930; £28 5s. for the period terminating on the Ist day of February 1931; £28 5s. for the period terminating on the Ist day of February 1932: £84 15s. total sum (hereinafter called ' the said total rental'). I will on delivery of the machine aforesaid pay you the cash instalment (if any) and as collateral security for the payment of the balance of the rental give or send to you at Perth my duly stamped promissory notes payable to your order on