McQuarrie v Jaques [1954] HCA 76

Hy Mais [Bora sod Fe ; Play A linn Rae v Samuel GR" eee pee faire sel OPALR TE? 262 HIGH COURT [1954. [HIGH COURT OF AUSTRALIA.] McQUARRIE AND ANOTHER. : : s APPELLANTS ; RESPONDENTS, AND JAQUES . : < i . é 3 & RESPONDENT. APPLICANT,

H.C. or A. Bankruptey—Judgment debtor—Buecution levied—Goods held by sheriff seven days

1954. ee)

SypNey,

Aug. 25, 26;

Dec. 15.

Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ.

before sale—Money paid to execution creditor—Withdrawal of sheriff—Act of bankruptey—Petition issued by another creditor—Sequestration order made— Relation back—Benefit of execution—Right of execution creditor to retain— Bankruptcy Act 1924-1950, ss. 4, 52 (e), 55, 60, 90, 92.

Before an act of bankruptcy had occurred the debtor's goods were seized in execution at the suit of the appellants. 'The goods were held for more than seven days before being sold which under s. 52 (e) of the Bankruptcy Act 1924-1950 constituted an available act of bankruptcy to which a bankruptcy of the debtor must be deemed to have relation back and then commence if the petition be presented within six months: s. 90 of the Bankruptcy Act 1924-1950. In fact within six months a petition was presented founded on another later act of bankruptcy and a sequestration order was made. But in the meantime the sale, the return of fieri feci to the writ and the payment of the money to the appellant all took place. Upon the trustee in bankruptcy seeking a declaration and order that, by virtue of s. 92 of the Bankruptcy Act 1924-1950 the appellants were not entitled to retain the benefit of the execution against the goods of the bankrupt, Clyne J. held that before the execution had been completed by seizure and sale the execution creditors 2 (1) of the commission of an available

had notice within the meaning of s. act of bankruptcy by the debtor inasmuch as they must be taken to have known that the sheriff had held the goods for seven days after seizure so that an act of bankruptcy was committed: s. 52 (e). The order which Clyne J. made under s. 92 declared that the appellants were not entitled to retain against the respondent the benefit of the execution and the order required the appellants to pay the respondent the amount of the benefit of the