Poole v Attorney-General (Cth) [1955] HCA 14

REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUS

RALIA

[HIGH COURT OF AUSTRALIA.]

POOLE é 5 ' i 3 2 i : APPELLANT ;

AND

ATTORNEY-GENERAL FOR THE COMMON pow pn WEALTH. . ee

ON APPEAL FROM THE FEDERAL COURT OF BANKRUPTCY.

Bankruptcy—Offences—Failure to deliver property to trustee—Material omission in statement of affairs—Defence—No intent to defraud creditors dec.—Absence of demand for delivery—High Court—Appeal as to sentence—Principles governing —Bankruptey Act 1924-1950 (No. 37 of 1924—No. 80 of 1950), ss. 76 (1) (c), (2), 210 (1) (6), (d), (6).

Section 76 (2) of the Bankruptcy Act 1924-1950 provides: "If a bankrupt wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property which is divisible amongst his creditors under this Act, and which is for the time being in his possession or under his control, to the official receiver or the trustee, or to any person duly authorized to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of contempt of court."

Held, that the sub-section does not create an obligation to deliver property but merely provides an additional sanction for a wilful failure to perform an obligation existing independently.

Section 210 (1) (b) of such Act provides that any bankrupt who does not deliver up to the trustee, or as he directs, all parts of his real and personal property which are in his custody or under his control, and which he is required by law to deliver up shall be guilty of an offence. A bankrupt was convicted of offences against s. 210 (1) (b) and s. 210 (1) (d) and sentenced to a term of imprisonment on each charge, to be served concurrently. The bankrupt had deliberately abstained from mentioning his ownership in a concrete mixer, worth ninety pounds, in his statement of affairs because he