Gow and Chambers v White [1908] HCA 17

OF AUSTRALIA, 865

stand how it applies exactly in the way of merger, but it H- ©. oF A. not been raised properly in the pleadings. Leave to add it Rasa refused, and, in my opinion, properly refused. But I am also McLaveusax ff opinion that if it had been raised formally it would not, for pee ane, reasons given by the learned Chief Justice, have been success-

On these grounds I think the appeal should be dismissed.

Isaacs J.

Appeal dismissed with costs.

Solicitors, for the respondent, Freehill & Donovan. Cc. A.W.

[HIGH COURT OF AUSTRALIA.)

ROBERT MYLNE GOW AND EBENEZER CHARLES CHAMBERS (TrapinG As APPELLANTS ; R. M. Gow & Co.)

AND

THOMAS EDWARD WHITE . «RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

— Fraudulent preference—Payment—Good faith—Insolvency Act 1874

(Qd.) (38 Viet, No. 5), secs. 107, 108. H.C. or A.

1908. 'The mere fact that a debtor, who is unable for the moment to pay all dl __ his debts as they become due, makes a payment to a creditor, is not conclusive BrisBaNE, evidence that the payment is a fraudulent preference within sec. 107 of the April 29, 30; —— Tneolvency Act 1874 (Qa.). May 3.

' Griffith C.J.

Stewart & Walker v. White, 5 C.L.R., 110, explained. mes O'Connor JJ.

Payments by a debtor within six months of his insolvency of fortnightly sums of money in pursuance of a prior valid agreement with his creditor for the compromise of an existing debt :

H. C. or A.

1908, ——

Gow

Warre.

HIGH COURT [1908.

Held, upon the evidence, to have been received in good faith by the creditor, and, therefore, that the payments were not fraudulent preferences.

A creditor bought £800 worth of butter from his debtor for cash, there being at the time a debt of £25 due and owing to the creditor by the debtor, The creditor paid the debtor by cheque £775.

Held, that there was not a delivery of butter by the debtor to the creditor in discharge of a past debt within the meaning of sec. 108 of the Insolvency Act 1874 (Qa.)