Williams v Official Assignee of the Estate of William Dunn [1908] HCA 27

6 OLR.)

OF AUSTRALIA.

(HIGH COURT OF AUSTRALIA.}

WILLIAMS

AND

THE OFFICIAL ASSIGNEE OF THE ESTATE

OF WILLIAM DUNN

ON APPEAL FROM THE

APPELLANT ;

} RESPONDENT.

SUPREME COURT OF

NEW SOUTH WALES.

Bankruptcy Act (N.S.W.) (No. 25 of 1898), secs. 57, 58*—Protection of bond fide H.C. or A. transaction—Preference—Payment of just debt—Act of bankruptey—Distribu- tion of property—Construction of Statutes,

'The effect of sec. 57 of the Bankruptcy Act 1898 is not limited by the pro- visions of sec. 58, and, therefore, a payment by a bankrupt which comes 20, 21, 22. within the terms of sec, 57 is protected by that section, although it is an act

of bankruptcy.

*Secs. 57 and 58 of the Bankruptcy Act 1898, so far as material, are us follows

"57. Subject to the provisions of this Act with respect to the effect of bank- ruptey on an execution or attachment, and with respect to the avoidance of certain settlements, and subject to the provisions of this Act with respect to the avoidance of certain preferences except as hereinafter provided, nothing in this Act shall invalidate in the case of a bankruptcy :—(a) any payment by the bankrupt to any of 'his creditors, for or on account of any just debt due at the time of payment. . . . . Provided that both the following con- ditions are complied with, namely (1) the payment 'takes place before the date of the sequestration order ; and (2) the person (other than the debtor) to . . . whom the

yment . . . wasmade.. .

as not at the time of the payment . . . notice of any available act of bankruptcy committed by the bank- rupt before that time. And provided

that the burden of proving that the above conditions have been complied with shall be upon the person who relies upon their having been complied with. 'Payment' shall for the pur- poses of this section include the draw- ing, making, or indorsing of a Dill of exchange, cheque, or promissory note.