Mackenzie v Rees [1941] HCA 21

Foll

Co) Fale, ABBland = Milan

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REPORTS OF CASES

DETERMINED IN THE

HIGH COURT OF AUSTRA.

[HIGH COURT OF AUSTRALIA.]

MACKENZIE ' e : : : F . APPELLANT ;

AND

REES AND ANOTHER 3 ; : 5 . RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND EXERCISING JURISDICTION IN BANKRUPTCY.

Bankruptcy—Interest-bearing debt—Promissory note free of interest accepted by H.C. or A. creditor—Entry into deed of arrangement—Whether debt revived—Claim for 1941. interest wpon surplus—Interest as damages for dishonour of promissory note— Se Court equally divided—Appeal dismissed—Variation of order appealed from— BRISBANE, Bankruptcy Act 1924-1933 (No. 37 of 1924—No. 66 of 1933), secs. 60 (2), 81, June 18, 19.

84 (5), 89, 112 (1), 116 (2), 118, 121 (2)—Bills of Exchange Act 1909-1936 Soe

(No. 27 of 1909—No. 74 of 1936), sec. 62—Judiciary Act 1903-1939 (No. 6 of July 28 1903—No. 43 of 1939), sec. 23 (2). Le Rich A.J,

A creditor accepted from his debtor, in respect of an interest-bearing debt. Dixon,

a z » McTiernan and promissory notes for the amount of the debt free of interest. Before the Williams JJ.

maturity of the notes, the debtor entered into a deed of arrangement under Part XII. of the Bankruptcy Act 1924-1933. The realization of the debtor's estate resulted in a surplus. The creditor having claimed to be entitled to prove for interest on the debt payable out of the surplus, Philp J., exercising the jurisdiction in bankruptcy of the Supreme Court of Queensland, held that the creditor was entitled to prove against the surplus for interest from the date of execution of the deed of arrangement as damages under sec. 62 of the Bills of Exchange Act 1909-1936. On appeal by the debtor to the High Court,