Facey v Rawsthorne [1925] HCA 10

566 HIGH COURT

(HIGH COURT OF AUSTRALIA.)

RACHY "AND © OTHERS oye eae . . APPELLAN PLAINTIFFS, AND : RAWSTHORNE AND ANOTHER . . . Responpents DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Vendor and Purchaser—Sale of land—Decree for specific performance—A Aner, by vendor for benefit of creditors—Act of bankruptcy by vendor—Objection to of vendor—Order allowing purchaser to rescind and staying decree—Bankrupte

SyDNEy, Act 1898 (N.S.1W.) (No. 25 of 1898), secs. 4 (g), 57, 58, 63 (2), 67—Conveyar April 27, 28 ; Act 1919 (N.S.W.) (No. 6 of 1919), secs, 187-195. May 7. — A obtained a decree in the Supreme Court of New South Wales on 2 yes er February 1924 for the specifie performance by B of two interde} Higgins JJ contracts, one for the sale by A to B of certain real property and the other

the sale by B to A of other real property, the time fixed for the completion the contracts having then expired. Shortly afterwards A by deed assigned his property to trustees for the benefit of his creditors. Cross-appeals from decree were withdrawn on terms, including a term that the properties sold be transferred to the respective purchasers. Subsequently, on 23rd A A committed an act of bankruptcy by failing to comply with a ban notice served on him by a creditor. B having objected that A was unal give a good title to the property to be transferred by him, the Master in certified that A was unable to give a good title as there might be a seque (based on the act of bankruptcy) at any time before 23rd February 1925. Or a summons to vary the Master's certificate, which was heard when two mo had still to run within which a petition in bankruptcy might be i founded upon the act of bankruptey, Harvey J., having allowed the tru of the deed of assignment to be added as plaintiffs, upheld the