Dowling v Colonial Mutual Life Assurance Society Limited [1915] HCA 56

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OF AUSTRALIA. 509 HIGH COURT OF AUSTRALIA. DOWLING APPELLANT ; AND THE COLONIAL MUTUAL LIFE aoe Re SONDENTS ANCE SOCIETY LIMITED... eles a ut ON APPEAL FROM THE SUPREME COURT OF VICTORIA. Hi. C. or A. Insolvency—Order for sequestration—Abuse of process—Motive—Res judicata— 9} 5, Existence of petitioning creditor's debt—Decision of Court of Insolvency on

application to dismiss debtor's summons—Company—Ultra vires—Purchase of Mur.nounnr, debt—Incidental powers of company—Insolvency Act 1890 (Vict.) (No. 1102), June 10, 11 ;

secs, 5, 37*, 38, 39, 45, 47. Sept. 16. Had, by Isaacs and Powers JJ. (Griffith C.J. dissenting), that the mere "Temes an" Powers JJ.

fact that the only motive of a creditor in seeking to make his debtor insolvent was to ascertain, by examination in the Court of Insolvency, the identity of the persons who had instigated the debtor to publish, or had provided him with the means of publishing, defamatory matter concerning the creditor, didznot render the proceedings for sequestration an abuse of the precess of the Court, and, therefore, was not a ground for discharging an order nisi for such sequestration.

* Sec. 37 of the Insolvency Act 1890 provides that "A single creditor or two or more creditors if the debt due to such single creditor or the aggregate amount of debts due to such several creditors from any debtor amount to a sum not less than £50 may present a pecan to a Judge of the Supreme

Court . . . praying that the estate of the debtor may be arirerie for the benefit of his creditors, and alleging as the ground for such petition any one or more of the fpltanpcns ad acts or defaults,

hereinafter deemed to be and included under the expression 'acts of insol- vency':— . (vt) That the creditor presenting the petition has served in the prescribed manner on the debtor a debtor's summons requiring the debtor to pay a sum due, of an amount of not less than £50, and the debtor has for the space of fourteen days succeeding the service of such summons neglected to pay such sum or to secure or to compound for the same."