Mayne v Jaques [1960] HCA 23

High Court of Australia Fullagar, Kitto, Taylor, Menzies and Windeyer JJ. Mayne v Jaques [1960] HCA 23

ORDER Appeal allowed. Discharge order of Court of Bankruptcy and remit matter to that court to fix remuneration of Robert David Mayne as trustee of bankrupt estate of Frank Booth Jones deceased and to deal with costs of application to that court. Order that the costs of the appellant of this appeal be paid out of the bankrupt estate.

Cur. adv. vult.

The following written judgments were delivered:—

1960, May 3 Fullagar J.

In this case I agree with the judgment of my brother Windeyer, which I have had the advantage of reading.

I do not think that the question in the case is correctly stated by asking whether the word "trustee" in s. 133 (7) of the Bankruptcy Act should be interpreted as meaning "trustee or his personal representative". To that question only a negative answer can be given: the word "trustee" means "trustee", and it does not mean anything else. But it does not seem to me that that is the question which requires to be answered. The question is whether Mr. Mayne had a right to remuneration for work done which, after his death and on the grant of probate of his will, passed to his executrix under s. 44 of the Wills, Probate and Administration Act 1898-1954 N.S.W.. In my opinion he had.

The learned judge of the Court of Bankruptcy, giving his reason for rejecting the appellant's claim, said that, in his opinion, "the right given to a trustee in bankruptcy to apply to the Court for the fixing of his remuneration is a personal right given by the Bankruptcy Act ". A "right to apply to a court" is not, of course, of itself a right at all in any proper sense of that term, and, if the Act does no more than authorise a designated person to make an application for something which may be given or withheld at will, then it may well be said that what is given is "personal" in the sense that it is no more than a licence or permission, and is neither assignable nor transmissible. But I am, with respect, quite unable to accept the view that the Act does no more than that.