IN THE HIGH COURT OF
PERRY
V.
MAYNE
REASONS FOR JUDGMENT.
Delivered at___s_w~y___________________________________
on __TH.trn.S.l~A.'{.!. ___12_~_g
___:Q~_Q~J!!?.>.J?_g!.. ___~2~5 •
40358
A. H. PETTIFER, ACTING GoVT. Pnn<T.
.
...
PERRY
DD
UO!HER ____y._
0
.lppeal· allowd.
sa
of
£1~;
R
D E
~
DD BOTHER. .
R•
Oll!cler appealed· from varied by substitutillg the
J.S: 1 for tlae sum of .£220 wherever appearing in the .said
order u.lalso subst:l.tuting for the order -a.s to costs an order that
the parties 'bear thei.r ovm costs. e:uept that the costs of the Common-
wealth Jank.of.Australia as a submitting respoadent be paid out of the
estate of the bankrupt.
llG ord.er as tCJ the costs of this appeal except an order that the
·
-.1
" ~.
costs of the Bank as a submitting responient be paid out of the estate of
the
~pt.
------·-· ---------~-·~------·-···
v•
.MAYNE & ANOR.
JUDGMENT.
RICH J 1
PIXOU J.
WILL IA1iiS J ,
PERRY & ANOR.
v.
Mil.YN.E & ANOR.
JUDGMENT.
RICH J,
DIX:ON J t
VVILL IAlvlO J.
This is an appeal by R.G. Perry and his <life against
an order made by the Federal Court of Bankruptcy on 25th June 1945
by which it was declared th:at, of the s11m of' £280:'/:4,being portion
of the sum of £339:9:5 standing to the
Cl' edit
of the appellants
in a ,joint account at the Commonwealth Savings Bank of Australia,
Haberfield Branch, the sum of £220 is the property of the bankrupt,
divisible among his creditors ·vldthin the meaning of sec. 52(c)
of the Bankl•uptcy Act (N.S.W.) 1898.
On, 1st February 1926 the
estate of the appellant R.G. Perry was sequestrated under the
provisions of this Act.
On 13th May '1929 he was refused his
certificate of discharge, so that he is still an undischarged
ba:n1rrupt, the respondent R.D. Mayne being the official assignee
of his estate ..
The appellants opened the joint account on 2nd
Sep'tember 1937•. Between tha,t date and 15th rJovember 1941 the
deposits into and
'~'iithdrawals
I
from the account 'Nere small.
The
principal deposit was the sum of £59:2:1 on 30th October 1940.
14th May 1941 the
t~...ccount
was in credit £25:0:6.
1941 the credit balance had increased to £48:5:11.
On
On 15th November
The next
deposit was the sum of £20 on ::Jar·ch 2nd 1942, and from that date
until 22nd June 1943 the credit grew by a surplus of deposits
over withdrawals to £339:9:5.
On 3rd :November 1944 the official assignee filed the
notice of moti.on claiming that the sum of £280: 7:4 in the joint
!f;l.Ccount was the property of the banlaoupt.
This sum l"epresented
the above credit of £339:9:5 after deducting the above sum of
£59:2:1.
As all but £25:0:6 of the sum of £59:2:1 ElUst have been
withdrawn by 14th May 1941, it is difficult to see why this
deduction I
i
~
2.
deduction should have been made.
Assuming that all the payments
~
into the account between 14th May 1941 and 15th November 1941 were
the moneys of the vd.fe, the proper amount to deduct would appear
to be £48: 5: 11 •
The evidence tendered before the .learned Judge in
Bankruptcy at the hearing of the notice of motion included a
statutory declaration of the bankrupt of 22nd June 1944 in which
it was stated that, with the exception of certain payn1ents which
includ,ed pension moneys payable to his vdfe and children. in respect
of his servj_ce in the first world war, and wages earned by his
daughters, the greater part of the deposits represented his wages.
'fhe bankrupt i'.l.nd his wife gave oral evidence but were disbelieved
by His Honour.
booJ:I~
The bank book of the joint account and another
showing the bankrupt 1 s earnings w·ere tendered iXJ. evidence.
'rhe l'lank book has pencil notations opposite the deposits which,
if correct, show that the whole of the deposits, with the
exce::ption oi'' two small sums the one for interest and the other
for a refund of true, paid into the account on and after 2nd March
1 942 were })art (Jf the bankrupt • s wages.
The only evidence with
J:'espect to the making of these notations is that they were in
the bank ·book 1Nhen it 11Va s handed to the official assignee by a
prev:ious solicitor of the ban.i'::rupt.
The effect of the sequestration Ol'der 1Na.s to vest
any rno11eys of the
banl<~rupt
which ·were paid into the bank account
in tl1e official assignee. The notice of rnotion is in ,effect a
claiJtn by him against the vdfe ·to these moneys :Ln right of the
bank.:rupt.
The onus is on him to establish the extent to which
the sum of £339:9:5 represents the property of the banlr..rupt.
His
Honour found that the sum of £220 out of the moneys in the joint
account belonged to the bankrupt.
It is difficult to asce1•tain
exactly hov.r His Honour reached this result. The statutory
decl.ara tion was not in
OU1'
opinion evidence against the wife,
although it was made ~ exhibit to the affidavit on which the
application I
,..I\.
application was founded and was not o"bjected to.
There is also
no evidence that the notations in the bank book were made with
her authority.
She said in her evidence that it was she who
deposited all the moneys in di$Ute in the account. The evidence
as a vvhole, such as it is, shows, we think; as His Honour found,
that the moneys in the account represent in part the vmges of
the bankrupt, in part, the pension moneys, and in
to the vd:fe by two of her daughters.
~part
moneys paid
The bankrupt said that
these daughters each paid their mother 30/- per fortnight, but it
is not clear' whether these payments w·ere for board and lodging
or were savings.
'ulll"e are not surprised that, on the scanty and trrlsatisf'actory evidence, His Honour had difficulty in ascertaining the
amount of the bankl•upt 1 s rnoneys in the account.
We consider .that
a greater e.ffort; should have been made by the official assignee
to elucidate the facts.
He has very exh':lnsive powers under the
.Act of eJmroining witnesses for this purpose.
The daughters were
not examin0:d and were not made par·ties to the proceedings.
The
appellants sought -to prove that a substantial sum in the account
representecl presents from :relatives made on a.ccount of the
sickness
(lf
one of their children, but His Honour disbelieved
this evidence.
The pension moneys received during the r•elevant
period would have been £54:1 :1el, and the moneys paid by the
daughter· s to their mother at the above rate would have been
£124:10:0.
These two sums total £178:11 :1L
The total amount
paid into the account between 2nd Jl,i1arch 1942 and 22nd June 1943
:was £291:3:6, but of this amount £5:13:6 represented interest.
Deducting this interest leaves £285:10:0.
from £285:10:0 leaves £106:18:1.
Deducting £178;11:11
Tbis sum at least, on the wife's
evidence, excluding the evidence of presents from relatives,
r·epresents savings out of moneys given her by her husband for
household expenses, and such moneys are the property of the
official assignee.
On/
,.,,J,
4.
On the whole we think that, in the very unsatisfactory
state in which the materials llifere left, it vvas unsafe to reject
the hypothesis that the daughters had made the contributions which
the mother claimed had been made.
We do not doubt that His Honour
was fu:Lly justified in refusing to believe the evidence given by
the banla'upt and his wife.
W,
But the burden of proof, as we have
was on the official assignee, and
we
do not think that he
offered evidence on which the Court could ,securely act in positiveJy
saying that the account did. not include such contributions, so
tl:lat vle consider that it ought not to be found affirmatively
that more than this sum, £106:18:1, was the property of the
oanlrrupt.
The order should therefore be varied by substituting
tlle smn £106:18:1 for the sum of £220.
As both the notice of
:J:notion and the appeal partly succeeded and partly failed, we think
that the parties should be left to pay their mvn costs here and
-below, except that the costs of the Commonwealth
Ban:~
of
.Australia as a submitting respondent here and below should be
paid Ol)t of the estate at' the bankrupt.