Colley v Clements [1936] HCA 56

Colley v Clements [1936] HCA 56

The bill of sale did not set forth the situation of the property with sufficient certainty, as it described the property alternatively as being located on specified premises or 'otherwise used or employed by the mortgagor in or about or in connection with the said business.' This alternative and indeterminate expression fails to satisfy section 30(2)(a)(iii) of the Instruments Act 1928 (Vict.), which invalidates the bill of sale.

Parties
Appellant; Defendant: Joseph Henry Pomeroy Colley; Respondent; Plaintiff: William Ernest Clements
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria (full Court), After Trial and Appellate Decisions Below
Outcome
appeal dismissed
Legal Topics
Bills of Sale, Validity of Security Instruments, Description of Property in Security Instruments
Property Law Commercial Law Bills of Sale Validity of Security Instruments Description of Property in Security Instruments

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Parties

Joseph Henry Pomeroy Colley

Appellant; Defendant

William Ernest Clements

Respondent; Plaintiff

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria (full Court), After Trial and Appellate Decisions Below

Legal Issues

  1. 1 Whether the bill of sale set forth the situation of the property as required by sec. 30(2)(a)(iii) of the Instruments Act 1928 (Vict.)
  2. 2 Whether a bill of sale is operative or valid if the situation of the property is alternatively or insufficiently described

Ratio Decidendi

The bill of sale did not set forth the situation of the property with sufficient certainty, as it described the property alternatively as being located on specified premises or 'otherwise used or employed by the mortgagor in or about or in connection with the said business.' This alternative and indeterminate expression fails to satisfy section 30(2)(a)(iii) of the Instruments Act 1928 (Vict.), which invalidates the bill of sale.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed.