Cock v Howden [1915] HCA 64

Cock v Howden [1915] HCA 64

An order for repayment against the trustee cannot stand unless the proceedings are treated as a motion on notice to the trustee or with the trustee's consent; otherwise, procedural fairness is not observed and the order cannot stand.

Source-derived case information.

Parties
Appellant: Charles Matthew Germain Cock; Respondent: John McAlister Howden
Jurisdiction
Australia
Judgment Date
22 September 1915
Procedural Posture
Appeal / Determination of Appeal
Outcome
Judgment of the Supreme Court of Victoria varied; order of the Court of Insolvency restored as to costs.
Legal Topics
Trustee Conduct, Inquiry Into Trustee, Order for Repayment, Procedural Fairness
Insolvency Trustee Conduct Inquiry Into Trustee Order for Repayment Procedural Fairness

Source-derived case record

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Parties

Charles Matthew Germain Cock

Appellant

John McAlister Howden

Respondent

Procedural Posture

Appeal / Determination of Appeal

Legal Issues

  1. 1 Whether an order for repayment by the trustee to the trust estate can be made without a motion on notice to the trustee or the trustee's consent.
  2. 2 Whether the Court of Insolvency acted in accordance with procedural fairness (Audi alteram partem) in making the order against the trustee.

Ratio Decidendi

An order for repayment against the trustee cannot stand unless the proceedings are treated as a motion on notice to the trustee or with the trustee's consent; otherwise, procedural fairness is not observed and the order cannot stand.

Court Disposition

Judgment of the Supreme Court of Victoria varied; order of the Court of Insolvency restored as to costs.

Orders

  • The judgment of the Supreme Court varied by inserting that reversal of the order of the Court of Insolvency is except so far as it directs payment of costs by Howden to Cock, but without prejudice to any claim that may be made in proper proceedings.
  • The order of the Court of Insolvency for payment of costs by Howden to Cock is restored.