ISAACS V. WRIDGWAY BROS. (AUBURN) PROPRIETARY LIMITED 22/1941

Cs NOL? IGA 1

IN THE HIGH COURT OF AUSTRALIA.

ISAACS

v.

WRIDGWAY BROS. (AUBURN) PROPRIETARY LIMITED.

REASONS FOR JUDGMENT.

FE

Judgment delivered at. MELBOURNE...

care i om co ae ee on... TUSSDAY...4.4-th-OCTOBER--1 9ist-s

This is an appeal from an order made by the Judge in Bankruptcy sequestrating appellants estate. The appellant is a married women end the Benkruptey Act sec.5 provides that such an order can be made against married women. "he Act of bankruptcy upon which the hankruptcy petition is founied is non compliance with the requirements of the benkruptcy notice under sec. 52 subsec. dj of the Bankruptcy Act. The relevant facts are that an action in which the appellant was plaintiff and the respondent company defendant wae heard in the County Court. In this action the plaintiff made two claims (1) that the defendant had wrongfully removed or converted her goods chattels and effects. The ques- tion of the ownership of these goods hed elready been referred to a Judge of the County Court who hed determined that they were not the plaintiff's property and were still the property of mr John Isaacs. That question having been determined against the plaintiff she could not make any case against the defendant in the action on the first groand mentioned viz. wrongful removal or conversfion of her property: The second ground in the action thet for trépass on her property also failed because the only evidence in the action was thet the property in ques- tion did not belong to her and the defendant Company went on | to the property es the agent of one of the owners, In these circumsgtances the learned County Judge rightly decided that the plaintiff had given no evidence to support either claim and rionsuited her and made an order for payment by her of the costs of the sotton, Ait je costs when taxed amounted to £104- 18-9. & bankruotcy notice requiring the appellant to pay this sum was: cate served on her and upon her failing to comply with the requirements of the notice the petitiom was filed. 'Yhen this petition ceme on for hearing before the Judge in Bankruptcy mo cause was shown to His Honour why the sequestration order ¢ should not be made Accordingly em the order was made against whoth this appeal was launched. She did not make eny applica- tion to set aside the bankruptcy notice and no ground has been shown to exist on which Such an application afould have heen based. Her action againstf the Directors of the petitioning

Company could not possibly constitute @ counter cjoim sett of€

or cross demand against the Company.

The appeal must be dismissed with costs. If the respon- dent Company cannot recover the costs from the ae it may apply to the Official Receiver to allow them out of the estate of the bankrupt and if he refuses to do so may apply to the Judge in Bankruptcy