McQuarrie v Jaques [1954] HCA 76

McQuarrie v Jaques [1954] HCA 76

Execution creditors who have notice of the commission by the debtor of an available act of bankruptcy (here, goods held for seven days after seizure) before completion of execution, are not entitled to retain the benefit or proceeds of execution against the trustee in bankruptcy, even if their own execution is the act of bankruptcy. Authority and decided cases (including Figg v. Moore Bros. and Trustee of Burns-Burns v. Brown) require the appeal to be dismissed.

Jurisdiction
Australia
Procedural Posture
Appeal / Final Judgment
Outcome
appeal dismissed with costs
Legal Topics
['priority Between Execution Creditor and Trustee in Bankruptcy' 'relation Back Doctrine' 'benefit of Execution Under Bankruptcy Act']
['bankruptcy'] ['priority Between Execution Creditor and Trustee in Bankruptcy' 'relation Back Doctrine' 'benefit of Execution Under Bankruptcy Act']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 ['Whether execution creditors are entitled to retain proceeds or benefit of execution against trustee in bankruptcy under s. 92 of Bankruptcy Act 1924-1950 when goods seized are held for statutory period and act of bankruptcy occurs' "Whether 'benefit of execution' includes proceeds received by execution creditor after notice of act of bankruptcy" "Effect of execution creditor's notice of act of bankruptcy on retention of proceeds or benefit under s. 92"]

Ratio Decidendi

Execution creditors who have notice of the commission by the debtor of an available act of bankruptcy (here, goods held for seven days after seizure) before completion of execution, are not entitled to retain the benefit or proceeds of execution against the trustee in bankruptcy, even if their own execution is the act of bankruptcy. Authority and decided cases (including Figg v. Moore Bros. and Trustee of Burns-Burns v. Brown) require the appeal to be dismissed.

Court Disposition

appeal dismissed with costs

Orders

  • ['Appellants to pay sum of £189 1s. 3d. to trustee in bankruptcy of John William Bender.' 'Appellants to pay costs of the appeal.']