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Hall v Woolf

Hall v Woolf

Case [1908] HCA 74 17 November 1908

Jurisdiction

Appeal

Statutory Construction

Insolvency

Commercial Law

Statutory Interpretation

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7 CLR 207

Insolvency-Bankruptey Act 1883 (46 &47 Vict.) c. 52, sec. 118-Conflict of laws-

Insolvent's change of domicil-After acquired property-Subsequent insolvency in another country.

Although the assignment of a bankrupt's property to the representative of his creditors under the law of a country which has jurisdiction over his person operates as an assignment of the moveables of the bankrupt wherever locally situate, this rule does not extend to after-acquired property situate in another country and which is acquired by the bankrupt when he is not domiciled in the country where the assignment was made. A law, therefore, of the country where the assignment was made, that all property acquired by the bankrupt before he obtains a certificate of discharge shall pass to the trustee under the bankruptcy, has no operation upon such after acquired property.

Sec. 118 of the Imperial Act, 46 &47 Vict. c. 52, does not create new rights, but only new remedies for enforcing existing rights. Solomon Horowitz, whose domicil of origin was Poland, was in 1890 a naturalized British subject under the law of Queensland and resident in that Colony. The appellant was appointed trustee under a liquidation by arrangement duly instituted in Queens- land in that year under the Insolvency Act of that Colony. The debtor afterwards left Queensland, and in 1891, after visiting

7 CLR 208

America, came to reside in Western Australia, where he acquired

property and again became naturalized. In 1908, without having obtained a discharge in the Queensland liquidation, he became insolvent in Western Australia. The respondent was trustee under that insolvency. The appellant, having obtained from the Supreme Court of Queensland an order pursuant to sec. 118 of the Imperial Bankruptcy Act 1883, that aid should be sought of the Western Australian Court to obtain possession of the property belonging to the debtor and situate in Western Australia, asked the Supreme Court of Western Australia for an order that all property in the respondent's hands should be delivered to him. The motion was heard by Rooth J., who thought, upon the evidence, that the property in question was in the order and disposition of Horowitz with the consent of the appellant, even assuming him to be true owner. He dismissed the motion with costs, and the Full Court of Western Australia dismissed an appeal from the decision.

A. D. Stone and Hensman, for the appellant. While the insolv- ency proceedings were pending in Queensland Horowitz was not sur juris, and it was not open to him to acquire a new domicil

SO as to oust the Queensland jurisdiction.

[GRIFFITH C.J.-That would be an extraordinary limitation of the right of personal freedom.]

An assignee in insolvency has a right to after-acquired property In re Lawson's Trusts 1 following In re Davidson's Settlement Trusts 2; and if Horowitz were still domiciled in Queensland his property acquired in Western Australia would pass to the Queensland trustee, for the Court of domicil has the right to pronounce a universally valid judgment with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall v Woolf

Details

AGLC: Hall v Woolf [1908] HCA 74
Case: [1908] HCA 74
Decision Date: 17 November 1908

CaseChat Overview and Summary

The appellant, the trustee in a Queensland liquidation by arrangement of one Horowitz, sought an order from the Supreme Court of Western Australia for the respondent, the trustee of Horowitz's subsequent Western Australian insolvency, to deliver property in his hands. Horowitz, originally domiciled in Poland, was naturalized in Queensland before 1890, when the liquidation commenced. He left Queensland in 1890, never obtained a discharge, and subsequently resided in Western Australia from 1891, where he acquired property and was naturalized in 1902. In 1908, he became insolvent in Western Australia. The appellant's claim was based on the principle that an assignment of a bankrupt's property under the law of a jurisdiction with control over the person operates as an assignment of moveables wherever they are located.

The central legal issue was whether the Queensland liquidation law, specifically the provision that all property acquired by a debtor before obtaining a discharge vests in the trustee, had extraterritorial effect on property acquired by Horowitz in Western Australia after he had ceased to be domiciled in Queensland. The court also considered whether Section 118 of the Imperial Bankruptcy Act 1883 created new rights or merely new remedies, and whether Horowitz's ability to change his domicile was affected by the ongoing liquidation proceedings.

The Court held that while the law of a bankrupt's domicile generally operates as a statutory assignment of their moveables worldwide, this principle does not extend to after-acquired property situated in another country when the bankrupt is no longer domiciled in the country of adjudication. The Court reasoned that the rule *mobilia sequuntur personam* continues to apply, but it excludes the operation of the law of the former domicile concerning after-acquired moveables situated elsewhere. Section 118 of the Imperial Bankruptcy Act 1883 was found to provide only new remedies for enforcing existing rights, not new rights themselves. The Court also rejected the argument that a debtor in liquidation cannot change their domicile, deeming it an extraordinary and unfounded limitation on personal freedom.

Consequently, the appeal was dismissed. The Court affirmed the decisions of both Rooth J. and the Full Court of Western Australia, which had refused the appellant's application. The Court found that the Queensland trustee could not assert title to moveables acquired by Horowitz in Western Australia after his domicile in Queensland had ended.

Orders