ON APPEAL FROM THE SUPREME COURT OF Insolvency Act 1890 ( (Victoria) (No. 1102), secs. 70 (v.), 72-Insolvency Act 1897
(Victoria), (No. 1513), sec. 5-Married Women's Property Act 1890 (Victoria), (No. 1116), secs. 10, 13-Court of Insolvency-Jurisdiction-Application to MELBOURNE,
declare trustee entitled to property adversely claimed-Burden of proof-Savings August 8, 9,
of wife out of housekeeping allowance by husband-Deposit in Savings Bank- 10, 11, 14, 15,
Settlement-Grocer's licence- " Goods and chattels - -Reputed ownership.
The Court of Insolvency has jurisdiction under the Insolvency Act 1897 to entertain an application by the trustee of an insolvent estate for a declaration that property claimed by a third person to which the trustee sets up a title paramount is part of the insolvent estate.
Decision of Supreme Court on this point (In re Jack, [1905] V.L.R., 275; 26 A.L.T., 172) affirmed.
Moneys saved by a wife out of an allowance made to her by her husband for housekeeping purposes, and deposited by her from time to time in a Savings Bank in her own name, are within sec. 10 of the Married Women's Property Act 1890 (Victoria), and are therefore to be deemed to be her separate property until the contrary is proved. Moneys so saved by a wife, and with the husband's consent invested by the wife as her own, are not a "settlement of property" within sec. 72 of the Insolvency Act 1890 (Victoria).
To constitute a "settlement" within that section it is necessary to show that the gift was intended by the donor to be kept in its original form, or in the form of an investment, for the benefit of the donee.
In re Plummer, (1900) 2 Q.B., 790, followed. Held, on the evidence, that the respondents, the trustees of the husband's insolvent estate, had not proved that money standing to his wife's credit in a Savings Bank was not her separate property, and that no case of fraud on creditors had been established.
Decision of Supreme Court reversed.
A grocer's licence issued under the Licensing Act 1890 is not "goods and chattels" SO as to be subject to reputed ownership within the meaning of sec. 70 (v.) of the Insolvency Act 1890.
Anthoness v. Anderson, 14 V.L.R., 127 9 A.L.T., 175, followed.
APPEAL from the Supreme Court of Victoria.
In the Court of Insolvency at Melbourne, a motion was heard by which Edward William Smail and Frederick Wooton Danby, trustees of the insolvent estate of John Jack, asked for an order or declaration "that the trustees of the insolvent estate of the above insolvent are entitled to receive, as part of the insolvent estate, the interest claimed by Elizabeth Jane Jack (the wife of the above-named insolvent) under the contract of sale of land at High Street, Malvern, dated 28th May, 1903, between the said Elizabeth Jane Jack and the Fourth Victoria Permanent Building and Investment Society, and for an order that the said Elizabeth Jane Jack…
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.
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AGLC
Jack v Smail [1905] HCA 25
Case
[1905] HCA 25
Decision Date
CaseChat Overview and Summary
The case of *Jack v Smail* concerned an application brought before the Court of Insolvency by a trustee in bankruptcy. The trustee sought to have certain property declared as belonging to the bankrupt's estate, but this claim was met with an adverse claim by the bankrupt's wife. The dispute revolved around the ownership of funds deposited in a savings bank account and a grocer's licence.
The central legal issues before the Court of Insolvency, and subsequently on appeal to the High Court, were whether the savings deposited in the wife's name constituted a settlement within the meaning of the *Insolvency Act 1890* (Vic) and the *Insolvency Act 1897* (Vic), and whether the grocer's licence fell within the definition of "goods and chattels" for the purposes of reputed ownership provisions. The Court was also required to determine the appropriate burden of proof in such proceedings.
The High Court, comprising Griffith C.J., Barton and O'Connor JJ., considered the nature of the savings. It was established that the funds originated from the wife's savings out of a housekeeping allowance provided by her husband. The Court held that such savings, when deposited in the wife's name, did not amount to a settlement under the relevant insolvency legislation. Furthermore, the Court determined that a grocer's licence was not "goods and chattels" for the purposes of the reputed ownership clause. The Court affirmed that the burden of proof lay on the trustee to establish the elements of a settlement or reputed ownership.