Jack v Smail

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.