Lorimer v Smail

Case [1911] HCA 44


504 HIGH COURT

[1911,

H. C. oi’ A. sufficient legal evidence before his case could go to the jury,

Stripped of the many immaterial considerations upon which it was attempted to found the proof of Dunn’s authority,

N e w

South

W ales

Co u n try

the only fact upon which it really can be put is his employ­

P ress Co ­ment by Shakespeare in the special duty of obtaining pos­

o pe r a t iv e

session of some of the respondent’s contracts from certain of

Co.

L t d .

V.

Ste w ART. the respondent’s customers. No attem pt was made to prove

express authority conferred on Dunn to make statements with

O’Connor J.

reference to the subject matter of the alleged slanders, and for the reasons I have given I have come to the conclusion that it would be impossible for a ju ry legally to draw the inference that it was within the scope of Dunn’s special employment to make those statements. I t follows tliat, in my opinion, the plaintiff ought to have been nonsuited, and tha t the Supreme Court not having so held this appeal must be allowed.

Appeal allowed.

Solicitor, for the appellants, R. Sullivan.

Solicitors, for the respondent, McCoy v. McCoy.

C. E. W,

[HIGH COURT OP AUSTRALIA.]

LOEIMER AND OTHERS . . . .

A ppella n ts

SMAIL AND ANOTHER .

R e spo n d e n t s ,

H. C. of a .

ON APPEAL FROM THE SUPREME COURT OF

1911.VICTORIA.

M e l b o u r n e , Insolvency—Settlement hy woman who afterwards becomes

insolvent—Reyistration

Sept. 20, 25.

of settlement—Insolvency Act 1897 (Fid.) (jV o . 1513), sec. 100.

Griffith C.J.,

Sec. 100 of the Insolvency Act 1897 (Viet.) provides that “ Every settlement

Barton and . '

*'

O’Connor JJ.

of p roperty on or for th e wife or children or both wife and children of the

505

12 C.L.R.]

OF AUSTRALIA.

settlor made after the commencement of this Act not being a settlement H . C. OI' A.

before or in consideration of marriage or a settlement made on or for the wife 1911.

or children or both wife and children of the settlor of property which has

accrued to the settlor after marriage in right of his wife shall in case of the

L o b im b r »

V.

insolvency of the settlor at any time thereafter be absolutely void and of no

Sm a il .

effect against the assignee or trustee in insolvency unless such settlement be

in writing and ” registered in the mode prescribed.

Held, that the section does not apply to settlements made by women.

Decision of the Supreme Court of Victoria : In re Lorimer, (1911) V.L.R.,

168 ; 32 A.L.T., 172, reversed.

A ppea l from the Supreme Court of Victoria.

On 18th January 1907 Isabella Susanna Farckens, then a widow, executed a settlement,…

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Lorimer v Smail [1911] HCA 44
Case
[1911] HCA 44
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CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the interpretation of section 100 of the Insolvency Act 1897 (Vic.). The dispute arose from a settlement of land executed by Isabella Susanna Farckens, a widow, on 18th January 1907, for the benefit of herself for life and then to her children. A transfer was registered on 11th February 1907, in the joint names of Mrs. Farckens and her children. Mrs. Farckens later remarried and subsequently sequestrated her estate in July 1910. The trustees of her insolvent estate sought a declaration that the settlement was void against them due to non-registration under section 100. The Court of Insolvency dismissed the motion, a decision that was reversed by the Supreme Court of Victoria. The appeal to the High Court was brought by Mrs. Lorimer (formerly Farckens) and her children.

The central legal issue before the High Court was whether section 100 of the Insolvency Act 1897 applied to settlements made by women. Specifically, the court had to determine if the provision, which rendered certain settlements void against an assignee or trustee in insolvency unless registered, encompassed settlements made by a mother on her children. The appellants argued that the section was intended to apply only to settlements made by men, while the respondents contended for a broader, grammatical interpretation that included settlements by women.

The High Court, in allowing the appeal, held that section 100 of the Insolvency Act 1897 did not apply to settlements made by women. The majority of the Court reasoned that while a literal grammatical reading might suggest otherwise, the context and collocation of words within the section indicated that the term "settlor" was intended to refer to a husband. The Court considered the phrase "on or for the wife or children or both wife and children of the settlor" and concluded that the inclusion of "wife" alongside "children" strongly implied a male settlor. Furthermore, the Court found it improbable that the legislature would intend to invalidate a mother's provision for her children while allowing a wife's provision for her husband. Therefore, the Court restored the decision of the Judge of the Court of Insolvency.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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