Malick v Lloyd

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning the validity of a bill of sale. The dispute arose when the official assignee of a bankrupt, Hilda Catip, sought to have a bill of sale granted by Mrs. Catip to Nicholas and Aziz Malick declared void. The official assignee claimed entitlement to the stock-in-trade and other effects seized by the Malicks under the purported bill of sale.

The legal issues before the High Court were whether the bill of sale, which purported to assign after-acquired property, required registration under the Bills of Sale Act 1898 (NSW) to be valid against the official assignee, and if so, whether the registration was defective. The Supreme Court had found the bill of sale void due to a defect in the registration affidavit, specifically the grantor's occupation not being sufficiently stated. However, the High Court considered a broader question regarding the necessity of registration for assignments of future property.

The High Court reasoned that the Bills of Sale Act 1898, particularly section 5, requires registration for a bill of sale to be valid against an official assignee. However, the Court interpreted the definition of "bill of sale" in section 3 and the historical context of such legislation to mean that registration is only mandated for assignments of personal chattels that are in existence and capable of complete transfer by delivery at the time the bill of sale is executed. The Court found that the property seized by the Malicks consisted of after-acquired property, and there was insufficient evidence that any of the original property assigned remained at the time of seizure. Therefore, the Court concluded that the bill of sale, in so far as it operated as an assignment of future property, did not require registration to be valid against the official assignee.

Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and dismissed the official assignee's motion. The appellants were not awarded costs of the appeal, as the point on which the case was decided was not argued in the court below.