Marks v The King - [1937] HCA 21

HIGH COURT

[1937.

[HIGH COURT OF AUSTRALIA.]

MARKS .

Appellant;

AND

THE KING

Respondent.

ON APPEAL FROM THE COURT OF BANKRUPTCY.

H. C. OF A. Bankruptcy—Failure to keep proper books oj account—Summary proceedings—

1937. Commencement—Limitation oj period—Bankruptcy brought about or contributed to by gambling—Proof—Bankruptcy Act 1924-1933 {No. 37 oj 1924—No. 66

Sydney,

oj 1933), secs. 209 (g), 214, 217, 219 (2).

May

14.

A bankrupt was convicted, in summary proceedings instituted in December

Latham C.J.,

Dixon, Evatt

19.36, on a charge laid under sec. 209 {g) of the Bankruptcy Act 1924-1933,

and McTiernan

JJ.that during the period between 1st June 1932 and 18th November 19.3.6, the date of his bankruptcy, he omitted to keep such books of account as were usual and proper in his business and as sufficiently disclosed his business transactions and financial position during that period, being a period within five years immediately preceding the date of his bankruptcy.

Held that as the charge related to a period which commenced more than three years prior to the institution of the summary proceedings it was bad under sec. 219 (2) of the Act; therefore the conviction must be quashed.

A charge laid against a bankrupt, under sec. 214 of the Bankruptcy Act 1924-1933, of contributing to his bankruptcy by gambling is not established merely by evidence of gambling on the part of the bankrupt preceding the bankruptcy. The charge is not proved unless, upon an examination of the circumstances leading up to the bankruptcy, it is found that the bankrupt’s gambling materially contributed to the bankruptcy.

Appeal from the Court of Bankruptcy (District of New South Wales

and the Territory for the Seat of Government).

The estate of William Henry John Marks who, in partnership with another person as from 1931, and on his own account as from

57 C.L.K.]

OF AUSTRALIA.

September 1932, carried on the business of a motor-car dealer at H- oe A.

Phillip Street, Sydney, was sequestrated on 18th November 1935

on the petition of a creditor, Ernest Ferdinand Lind, filed on 30th

Marks

October 1935. In his statement of affairs the bankrupt stated his

ki^o.

liahilities to be £9,163, his assets, £1,616 (which included an interest under a will valued by him at £1,000), and his deficiency, £7,547. Upon a compulsory apphcation made by the bankrupt under sec. 119 of the Bankruptcy Act 1924-1933 for a certificate of discharge, Judge Lukin, on 30th November 1936, after taking into consideration, inter alia, reports made pursuant to sec. 15 of the Act, had “ reason to believe that the said bankrupt has been guilty of offences against the Bankruptcy Act 1924-1933 punishable by imprisonment ” and ordered and directed that the bankrupt be charged and tried sum marily for offences against secs. 209 {g) and 214 (1) of the Act. He, accordingly, was charged before Judge Lukin on 16th December 1936, upon charges prepared and served upon him on 10th December, as follows ; Under sec. 209 {g), “ that…

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 Marks v The King

Details

AGLC: Marks v The King [1937] HCA 21
Case: [1937] HCA 21
Decision Date: 14 May 1937

CaseChat Overview and Summary

The High Court of Australia considered an appeal concerning bankruptcy proceedings against the appellant, Marks. The dispute centred on allegations that Marks had failed to keep proper books of account, a failure allegedly contributing to his bankruptcy, which was brought about or contributed to by gambling. The proceedings were summary in nature.

The primary legal issue before the Court was whether the summary proceedings for failing to keep proper books of account were commenced within the relevant limitation period prescribed by the *Bankruptcy Act 1924-1933* (Cth). A related question concerned the nature of proof required to establish that gambling had brought about or contributed to the bankruptcy.

The Court held that the limitation period for summary proceedings under the *Bankruptcy Act* applied to the offence of failing to keep proper books of account. It reasoned that the Act did not create a distinct offence for this failure in summary proceedings, but rather incorporated it as a summary offence. Therefore, the commencement of proceedings within the statutory time limit was a prerequisite for their validity. The Court also clarified that proof of gambling contributing to bankruptcy required evidence demonstrating a causal link between the gambling activities and the financial distress leading to the bankruptcy.

The Court allowed the appeal, quashing the conviction.

Orders