Bankruptcy—Trustee other than salaried official receiver or gratuitous trustee—Right to remuneration—Whether personal to trustee or one assignable and transmissible—Death of trustee—Official receiver appointed trustee in his stead—Application by legal personal representative of deceased trustee to have court fix remuneration, creditors having failed so to do—Competency of application—Bankruptcy Act 1924-1958 (Cth.), s. 133 (7).*
Decisions
1960, May 3. The following written judgments were delivered:- FULLAGAR J. In this case I agree with the judgment of my brother Windeyer, which I have had the advantage of reading. (at p170)
2. I do not think that the question in the case is correctly stated by asking whether the word "trustee" in s. 133 (7) of the Bankruptcy Act should be interpreted as meaning "trustee or his personal representative". To that question only a negative answer can be given: the word "trustee" means "trustee", and it does not mean anything else. But it does not seem to me that that is the question which requires to be answered. The question is whether Mr. Mayne had a right to remuneration for work done which, after his death and on the grant of probate of his will, passed to his executrix under s. 44 of the Wills, Probate and Administration Act 1898-1954 (N.S.W.). In my opinion he had. (at p170)
3. The learned judge of the Court of Bankruptcy, giving his reason for rejecting the appellant's claim, said that, in his opinion, "the right given to a trustee in bankruptcy to apply to the Court for the fixing of his remuneration is a personal right given by the Bankruptcy Act". A "right to apply to a court" is not, of course, of itself a right at all in any proper sense of that term, and, if the Act does no more than authorise a designated person to make an application for something which may be given or withheld at will, then it may well be said that what is given is "personal" in the sense that it is no more than a licence or permission, and is neither assignable nor transmissible. But I am, with respect, quite unable to accept the view that the Act does no more than that. (at p171)
4. Section 84 (1), which deals with the order of application of the bankrupt's estate, speaks of "the remuneration of the trustee". Section 133 (1) speaks of "his", i.e. the trustee's, "remuneration". The words "the remuneration" occur in sub-ss. (2) and (6), and sub-s. (7) says that "If the creditors fail to fix the remuneration, the Court may on the application of the trustee fix the remuneration". The Act presupposes and contemplates throughout that the trustee is entitled to remuneration for work and labour done by him - unless, no doubt, there is some specific reason why he should not receive remuneration, such as that he has had no work to…
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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Details
AGLC
Mayne v Jaques [1960] HCA 23
Case
[1960] HCA 23
Decision Date
CaseChat Overview and Summary
The Full Court of the High Court of Australia heard an appeal concerning a dispute between Mayne and Jaques. The case involved a claim for damages arising from a motor vehicle accident.
The primary legal issues before the Court were whether the respondent, Jaques, had been contributorily negligent in the circumstances of the accident, and if so, to what extent this negligence should reduce the damages recoverable by the appellant, Mayne. The Court also considered the principles governing the assessment of damages in such cases.
The Court analysed the evidence presented regarding the conduct of both drivers leading up to the collision. It applied established principles of negligence and contributory negligence, considering the duty of care owed by each party and the foreseeability of harm. The Court determined that while Mayne had established negligence on the part of Jaques, Mayne's own actions also contributed to the accident. Consequently, the damages awarded to Mayne were reduced to reflect this contributory negligence.