or irregularity of writ - -Bankruptcy Act 1898 (N.S.W.) (No. 25 of 1898), sec. 134-Bankruptcy - Rules 1896 (N.S.W.), rr. 200, 201-Consolidated Equity Rules of 1902 (N.S. W.), rr. 210, 214.

Sec. 134 of the Bankruptcy Act 1898 (N.S.W.) provides that " (4) Whenever the official assignee or trustee claims any property as part of the bankrupt's estate, or claims any right against any person, whether such person is or is not a party to the bankruptcy, the Court may upon motion by the assignee or

the question raised by such claim, and make such order thereupon as he may deem expedient or necessary, for the purpose of doing complete justice between all the parties interested." 4.6 (6) Every order of the Court made under this Act in any cause or matter may be enforced against all persons bound thereby in the same manner as a judgment of the Supreme Court to the same effect."

Rule 200 of the Bankruptcy Rules 1896 provides that " Non-compliance with any of these Rules

or with any rule of practice for the time being in force, shall not render any proceeding void unless the Judge shall so direct but such proceeding may be set aside, either wholly or in part, as irregular, or amended or otherwise dealt with, in such manner and upon such terms, as the Judge may think fit." Rule 201 of those Rules provides that save as provided by those Rules the Rules of the Supreme Court in Equity shall apply to any proceeding in bankruptcy."

18 CLR 340

Rule 210 of the Consolidated Equity Rules of 1902 provides that No writ

habere facias shall be issued without special order, to be obtained on motion with affidavit of the circumstances of the case and the person against whom such writ is sought to be issued shall be served with notice of the motion, unless the Court otherwise orders." Rule 214 of the last mentioned Rules provides that " When any party who by any order or decree is ordered to deliver possession of any lands

within a limited time, refuses or neglects, after due service of such decree or order, to obey the same, the party prosecuting such order or decree shall be entitled to a writ of assistance or of habere facias."

The Supreme Court in its bankruptcy jurisdiction having made an order under the authority of sec. 134 (4) of the Bankruptcy Act 1898 directing delivery of possession of certain land to the official assignee of a bankrupt, the fact that a writ of habere facias is issued without a special order under rule 210 of the Consolidated Equity Rules of 1902 having been first obtained does not render the writ a nullity, but it is merely an irregularity.

Held, therefore, that the person by whose authority the writ was issued might justify under it…

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 Plowman v Palmer

Details

AGLC: Plowman v Palmer [1914] HCA 41
Case: [1914] HCA 41
Decision Date: 11 August 1914

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia concerning an action for assault. The plaintiff, George Plowman, alleged he was assaulted by the defendants, William Harrington Palmer (the official assignee of a bankrupt), and his solicitors, McIntosh and Crowther. The defendants sought to justify their actions by claiming they were acting under a writ of *habere facias* issued by the Supreme Court in its bankruptcy jurisdiction, which directed the sheriff to put Palmer in possession of certain land. The plaintiff was removed from this land by the sheriff's bailiff pursuant to this writ.

The central legal issue before the High Court was whether the writ of *habere facias* was a nullity, thereby rendering the defendants' actions unlawful, or merely an irregularity that could be justified. The plaintiff contended that the writ was invalid because it was issued without a special order, as required by Rule 210 of the Consolidated Equity Rules of 1902, which applied to bankruptcy proceedings under Rule 201 of the Bankruptcy Rules 1896. The defendants argued that the writ, even if irregular, provided a valid defence to the assault claim, as it had not been set aside.

The High Court, affirming the decision of the Supreme Court but on different grounds, held that the writ of *habere facias* was not a nullity. The Court reasoned that while Rule 210 of the Equity Rules stipulated that such a writ should not be issued without a special order, non-compliance with this rule constituted an irregularity, not a fundamental defect that would render the writ void. This was supported by Rule 200 of the Bankruptcy Rules, which stated that non-compliance with rules would not render proceedings void unless a judge directed otherwise. The Court applied the principle that a party acting under an irregular writ that has not been set aside can justify their actions. Therefore, the sheriff's officer was entitled to execute the writ, and the defendants, acting under its authority, were justified in removing the plaintiff from the land, provided no more force than necessary was used, which the jury had found. The appeal was dismissed.

Orders