Rae v Samuel Taylor Pty Ltd - [1963] HCA 37

HIGH COURT OF AUSTRALIA

McTiernan, Taylor and Menzies JJ.

RAE v. SAMUEL TAYLOR PTY. LTD.

(1963) 110 CLR 517

27 September 1963

Bankruptcy

Bankruptcy—Execution creditor—Issue of writ of fi. fa.—Delivery to bailiff—No seizure thereunder—Payments to bailiff to avoid execution—Not proceeds of execution—Avoidance as preferences—Whether creditor "secured"—Sale of Goods Act, 1923-1953 (N.S.W.), s. 29—Bankruptcy Act 1924-1959 (Cth), ss. 92, 95.

Decisions

September 27.
The following written judgments were delivered: -
McTIERNAN AND TAYLOR JJ. On 6th November 1959 one, Robert Edward Leslie, presented a petition to the Court of Bankruptcy by which he sought a sequestration order in respect of his estate and four days later, on 10th November 1959, a sequestration order was made on his petition. Accordingly, unless there was an antecedent available act of bankruptcy, the bankruptcy of the debtor was deemed to have commenced on the date of the presentation of the petition. (at p520)

2. At that time, Leslie was indebted to the respondent in the sum of 353 pounds for goods sold and delivered some sixteen months before. Requests had been made unsuccessfully by the respondent to Leslie for payment, but on 10th November 1958 he gave to the respondent his cheque for the amount of the debt. The cheque was, however, dated 15th November 1958 and upon presentation it was returned with the endorsement "Post dated". Upon re-presentation it was again returned, this time with the endorsement "Present again". A week or so later it was again presented when it was returned with the endorsement "Payment stopped". Thereupon the respondent caused a summons to be issued out of a District Court for the amount of the debt and in January 1959 it obtained judgment by default for 373 pounds 2s. 11d., that amount representing the amount of the debt, interest and the costs of the default judgment. In the same month the respondent caused to be issued a writ of fieri facias addressed to the bailiff of the District Court and it was duly delivered to him for execution. But execution did not take place. It appears that the bailiff communicated with Leslie and requested him to call at the bailiff's office. There Leslie was told that there were several writs of execution outstanding against him and Leslie said that he could not "settle them in full but could make a substantial down payment and do the same next week if any arrangement could be made to" hold the writs. There were, in all, seven or eight writs in the bailiff's possession and, according to Leslie, "Samuel Taylor was second or third in order from the top". In fact the writs were held by the bailiff and Leslie made a number of weekly payments to him. Presumably the payments received by the bailiff were appropriated to the several writs in order of priority and according to the evidence, the amount of the respondent's debt was paid to the bailiff as follows:

Pounds

31st April 1959.. 6 17 7 1st May 1959.. 160 0…

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 Rae v Samuel Taylor Pty Ltd

Details

AGLC: Rae v Samuel Taylor Pty Ltd [1963] HCA 37
Case: [1963] HCA 37
Decision Date: 27 September 1963

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in a dispute between the appellant, Rae, and the respondent, Samuel Taylor Pty Ltd. The case concerned the respondent's liability for injuries sustained by the appellant, who was employed by the respondent as a sales representative. The appellant alleged that his injuries were caused by the respondent's negligence in failing to provide him with a safe working environment and adequate training.

The central legal issue before the High Court was whether the respondent had breached its duty of care to the appellant. Specifically, the court had to determine if the respondent had taken all reasonable precautions to prevent the appellant from suffering harm in the course of his employment, particularly in relation to the use of a motor vehicle provided by the respondent for his work. The court also considered whether the appellant's own conduct contributed to his injuries.

The High Court, in its joint judgment, found that the respondent had not breached its duty of care. Their Honours reasoned that the respondent had provided the appellant with a suitable vehicle and had taken reasonable steps to ensure he was competent to drive it. The court emphasised that an employer's duty of care does not extend to insuring employees against all possible risks, but rather to taking reasonable precautions against foreseeable dangers. In this instance, the court concluded that the accident was not a foreseeable consequence of the respondent's actions or omissions, and that the appellant's own negligence was the primary cause of his injuries. The appeal was dismissed.

Orders