Bayne v Baillieu [1907] HCA 39; (1907) 5 CLR 64 (9 September 1907)

HIGH COURT OF AUSTRALIA

Lila Elizabeth Bayne Appellant; and Baillieu and Others Respondents.

H C of A

On appeal from the Supreme Court of Victoria.

9 September 1907

Griffith C.J., Barton and O'Connor JJ.

Agg (with him Ah Ket), for the appellant.

Mann, for the respondent, A. S. Baillieu.

McArthur, for the respondents, Messrs. Blake & Riggall,

Griffith C.J.

The proceedings for the sequestration of the estate of the appellant were begun after she and her sister had given notice of appeal to this Court from a judgment of the Supreme Court adverse to them, and were founded upon that judgment. While that notice of appeal was still pending, but before the appellant had given security for the costs of the appeal, the insolvency proceedings were pressed on, with the result that the order of sequestration—one of the orders now appealed from—was made by Hood J., but, as Mr. McArthur tells us, nothing was done under that sequestration after the appeal to this Court was completely instituted. Subsequently an application was made to Hodges J. to annul the order of sequestration, based practically on the circumstances I have pointed out. He refused to do so. Without saying that under all circumstances proceedings for sequestration founded upon a judgment, from which notice of appeal to this Court has been given must fail, it is sufficient in this case to say that, in the absence of any evidence that the appellant had an estate which the respondents desired to have administered in the Insolvency Court, they must fail. There is no evidence on that point at all. Upon the facts I have stated it appears to me, and I think to my brothers, that the order for sequestration ought not to have been made, but the motion should properly have been adjourned or perhaps dismissed. That being so, this Court on appeal can reverse the order for sequestration. Again, on the application to Hodges J., the same materials having been brought before him, he ought to have annulled the sequestration, but he did not.

Another point was suggested by Mr. McArthur, which might raise a formal objection to the second appeal, but has nothing in it of substance, viz., that his clients were not formally made parties to the motion to annul the sequestration. It is very arguable whether they were necessary parties. The official assignee was the only formal party, but it is not denied that Mr. McArthur's clients were the only creditors, and their solicitor represented the official assignee. Under all the circumstances I think the appeal should be allowed and the orders appealed from reversed.

Barton J.

I concur.

O'Connor J.

I concur.

Appeal allowed. Orders appealed from reversed. Respondents Blake & Riggall to pay costs of appeal.

Solicitor, for appellant, Frank S. Stephen.

Solicitors, for respondents, Rigby & Fielding; Blake & Riggall.