Hall v Woolf [1908] HCA 74; (1908) 7 CLR 207 (17 November 1908)

HIGH COURT OF AUSTRALIA

Hall Plaintiff, Appellant; and Woolf Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

17 November 1908

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

A. D. Stone and Hensman, for the appellant.

Northmore, for the respondent.

A. D. Stone in reply.

The judgment of the Court was delivered by:—

November 17

Griffith C.J.

Barton and O'Connor JJ.

The appellant, who is the trustee under a liquidation by arrangement duly instituted in Queensland in the year 1890 by one Horowitz under the Insolvency Act of that Colony, claims an order requiring the respondent, who is the trustee under a deed of assignment executed by Horowitz in 1908 under the bankruptcy law of Western Australia, to deliver up to him all the property of the debtor in his hands. The debtor's domicil of origin was Poland. Prior to 1890 he had been naturalized in Queensland. He left that Colony in that year and never returned, and has never obtained a certificate of discharge in the liquidation. In 1891, after visiting America, he came to Western Australia, and has since resided in that State, where he has acquired real and personal property, and where one of his daughters has married and settled. In 1902 he became naturalized in Western Australia. Upon these facts it is abundantly clear that if he ever acquired a domicil of choice in Queensland he abandoned it in 1890, and reverted to his domicil of origin, which he still retains unless he has acquired a fresh domicil of choice in Western Australia.

The appellant founds his claim upon the recognized rule of private international law that the assignment of a bankrupt's property to the representatives of his creditors under the law of a country which has jurisdiction over his person operates as an assignment of the moveables of the bankrupt wherever locally situate. It is argued, and we think rightly, that this doctrine applies to the case of a liquidation by arrangement under proceedings conducted in Court, such as those under the law of Queensland which are equivalent in their operation to an adjudication of bankruptcy. It is also argued that, whether the debtor was or was not domiciled in Queensland at the time of the liquidation, his voluntary submission to the jurisdiction of the Court was sufficient to bring this rule into operation. Assuming this to be so, it follows that all the moveable property which the debtor then had, wherever locally situated, passed to the trustee in the liquidation. This, however, is not sufficient to establish the appellant's case. He accordingly claims that not only must the original assignment to the trustee be recognized in Western Australia, but also the provision of the Queensland insolvency law which enacts that all property acquired by an insolvent or liquidating debtor before he obtains a certificate of discharge shall pass to the trustee in the insolvency or liquidation. No instance has been cited in which effect has been given to such an extension of the rule, unless the case of In re Lawson's Trusts[1] can be so regarded. In that case, however, the point was not raised, and the debtor had continued to reside till his death in the country in which he had become bankrupt.

The foundation of the rule relied upon is the wider rule mobilia sequuntur personam, of the application of which it is a familiar instance. If the local law as to after-acquired property ought to be recognized elsewhere, the reason must be that the law of the domicil of the bankrupt operates as a statutory assignment of his moveables, wherever situated, to the assignee in the bankruptcy, the assignment taking effect automatically as soon as they are acquired by the bankrupt. If such a rule were to be accepted by other countries, we are disposed to think that they would accept and apply it subject to a due regard for the rights of their own citizens, and that it might well be held that a rule analogous to that laid down by the Court of Appeal in Cohen v. Mitchell[2] would be adopted as a qualification of it. But, whatever may be thought of such a case, it is, in our opinion, quite clear that as soon as the debtor ceases to be domiciled in the country of adjudication the law of that country ceases to have any application to his after acquired moveables situated elsewhere. The same rule, mobilia sequuntur personam, still applies, but it excludes the operation of that law.

We think, therefore, that, whatever might be the rule as to moveables acquired by the debtor after the commencement of the liquidation, and while he was still domiciled in Queensland, the Queensland trustee cannot assert any title to moveables not locally situated there which were acquired by the debtor after his domicil in that Colony came to an end.

Sec. 118 of the English Bankruptcy Act 1883 does not create any new rights, but only creates new remedies for enforcing existing rights. The appellant's application was therefore rightly refused by Rooth J. and by the Full Court.

If it had been necessary to call in aid the doctrine of order and disposition, we agree with Rooth J. that the evidence brought the case within the rule.

It was suggested that a debtor whose estate has been assigned to representatives of his creditors cannot change his domicil; but this would be an extraordinary limitation of the right of personal freedom, for which no foundation can be found in principle or authority.

It is not suggested that there is or can be any surplus in the hands of the respondent. No question therefore arises as to any case that might be made against the debtor personally.

Appeal dismissed.

Solicitors, for appellant, Nicholson & Hensman.

Solicitors, for respondent, Northmore, Lukin & Hale.

[1] (1896) 1 Ch., 175.

[2] 25 Q.B.D., 262.