R v Commercial Bank of Australia Ltd [1921] HCA 3; (1921) 29 CLR 141 (4 March 1921)

HIGH COURT OF AUSTRALIA

The King Appellant; and The Commercial Bank of Australia Limited Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

4 March 1921

Knox C.J., Gavan Duffy and Starke JJ.

Cohen K.C. (with him Robertson and Dean), for the appellant.

Pigott and Lowe, for the respondent, were not called upon.

Knox C.J.

In this case the first ground taken by counsel for the appellant is that the return of nulla bona to the writ of execution was not a correct return. Mr. Cohen alleged that the evidence showed either that the return was untrue or that it was made recklessly without any proper ground of belief in its truth. On that objection I think it is clear that the requirement of sec. 49 (8) of the Insolvency Act 1915 in respect of the return of the writ is complied with if there be proof that the execution has issued and has been returned unsatisfied in whole or in part. I do not think that the truth or falsity of the return is a matter relevant to be considered. Presumably the Legislature considered that the return might safely be treated as correct, and it has used words which admit of only one meaning. In that view of the matter I cannot agree with the decision in In re Rylah; Ex parte Colonial Bank of Australasia Ltd.[1], that on the motion to make absolute an order nisi for sequestration the question whether the return to the writ of execution is true or false may be investigated. I think that that case was wrongly decided, as the only requirement of the Act is that the return should show that the execution is unsatisfied in whole or in part. It is said that that is an insufficient protection to the debtor, but, as my brother Gavan Duffy pointed out in argument, the protection of the debtor is secured by the proviso to the section, which runs as follows: "Provided that the debtor has been called upon to satisfy such judgment decree or order by the officer or other person charged with the execution thereof and has failed to do so." The petitioner cannot rest on the return to the writ alone: he must prove, in addition to a return of the writ unsatisfied in whole or in part, a refusal or failure on the part of the judgment debtor to pay the debt when demanded by the person charged with the execution of the writ. For these reasons I think that there is no force in this objection.

With regard to the other objections taken by Mr. Cohen, I see no reason to doubt that the decision of the Full Court of the State and that of Schutt J. were correct.

Gavan Duffy J.

I agree.

Starke J.

I agree.

Appeal dismissed with costs.

Solicitor for the appellant, C. E. Coy.

Solicitors for the respondent, J. M. Smith & Emmerton.

[1] 24 V.L.R., 844; 20 A.L.T., 277.