Mayne v Jaques [1960] HCA 23; (1960) 101 CLR 169 (3 May 1960)

HIGH COURT OF AUSTRALIA

MAYNE v. JAQUES [1960] HCA 23; (1960) 101 CLR 169

Bankruptcy

High Court of Australia
Fullagar(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.

CATCHWORDS

Bankruptcy - Trustee other than salaried official receiver or gratuitous trustee - Right to remuneration - Whether personal to trustee or one assignable and transmissible - Death of trustee - Official receiver appointed trustee in his stead - Application by legal personal representative of deceased trustee to have court fix remuneration, creditors having failed so to do - Competency of application - Bankruptcy Act 1924-1958 (Cth.), s. 133 (7).*

HEARING

Sydney, 1959, November 16, 17; 1960, May 3. 3:5:1960
APPEAL from the Federal Court of Bankruptcy.

DECISION

1960, May 3.
The following written judgments were delivered:-
FULLAGAR J. In this case I agree with the judgment of my brother Windeyer,

2. I do not think that the question in the case is correctly stated by asking whether the word "trustee" in s. 133 (7) of the Bankruptcy Act should be interpreted as meaning "trustee or his personal representative". To that question only a negative answer can be given: the word "trustee" means "trustee", and it does not mean anything else. But it does not seem to me that that is the question which requires to be answered. The question is whether Mr. Mayne had a right to remuneration for work done which, after his death and on the grant of probate of his will, passed to his executrix under s. 44 of the Wills, Probate and Administration Act 1898-1954 (N.S.W.). In my opinion he had. (at p170)

3. The learned judge of the Court of Bankruptcy, giving his reason for rejecting the appellant's claim, said that, in his opinion, "the right given to a trustee in bankruptcy to apply to the Court for the fixing of his remuneration is a personal right given by the Bankruptcy Act". A "right to apply to a court" is not, of course, of itself a right at all in any proper sense of that term, and, if the Act does no more than authorise a designated person to make an application for something which may be given or withheld at will, then it may well be said that what is given is "personal" in the sense that it is no more than a licence or permission, and is neither assignable nor transmissible. But I am, with respect, quite unable to accept the view that the Act does no more than that. (at p171)

4. Section 84 (1), which deals with the order of application of the bankrupt's estate, speaks of "the remuneration of the trustee". Section 133 (1) speaks of "his", i.e. the trustee's, "remuneration". The words "the remuneration" occur in sub-ss. (2) and (6), and sub-s. (7) says that "If the creditors fail to fix the remuneration, the Court may on the application of the trustee fix the remuneration". The Act presupposes and contemplates throughout that the trustee is entitled to remuneration for work and labour done by him - unless, no doubt, there is some specific reason why he should not receive remuneration, such as that he has had no work to do, or that he has misconducted himself in some way. The words "if any" in sub-s. (1) do not mean that the creditors may give or withhold remuneration at their absolute discretion. Nor is the court in any different position if an application is made to it under sub-s. (7). The court could, no doubt, as could the creditors, refuse to fix any remuneration for such good reason as is suggested above. But, if work has been done and remuneration earned, the court is bound to fix "the remuneration" at such sum as it considers reasonable. To say in such cases that the word "may" means "shall" is to state a practical result but not to present a correct legal analysis. The true position is that a jurisdiction is conferred, and, if the conditions of the jurisdiction exist, the common law requires the jurisdiction to be exercised. For a refusal to exercise it mandamus will lie, though here the appellant has pursued the alternative course of proceeding by way of appeal under s. 26 of the Act. (at p171)

5. It has often been said (see e.g. Ilbert, Mechanics of Law-making, (1914), p. 121) that, where a legislature is setting out to create a right and also to give a remedy for the enforcement of the right, the best course, as a matter of drafting, is first to define the right and then, by separate enacting provision, to give the remedy. But it is by no means uncommon for the draftsman to refrain from any express definition of the right, and to provide simply that a person may seek a specified remedy in a specified tribunal. In such cases the Act has been said to give a right and a remedy uno ictu. A good example is found in Hooper v. Hooper [1955] HCA 15; (1955) 91 CLR 529, esp at pp 535, 536 , and cf. Barrett v. Opitz [1945] HCA 50; (1945) 70 CLR 141 . As Latham C.J. said in the latter case, "A right is created by the provision that a court may make an order, and such a provision, also gives jurisdiction to the court to make the order" (1945) 70 CLR, at p 155 . The present case is in substance analogous to these cases. The Bankruptcy Act does not expressly and separately say (1) that the trustee shall be entitled to remuneration for work done, and (2) that he shall have his remedy at the hands of the creditors or the court. But, in and by giving him a remedy, it recognises that he has a right to remuneration for work done. The right impliedly given in Hooper v. Hooper [1955] HCA 15; (1955) 91 CLR 529 was a right to have a dissolution of marriage, and such a right is, by its very nature, neither assignable nor transmissible. A contract for personal service is not, of course, assignable. But the right in the present case is a right to remuneration for work which has been done. Such a right is plainly, I would think, assignable in equity and transmissible at law, and with it will go to the assignee or personal representative all appropriate remedies for its enforcement. (at p172)

6. The appeal should, in my opinion, be allowed. (at p172)

KITTO J. This is an appeal from an order of the Federal Court of Bankruptcy refusing an application to fix the remuneration of the deceased trustee of a bankrupt estate. (at p172)

2. The estate was that of a deceased solicitor. An order for the administration of the estate in bankruptcy was made under s. 155 of the Bankruptcy Act 1924-1946 (Cth.) on 17th June 1949. At the first meeting of creditors, which was held on 6th July 1949, one Robert David Mayne, a person registered under the Act as qualified to act as a trustee, was appointed to fill the office of trustee of the estate. The appointment was authorised by the combined operation of ss. 128 and 155 (6). Mr. Mayne busied himself in the administration of the estate with considerable advantage to the creditors; but they did not pass any resolution either fixing his remuneration or enabling the committee of inspection to do so. Mr. Mayne died on 17th September 1953, leaving a will of which the appellant as executrix obtained probate in the Supreme Court of New South Wales on 19th July 1954. By virtue of s. 131 the respondent, who is the official receiver, was the trustee of the estate during the vacancy created by Mr. Mayne's death, and it seems that he was thereafter appointed trustee by the creditors. In September 1958 the appellant as Mr. Mayne's executrix applied to the Federal Court of Bankruptcy by motion on notice to fix the remuneration which should be paid out of the bankrupt estate in respect of her testator's trusteeship thereof. She joined the official receiver as respondent. The application was refused on the ground that the court's power to fix the remuneration of a trustee appointed by the creditors is a power exercisable only on the application of the trustee, and that the right of the trustee to make the application is a personal right and not one which passes to or vests in his legal personal representative upon his death. (at p173)

3. The provision upon the construction of which the appeal depends is contained in sub-s. (7) of s. 133. The section applies where the creditors appoint any person other than the official receiver to be trustee of an estate in any bankruptcy proceeding under the Act, and it deals with the fixing of "his remuneration (if any)". The quoted expression recognises, as does sub-s. (10) also, that in some cases the trusteeship may be undertaken gratuitously, and accordingly the first question of fact to be decided in any case in which a provision of the section is invoked is whether or not the appointment of the trustee by the creditors was on the footing that remuneration should be payable. In the present case there is no dispute that Mr. Mayne's trusteeship was not intended, either by him or by the creditors who appointed him, to be gratuitous. In such a case the section deals, as I have said, with the fixing, that is to say the quantifying, of the remuneration. It assumes that a qualified person who accepts appointment as the trustee of an estate on the footing that he will be remunerated is entitled as of right to have his remuneration fixed. The provisions which it makes in that behalf, so far as they are material to this case, are that the creditors may either fix the remuneration themselves by resolution or empower the committee of inspection to do so (sub-s. (1)), and if they "fail" to fix it (that is, either themselves or through the committee of inspection) "the court may on the application of the trustee fix the remuneration" (sub-s. (7)). The use of the word "fail" excludes the case of a gratuitous trusteeship, and makes clear the intention of the section that in other cases the right of the trustee to remuneration is to be perfected by a proper fixation, if not by the creditors as the body primarily entrusted with the power to do so then by the court. (at p173)

4. For the proper understanding of the section as a whole, however, it is necessary to bear in mind that the fixing of the trustee's remuneration where the trusteeship is not intended to be gratuitous has another aspect also. It is a necessary preliminary to the ascertainment of the proper mode of application of the assets. By s. 84 (1) the estate is made applicable in an order of priority which is set out, and first in the order of payment come the costs of the administration, including the remuneration of the trustee. This means, of course, the remuneration fixed under the Act, and s. 133 (7) is therefore in a sense complementary to s. 84 (1) because it provides one of the means by which that provision may be made effectual. Accordingly, where the creditors have appointed a trustee on the footing that he will be paid for his work, the amount available for distribution amongst creditors (or, as the case may be, the surplus to be paid to the bankrupt under s. 118) cannot be arrived at unless and until the remuneration has been fixed. Sub-section (7) of s. 133 is therefore not a provision made solely in the personal interests of the individual: it is a provision ancillary to s. 84 (1), ensuring that if the creditors fail to fix the remuneration the court may cure the omission, and by so doing may enable the estate to be administered as the Act intends. (at p174)

5. The expression "on the application of the trustee" being found where it is in the sequence of words in sub-s. (7), the conclusion is no doubt necessary that the court is not empowered to fix the remuneration on the application of any person other than "the trustee". But the question at once arises: who is meant in this context by "the trustee"? If the provision of the sub-section existed in the interests of the person whose remuneration requires fixing, and only in his interests, it would be possible, and it might well be natural, to conclude that "the trustee" was no more than a description of that person, so that the right of application was allowed to him as persona designata, though only (for some reason which it would be difficult to imagine) during the period of his trusteeship. But when it is remembered that the application to fix the remuneration is a step necessary to be taken in order that the administration of the estate may be carried out as s. 84 (1) contemplates, the correct conclusion seems to me to be that the expression "the trustee" is not used as a description of the individual to be remunerated, but refers to the person who fills the office of trustee for the time being and who, as such, is concerned to obtain a determination of the amount to be paid under the first item in the statutory order of priority. (at p174)

6. On either view, the Court of Bankruptcy had, I think, no power to fix Mr. Mayne's remuneration on the application of his executrix alone; but it seems to me that if, in the course of the proceedings, the official receiver as the then trustee of the estate had supported the application of the executrix by himself requesting the court to fix the remuneration, the condition of sub-s. (7) would have been fulfilled, and the court would have had power to make the order which was sought. The sub-section does not stipulate that a trustee's application under it shall take any particular form, and r. 25 of the Bankruptcy Rules, which provides generally that applications to the court shall be by motion, reserves power to the court in any particular case to direct otherwise. There seems to be no reason why an application made orally by counsel for the trustee, even in the course of proceedings initiated by someone else, should not be held to satisfy the requirement of s. 133 (7). (at p175)

7. The respondent, however, read the section differently. Although he was willing enough that the court should fix Mr. Mayne's remuneration if it had the power, he took the view that on the true construction of the section he had no locus standi to make an application for the purpose. Accordingly, he quite properly refrained from doing so. But the court was not bound to accept the situation thus created and allow the estate to be distributed without any provision having been made for remuneration to Mr. Mayne's estate for the work he had done. The respondent, being an official receiver, was under the control of the court by virtue of s. 12 (7), and in addition the court had power under s. 148, on the appellant's application, to review the respondent's decision not to apply under s. 133 (7). It seems to me, therefore, that the court might have made an order in the course of the hearing of the appellant's motion, if it had found it necessary to do so, directing the respondent to apply then and there for the fixing of Mr. Mayne's remuneration in order that the estate might be properly administered, and that upon the application being made the court might have proceeded to exercise its power under s. 133 (7). (at p175)

8. In my opinion we ought to allow the appeal, vacate the order of the Federal Court of Bankruptcy and remit the matter to that court. (at p175)

TAYLOR J. I have arrived at the same conclusion on this matter as my brother Kitto and, having had the opportunity of considering the reasons which he has prepared, I do not wish to add anything. I therefore agree that the appeal should be allowed and an order made in the terms proposed by him. (at p174)

MENZIES J. Robert David Mayne, the trustee of the bankrupt estate of the late F. B. Jones, having died without his remuneration as a trustee having been fixed either by the creditors or by the Bankruptcy Court, the executrix of his will applied to that court, pursuant to s. 133 (7) of the Bankruptcy Act 1924-1958, to have the deceased's remuneration fixed. Clyne J. decided that it was not possible to accede to this application and the applicant has now appealed to this Court. (at p176)

2. I consider that until remuneration is fixed, in one of the ways provided by s. 133 of the Bankruptcy Act, a trustee is not entitled to any remuneration. Equity has always ruled against allowances to trustees for their trouble in carrying out their trusts in the absence of express directions to the contrary, and Parliament, it seems to me, accepting this equitable principle, has made special provisions in the Bankruptcy Act for trustees' remuneration, which require the remuneration to be fixed. The trustee does not by working as a trustee become entitled to any remuneration by way of quantum meruit or otherwise; a trustee becomes entitled as remuneration to what is fixed (subject to alteration as provided) but only upon its being fixed. This is not, therefore, a case of Mayne having become entitled to remuneration or having a right to remuneration and having died, so that an enforceable right was prima facie transmitted to his personal representative; it is a case of the deceased, during his life, having nothing beyond the statutory means of becoming entitled to remuneration, and dying before becoming entitled to any remuneration with the consequence that nothing better than an expectancy could pass to his personal representative. Dean v. Wiesengrund (1955) 2 QB 120 , relied upon for the appellant, seems to me to be plainly distinguishable because the basis of that decision was that when a statute creates rights of the sort which prima facie would on death pass to a personal representative, they do so in the absence of express provision to the contrary. Re Browne; Ex parte Official Assignee, Browne and Browne Respondents (1895) 16 NSWLR (B&P) 62 seems to me much more in point and the description there adopted of executors' commission as something "inchoate: something which might grow into a claim, but was not an existing claim" does indicate the character of what I may call the rights of a trustee in bankruptcy in respect of remuneration before remuneration has been fixed. (at p176)

3. The question here is whether, in the setting which I have described, s. 133 (7), in providing that the court may "on the application of the trustee" fix the remuneration, authorizes the court to fix a deceased trustee's remuneration upon the application of his personal representative. (at p176)

4. As a matter of construction (and this case really involves nothing more), I agree with Clyne J. that it does not. In the Bankruptcy Act, the word "trustee" is not used to include the personal representative of a trustee. Appointment as a trustee is a personal appointment (ss. 126 and 128); the property of a bankrupt passes from trustee to trustee (s. 103 (2)); throughout, the Act is concerned with a trustee only while he is trustee; and s. 133 (3) deals with the apportionment of remuneration fixed by creditors when one trustee succeeds another. Neither by definition (s. 4), nor by context, is there adequate reason for reading the word "trustee" in s. 133 (7) to include the personal representative of a deceased trustee; cf. s. 99 (2). If it is consistent with the general scheme of the Act that there should be posthumous applications with regard to the remuneration of a deceased trustee, I consider any application for the remuneration of such a trustee would have to be made by the trustee for the time being. This appeal, however, which arises on an application by the personal representative of a deceased trustee and does no more than assert the right of the personal representative to make an application under s. 133 (7), does not seem to me to raise for consideration the question whether the trustee for the time being can make the application which I consider Clyne J. rightly decided the appellant could not make. (at p177)

5. I consider that the order made by Clyne J. was correct and that this appeal should be dismissed. (at p177)

WINDEYER J. At the time of his death in September 1953 the late Robert David Mayne was the trustee in bankruptcy of the bankrupt estate of Frank Booth Jones deceased, having been appointed a trustee at the meeting of creditors held on 6th July 1949. He did what the learned Judge in Bankruptcy has described as "very considerable and valuable work" in getting in assets and unravelling the apparently rather involved affairs of the bankrupt estate. The work was not finished at the date of his death, and the remuneration he was to receive had not been fixed by the creditors as, by virtue of ss. 155 (6) and 133 (1) of the Bankruptcy Act, might have been done. Why this was not done does not appear. We were told by counsel for the respondent, the official receiver - although it does not appear in the evidence - that the notice convening the first meeting of creditors had stated that one of the purposes of the meeting was to fix the remuneration of the trustee to be appointed; but that apparently no resolution about remuneration was proposed. Until the affairs of the estate had been investigated it was not known how much work the trustee would have to perform nor what return this was likely to yield. And therefore, as s. 133 (1) provides that a trustee's remuneration may from time to time be fixed by a resolution of the creditors, it seems that the matter was simply left in abeyance at the outset. This we were told is a common course in bankruptcy, as it is in voluntary windings up of companies (Palmer's Company Precedents, 16th ed., (1951), vol. 2, p. 747). Upon Mr. Mayne's death the official receiver, Mr. Stanley Theodore Jaques, the respondent in this appeal, became trustee in his place by virtue of s. 131 of the Act. And we were told, although again there is no formal proof, that afterwards the creditors in general meeting appointed him the trustee pursuant to s. 130, and that the registrar issued a certificate of such appointment as required by s. 128 (1). But still no resolution was proposed dealing with the remuneration of Mr. Mayne. There was no need for a resolution concerning Mr. Jaques' remuneration, for as official receiver he is paid by a salary. (at p178)

2. Mr. Mayne had undertaken this trusteeship as an ordinary professional engagement. It is not suggested that he was to act without remuneration. In these circumstances his widow, as executrix of his will, applied to the Bankruptcy Court, relying upon s. 133 (7) which provides that: - "If the creditors fail to fix the remuneration, the Court may on the application of the trustee fix the remuneration". It is said that, the creditors never having fixed the remuneration, they may be said to have failed to fix it within the meaning of s. 133 (7). I shall assume that, in the special circumstances of this case, that conclusion is correct, especially as the official receiver concedes it. Nevertheless, I am not to be taken as thinking that, if creditors with the assent of the trustee deliberately postpone fixing his remuneration, they can be said, on that account alone, to have failed to fix it. (at p178)

3. The application was heard by Clyne J. The official receiver was a party and appeared at the hearing by counsel, as he has before us. He did not then, and does not now, seek to prevent Mr. Mayne's estate receiving from the bankrupt estate a substantial sum - 500 pounds he suggested might be regarded as proper - by way of remuneration for the services rendered by Mr. Mayne. But he did bring to the notice of the learned judge and of us several matters which he submitted appeared to stand in the applicant's way. Clyne J. felt constrained to refuse the application, because, as he put it, "the right given to a Trustee in Bankruptcy to apply to the Court for the fixing of his remuneration is a personal right given by the Bankruptcy Act"; and he said "it is impossible, in my opinion, to hold that this right given to a Trustee . . . is property which passes to or vests in his legal personal representative on his death". From that decision this appeal is brought. (at p178)

4. During the argument before us it was suggested from the bench that the official receiver, as trustee of the bankrupt estate, might, either by calling a meeting of the creditors, or, failing that, by approaching the court, have had some remuneration for Mr. Mayne fixed and allowed to his executrix. But counsel for the official receiver pointed out procedural difficulties in various courses suggested. As s. 133 (1) is only applicable where the trustee is a person other than the official receiver, it seems that an application under s. 133 (7) cannot be made by a trustee who is an official receiver remunerated by salary. Mr. Jaques receives a salary; and therefore s. 12 (4) does not apply to him. However, I do not think it is necessary to come to any conclusion whether the suggested difficulties of some course other than that taken are well founded, for the matter comes to this Court on appeal. (at p179)

5. The question was presented in two forms: first, what was the nature of whatever right Mr. Mayne had immediately before his death, on the assumption that the creditors had at that date failed to fix his remuneration? Secondly, did he have a right which on his death passed to his executrix and which can be asserted by her by these proceedings? But these seem to be really only two ways of stating the same fundamental question. On the assumption that before Mr. Mayne's death the creditors had failed, within the meaning of s. 133 (7), to fix his remuneration, he clearly had a right to apply to the court pursuant to that sub-section. But to assume that that means that after his death his legal personal representative can apply is to beg the question. "An executor does not act for a dead man or in his name, but for the estate of the dead man" (per Bowen L.J. in Stanhope v. Stanhope (1886) 11 PD 103, at p 110 ). The question is rather whether Mr. Mayne had a right to remuneration, the amount thereof to be fixed by the court if the creditors did not fix it; or whether, on the other hand, he had merely the right to ask the court to exercise discretionary powers in his favour - to use the phrase Hodson J. used in a different context (Dipple v. Dipple (1942) P 65, at p 68 ). (at p179)

6. In a general way, the position of a trustee in bankruptcy is not unlike that of a liquidator in the winding up of a company. The remuneration of a voluntary liquidator may be fixed by the company in the case of a members' winding up, and by the creditors in a creditors' winding up; and if the liquidator's remuneration is not so fixed, then it may be fixed by the court (Palmer's Company Precedents, loc. cit; e.g. Re Daily Telegraph Newspaper Co. Ltd. (1931) 48 WN (NSW) 236 and see also Companies Act 1936 (N.S.W.) in relation to the remuneration of a receiver and manager). But it seems that there is no case, either in relation to bankruptcy or to companies, directly in point here. At all events counsel were not able to refer us to one; and I have found none. The matter must therefore be approached as one of general principle. (at p180)

7. When s. 133 (7) is read in its context and in relation to the scheme of the Act as a whole, it does more than confer a right upon a trustee to ask the court in its discretion to allow him remuneration for his services. The Act, as I read it, recognises that a trustee has a right to remuneration, unless he has agreed to act without remuneration or has for some reason become disqualified to have his remuneration. Section 133, I think, provides for the manner in which the remuneration to which he is so entitled is to be assessed or quantified. Trustees in bankruptcy have to be registered and are in various ways controlled in the performance of their duties by the Bankruptcy Court. The Act contemplates that they will act for reward, as in fact they ordinarily do. Official receivers are remunerated either by salary or by fees and commission; other trustees are remunerated in an amount to be fixed (see ss. 12 (4), 84 (1) (a), 133). It is true that s. 133 (1) refers to the trustees "remuneration (if any)". But this is probably to cover cases in which the trustee has agreed to act without remuneration (s. 133 (10)); or in which, in the result, no amount is brought to credit after the secured creditors and the costs of carrying on the debtor's business have been paid (s. 133 (1)). There may be other circumstances too in which the words "if any" would be applicable. But those words do not mean that a trustee who accepts office on the tacit assumption that he is to be paid for his work has afterwards no greater right than to seek such payment as a petitioner. The Act does not provide that the creditors may allow a remuneration to the trustee; but that they may fix his remuneration. And if they fail to do so - and the word fail itself seems to suggest a default in doing something which ordinarily ought to be done - then the court may, on the application of the trustee, fix the remuneration. To "fix the remuneration" seems to me to assume that there is a right to remuneration and a right to have the amount thereof fixed. The court's power is to fix, not to grant, or allow, remuneration. It is true that the sub-section provides that the court may fix the remuneration. The word "may" confers a power. If the rest of the Act, expressly or by implication, gives or recognises a right to remuneration, then these circumstances compel the court to exercise the power (Julius v. Lord Bishop of Oxford (1880) 5 AC 214 ). The case thus falls within what Jervis C.J., delivering the judgment of the Common Pleas in Macdougall v. Paterson [1851] EngR 970; (1851) 11 CB 755 (138 ER 672) described as "the rule, that, when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application" (1851) 11 CB, at p 773 (138 ER, at p 679) . (at p181)

8. General doctrines of equity concerning the remuneration of express trustees have little bearing upon the question. Nevertheless, it is worthwhile noticing some of the exceptions to the rule that trustees must derive no profit from their trust, and therefore, generally speaking, are not entitled to remuneration for performing the duties of the trust. The rule itself is clear; and it makes no difference that a trustee's exertions in the duties of his office have produced great advantages for the cestui que trust (Barrett v. Hartley (1866) LR 2 Eq 789 ). But a trustee who, before assuming office, stipulates with the beneficiaries, being sui juris, that he shall be paid for his services is entitled to the agreed remuneration. And courts of equity have an inherent jurisdiction to make an allowance out of the trust property to a trustee for his services (see Marshall v. Holloway (1820) 2 Swans 432 (36 ER 681) and other cases referred to in Nissen v. Grunden [1912] HCA 35; (1912) 14 CLR 297 ); and this may be either for past services or for services to be rendered. In In re Bignell; Bignell v. Chapman (1892) 1 Ch 59 , the Court of Appeal approved of remuneration for a trustee of a will who, by a judgment in an administration suit, had been appointed by the court as receiver and manager of the testator's business. There are two matters in that case which are noteworthy for present purposes. One is that the receiver had died before the question of her remuneration was raised, and the application was made by her executors. The other is that Lindley L.J., as he then was (Bowen and Fry L.JJ. concurring), observing that the judgment said nothing about remuneration, said, "the object of this silence, it appears to me, was to reserve the question of remuneration" (1892) 1 Ch, at p 63 . Here the evidence is meagre. But we must, I think, assume that Mr. Mayne did not forego his rights, whatever they were, to remuneration; that the creditors did not expect him to work for nothing; and that the reason why they failed to fix the remuneration was probably because they chose to reserve the question. They have had the benefit of his exertions. They cannot justly expect to profit by his untimely death. (at p181)

9. During the argument reference was made by way of analogy to the right of an executor in New South Wales to apply for commission on passing his accounts. This it has been held creates a mere expectancy (Moss v. Barnett (1862) 1 SCR (NSW) 313 ; Re Browne: Ex parte Official Assignee, Browne and Browne Respondents (1895) 16 NSW LR (B&P) 62 ). Whether or not those decisions be correct, there is no real similarity between s. 86 of the Wills, Probate and Administration Act 1898 (N.S.W.) and s. 133 of the Bankruptcy Act. In one case "the Court may allow . . . such commission as is just and reasonable" (s. 86) to someone who otherwise would have to act gratuitously. In the other case "the Court may fix the remuneration" (s. 133) of a person who holds an office which is the creature of statute and whom the statute contemplates will be remunerated. (at p182)

10. Although an agreement by the creditors as to the amount of the remuneration of the trustee in bankruptcy has been said to be in the nature of a contract (In re Marsden; Ex parte The Board of Trade (1892) 9 Mor 70 ), counsel for the appellant was, in my view, mistaken in his description of the right which he was seeking to establish as a chose in action or a debt. The creditors of the bankrupt estate were not the trustee's debtors. He had no common law right which could give rise to a claim for a quantum meruit. His claim to remuneration could be satisfied only out of the bankrupt estate in due course of administration. Nevertheless, if what he had was - as I think it was - a right against that fund, as distinct from a mere expectancy, then it passed to and became vested in his executrix on grant of probate (Wills, Probate and Administration Act 1898 (N.S.W.), s. 44, and definition of "personal estate" in s. 3). There seems to be no reason why the trustee could not during his lifetime have assigned in equity whatever amount he might receive by way of remuneration. But, in any event, assignability is not an essential element of a right of property (see National Trustees Executors and Agency Co. of Australasia Ltd. v. Federal Commissioner of Taxation [1954] HCA 71; (1954) 91 CLR 540, at pp 557, 583) (at p182)

11. Some purely procedural difficulties may, I think, be disregarded, because both the executrix and the official receiver are parties to these proceedings; and, as a final distribution has not yet been made, there is a res, the bankrupt estate, or part of it, in the hands of the trustee and thus within the reach of the Bankruptcy Court. If the official receiver, as the present trustee, formally refused to recognise the claim of Mr. Mayne's executrix, she could, as a person aggrieved by that decision, apply to the court under s. 148; and the court could then make such order in the matter as it thought just. In my view therefore the Bankruptcy Court has jurisdiction to fix the amount to which Mr. Mayne's estate is entitled as his remuneration for his work as a trustee. This - on the analogy of In re Allison Johnson & Foster Ltd.; Ex parte Birkenshaw (1904) 2 KB 327 - should be a just and proper remuneration for work done by him of which the official receiver has had the benefit for the purposes of the administration of the bankrupt estate. (at p183)

12. I would therefore allow the appeal and remit the matter to the learned Judge in Bankruptcy to fix the remuneration.

ORDER

Appeal allowed. Discharge order of Court of Bankruptcy and remit matter to that court to fix remuneration of Robert David Mayne as trustee of bankrupt estate of Frank Booth Jones deceased and to deal with costs of application to that court. Order that the costs of the appellant of this appeal be paid out of the bankrupt estate. (at p183)