1904 Re YOUNG. WALKER, J. This is an appeal from the Registrar, who allowed Mr. Samuel Hordern, of the firm of Anthony Hordern & Sons, to prove in the estate of Charles Herbert Young, for the sum of 7591. 28. The matter has been argued and dealt with before me on somewhat different lines from those on which it appears to have been conducted before the Registrar, and it has really now come down to a point turning on the construction of a section in the Crimes Act, and on the way in which I should deal with an order of my own made on the 17th December last year. Sect. 469 of the Crimes Act, so far as the same is material to this case, reads as follows:-[His Honour read the section, and continued.] Now, I will assume that the claim in this case is for unliquidated damages, as Mr. Innes contends it is, though Mr. Gordon disputes that fact. It is, however, admitted that those damages, notwithstanding that they are unliquidated, are provable in a bankruptcy brought about by an order made under this section, although they would not be provable if the bankruptcy were one arising in the ordinary way under the provisions of the Bankruptcy Act. The third sub-section makes a person who is entitled to those damages a creditor within the meaning of the section, that is to say, a creditor in a sequestration effected under the section, and that, of course, means that he can prove for them in such sequestration. That is a statutory provision, and no Court or Judge has any power to take from it or qualify it in any way whatever. The concluding words of the section give to the Court or Judge the right to say in what manner the claim is to be inquired into and determined, and how damages are to be assessed. That, in my opinion, is merely a matter of machinery. The right of the party to prove for these damages is given to him by Act of Parliament, and neither the Court nor a Judge can take that right away; all it or he can do is to indicate the particular way in which these damages shall be assessed and the matter determined. Under these circumstances, the order under the section having been made by Pring, J., an application was made to me on the 17th December last by counsel for the official assignee on which I appear to have made an order in the presence of the solicitor for the bankrupt, "that all claims against the abovenamed bankrupt's estate be determined, and all questions arising under the bankruptcy be dealt with and decided as if the bankrupt had been made bankrupt under the provisions of the Bankruptcy Act of 1898." That order has unquestionably created a difficulty. How exactly it came to be made in that form my recollection does not enable me to say, but in that form it certainly was made. It has been contended by Mr. Innes that the rights of the parties, including the right of Hordern to prove in respect of this claim, must be determined now irrespectively of the provisions of s. 469 of the Crimes Act. Well, one need only state the proposition in that form to know that that cannot be so. If an order is made purporting to give any such direction it is palpably and demonstrably ultra vires, being outside the powers of the Judge or of the Court, because an order having that effect would be a repeal pro tanto of the provisions of the Act of Parliament. As the order was made by myself, I am justified in saying that the sole intention of it was to provide that the machinery for assessing the amount for which Hordern and others should prove was to be the machinery of the Bankruptcy Court, and there never was the slightest intention in any way to affect the rights of the parties, but simply to define the procedure. I am confronted by the question of how to deal with that order. One suggestion was that the order might be construed to say merely what I have mentioned it was intended to mean, but I scarcely think that would be a proper way of getting over the difficulty, because it seems to me clear that the only natural meaning of the order, if the words are looked at and regarded simply by themselves, is that put by Mr. Innes, and I do not think a Judge, in order to get rid of a difficulty, ought to put a non-natural construction on words which are clear, consequently I must construe the order as referring the rights of the parties to the decision of the Court, not under the provisions of the Crimes Act, but according to the law of bankruptcy apart from the provisions of that Act. That being the meaning of the order, 1904. Re YOUNG. Walker J. 1904. Re YOUNG. Walker J. it is to that extent clearly ultra vires, because it gives a direction in conflict with the express provisions of the 469th section of the statute, and I think that the proper way to get over this difficulty, which after all is a purely technical one, is for me to discharge my order of the 17th December last, and now under the provisions of the 3rd sub-section of s. 469, make an order that the matter of the claim shall be enquired into and determined, and the damages be assessed by the Registrar. The Registrar in the circumstances which have happened has already done this, and I should be doing a very wrong thing if I required the whole matter to be gone into again at great expense. Nothing would be gained by re-opening it. The same result would follow, and I think I am taking the view which any Judge would take in refusing to impose unnecessary expense upon the parties, and at the same time adopting the amount found by the Registrar, viz., 7591. 2s., as the amount for which the creditor is to be allowed to prove in the bankrupt's estate. The only question which remains is one of costs. In my opinion, the bankrupt, who has opposed this application, ought to pay the costs. The only point on which he has had even a shadow of success has been the construction of the order of the 17th December. As to that, the order was made in his presence, and, if the Court was misled into making an order of that kind, he must accept his share of the responsibility. More than that, I do not think that either the bankrupt or his solicitor was in any way misled by the form of the order. They cannot have supposed that the Court meant to do otherwise than merely indicate the machinery for carrying out the assessment of the damages. If more than that appeared to be effected by the order, the bankrupt and his solicitor must be taken to have known it was ultra vires. It seems to me that such measure of success as the bankrupt had in the argument before me, was due merely to his insistence on a literal meaning which he must have known the order was never intended to have, and which he must have known would be put right the moment the Judge's attention was directed to it. The bankrupt has been all along without any merits. I do not see that any additional costs have been occasioned to the bankrupt by reason of the form of the order of the 17th December, and I do not see any reason why he should escape the usual consequences. Gordon. Will your Honour allow us to add our costs to our debt? The whole estate is, of course, vested in the official assignee at present. WALKER, J. I will make that order. Order accordingly. Solicitor for the appellant: J. W. Abigail. 1904. Re YOUNG. Walker J. 1904. In re THE AUSTRALIAN JOINT STOCK BANK, LTD. June 29, 30. Company-Reduction of capital-Addition to the name of words “and reduced” Walker J. --Bank--Practice, Where a Banking Company applied to the Court to sanction a reduction of its capital the Court dispensed with the addition of the words "and reduced" to the name of the company. THIS was an application to reduce the capital of the abovenamed company. Lingen, for the company, asked after the Court had made an order reducing the capital, that the addition of the words "and reduced" to the company's name be dispensed with. [WALKER, J. I have never made that order yet.] Your Honour has not yet had to deal with an application respecting a bank. It was said in In re The African Bank Ltd. (Chitty, J., 5th May, 1886, referred to in Chadwick Healey on Company Law, 3rd ed., 395, 416), that the fact that the company carried on banking was a special circumstance. Business men who see that the bank has reduced its capital knows that it means that things have been brought down to bed-rock, and consequently form a favourable opinion, but a bank has always a large class of ignorant customers, and the use of the words may have a prejudicial effect with them. They are familiar with the expression "reduced circumstances," and are apt to confuse it with the words " and reduced." [WALKER, J. I have often been asked to make an order in this form, but I have never acceded to one application. I have assented to the words being used for a short time, and I am prepared to do so in this case. These words are used for the benefit of the community.] In the case of this bank under the arrangement for reconstruction customers have exceptional advantages seeing that their claims have a prior right on the whole assets of the bank. I do not know whether that applies to any other reconstructed |