Re SYDNEY AND SUBURBAN MUTUAL PERMANENT BUILDING AND LAND DEPOSIT CERTIFICATE 114A Pitt Street, Sydney. Issued in terms of arrangement adopted by the depositors on April 24th, 1894, and sanctioned by the Supreme Court in Equity, May 1st, 1894. This is to certify that [name] has the sum of £ (preferential) on deposit with this Association for the period of ten years from this date, subject to reductions as per endorsement hereon. Interest payable on the 31st day of October and 30th day of April in each year, at the rate of £5 per centum per annum on the principal sum, due from time to time, commencing from date hereof. Dated at Sydney this 30th day of April, 1894. (L.S.) The company was voluntarily wound up on the 10th March, 1904. Certain of the depositors had never received payment of the one-fourth of their deposits. The deposit receipts issued by the company, including the preferential deposit receipts, were negotiable, and certain of them had been sold, and the holders of such deposit receipts were in some instances not the persons to whom the receipts were issued. Rich, for the liquidator, asked that directions should be given as to service on the depositors, and suggested that a service on a representative of each class of depositors should be ordered. WALKER, J., ordered that notice of the motion should be served on Hugh McGee and the Rev. J. Monahan, who should represent respectively on the hearing of the motion the class of depositors who had been paid 5s. in the £, and the class who had not. On 16th August, Rich submitted the matter to the Court. Cullen, for the Rev. J. Monahan. Harvey, for McGee. The agreements were intended to operate so long only as the company carried on business. He cited Re Smith, Knight and Co. (L.R. 5 Eq. 223). 1904. Re SYDNEY AND SUBURBAN MUTUAL PERMANENT BUILDING AND LAND ASSOCIATION, LTD. WALKER, J. I do not want to hear you, Dr. Cullen, in reply. If I thought that, by reserving my judgment, I should get any further light on the subject, I would do so, but I do not think I could gain anything by postponing the statement of the opinion that I have formed. An arrangement was come to between the company and its INVESTMENT depositors, under the provisions of the Joint Stock Companies Arrangement Act of 1891, whereby certain terms were agreed to for postponing the payment of the sums due to the depositors. Several subsequent arrangements were made, whereby it was provided that a payment of 58. in the 17. should be made to this class of creditors. Some of these creditors received their 58. in the ll., but others did not; and while things were in that position the company was wound up. Now the question is, whether the creditors and the company are bound by the arrangement they entered into previous to the liquidation; whether, according to such cases as Re Smith, Knight and Co. (L.R. 5 Eq. 223), all the creditors are to be paid pari passu, or whether the depositors represented by Dr. Cullen are to be paid this 58. in the 1., so as to be put on an equality with the other creditors of the same class who have already received it. Mr. Harvey contends that the object of making the arrangement under the third section of the Act was to enable the company to carry on its business, instead of going into liquidation, and that the force of the arrangement entered into is purely conditional upon the company carrying on its business. Of course, if that were so, and if the arrangement absolutely came to an end and was extinguished by the mere fact of the company going into liquidation, his contention that all the creditors are now to be paid pari passu on the unpaid amounts of their claims might. be sound; but I cannot bring myself to think for one moment that that was the intention of the Legislature in passing this Act of Parliament. I think if I were to so hold, I should be very largely destroying the utility of the Act, which provides in express terms that, where an arrangement of this kind is made, and has been sanctioned by the Court (the Court having, of course, satisfied itself that the conditions precedent, mentioned in the Act, have been complied with), it shall be binding on the com 1904. Re SYDNEY AND PERMANENT LTD. pany and its creditors. In the face of that language, how am I to interpolate the words, "Provided always that the company does not go into liquidation"? I am asked to insert these words, MUTUAL and to make the section, which, in terms, is absolute, conditional. BUILDING I cannot introduce words which would have the effect of defeatAND LAND INVESTMENT ing the intention of the Legislature. Cases such as In re Smith, ASSOCIATION, Knight and Co., seem to me to have no relation to the matter now before the Court. That class of decisions applies to ordinary cases, but not to cases where there has been such au arrangement as we find here. Here all the creditors and the company have, by a solemn compact sanctioned by the Court and constituting a statutory obligation, agreed inter se that these rights shall be as before stated, and that clearly differentiates this case from liquidation where no such agreement has been made. Walker J. For these reasons, I think that the depositors who have not been paid their 58. in the 1. are entitled to what have been called in the argument preferential payments to put them on an equality with the depositors who have received their 5s. I do not think that "preferential" is a very apt word; the term equalising" would be more appropriate, because the order which I make will only have the effect of putting them on a level with the other creditors. Inasmuch as the point has not been decided before, the costs may come out of the assets in the liquidation. Order accordingly. Solicitor for the liquidator: J. W. S. Lucas. Solicitors for the Rev. J. Monahan: Crichton, Smith & Monahan. Ex parte THE MINISTER FOR PUBLIC WORKS. In the matter of the Will of OWEN CARAHER. Will-Tenant for life-Forfeiture-Devise to such children of tenant for life as from and after his decease should have attained or should attain twenty-one – Contingent remainder -Executory devise-Release of possibility-Merger. A devised a freehold estate to J. for life, and from and after J.'s decease to J.'s children, who, being sons, should have attained or should attain the age of twenty-one years, or who, being daughters, should have attained or should attain that age, or should have married or should marry, and in default of such issue over and directed that it should not be lawful for J. to charge or dispose of any estate or interest in the premises, and that in the event of his attempting to do 30 or of the interest of the tenant for life being attached, alienated or disposed of by operation of law, his interest should be given to the persons entitled thereto if such tenant for life were actually dead. J.'s life estate became forfeited; at the time of such forfeiture there was one child of J., who was an infant, but who now was of age. Held, that the meaning of the devise was that, on the forfeiture of the life interest, the fee simple should immediately go as on the death of tenant for life. Key v. Key (4 D.M. & G. 84); Towns v. Wentworth (11 Moo. P.C. 543); and Burt v. Wall (11 N.S. W. L.R. Eq. 153) applied. Held, further, that the limitation was to all the children of J., who at J.'s death should fulfil the condition of majority or marriage, and was, therefore, an executionary interest and not a contingent remainder. Re Lechmere and Lloyd (18 Ch. D. 524); Myles v. Jarvis (24 C. D. 633); Dean v. Dean ([1891] 3 Ch. 150) followed. Held, also, that J.'s child on attaining twenty-one became entitled to an estate in fee simple, but that her interest was liable to open to let in any future children J. might have, who should fulfil the condition of majority or marriage. J. executed a post-nuptial settlement in favour of M. as trustee for certain beneficiaries. J. was entitled to certain property expectant on M. predeceasing him without issue; held, that the settlement did not in law or in equity operate as an assignment of the possibility, neither did the fact of M. being both trustee and terre tenant render it possible for the settlement to operate as an assignment of the possibility, and at the same time keep it alive for the benefit of the cestuis que trustent. A release of a possibility to the terre tenant is only permitted with a view to its extinction: Lampet's Case (10 Co. Rep. 48). HEARING OF PETITION. Owen Joseph Caraher made his will, dated the 10th September, 1875, in these terms, so far as is now material to state them:"I give and devise all those six houses (describing them) to my 1904. August 23, 24. Walker J. 1904. Ex parte wife for her life, and from and after her decease I devise the same to my sons, Michael Joseph Caraher and John Edwin Caraher, for their lives and without impeachment of waste as PUBLIC tenants in common in equal shares, and from and after the In the Matter decease of either of them, the said Michael Joseph Caraher and of the Will of John Edwin Caraher, as the moiety of the one so dying I devise MINISTER FOR WORKS. OWEN CARAHER. the same to his children, who, being sons or a son, shall have attained or shall attain the age of twenty-one years, or who, being daughters or a daughter, shall have attained or shall attain that age, or shall have married or shall marry, and if more than one of equal shares and in default of such issue then I devise the same to the others or other of my children who shall be then living and if more than one in equal shares. "I devise my five houses in Cumberland-street (describing them) to my son, John Edwin Caraher, for life without impeachment of waste, and after his decease I devise the same to his child or children, who, being sons or a son, shall have attained or shall attain the age of twenty-one years, or being daughters or a daughter shall have attained or shall attain that age, or shall have married or shall marry, and if more than one such child in equal shares "Provided always and I hereby declare that it shall not be lawful for any of my said children hereby made tenants for life of the said premises hereinbefore devised to charge all or any of the said premises so hereinbefore devised for life with the payment of any sum or sums of money, nor in any way to dispose of any estate or interest in the said premises so herein before devised, and in the event of any of them attempting to do so or in the event of the interest of any tenant for life being attached, alienated or disposed of by operation of law then I give and devise the interest of such tenant for life to the person or persons who would be entitled thereto if such tenant for life were actually dead." Michael Joseph Caraher died in 1894, without having married. John Edwin Caraher was still living. His marriage, of which Ethel May Caraher was the only issue, was dissolved in 1894, and he has not re-married. In 1882, John Edwin Caraher executed a post-nuptial settlement whereby he granted and released |