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Colonial Cases

Gregory v. Fisher, 1874


Gregory v. Fisher

Local Court, Palmerston
Price SM, 2 September 1874
Source: Northern Territory Times and Gazette, 5 September 1874, p 3


Wednesday, September 2.

(Before Mr. Price, S.M., Mr. Frew, J.P., and Mr. Gardiner, J.P.)

Gregory v. Fisher.-Interpleader summons; Caldwell and Adcock, claimants.

Dr. Kaufmann for claimants, Mr. Smith for the judgment creditor (Gregory).

The bailiff of the Court gave evidence as to an execution which he had levied at Fischer's under a judgment from the Local Court. W. E. Adcock said in December last Fischer transferred his place to his creditors and also gave several bills. In March, however, he called another meeting of creditors when that his affairs were in a very bad state, whereupon he transferred everything to the creditors. He delivered up everything under an agreement or bill of sale (produced).
Mr. Smith pointed out that the document had not been registered and was therefore useless.

Witness (cross-examined) said the defendant Fischer continued to pay rent up to the time when Gregory began to take proceedings. There was an agreement previously drawn up, which was not a bill of sale, and under that document the creditors took possession. Took an inventory of the articles, assisted by Mr. Clarke, but did not take away any property or turn Fischer out Mr. Caldwell said he told Mr. Clarke to take possession for the creditors. Fischer did not object at first; but afterwards said that the agreement was not valid, and refused to pay the rent any longer.

The evidence as to taking possession was confirmed by Mr. Clarke, who said Mr. Fischer pointed out the things and otherwise assisted in making an inventory.

W. Fischer, the defendant, said he owed Gregory money on account of bills, an I.O.U., &c. Contracted the debt with Gregory four months ago. Did not remember ever telling him about the agreement with claimants, beyond saying that the creditors had said the furniture was theirs, and that he was paying rent and interest.

Mr. Adcock said that the defendant did not pay any interest.

Mr. Smith submitted that the agreement was fraudulent and void, as it was never registered; besides which the terms of the agreement were altogether unreasonable and one-sided. It, moreover upset the Real Property Act, and professed to convey articles in futuro, which no bill of sale could do; and the creditors demanded £312 as interest or rent for forbearance during three years, whilst they really did not agree to forbear. The agreement in fact was absolutely void, and the judgment in favor of Gregory must be upheld.

Dr. Kaufmann argued to show that the agreement was valid, and that, even without the agreement, the creditors were in possession when Gregory obtained judgment.

The Court gave a verdict for the judgment creditor (Gregory).

Published by Centre for Comparative Law, History and Governance at Macquarie Law School