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Decisions of the Superior Courts of New South Wales, 1788-1899

In re Gannon [1847] NSWSupC 35

insolvency, imprisonment

Supreme Court of New South Wales

Stephen C.J. and Therry J., March 1847

Source: Sydney Morning Herald, 11 March 1847, in Supreme Court Collection, Vol. 1, pp 94-95

In re Michael Gannon, an Insolvent.

The above named insolvent had been refused his certificate by the Chief Commissioner of Insolvent Estates, upon the ground of his not having made a full and fair disclosure of his estate and effects, and of his having made away with a portion of his property otherwise than for bona fide or valuable consideration. He had also been held to bail for his appearance before the full Court, in order that their Honors might determine whether or not he should be subjected to further punishment for the supposed fraud.

Upon a former occasion a lengthened argument was heard upon this case, and the insolvent, who had been still held to bail, now appeared to receive the judgment of the Court.

The Chief Justice, in pronouncing the decision of the Court, stated that the Judges had carefully gone through the whole of the evidence, and had given to the entire subject the most careful consideration, rejecting all circumstances and inferences of mere suspicion, and acting only upon those of which they had tangible proof. The ground-work of the charge against the insolvent of not having made a full and fair disclosure of his estate and effects, was his apparent personal interest in certain property at Cook's River, which he alleged to belong to Parsonage, one of his wife's trustees. It was in evidence that Parsonage was a poor man with a large family, and that he could scarcely be regarded as a person capable of making such a purchase as this. It was also in evidence that Gannon had the entire management of this property, apparently independent of its alleged owner. On the other hand, there was no positive contradiction to the assertion that Parsonage was the real proprietor, and although, therefore, the circumstances were such as to raise the strongest suspicion of fraud, there was not sufficient evidence to warrant them in inflicting punishment upon the insolvent. The charge of disposing of property otherwise than bona fide, and for valuable consideration, was founded upon a transaction with reference to certain property in Gloucester-street. This property had been ostensibly purchased by the insolvent from one John Jenkins Peacock, in order to fulfil a promise to Mrs. Gannon, of settling upon her £2000 worth of property as consideration for the abandonment of her claim to dower upon his other property. This consideration was not a valuable one, for the claim to dower could only arise in the event of Mrs. Gannon surviving her husband, and the property having been purchased by the abandonment of a claim which Gannon possessed against Peacock, the creditors of the former were not only prevented from proving against Peacock's estate, for the amount in question, but were precluded from obtaining the Gloucester-street property; as it was secured in such a manner as to preserve the whole of its proceeds for the benefit of the insolvent's family. This transaction was evidently fraudulent, and the Chief Commissioner had acted right in pronouncing it to be a transaction of that character. Under all the circumstances, therefore, the insolvent would be sentenced to imprisonment in Sydney Gaol for the space of nine calendar months.

Mr. Gannon arose and declared that he had never entertained the slightest intention of defrauding his creditors, and was proceeding to enter upon a justification of his conduct when he was stopped by their Honors, who intimated that his case had received the most careful investigation, and that they could hear no more on the subject.

 

Published by the Division of Law, Macquarie University