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

In re Goodwin [1850] NSWSupC 5 [insolvency]

insolvency

Supreme Court of New South Wales

Full Court, 11 April 1850

Source: Sydney Morning Herald, 12 April 1850, Supreme Court Collection, vol. 3, pp 84-85

INSOLVENCY OF GOODWIN,---ON APPEAL BY THE INSOLVENT FROM THE REFUSAL OF HIS CERTIFICATE.

His Honor Mr. Justice THERRY delivered the judgment of the Court as follows:---

The Court has already intimated that it will in no instance disturb the decision of the Chief Commissioner in granting, suspending, or refusing an insolvent's certificate, unless it be shown by the appellant that such decision is erroneous. This may be an opportune occasion of repeating that intimation,---when the decision has not only not been shown to be erroneous, but when the Court considers it to have been, as in this instance, manifestly right and just. We say this with no view of discouraging well-grounded appeals from the Chief Commissioner's decisions; but those who prosecute frivolous or vexatious ones, may feel assured that such appeals can only lead to a confirmation of the Chief Commissioner's judgment, and exhibit their misconduct in a more public and glaring light.

Let us, in the first instance, try the conduct of this insolvent by the test,---Has he made "a full and fair disclosure of his property in possession, reversion, or expectancy?" In his schedule, to which he was sworn on the 15 th of February, 1849 , he states that he is destitute of any personal property whatever; and on being examined on the 13 th March, he states, respecting his furniture, that it was bought for the use of his family by Ebenezer Hall. In the paper, however, marled A., by which he amends his schedule, he mentions £10 as a debt due to Hall for this very furniture. Here, then, is an item of property, which, by being indebted to Hall for it, became his own, and which he should have returned in his schedule when he filed it on the 15 th of the previous month.

Then, with respect to the horses found in his possession. He states in his examination that they were Hall's, and that he had the use of them; but there is no mention in his schedule of his being indebted to Hall in any sum on their account. In this truly remarkable paper, however, marked A., he puts down the sum of £456 5s. as a sum due to Messrs. Hall, for "the hire of two horses, at 2s. 6d. a day each, for five years!" It would assuredly require a large share of credulity to regard this item of hiring as a genuine one;---but, trying the account by the test, that either it is true or false,---if false he should have returned these horses as his own property;---and if true , he was guilty either of fraud or great negligence in not putting this large alleged debt to the Halls in the schedule originally filed. We moreover cannot avoid thinking it remarkable, that this paper A. should have been filed, with such striking additions to the Insolvent's previous disclosures, both in regard to the furniture and the debt for the horses, on the very day of his coming up to be examined, and just six days after the seizure by the Messenger of this Court of the furniture and horses in question.

Next, what has been his conduct before and after his insolvency. On the 15 th of February he sequestrates his estate, and swears that his debts amount to £640;---but, within a month from that date, he adds £1280---making the whole amount he was indebted, £1920! To suppose, that when he swore in February that his debts only amounted to £640,---he was forgetful of then existing debts which were more than double that sum,---would be to exceed all limit of indulgence that can reasonable be afforded to the imperfections if human memory.

Let us now inquire, "has he, being indebted , unjustifiable made away with, otherwise than bona fide , any of his property? As to his being indebted, he admits that when he went to Scone, in 1844, he was insolvent; and, for the present, regarding the allotment of land to have been purchased with his wife's money, for the benefit of his son,---what right had he?---or how can it be regarded otherwise than as disposing mala fide of his property, to expend on this land of his son,---his own means, (money made by him in his practice,) in building a house on it, and making considerable improvements,---making an excellent garden,---shingling the house,---and adding three rooms to it?

To this remark his conduct is open,---regarding the money with which the land was purchased to have been furnished from the wife's funds. But in truth it was not supplied from that source. The £18 was supplied by Mr. Beames, by means of a bill of £100 drawn on Scotland but returned dishonoured:---and this, too, after a bill for the same amount, given previously to Mr. Beattie, had been drawn on the same fund and likewise returned dishonoured---both sums now being included in the amount of the Insolvent's debts. --- There can be no pretence for saying that the money by which the land was purchased was the wife's money, unless it can be so regarded because the insolvent raised the amount by a bill drawn on the wife's agent who dishonoured it. We think, also, with respect to the £1100 mentioned in his examination, as to which he seems himself desirous of obtaining the opinion of counsel whether or not he can dispose of it?---that he ought to have inserted it in his schedule. But as on this point he may plead ignorance as an excuse,---we do not deem the omission so reprehensible as the other parts of his conduct on which we have animadverted.

On the whole review of this insolvent's conduct, we uphold the decision of the Chief Commissioner;---and considering that the certificate of the insolvent has been most properly and rightfully refused, and that the appeal has been wholly without foundation, we dismiss such appeal with costs.

Published by the Division of Law, Macquarie University