[insolvency – Van Diemen's Land Insurance Company – company law – trusts]

Ex parte Gillies v. Horne

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 18 August 1843

Source: Hobart Town Advertiser, 22 August 1843[1]

            Exparte Gillies v. Horne. - Counsel for the plaintiff, Mr. Fleming; solicitor, Mr. Perry.

            Mr. Louis William Gillies, the plaintiff, resides at Launceston; and the defendant is Mr. George Samuel Wegg Horne, an attorney of the Court, also of Launceston, and recently an insolvent.

            The learned Counsel now moved for an order of the Court, to compel the defendant to pay instanter, to the Van Diemen’s Land Insurance Company, the sums which he had received as dividends on five shares in that Company, and to transfer the shares themselves, originally taken in the name of Philip George Gillies, to Edmund Fletcher Gillies.

            The affidavits on which the application was founded, and copies of correspondence and statements connected with them were very voluminous; containing so much extraneous and irrelevant matter, as to call down severe censure from Mr. Justice Montagu, who observed that they had been swelled out so as to have the effect of increasing the costs, and rendering the case more complicated.

            The affidavits had been prepared by an attorney at Launceston.

            Out of a cloud of matter, where the arguments of Counsel and observations by the learned judges occupied nearly two hours, it is difficult to make a succinct statement suitable to our space. Mr. Horne, the defendant, was in 1839 confidential professional adviser of the plaintiff; who appointed Mr. Horne trustee of five shares in the Van Diemen’s Land Insurance Company, for Phillip George Gillies, the plaintiff’s infant son. This son died, and Horne was instructed to have the shares transferred to Edmund Fletcher Gillies, another infant son. The defendant communicated with Mr. McPherson, the Manager, or Acting Director, of the Company, and was informed that the application could be acceded to. The defendant, however, took no further steps in the matter; the shares remained in the name of P. G. Gillies (the son deceased), and the defendant who has become insolvent, received two dividends of £10 each upon the shares, which he applied to his own use. Hence the present application as stated in the terms of the motion. It was stated in one of the affidavits, that the defendant is about to leave the colony; and this was urged as one reason why the Court should grant the application.

            Mr. Justice Montagu expressed his disinclination to act upon an affidavit where the deponent merely expressed that, “he had caused inquiries to be made, and verily believed them to be true, that the defendant is about to leave the colony.” His Honor mentioned a case in which under apparent circumstances of pressing emergency and hardship, he had been induced to grant a capias; when it afterwards turned out that the luggage preparing to go on board belonged to another man; that the ship was bound to a port quite different to the one mentioned, and that she had a different name. His Honor again commented on the slovenly manner, and gross negligence with which the affidavit had been drawn.

            Mr. Fleming quoted several cases to shew that the superior Courts will always interfere where a solicitor has acted discreditably in his professional duty.

            Mr. Justice Montagu, said here the defendant had ceased to be the plaintiff’s solicitor, and acted merely as agent. Here again, there might be a question as to whether the defendant could now be called upon to refund, twelve months since his order for discharge of the insolvent court not having yet elapsed.

            Mr. Fleming contended that, as this matter had not been mentioned in the defendant’s schedule, the plaintiff was fully entitled to his remedy at law.

            The Chief Justice observed that, supposing the defendant had wilfully omitted any thing from his schedule, it might be a question whether the insolvency could be set aside; or whether the plaintiff, who might have proved though the matter was not mentioned in the schedule was not debarred from recovering.

            To give time for the consideration of theses, and other questions which arose, the Court deferred its decision.