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Queensland Bacon Pty Limited v. Rees

Published online by Cambridge University Press:  24 January 2025

P. A. Paterson
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Type
Case Notes
Information
Federal Law Review , Volume 2 , Issue 2 , June 1967 , pp. 293 - 299
Copyright
Copyright © 1967 The Australian National University

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Footnotes

1

(1966) 40 A.L.J.R. 13. High Court of Australia; Barwick C.J., Kitto and Menzies JJ.

References

2 The substantive provisions to be discussed have not been altered in the new bankruptcy legislation and they are contained in section 122 of the Bankruptcy Act 1966 (Cth).

3 (1933) 49 C.L.R. 49.

4 Kitto J. adopted a view of the phrase ‘ to suspect a man's solvency’ very similar to that ofthe ChiefJustice. He considered that a suspicion that something exists is more than a mere idle wondering, it is rather a positive feeling of actualapprehension or mistrust. Moreover, his Honour thought that a reason to suspect that a fact exists is more than a reason to consider the possibility of its existence. At page 25, Kitto J. sets out a test to assist in applying the notion of ‘ reason to suspect’ in section 95 (4.):

[S]omething which in all the circumstances would create in the mind of a reasonable person in the position ofthe payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes ….

5 (1966) 40 A.L.J.R. 13, 20.

6 Ibid. 20.

7 Ibid. 24.

8 Ibid. 24.

9 Ibid. 28.

10 Ibid. 31.

11 (1952) 85 C.L.R. 110.

12 Ibid. 12.

13 Ibid. 133.

14 (1966) 40 A.L.J.R. 13, 17-18.

15 Ibid. 20.

16 Ibid. 31.

17 The late Sir Thomas Clyne in an article in this Review entitled ‘An Outline of Some Recommendations for the Amendment of the Bankruptcy Act’ mentioned the problem of the running account in the context of section 95 (1.). It is unfortunate that the Report of the Committee Appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth (1962) commentedon by the judge in that articlewas unable to devise a suitable statutory provision to cover the running account situation. See (1964) 1 Federal Law Review 24, 39.