TRADING WITH THE ENEMY WHETHER STATE SUPREME COURT HAS JURISDICTION TO MAKE ORDER CHARGING MONEYS HELD BY COMMONWEALTH TREASURER IN STATUTORY TRUST FUND ON ACCOUNT OF ENEMY SUBJECT: PROPER PROCEDURE TO ENABLE DEBTS OWING BY ENEMY SUBJECTS TO BE SATISFIED OUT OF MONEYS HELD IN TRUST FUND
TRADING WITH THE ENEMY ACT 1914, ss. 9, 9C, 9D: TRUSTEE ACT 1898 (N.S.W.), s. 29
The Secretary to the Treasury has forwarded the following memorandum asking for advice:
Certain moneys are held in Trust Fund 'Debts due to Enemy Subjects' on account of A.B. of Germany.
- Messrs F.E. Wood and Hill, Solicitors, of Sydney, have applied to the Collector of Customs, Sydney, for payment of taxed costs amounting to £200.1.5 due to them under orders of the Supreme Court of New South Wales.
- Under the orders, the costs are payable by A.B., and each order directs that the costs of the particular proceedings shall be a charge upon that portion of the moneys to the credit of B. in the 'Debts due to Enemy Subjects' account representing purchase money and interest in respect of certain land, the subject of the order.
- The Crown Solicitor, in his opinion dated 23.5.16 (hereunder), expresses doubt as to whether the Supreme Court had jurisdiction to make the orders so far as they purport to charge the costs on moneys held in the Trust Fund on account of B., and states, that unless the moneys paid into the Trust Fund have been so paid that the particular amounts could be identified with the orders which purport to charge them, the orders would be useless.
- In the course of his opinion, the Crown Solicitor says: 'I think it would be safer for the Treasurer to decline to pay the amounts unless an authority from B. authorising him to make (? pay) them is produced. At the same time, I do not think there would be much danger in acting on the orders, especially if an indemnity were given to the Treasurer, and reasonable proof of jurisdiction were submitted'.
The points upon which advice is desired are:
- Whether the Supreme Court of New South Wales was within its jurisdiction in ordering the payment of the costs from moneys held by the Treasurer of the Commonwealth in Trust Fund 'Debts due to Enemy Subjects'; and
- Whether, in the event of the Court having such jurisdiction, it would be necessary for the Treasurer, before complying with the orders, to obtain an authority from B. authorising him to make payment from moneys held in Trust Fund on his (B.'s) account.
From the facts set out in the file, it appears to be a reasonable assumption that A.B. is an enemy subject within the meaning of section 9 of the Trading with the Enemy Act 1914-1916, and that the money has been properly paid to the Comptroller-General or his officer under that section.
Under the Trustee Act 1898 of the State of New South Wales, section 29, the Supreme Court of that State in its equitable jurisdiction has jurisdiction to make a vesting order where a trustee seised or possessed of any land either solely or jointly with any other person is out of the jurisdiction of the Court. I do not think, however, that the Supreme Court had jurisdiction to make any order charging the costs of the application for a vesting order on moneys held by the Treasurer of the Commonwealth in the Trust Fund on account of B.
The proper course appears to be for the creditors to make an application to the High Court or a Justice thereof under section 9C of the Trading with the Enemy Act 1914-1916 for an order vesting in the Public Trustee so much of the amount in the Trust Fund as will enable the indebtedness of A.B. to the creditors to be met.
Under section 9D of that Act, the Public Trustee may if authorised by an order of the High Court or a Justice thereof, pay out of the property paid to him in respect of any enemy subject, the whole or any part of any debts due by that enemy subject and specified in the order.
[Vol. 14, p. 447]
- Date in Opinion Book Incomplete.