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Wednesday, 11 November 1914


Senator GARDINER (New South Wales) (Vice-President of the Executive Council) . - The honorable senator is confusing two things. Under clause 86 the matter is completed, and the creditor gets his money. Where judgment has been given, and seizure and sale have taken place, the creditor has the money in hand.


Senator Keating - No, the money may still remain with the sheriff.


Senator GARDINER - Clause 87 deals with a different process, where judgment is obtained, and notice of sequestration is given, and the matter is allowed to go no further. Both clauses appear to me to be quite reasonable.


Senator Bakhap - They are in conflict because, under clause 86, a creditor upon judgment is given protection', and in. defiance of that, under sub-clause 2 of clause 87, the money awarded to a creditor, upon judgment, may be seized while in the hands of the sheriff.


Senator GARDINER - Clause 86 deals with what takes place where the whole matter has been completed, whilst clause 87 deals with the proceedings to be taken where, upon one creditor making a claim, other creditors take proceedings to bring about sequestration in order to secure their share. In that case, the matter not having been completed, the money is held for the trustee who is entitled to retain it against the execution creditor. That appears to me to be perfectly reasonable. Clause 86 deals with a case in which a creditor takes action against a debtor whilst other creditors, if there be any, do not take steps to get their share. We could not make provision that a man having received his money on a judgment under the law should be obliged to hand it back again; but where it may appear that a creditor to secure himself is trying to get all there is in an estate, and other creditors take steps to sequestrate the estate in order to secure their share, the matter is held over for consideration by the trustee.







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