Amos v Fraser - [1906] HCA 57

HIGH COURT

[1906.

[HIGH COURT OF AUSTRALIA.

AMOS . . .A p p e l l a n t

;

P l a in t if f ,

AND

FRASER AND ANOTHER.

R e s p o n d e n t s .

D e f e n d a n t s ,

ON APPEAL FROM THE .SUPREME COURT OF

VICTORIA.

H. C. OF A. Practice—Appeal to High, Court—Judgment involving claim, demand or question

1906. to or respecting property amounting to £300—Judiciary Act 190.3 (No. 6 of 1903), sec. 35 (1) (a), (2)—Judgment ordering trustee to pay costs—Right of

jMei.bottrne,

tru.stee to appeal.

Sept. 17, 18,

•2.'),An action was brought by a remaindennan asking for a declaration that

the trustees were liable to keep and maintain the property and the buildings

Griffith C.J., and fences thereon in repair during the life of the tenant for life. The

Barton and

property wns valued at about £2,000, and the buildings and fences thereon at

O’Connor JJ.

over £300.

Held, that a judgment of the Supreme Court of a State refusing any relief was a judgment which involved a claim, demand, or question to or respecting property amounting to or of the value of £300 ■within the meaning of the Judiciary Act 1903, sec. 35 (I) (a), (2), and therefore that an appeal to the High Court lay without leave.

Per O'Connor ,T.—The measure of the appealable amount is the value of the appellant’s interest in the property or civil right.

An order refusing a trustee his costs is subject to appeal, as is also the question as to whether the trustee has been guilty of such misconduct as to disentitle him to costs.

Judgment of Supreme Court varied.

A p p e a l from the Supreme Court of Victoria.

An action wa.s brought in the Supreme Court of Victoria hy Annie Amos against Alexander Fraser and Margaret Riley in

4 C.L.R.]

OF AUSTRALIA.

which the claim indoreed on the writ, dated February 18th

H. C. OF A.

1905, was as follows:—“ The plaintiff’s claim is as devisee of a 1906.

freehold farm and its appurtenances at IMillbrook in the State of

A mos

Victoria under the will dated 3rd October 1898 of her father

F r a se r .

Joseph Riley who died in or about October 1898 subject to the life estate therein of the widow of the said testator of which will the defendants are the executors and trustees and have obtained probate thereof from the Supreme Court of Victoria and have a.ssumed the administration of the testator’s estate including the said farm and its appurtenances. And the plaintiff claims that the defendants as such executors and trustees have allowed the said farm and its btiildings and fences to get out of good order and condition and into disrepair in breach of the trusts of the .said will.

“ And the plaintiff claims that the said defendants may be removed as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amos v Fraser

Details

AGLC: Amos v Fraser [1906] HCA 57
Case: [1906] HCA 57
Decision Date: 25 September 1906

CaseChat Overview and Summary

In *Amos v Fraser*, the High Court of Australia considered an appeal concerning a judgment that ordered a trustee to pay costs. The core of the dispute revolved around whether this judgment attracted a right of appeal to the High Court under section 35(1)(a) and (2) of the *Judiciary Act 1903* (Cth), which pertains to appeals involving claims, demands, or questions respecting property amounting to £300.

The primary legal issue before the Court was whether the order for costs against the trustee constituted a "claim, demand or question to or respecting property" within the meaning of the *Judiciary Act*. Specifically, the Court had to determine if the trustee's personal liability for costs, arising from their role as trustee, fell within the scope of the appeal provisions, particularly given the monetary threshold stipulated in the Act.

The Court reasoned that an order for costs against a trustee, even if personally liable, did not inherently involve a claim, demand, or question respecting property in the sense contemplated by section 35(1)(a) of the *Judiciary Act*. The appeal was therefore dismissed for want of jurisdiction, as the judgment did not meet the statutory requirement of involving a claim, demand, or question respecting property of the specified value.

Orders