Ballas v Theophilos (No 1) - [1957] HCA 49

THEOPHILOS

RESPONDENT. DEFENDANT, Practice-High Court-Appeal from Supreme Court of State-Appealable amount-

" Claim to or respecting any property

of the value of £1,500 "-Whether amount payable by appellant if successful to respondent by way of e.g. purchase MELBOURNE,

money for the property in question to be deducted in arriving at value-Judiciary May 28, 29;

Act 1903-1955 (No. 6 of 1903-No. 35 of 1955), S. 35 (1) (a) (2). SYDNEY,

Section 35 (1) (a) (2) of the Judiciary Act 1903-1955 provides that an appeal July 11.

lies to the High Court from every judgment claim to or respecting any property

of the value of £1,500." Held: that the condition set out in S. 35 (1) (a) (2) is fulfilled if loss of the appeal will deprive the appellant of property of the value of £1,500. It is not necessary for the appellant to establish that when all the economic consequences of the judgment in the court below are pursued they leave him at an ultimate disadvantage estimated or computed at more than the equiv- alent of £1,500.

Per Kitto J.: The matter or property in dispute on the appeal or the pro- perty to or respecting which a claim demand or question is involved in the judgment may not be the same for both parties, in which event the matter or property to be valued is that which is seen to fill the description when the judgment is looked at through the eyes of the appellant.

OBJECTION to competence of appeal from Supreme Court of Victoria.

Harry Ballas commenced an action in the Supreme Court of Victoria against one Efstratia Theophilos, the executrix of the will of his former partner Michael Theophilos deceased, claiming a declaration that he had exercised an option given by the articles

97 CLR 187

of partnership to purchase the share of his deceased partner and further relief consequential upon such declaration. The defendant executrix counterclaimed for the winding up of the partnership upon the footing that the option had not been exercised and that the partnership had been dissolved by the death of Michael Theophilos and for an order appointing a receiver and manager of the partner- ship business. The action came on for hearing before Smith J. who dismissed it but ordered on the counterclaim that the partnership be wound up and that a receiver and manager be appointed. From this decision Ballas appealed to the High Court.

By notice dated 22nd February 1957 the respondent executrix objected to the competency of the appeal on the following grounds 1. The said judgment is not a judgment given or pronounced for or in respect of any sum or matter in issue amounting to or of the value of fifteen hundred pounds. 2. The said judgment does not involve directly or indirectly any claim demand or question to or respecting any property or any civil right amounting to or of the value of fifteen hundred pounds. 3. The interest of the appellant in obtaining…

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.

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Details

Case: [1957] HCA 49
Decision Date: 11 July 1957

CaseChat Overview and Summary

In *Ballas v Theophilos (No 1)*, the High Court of Australia considered an objection to the competency of an appeal from the Supreme Court of Victoria. The appellant, Harry Ballas, had sought a declaration that he had exercised an option to purchase his deceased partner's share in a partnership. The respondent, the deceased partner's executrix, counterclaimed for the winding up of the partnership, asserting the option had not been exercised. The Supreme Court dismissed the appellant's claim and ordered the partnership to be wound up. The appeal to the High Court was brought as of right, based on the contention that the judgment involved a claim to or respecting property of the value of £1,500, as stipulated by s 35(1)(a)(2) of the *Judiciary Act 1903-1955*.

The central legal issue before the High Court was whether the appeal was competent under s 35(1)(a)(2) of the *Judiciary Act 1903-1955*, which grants a right of appeal from judgments involving a claim to or respecting property or a civil right of the value of £1,500. The respondent argued that the appellant had not demonstrated that the judgment deprived him of property or a civil right of that value, particularly after accounting for any purchase price he might have to pay. The appellant contended that the value of the property in dispute, being his deceased partner's share in the business, exceeded the appealable amount, and that the loss of this property was the direct consequence of the judgment.

The High Court, in a joint judgment by Dixon C.J., Webb and Fullagar JJ., and in a separate judgment by Kitto J., held that the objection to competency failed. The Court reasoned that the condition in s 35(1)(a)(2) is satisfied if the loss of the appeal would deprive the appellant of property valued at £1,500 or more. It is not necessary to deduct any potential liabilities or purchase prices to arrive at the ultimate economic disadvantage. The Court emphasised that the focus should be on the value of the property to which the claim relates, viewed from the appellant's perspective. Kitto J. further clarified that the property to be valued is that which is seen to fill the description in the legislation when the judgment is considered through the eyes of the appellant, and this may differ from the property as viewed by the respondent. The Court found that the appellant's claim was to the entirety of the business assets, which were of a value exceeding £1,500, and the judgment deprived him of this property.

Consequently, the High Court overruled the respondent's objection to the competency of the appeal.

Orders