Begley v Attorney-General (NSW) - [1910] HCA 69

ROBERT LOUDEN BEGLEY

THE ATTORNEY-GENERAL OF

NEW SOUTH WALES

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Administration-Administration bond-Action against surety-Evidence of breach

of conditions of bond by administratrix-Decree - against administratrix in administration suit-Admissibility against surety-' Res inter alios acta - SYDNEY,

Construction of administration bond-Rest and residue clause-Proof of Nov. 18, 21,

damage-Assignments of their interests by next of kin to administratrix- - Charter of Justice (N.S. W.) secs. XV., XVI.-Wills, Probate and Administra- tion Act 1898 (N.S.W.) (No. 13), sec. 155-Practice-Nominal pluintiff Relator-Title of proceedings.

An action was brought against the appellant as surety to an administration bond, which was in the form prescribed by sec. 15 of the Charter of Justice. The breaches alleged were: (1) that the administratrix did not well and truly administer; (2) that she did not make a true and just account of her adminis. tration; and (3) that she did not dispose of the rest and residue found remaining upon the administration account, after allowance of accounts in due course of administration, or as directed by the Court.

11 CLR 433

Held, that, in the absence of a special agreement by the surety to be bound by an order made against his principal, a decree of the Equity Court in an administration suit brought by one of the next of kin against the administratrix was not evidence against the surety in support of either the first or third breaches, because the surety was not a party to the proceedings, and, as to the third breach, the decree was not a direction to the adminis- tratrix to dispose of the "rest and residue" within the meaning of the bond.

Ex parte Young; In re Kitchin, 17 Ch. D., 668, followed. Per Griffith C.J., Barton J. and O'Connor J.-The assets for the due administration of which the surety was liable are those of which the Court would take cognisance upon a plea of plene administravit. The direction of the Court referred to in the condition of a bond in the form prescribed by sec. 15 of the Charter of Justice relates to an ascertained sum which is or has been in the hands of the administrator, and for which the administrator would have been liable to account to a Court of Ecclesiastical Jurisdiction in

Held, also, that, on the question of the sum which could be recovered in the action, evidence was admissible to prove that the actual loss sustained by the estate was less than that sustained in the decree, and also to prove an assignment of the interests of the next of kin to the administratrix,

Per Griffith C.J.-In an action upon an administration bond under see. 16 of the Charter of Justice the Attorney-General is a mere nominal plaintiff. The name of the relator, who is the real plaintiff, should appear upon the

Decision of the Supreme Court: Attorney-General v. Begley, 10 S.R. (N.S.W.), 135, reversed.

APPEAL by the defendant from the decision of the…

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.

Keep reading for free

Create a free CaseChat account to read Begley v Attorney-General (NSW) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1910] HCA 69
Decision Date: 7 December 1910

CaseChat Overview and Summary

The case of *Begley v Attorney-General (NSW)* involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The action was brought in the name of the Attorney-General against the appellant, Mr. Begley, who was the surety to an administration bond. The bond was executed by Honorah O'Brien as administratrix of the estate of John O'Brien, with Mr. Begley and another individual as sureties. The core dispute concerned the admissibility and effect of a decree made in an administration suit brought by one of the next of kin against the administratrix, in an action against the surety for alleged breaches of the administration bond.

The legal issues before the High Court were whether a decree of the Supreme Court in its equitable jurisdiction, made in an administration suit against an administratrix, constituted admissible evidence against the surety in an action on the administration bond for breaches of its conditions. Specifically, the court had to determine if this decree was evidence of the administratrix failing to "well and truly administer" and failing to "pay and dispose of the rest and residue" as directed by the Court. A further issue was whether evidence tendered by the surety, demonstrating that the actual loss to the estate was less than the amount decreed and that the interests of other next of kin had been assigned to the administratrix, was admissible.

The High Court, in allowing the appeal, held that the decree in the administration suit was not admissible as evidence against the surety for the alleged breaches of the bond. The Court reasoned that, in the absence of a special agreement by the surety to be bound by such a decree, it was *res inter alios acta* (a matter between other parties) and therefore inadmissible. This principle was applied to both the breach of failing to administer properly and the breach concerning the disposal of the rest and residue. The Court further clarified that the "direction of the Court" referred to in the bond's condition related to an ascertained sum that the administrator was liable to account for to an Ecclesiastical Court, not necessarily to broader orders made in equity concerning profits or occupation rent. The Court also found that evidence of assignments of interests by the next of kin to the administratrix was admissible, as the surety's liability could not exceed that of the principal, and such assignments could demonstrate a reduced or extinguished loss to the estate.

Consequently, the High Court reversed the decision of the Supreme Court of New South Wales. The Court ordered that the proceedings in the administration suit should not have been admitted as evidence against the surety and that the rejected evidence tendered by the defendant should have been received. The case was remitted for a new trial.

Orders