Caldwell Brothers v Cobbledick

Caldwell Brothers, the plaintiffs, appealed to the High Court of Australia after the Supreme Court of South Australia dismissed their appeal from a nonsuit granted in the Local Court of Adelaide. The plaintiffs had sued Cobbledick, the defendant, to recover £252 4s. 6d. for principal and interest due under a bill of sale. The bill of sale stipulated that the principal sum was payable by weekly instalments, and that the entire principal would become due and payable if the grantor was in arrears for more than three weeks or breached any other covenant. The action was commenced more than three weeks after the due date for the second instalment.

The central legal issue before the High Court was the interpretation and application of section 108 of the Local Courts Act 1886 (S.A.). This section required a defendant intending to rely on a "special defence," such as payment, to file a memorandum stating the grounds of their defence at the time of giving notice of appearance. The plaintiffs argued that the defendant's failure to plead payment specially meant that the plaintiffs had discharged their onus of proof by establishing the covenant and the due date for the instalment.

The High Court held that section 108 of the Local Courts Act 1886 did not apply in this instance. The Court reasoned that the section was intended for situations where a defendant admits a debt but claims to have discharged it, which is a plea of confession and avoidance. In this case, the plaintiffs' cause of action was predicated on the non-payment of an instalment, meaning the liability itself had not yet arisen unless non-payment was proven. Therefore, the onus was on the plaintiffs to prove that the debt had become due and payable, which they had failed to do by simply presenting the bill of sale. The Court concluded that the defendant was not required to specially plead payment because the existence of the debt was the very question in dispute.

Special leave to appeal from the decision of the Supreme Court of South Australia was refused.