Hay v Dalgety and Company Ltd - [1907] HCA 5

4 C.L.H.] OF AUSTRALIA.

913

[HIGH COURT OF AUSTRALIA.]

HAY

Appellant;

Plaintiff,

DALOETY & COMPANY LTD.

Respondents.

D efendants,

ON APPEAL FROM THE SUPREME COURT OF

VICTORIA.

Practice—Trial with a ju ry—Cause “ heretofore unthiu the coijnizance of the Court H. C. of A.

in its Equitable Jurisdicliou ’’—Action for damar/es fo r breach of covenant— 1907.

MorUjayor and mortyayee—Prolonyed, examination of documents or accounts—

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Rules of Su))7'eme Court (Viet.) 1884, Order X X X V I . , rr. 3, 4, .5, 6, 7. Melbourne,

March 25, 26.

A plaintiff alleged in his statement of claim, that, by a covenant in a mort-

____

Griffith C.J., Barton,

gage deed between himself as mortgagor and the defendants as mortgagees,

the defendants covenanted not to realize on the mortgage security until they O’Connor and

had realized on the security of a prior mortgage between the same parties

Hijrcins JJ.

given to secure the same debt, and that the defendants had committed a

breach of such covenant, and he claimed damages for such breach.

HeW, that the cause was one “ heretofore within the cognizance of the Court in its Eriuitable Jurisdiction,” within the meaning of Order XXXVI., r. 3 of Rules of the Supreme Court 1884, and therefore that the action must be tried before a Judge without a jury, unless the Court otherwise ordered.

Per Griffith C .J.:—The words “ any prolonged examination of documents or accounts ” in Order XXXVI., r. 5, refer to an examination by the jury.

Decision of the F’ull Court affirmed, but on a different ground.

Appeal from the Supreme Court of Victoria.

An action was brought in the Supreme Court by Adam Hay against Dalgety & Company Limited, in which the plaintiff by liis statement of claim made the following allegations :—That by an indenture dated 4th April 1889 made between the plaintifl

914 HIGH COURT

[1907.

C. OF A. and the defendants, the plaintiff assigned to the defendants b}’

1907.

way of mortgage to secure the repayment of moneys due and to

H aybecome due by the plaintiff" to the defendants, certain interests to

Dalgety &

which he was entitled under the wills and in the estates of John

Co. Lt d .Moffat and Robert Moffat, deceased, and under the wills or in the

estates of various beneficiaries under these wills : That by another indenture dated 25th April 1885 made between the plaintiff and Robert Hay, of the one part, and the defendants of the other part, the plaintiff and Robert Hay assigned to the defendants, by way of mortgage to secure the repayment of the moneys therein referred to, a certain station known as Palparara in Queensland with the stock and working plant; That by the provisions of the indenture of 4th April 1889 it was covenanted and agreed by the defendants with the plaintiff that none of the powers of sale and realization contained in such indenture should be exercised by 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.

Continue reading Hay v Dalgety and Company Ltd

Details

AGLC: Hay v. Dalgety & Co. Ltd. [1907] HCA 5
Case: [1907] HCA 5
Decision Date: 26 March 1907

CaseChat Overview and Summary

In *Hay v Dalgety and Company Ltd*, the High Court of Australia considered an appeal concerning an action for damages for breach of covenant. The dispute arose between the mortgagor, Hay, and the mortgagee, Dalgety and Company Ltd.

The central legal issue before the High Court was whether the action, which involved a prolonged examination of documents and accounts, was a matter that fell "heretofore unthiu the cognizance of the Court in its Equitable Jurisdiction." This question was critical in determining whether the case should be tried with a jury.

The Court reasoned that actions involving the examination of accounts and documents, particularly those arising from complex contractual relationships like a mortgage, were traditionally matters dealt with by courts of equity. Equity courts were equipped to handle such intricate financial investigations without the need for a jury. Therefore, the High Court held that the nature of the dispute, requiring extensive examination of accounts, meant it was not a matter for a jury trial.

The High Court upheld the decision that the case should not be tried with a jury.

Orders