Heydon v Lillis - [1907] HCA 73

HEYDON AND ANOTHER

APPELLANTS; PLAINTIFFS,

BRIDGET LILLIS

RESPONDENT. DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF Building and Co-operative Societies Act (N.S.W.), (No. 17 of 1901), secs. 20, 24,

59 Appointment of new trustees-Removal of trustee-Vesting of pro- perty of Society in succeeding trustee-Action of ejectment by trustees against mortgagor in default-Dispute between Society and members-Jurisdiction of Supreme Court. Supreme Court Procedure Act 1900 (N.S.W.) (No. 49 of 1900), sec. 7 - -Motion to

enterverdict-Abortivetrial-Disagreement of jury- - Power of Court.

Sec. 59 of the Building and Co-Operative Societies Act 1902 provides that in all societies established under the Act all applications for the removal of trustees or for the settlement of disputes arising in any society, the rules of which do not prescribe any other mode of settling such disputes, or for any other relief, order or direction, shall be made in the District Court.

The trustees of a Building Society brought an action of ejectment as mort- gagees against the executrix of a mortgagor a former member of the Society. At the trial the defendant disputed the accuracy of the mortgagees' accounts, but it appeared that even according to her accounts there had been a default in the payments such as would by the terms of the mortgage entitle the mortgagees to enter into possession.

Held, that the Supreme Court had jurisdiction to entertain the action inasmuch as there was no dispute between the parties the settlement of which was necessary or material to the plaintiffs' claim, and no assertion of any right to relief within the meaning of sec. 59.

4 CLR 1224

Sec. 20 provides that in the case of any vacancy in the office of trustee, a new trustee shall be elected by the members of the society and the appoint- ment verified in a certain manner and forwarded to the Registrar appointed under the Act; but by sec. 13 this provision is only to apply in cases where the Society has not by its rules made other provision for such a case, incon sistent with the application of sec. 20 to the Society.

A society, in the exercise of the powers conferred upon such societies by Statute, provided by its rules that, on the death or retirement of a trustee, a new trustee should be elected in his place in a manner which differed materi ally from the manner prescribed by sec. 20, and that the appointment should be duly certified and forwarded to the proper officer. One of the trustees of the society having retired, a new trustee was elected in his place in the manner prescribed by the rules, but without the formalities prescribed by

Held, that the appointment was valid, and that, as the Act did not apply and the rules did not require that the appointment should be certified by any person in particular, it was sufficient that its authenticity was guaranteed by the signatures of the Board which elected the trustee and of the secretary of…

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: [1907] HCA 73
Decision Date: 19 April 1907

CaseChat Overview and Summary

The appellants, trustees of a building society, brought an action of ejectment against the respondent, the executrix of a deceased mortgagor and former member of the society. The dispute arose from the society's claim to possession of mortgaged land due to alleged default in payments. The case was heard in the Supreme Court of New South Wales, where the jury was discharged due to disagreement.

The legal issues before the High Court were: (1) whether the Supreme Court had jurisdiction to enter a verdict for the plaintiffs under section 7 of the Supreme Court Procedure Act 1900, despite the jury's disagreement; (2) whether the plaintiffs had been properly appointed as trustees; (3) whether the property in question had legally vested in the plaintiffs as trustees; and (4) whether the Supreme Court's jurisdiction was ousted by section 59 of the Building and Co-operative Societies Act 1902, which directed certain applications to the District Court.

The High Court held that the Supreme Court did have jurisdiction under section 7 of the Supreme Court Procedure Act 1900 to enter a verdict when a jury disagreed, as the section's wording "in any action" was broad enough to encompass such circumstances. Regarding the trustees' appointment, the Court found it valid, noting that the society's rules, which differed from section 20 of the Act, provided for the election of new trustees and that the appointment was sufficiently authenticated by the signatures of the Board and the secretary. The Court also determined that the property vested in the new and continuing trustees without conveyance under section 24(2) of the Act, interpreting "removal" to include the acceptance of a trustee's resignation. Finally, the Court held that the Supreme Court's jurisdiction was not ousted by section 59, as the ejectment action did not constitute a "dispute" within the meaning of that section, particularly as the defendant's own accounts showed a default.

The High Court reversed the decision of the Supreme Court, ordering that a verdict be entered for the plaintiffs.

Orders