Heydon v Lillis

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.