NEW SOUTH WALES. Equitable set of - Damages in action of tort-Unsettled accounts between parties- 1907, 1908.
Stay of execution by injunction in equity. SYDNEY,
Action for conversion - Evidence in reduction of damages-Money expended by
defendant in paying of mortgage on subject matter of action. Dec. 11, 12,
Administration-Money paid for benefit of estate before appointment of administrator
-Ratification-Amendment of statement of claim. April 1.
Where a plaintiff has recovered damages in an action for conversion, equity will not, on the ground of equitable set off, restrain the plaintiff from issuing execution to recover the amount of the verdict merely because there
are unsettled accounts pending between the parties, although the subject matter of the accounts consists of dealings and transactions affecting the property in respect of which the action was brought.
Rawson v. Samuel, Cr. &Ph., 161, applied. In an action for conversion the defendant is entitled, in reduction of damages, to have taken into consideration moneys voluntarily expended by him in paying off a mortgage debt secured upon the subject matter of the action for which the plaintiff would otherwise have been liable.
Peruvian Guano Co. v. Dreyfus Bros. and Co., (1892) A.C., 166, at p. 170 (n), applied.
Moneys advanced for the benefit of an intestate estate before the grant of administration, even if advanced at the request of the person subsequently appointed administrator, cannot be recovered from the estate unless the prior request is ratified by the administrator after appointment.
In re Watson; Ex parte Phillips, 19 Q.B.D., 234, followed.
A person who voluntarily pays off a mortgage over personal property belonging to another, under a mistake of fact not caused or contributed to by the mortgagor, has no lien on the property for the amount SO paid.
Falcke v. Scottish Imperial Insurance Co., 31 Ch. D., 234, applied. Per Griffith C.J. and Barton J. :-A plaintiff in equity, respondent in an appeal to the High Court from the decision of a Judge of first instance, was refused leave to amend his claim where the amendment proposed would have converted the claim into one which the Court of first instance would probably, in accordance with the practice of the Court, have refused to entertain on the ground that the relief sought could have been obtained in a Court of law, and where the claim and the defences that might be set up in answer to it involved matters that had already been the subject of concluded litigation at law between the parties.
Decision of A. H. Simpson C.J. in Equity reversed.
APPEAL from a decision of A. H. Simpson Chief Judge in Equity of the Supreme Court of New South Wales.
This was a suit in equity by the respondent, Barbara Ziymack, against the appellant, widow and administratrix of the estate of W. C. Hill. At the hearing the respondent was successful, a decree being made by A. H.…
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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AGLC
Hill v Ziymack [1908] HCA 13
Case
[1908] HCA 13
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales in Equity. The dispute arose between Barbara Ziymack, the respondent, and the widow and administratrix of the estate of W. C. Hill, the appellant. Following a successful action for conversion brought by the appellant against the respondent, in which the respondent was ordered to pay damages, the respondent instituted proceedings in equity seeking to set off certain claims against the verdict and to restrain execution on the judgment.
The primary legal issues before the High Court were whether the respondent was entitled to an equitable set-off against the damages awarded in the tort action, whether moneys voluntarily expended by the respondent in paying off a mortgage on the subject matter of the conversion action could be recovered from the estate, and whether moneys advanced for the benefit of the intestate estate before the grant of administration could be recovered without ratification by the administrator. The court also considered whether a person who voluntarily pays off a mortgage over another's personal property under a mistake of fact has a lien on that property.
The High Court determined that equity would not restrain a plaintiff from issuing execution on a damages verdict on the ground of equitable set-off merely because of unsettled accounts between the parties, even if those accounts related to the property in question, citing *Rawson v. Samuel*. The court held that in an action for conversion, the defendant is entitled to have moneys expended in paying off a mortgage on the subject matter taken into account in reduction of damages, as per *Peruvian Guano Co. v. Dreyfus Bros. and Co.*. Furthermore, moneys advanced for an intestate estate before administration, even at the request of the future administrator, cannot be recovered from the estate unless ratified by the administrator after appointment, following *In re Watson; Ex parte Phillips*. The court also found that a person voluntarily paying off a mortgage over another's property under a mistake of fact, not caused or contributed to by the mortgagor, has no lien on the property, referencing *Falcke v. Scottish Imperial Insurance Co.*.
The High Court reversed the decision of the Supreme Court of New South Wales. It found that the respondent had no right to an equitable set-off, that her claims for moneys paid to discharge debts and for moneys lent were essentially legal claims that could not be enforced in equity in this manner, and that there was no basis for a lien on the funds in court. Consequently, the court held that the respondent was not entitled to the relief granted by the Supreme Court.