Hume v Monro - [1941] HCA 39

HUME AND OTHERS

APPELLANTS; PLAINTIFFS,

MONRO AND OTHERS

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Practice-Supreme Court (N.S.W.)-Equitable jurisdictionDeclaration of right-

Negative declaration-Argument of preliminary point of law-Want of equity- Consideration of whole record-Statement of claim disclosing no equity-Assertion of equitable claim by defendant-Equity Act 1901 (N.S.W.) (No. 24 of 1901), sec. 10-Administration of Justice Act 1924 (N.S.W.) (No. 42 of 1924), sec. 18 -Consolidated Equity Rules 1902 (N.S.W.), r. 155.

The jurisdiction to make a declaratory decree without consequential relief under sec. 10 of the Equity Act 1901 (N.S.W.), as amended by sec. 18 of the Administration of Justice Act 1924 (N.S.W.), extends to the declaration of the non-existence of equitable rights or interests in the defendant and is not limited to the declaration of their existence in the plaintiff.

Where a submission of want of equity is argued as a point of law under rule 155 of the Consolidated Equity Rules 1901 (N.S.W.), the court, in order to determine whether an equity exists, may take the whole record into considera- tion and is not confined to the statement of claim. Where the claim is for a declaratory decree negativing the existence of rights claimed by the defendant and no consequential relief is sought, it is sufficient to give to the court juris- diction under sec. 10 of the Equity Act 1901 (N.S.W.), as amended by sec. 18 of the Administration of Justice Act 1924 (N.S.W.), that it appears upon the whole record that the claim which the defendant is making is equitable it is not necessary in such a case that the statement of claim should disclose that some question of equitable rights or remedies is involved.

Decision of the Supreme Court of New South Wales (Roper J.), by majority (Rich, McTiernan and Williams JJ., Starke J. dissenting), reversed.

65 CLR 352

APPEAL from the Supreme Court of New South Wales.

A suit, in which the plaintiffs claimed declarations of right but did not claim consequential relief, was brought in the equitable jurisdiction of the Supreme Court of New South Wales by Stanley William Huon Hume, Norman Francis Rawdon Hume and Francis Albert Wakely against Cecil Owen James Monro, Jane Alice Nesbitt Wheat, as executrix of the will of Gerard Stephenson Wheat deceased, John Harrison Wheat, Arnold Victor Richardson, as official receiver of the estate of Ralph Mervyn Mitchell Houston deceased under the Bankruptcy Act 1924-1933, and Holt Sutherland Co. (1933) Ltd.

The statement of claim alleged in substance :-(a) a written request by one Marien to a predecessor in title of the defendant company for a ninety-nine years' lease at a rent therein mentioned of certain land under the Real Property Act dealing with which said land was controlled by the Holt-Sutherland Estate Act 1900, the said request containing a promise to pay rates and taxes (b) devolution of Marien's interest to the plaintiff Stanley William Huon Hume through a series of "purported transfers" by instruments in writing each…

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 Hume v Monro

Details

AGLC: Hume v Monro [1941] HCA 39
Case: [1941] HCA 39
Decision Date: 8 December 1941

CaseChat Overview and Summary

The appellants, Stanley William Huon Hume and others, initiated a suit in the equitable jurisdiction of the Supreme Court of New South Wales against Cecil Owen James Monro and others, including Holt Sutherland Co. (1933) Ltd. The dispute concerned the alleged liability of the appellant Hume for rent and other payments in relation to certain land. The appellants sought declarations that there was no privity of interest or future liability between Hume and the respondent company concerning the land.

The primary legal issue before the court was whether the Supreme Court, in its equitable jurisdiction, possessed the power to grant the declaratory decrees sought by the plaintiffs, particularly when no consequential relief was claimed. This question arose from a preliminary point of law raised by the respondent company, which argued that the plaintiffs had no equity entitling them to proceed in equity and that any remedy lay at law.

The High Court, by majority, reversed the decision of the Supreme Court. The Court reasoned that the jurisdiction to make a declaratory decree under section 10 of the Equity Act 1901 (N.S.W.), as amended, extends to declaring the non-existence of equitable rights or interests in a defendant, not merely their existence in the plaintiff. Furthermore, when a submission of "want of equity" is argued as a preliminary point of law under rule 155 of the Consolidated Equity Rules, the court is entitled to consider the entire record, not just the statement of claim, to determine if an equity exists. The Court found that the statement of defence, when considered with the statement of claim, indicated that the respondent company was asserting a claim that could be considered equitable, thus attracting the jurisdiction of the equity court.

The High Court allowed the appeal, discharged the order of the Supreme Court, and ordered that the determination of the point of law be deferred until after evidence had been taken at the hearing. The parties were granted liberty to amend their pleadings, and costs were reserved.

Orders