down appeal for hearing-Transcript, extension of time for lodging Rules of the High Court 1911, Part 11., Sec. III., rr. 15, 18. Indemnity, action for-Principal and agent-Money received by agent and paid

over to principal-Declaration of agents' right to indemnity-Order to pay the money to agent-Subsequent bankruptcy of agent-Official assignee-1 - Rights of.

16 CLR 286

Where an appellant to the High Court from the Supreme Court of a State, who has given notice of appeal and lodged the security, has by a slip failed to set down the appeal for hearing on the proper day, the appeal will not be dismissed for want of prosecution under the Rules of the High Court 1911, Part II., Sec. III., r. 15, when there is no reason to suppose that the appellant does not intend to prosecute the appeal, if the respondent has suffered no loss, and if the slip has had no effect by way of putting off the hearing of the appeal.

An order made ex parte for extending the time for lodging the transcript will not be set aside if the respondent is in no way aggrieved by it.

An agent on behalf of an undisclosed principal received several sums of money from several other persons on a consideration that had failed, and paid such money over to his principal.

Held, that the agent, although he was entitled to be indemnified by his principal in respect of such sums, was not entitled also to an order that the principal should pay over to him the total amount of such sums.

The agent, after judgment for him in an action against his principal to obtain the indemnity, became bankrupt, and the principal having appealed to the High Court against such judgment, the official assignee was made a

Held, that the official assignee was not entitled to any further relief than that to which the agent was entitled.

Decision of the Supreme Court of New South Wales (Rich J.) varied.

APPEAL from the Supreme Court of New South Wales.

In the year 1910 certain agreements were made between Christopher Smith Cross, James Ceerel Rankin and certain other parties, for the formation of a mining company to take over the assets of another mining company then in liquidation. As a con- sequence of these agreements a sum of £517 16s., representing payments of sixpence per share by shareholders of the old com- pany in respect of applications by them for shares in the new company, was received by Cross as agent for Rankin, and was duly paid over to Rankin. The flotation of the new company having failed, the shareholders of the old company, who had paid the several sums last above mentioned, became entitled to repay- ment of them, and several of such shareholders having applied for repayment to Cross, he…

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 Rankin v Palmer

Details

AGLC: Rankin v Palmer [1912] HCA 95
Case: [1912] HCA 95
Decision Date: 12 December 1912

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. The dispute arose from an agency agreement where the plaintiff, Cross, acting as an agent for the defendant, Rankin, received money from shareholders for a failed mining company flotation and subsequently paid it over to Rankin. When the shareholders sought repayment, Cross requested Rankin to refund the money, which Rankin refused. Cross then sued Rankin for an indemnity and for Rankin to pay the sums received.

The legal issues before the High Court were twofold: first, whether the appeal should be dismissed for want of prosecution due to a procedural delay in setting down the appeal, and second, whether the Supreme Court's order requiring Rankin to pay the full amount received by Cross to Cross (or his official assignee) was appropriate, given that Cross was only entitled to an indemnity. The court also considered whether an ex parte order extending the time for lodging the transcript should be set aside.

The High Court held that the appeal should not be dismissed for want of prosecution, as the delay was a mere slip, the respondent had suffered no loss, and there was no indication that the appellant intended to abandon the appeal. The court also found no reason to set aside the ex parte order extending the time for lodging the transcript, as the respondent was not aggrieved by it. Regarding the substantive appeal, the court reasoned that an agent entitled to indemnity is not necessarily entitled to an order for the principal to pay the full amount received to the agent, especially before the agent has actually paid the third parties or their claims have been definitively established. The court applied the principle that the agent's right is to be indemnified, meaning they should not suffer any loss, rather than to receive the money directly, which could lead to unfairness if the agent then failed to discharge the liabilities.

Consequently, the High Court varied the Supreme Court's decree. The order for Rankin to pay the sum of £516 10s. to Cross was omitted. It was substituted with an order that Rankin must, within 14 days of written notice from the respondent (Palmer, the official assignee of Cross) of any demand made upon Cross or his estate, procure the release or discharge of Cross's estate from such claims, either by payment or otherwise. The appellant was not awarded costs of the appeal due to the procedural delays, but neither was he ordered to pay the respondent's costs.

Orders