Tenenwurcel v Tenenwurcel - [1958] HCA 12

TENENWURCEL TENENWURCEL

RESPONDENT. PLAINTIFF, Practice-High Court-Appeal from Supreme Court of State-Appealable amount-

" Claim to or respecting any property of the value of £1,500 -Claim by defendant that property in question held in trust for him-Property purchased for total price of £2,100 payable by deposit and balance over period of years- Subsequent transfer of title and taking of mortgage by vendor-Only £1,340 paid off at time of trial-Declaration at trial that defendant entitled to charge on property for £409-Otherwise judgment for plaintiff for possession of property -Purported appeal by defendant-Whether judgment involving claim to property of value of £1,500-Onus of establishing competency of appeal-Judiciary Act 1903-1955 (No. 6 of 1903-No. 35 of 1955), 8. 35 (1) (a).

The appellant claimed that he was beneficially entitled to certain premises standing in the name of the respondent. The premises were subject to a mortgage representing a balance of purchase money. After deducting the amount of the mortgage from the value of the premises the amount remaining was less than £1,500. The appellant's case was that he had bought the land for himself in the respondent's name being himself liable for the purchase money. In the Supreme Court the facts were found against the appellant

Held that the judgment did not prejudice him to the extent of £1,500 and he was not entitled to appeal as of right.

OBJECTION to competency of appeal from the Supreme Court of Victoria.

Luba Tenenwurcel, the respondent to a purported appeal from the Supreme Court of Victoria wherein Ignacy Tenenwurcel was

98 CLR 666

appellant objected to the competency of the appeal. The relevant facts appear in the judgment hereunder.

Appellant in person. M. Ravech for the respondent.

Cur. adv. vult.

THE COURT delivered the following written judgment :- This appeal was met by an objection to its competency on the ground that the judgment from which it is sought to appeal does not fulfil any of the requirements of S. 35 (1) (a) of the Judiciary Act 1903-1955. The question is whether the judgment involves a claim demand or question to or respecting property amounting to or of the value of £1,500. The appeal is from a judgment of the Full Court of the Supreme Court of Victoria dismissing an appeal from a judgment of Pape J. The judgment of Pape J. was given upon the trial of an action in which the present appellant was the defendant and the respondent who now objects to the competency of the appeal was the plaintiff. The plaintiff's claim in the action was for the recovery from the defendant of certain premises in North Carlton. The defendant, in answer to the claim, said that he was beneficially entitled to the premises, the plaintiff being a trustee for him further that he was a tenant entitled to rely on the Landlord and Tenant (Amendment) Acts (Vict.). It appeared from documents put in evidence at the trial that the plaintiff and defendant had been married at the…

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

AGLC: Tenenwurcel v Tenenwurcel [1958] HCA 12
Case: [1958] HCA 12
Decision Date: 2 April 1958

CaseChat Overview and Summary

This case concerns an objection to the competency of an appeal from the Supreme Court of Victoria to the High Court. The appellant, Ignacy Tenenwurcel, sought to appeal a judgment that dismissed his appeal from a decision of Pape J. The original action involved the respondent, Luba Tenenwurcel, seeking possession of certain premises, with the appellant claiming beneficial entitlement to the property as the purchaser, with the respondent holding it in trust.

The central legal issue before the High Court was whether the judgment from which the appellant sought to appeal involved a claim, demand, or question respecting property of the value of £1,500, as required by s. 35(1)(a) of the Judiciary Act 1903-1955 to grant an appeal as of right. The appellant contended he was beneficially entitled to the property, which was subject to a mortgage representing unpaid purchase money.

The Court reasoned that the appellant's claim was to an equity of redemption, not an unencumbered fee simple. While the purchase price of the property was £2,100, the outstanding mortgage at the time of trial meant the value of the appellant's claimed interest, even assuming the property was worth its purchase price, was less than £1,500. Furthermore, the trial judge had declared the appellant entitled to a charge on the property for £409, further reducing the value of his potential prejudice. The onus was on the appellant to establish the competency of the appeal, and the evidence did not demonstrate that the judgment prejudiced him to the extent of £1,500.

Consequently, the High Court found the appeal to be incompetent. The Court dismissed the appeal as incompetent with costs.

Orders